Trust losses - scheme to take advantage of deductions (income injection test) - prior year losses

Can the income injection test, pursuant to Division 270 of Schedule 2F to the Income Tax Assessment Act 1936 (ITAA 1936), apply to tax losses where the loss year is prior to the date the scheme commenced?

Yes. The income injection test pursuant to Division 270 of Schedule 2F to the ITAA 1936 can apply to tax losses where the loss year is prior to the date the scheme commenced.

The trust is a non-fixed trust. The trustee of the trust has not made a family trust election pursuant to section 272-80 of Schedule 2F to the ITAA 1936.

For the purposes of subsection 270-10(1) of Schedule 2F to the ITAA 1936, the relevant scheme was identified as commencing on 1 July 2001.

The trust has a prior year tax loss relating to the income year ended 30 June 1997.

The trust is not prevented, by the other tests prescribed in section 267-20 of Schedule 2F to the ITAA 1936, from deducting the prior year tax loss, nor is the trust an excepted trust. The other conditions prescribed in paragraphs 270-10(1)(b) and (c) of Schedule 2F to the ITAA 1936 are satisfied.

The requirement of paragraph 270-10(1)(a) of Schedule 2F to the ITAA 1936 is that 'a deduction is allowable to a trust for the income year'.

Section 36-15 of the Income Tax Assessment Act 1997 (ITAA 1997) determines how tax losses of earlier income years are to be deducted. Subsection 36-15(2) states: If your total assessable income for the later income year exceeds your total deductions (other than *tax losses), you deduct the tax loss from that excess. * denotes a term defined in subsection 995-1(1) of the ITAA 1997.

For the income injection test to apply, there must be an allowable deduction to a trust for the income year pursuant to paragraph 270-10(1)(a) of Schedule 2F to the ITAA 1936. The prior year tax loss is an allowable deduction, pursuant to subsection 36-15(2) of the ITAA 1997, in the income year. Consequently the income injection test can apply to tax losses where the loss year is prior to the date the scheme commenced.