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Does the two year time limit in item 1 in the table in subsection 170(1) of the Income Tax Assessment Act 1936 (ITAA 1936) apply to prevent the Commissioner from amending an individual's assessment where: • the individual is a beneficiary of a trust estate • the trust is not a small business entity • the trustee of the trust estate is a company, and • more than two years, but less than four years have passed since the date the Commissioner gave the individual their assessment?

No. The two year time limit in item 1 in the table in subsection 170(1) of the ITAA 1936 does not apply in this case because one of the exceptions in paragraph (d) applies.

A resident individual was a beneficiary of a resident family discretionary trust. The trustee of the trust was a private company.

The trust was not a small business entity within the meaning of the term in subsection 995-1(1) of the Income Tax Assessment Act 1997 (ITAA 1997).

The Commissioner gave the individual a notice of assessment for the 2005-06 income year on 22 November 2006.

More than two years (but less than four years) after the notice of assessment was given to the taxpayer, the Commissioner identified that the taxpayer made an error in their return for the 2005-06 income year and amended the return.

The taxpayer considered that the Commissioner could not amend the return as the two year time limit in item 1 in the table in subsection 170(1) of the ITAA 1936 had expired.

The general rule is that the Commissioner may amend an assessment of an individual for a year of income within two years after the day on which the Commissioner gives notice of the assessment to the individual (two year period to amend): item 1 in the table in subsection 170(1) of the ITAA 1936. However, there are a number of qualifications to the general rule.

One such qualification is where the individual is a beneficiary of a trust at any time during the income year concerned: paragraph (d) in item 1 in the table in subsection 170(1) of the ITAA 1936. This means that generally the Commissioner may amend an assessment of an individual who is a beneficiary of a trust within four years after the day on which the Commissioner gives notice of the assessment to the beneficiary (four year period to amend).

However, there are two exceptions to that qualification where the individual is a beneficiary of a trust at any time in the year and: • the trust is a small business entity for that year, or • the trustee of the trust (in that capacity) is a full self-assessment taxpayer:

This means that the Commissioner will have a two year period to amend in this case if one of these two qualifications applies.

The first exception does not apply in this case. This is because, on the facts, the trust did not meet the definition of small business entity.

With respect to the second exception, 'full self-assessment taxpayer' is defined in subsection 6(1) of the ITAA 1936 and includes: (a) a company (b) the trustee of a corporate unit trust (c) the trustee of a public trading trust (d) the trustee of a complying or non-complying approved deposit fund (e) the trustee of a complying or non-complying superannuation fund (f) the trustee of a pooled superannuation trust (g) the trustee of a FHSA trust.

The resolution of this issue turns upon the words 'in that capacity'. A company is a full self-assessment taxpayer within the definition in subsection 6(1) of the ITAA 1936. However, a company, when acting in its 'capacity' as trustee of the trust (other than those listed in categories (b) to (g) above), is not a full self-assessment taxpayer. In that capacity, the company would lodge a trust income tax return and an assessment can be raised under section 169 of the ITAA 1936.

As the qualification in paragraph (d) of item 1 in the table in subsection 170(1) of the ITAA 1936 is met, the Commissioner has a four year period to amend any relevant assessments of the individual beneficiary.

This can be contrasted with the situation where, for example, the trustee is the trustee of a corporate unit trust. In this situation, the trustee would be required to lodge a company income tax return and the special rules in subsection 166A(3) of the ITAA 1936 for the assessment of full-self assessment taxpayers apply. This means that, provided no other qualification in item 1 of the table in subsection 170(1) of the ITAA 1936 is met, the Commissioner would have a two year period to amend any relevant assessments of an individual beneficiary. Note: this view is also confirmed by the explanation of the qualification in paragraph (d) in item 1 in the table in subsection 170(1) of the ITAA 1936 as outlined in paragraph 2.17 of the Explanatory Memorandum to the Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005. The explanation provides that an example of a full-self assessment taxpayer that the qualification applies to would be a corporate unit trust, public trading trust or superannuation fund.

Date of amendment Part Comment 27 July 2012 Facts Minor changes to clarify facts and improve readability Reasons for decision Amended to clarify the assessment provision that may apply to the trustee in these circumstances Reasons for decision Minor changes to improve readability Legislative References Inserted reference to section 169

Date of amendment | Part | Comment

27 July 2012 | Facts | Minor changes to clarify facts and improve readability

Reasons for decision | Amended to clarify the assessment provision that may apply to the trustee in these circumstances

Reasons for decision | Minor changes to improve readability

Legislative References | Inserted reference to section 169