The Bundesgerichtshof has decided that s100A does not apply only to existing trust agreements. And that the section may apply to trusts created on the basis of repayment agreements elsewhere. The benefit under a repayment contract may be the payment of money, the transfer of ownership (including selection measures) or an estate, interest, rights or powers in ownership or on the provision of services. The position of trust must not exist at the time of the agreement. A refund agreement usually implies that a person who currently has the right to trust, in cases where both are in place: s100A (7): … an agreement that provides for the payment of money or the transfer of ownership. or providing services or other services to a person… other than the beneficiary… However, an agreement reached in the context of an ordinary family or business transaction is excluded from the definition of a repayment agreement. This agreement also includes the postponement of the repayment of any debts (see 100A (12)). Whether a particular agreement constitutes an “ordinary business of family or commerce” (which is not defined) and is therefore not a refund agreement within the meaning of Section 100A depends on all the relevant facts. The courts have made it clear that exclusion must be taken into account, and not only, taking into account all stages of the repayment agreement.
To be a repayment agreement, at least one of the contracting parties must have entered into it for purposes or purposes, including the reduction of a person`s debt. On July 2, 2014, the Australian Taxation Office (ATO) issued the much-anticipated guidelines for the implementation of Section 100A of the Income Tax Assessment Act 1936. Section 100A of ITAA36 is an anti-avoidance provision. It is intended to prevent trust from being suppressed by a refund agreement. “agreement” is broad and includes agreements and agreements that can be informal, explicit or implied. An agreement may include a number of steps or transactions. An agreement should not be applicable or even enforceable. The ATO says that the guide was provided at the request of practitioners and developed in relation to them. It was designed to fill a gap in ATO`s information products. The guide also includes FAQs, z.B the existence of trust at the time of agreement; Beneficiary of the repayment agreement; Time to change. Repayment agreements do not include agreements made in ordinary family matters.
However, Section 100A does not apply to an agreement, agreement or agreement made in the context of a normal family or business activity. The court added that s 100A can apply if an agreement reduces or eliminates the tax debt of a third party. The wording of the term “agreement” is deliberately broad and covers any agreement, agreement or agreement, formal or informal, explicit or implied, and either enforceable or unenforceable. Among the agreements is also the fact that when a person waives his or her rights to repay a loan or does not take measures to recover the loan money, the deferral of the debt repayment is also an agreement. This agreement is not an ordinary business, as the structure of ownership and, in particular, the continued flow of funds are not a commercial objective. A refund agreement is an agreement by which the agent transmits distributions of receivers to third parties through beneficiaries. Section 100A does not apply to the income of a minor beneficiary. Moreover, even after William turned 18 (and ceased to be a minor), the ATO accepts that this is an ordinary family business and therefore does not consider the agreement to be a refund agreement.