The Assistant Treasurer, Senator Nick Sherry, has today released for public comment draft legislation for the abolition of what is known as the capital gains tax (CGT) "trust cloning exception".
"The measure strikes a balance between the twin goals of ensuring the integrity of the tax system and providing flexibility for those who use trusts," the Assistant Treasurer said.
"The changes mean high net worth individuals can no longer avoid their tax obligations by passing on assets to others without a capital gains tax trigger."
Normally, a CGT event happens when an asset is transferred to a trust, however currently no event happens if the asset is transferred between trusts where the beneficiaries and terms of both trusts are the same.
This current arrangement is known as the "trust cloning exception" and was used primarily by high wealth individuals as a succession-planning tool, allowing effective control of assets to be passed between trusts, frequently within a family group, without triggering a CGT taxing point.
The Government announced in late 2008 that it would remove this exception in order to boost tax system integrity, with effect from the following day (1 November 2008).
Prior to this announcement, there was potential for the trust cloning exception to be used to eliminate tax on an asset
For example, the exception could apply even if certain assets are transferred offshore to a non-resident trust, and unrealised capital gains would then permanently escape the Australian tax system.
"This legislation will close down this offshore tax avoidance option," said the Assistant Treasurer.
While removing the trust cloning exception, the draft legislation contains an important new provision that will allow for a limited CGT roll‑over for the transfer of assets between fixed trusts.
"The legislation delivers a balanced package that boosts integrity but still allows eligible trusts to restructure businesses or investment funds when they need to without immediate capital gains tax consequences," said the Assistant Treasurer.
The consultation is open until 30 September and copies of the consultation materials are available from the Treasury website at www.treasury.gov.au.