The Commissioner believes that, even if it is not converted into a regular loan, an EPU is able to “provide financial arrangements” for the benefit of the trust by the private sector beneficiary company and can therefore be considered a loan for the purposes of Division 7A. It applies to all types of trusts, including discretionary and unit trusts, and is particularly relevant in cases where the trust and private enterprise are part of the same family group. The agent decides not to place UPE on a sub-trust until the day of Trust A`s 2016 tax return. Trust B`s agent is aware of this, but does not request that the payment of his EPU or funds representing this EPU be held to their exclusive advantage. As a result, UPE would constitute a financial deposit and therefore a loan from Trust B to Trust A for the purposes of Division 7A. However, this is clearly a quick fix for investment agreements that will expire in the next 12 months. It ignores agreements that expire after June 30, 2018 or taxpayers who have signed up for Investment Option 2 (i.e. interest of only 10 years), which could penalize many taxpayers. On July 1, 2016, the trust trustee of Trust A decided to grant an interest-free loan to Individual D. If the Trust does not pay annual refunds or annual returns to the private company until the day of the trust, we will assume that the requirements imposed by the Commissioner are not met because the agent would have breached the terms of the investment agreement. Non-payment of repayments or annual returns may result in a Division 7A dividend being considered to be paid to the principal fund. In pcG 2017/13, the ATO confirms that, when an investment option 1 is due on 30 June 2018 or before 30 June 2018, the Commissioner considers that each amount of the loan not paid at the end of the loan period is considered by the Commissioner to be a financial accommodation supply and therefore a loan from Division 7A.
The agent of PrivCo Sub-Trust and the agent of DiscFamily Trust have agreed that PrivCo Sous-Trust will lend US$10,000 in PS LA 2010/4 to DiscFamily Trust. This loan was granted and the agreement came into effect on May 15, 2016 for a period of seven years. Interest is payable at Division 7A`s reference rate within the meaning of section 109N (2) of the Income Tax Act 1936. As of July 1, 2009, ea sub-division may, among other things, solicit payments and loans from a trust for which a private company is entitled to unpaid income. The EB sub-division was created to ensure that the operation of the EA sub-division cannot be circumvented by separating an entity between the trust that makes a payment or loan to a shareholder (or its associated companies), or between a trust and the private company that is entitled to a current unpaid amount of an amount from the net profit of the trust. The EA division of Division 7A applies to certain fiduciary payments, loans and cancellations of debts to a private company shareholder (or partner) on or after December 12, 2002. The EA division of Division 7A applies to this agreement, to treat PrivCo C in order to have paid an evaluable dividend to Trust A during the 2016/2017 performance year. This occurs, unless a waiver applies to Sub-Division D of Division 7A or the loan is fully repaid to the fictitious company before day 2017 (i.e. UPE was paid to Trust B until that date) or the fictitious company has an insufficient surplus, so that Section 109Y operates.