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Will funds in a bank account in the company's name, held in trust for its clients, be included as an asset of the company for purposes of the 80% test contained in paragraph 152-40(3)(b) of the Income Tax Assessment Act 1997 (ITAA 1997)?

No. Funds in a bank account in the company's name, held in trust for its clients, will not be included in the 80% test contained in paragraph 152-40(3)(b) of the ITAA 1997.

The taxpayer and the taxpayer's spouse owned all the shares in the company that operated an agency business.

The company sold its business and made a capital gain.

Just before the sale of the business, one of the assets held in the company's name was a bank account containing funds held on behalf of various clients. It was the practice of the company to withdraw commissions from the account, and then hold the funds in the bank account before remitting them on behalf of the clients within 90 days of receipt. These funds were a substantial asset of the company prior to the sale of the business.

After the company sold its business, it was wound up and all of the shares were cancelled.

The net assets of the company and its associates were at all times less than $5,000,000.

Under subsection 152-40(3) of the ITAA 1997, shares in a company will be an active asset at a given time if the company is an Australian resident, and the company passes the '80% test'.

The 80% test requires that the total of the market values of the active assets of the company (and certain funds held pending the acquisition of new active assets) is 80% or more of the market value of all of the assets of the company.

Apart from the exception mentioned in the previous paragraph, cash (usually held as funds in a bank account) and the value of a debt owed to the company are included in the market value of all of the company's assets, but do not contribute to the active asset part of the 80% test calculation.

However, where the company holds legal title to the funds in the bank account, but does not have an equitable interest in these funds, it is appropriate, under general principles of trust law, to exclude the funds from the company's assets entirely.

A trust may be loosely defined as an equitable obligation binding a person to deal with property over which he or she has control for the benefit of other persons. The trustee holds legal title to the trust property, but in most cases does not have an equitable interest in it. The general principle is that in most cases the trust property cannot be said to be an asset that belongs beneficially to the trustee.

The funds in the bank account were held on trust for the benefit of various clients, and were kept separate from the company's other funds. Therefore, the funds in the bank account are not included as assets of the company when considering whether the 80% test contained in paragraph 152-40(3)(b) of the ITAA 1997 has been passed. Note 1: This note had been added to explain the legislative changes made to paragraph 152-40(3)(b) of the ITAA 1997 which has has been repealed by the Tax Laws Amendment (2006 Measures No 7) Act 2007 (Act No 55 of 2007). Subparagraph 152-40(3)(b)(ii) has been substituted by subparagraphs 152-40(3)(b)(ii) and 152-40(3)(b)(iii), applicable to CGT events happening in the 2006-07 income year and later income years. Subparagraph 152-40(3)(b)(iii) has been added to include any 'cash of a company or trust that is inherently connected with such a business' in the 80 per cent active asset test. However, this change does not affect the decision in this Interpretative Decision.