Unit Trust 的CGT

hy851021

哪位Tax expert可以解答下：

有一个Managed Fund, 是一个unit trust，我们有一些overseas investors, 现在碰到了CGT的问题。在ATO网站上找到，如果一个CGT event happens to a CGT asset that is taxable Australian property,那么这个foreign resident要交CGT的。 Unit trust主要投资Corporate bonds and shares. 在看taxable Australian property定义是糊涂了，包括了a CGT asset that you have used at any time in carrying on a business through a permanent establishment in Australia. 如果现在一个CGT event 发生了， unit 肯定是CGT asset的，permanent establishment in Australia包括了office, 问题就是foreign resident invests in a unit trust 算不算是 have used a CGT asset  in carrying on a business了，是的话就要交CGT了。。

有哪位知道吗。。多谢

sidneygan

不是特别懂你的问题，我理解的意思大概来说，这是一个澳洲的management fund (Unit Trust), 那到了年底，通过买卖Share所产生的Capital Gain以及其他一些income会distribute to the beneficiary which is the non-resident of tax purpose。 如果情况是这个样子的话，这个non-residents 是需要作为non-residents来报税，这部分通过mange fund distributed income就是这个beneficiary的澳洲收入，其中就包括这部分capital gain。

但是fund 不需要缴税，因为会把profit都分出去。需要对这部分income缴税的是分到钱的个人。

hy851021

sidneygan 发表于 2014-7-30 17:25
不是特别懂你的问题，我理解的意思大概来说，这是一个澳洲的management fund (Unit Trust), 那到了年底，通 ...

谢谢你的回复，你理解的没有错，准确的说是distribute all taxable income,so the trustee doesn't have to pay tax, 但是这个non-resident 只在是这个CGT asset 是Taxable Australian property的时候才要交CGT的。。。然后什么是Taxable Australian property就有问题了。。

HSH

"A CGT asset that you have used at any time in carrying on a business through a PE in Australia" - the key point is that "the CGT asset" has to be used in "carrying on business". Your manged fund only invest in share/bonds, unless the manged fund is carrying in share trading business, it only hold passive investments (I.e. NOT carrying on a business). Hence, units in Managed Funds is not an Taxable Australian Property.

BUT if the Managed Fund has sold a share and made a capital gain AND distribute the capital gain to a foreign unit holder. THEN the trust distribution (I.e. the capital gain) will be taxable to the foreign unit holder.

Hope this helps.

HSH

You have to understand that if the Managed Fund sold shares, the fund is the entity that made the capital gain, not the individual foreign unit holder. The foreign unit holder is merely reciving a distribution from the fund, in this case, the income type happen to be CGT.

The foreign unit holder only needs to consider "Taxable Australia Property" when he or she sell his or her units in the MANAGED FUND.

hy851021

HSH 发表于 2014-7-30 17:58
You have to understand that if the Managed Fund sold shares, the fund is the entity that made the ca ...

Thanks for your reply.

However, the question is not about trust itself. I think in the definition the 'you' is referred to overseas investors instead of the trust. Therefore the issue is that whether the overseas investors have used the units to carry on a business...

Even the fund has sold the shares, with flow-through taxation, the investors get taxed. If the investors are resident for tax purpose, they have to pay the tax. But they are non-resident, it is not necessary to pay CGT.

HSH

hy851021 发表于 2014-7-30 20:37
Thanks for your reply.

However, the question is not about trust itself. I think in the definition ...

1. If neither the unit trust nor the foreign resident is carrying on a business (investing in shares/bonds doesn't necessary mean u r carrying on business), the rules of Taxable Australian Property doesn't apply.

2. If a foreign resident receives capital gains tax as trust distribution & the underlying asset sold is shares in Australian company, he or she will have to pay tax on the CGT. Don't forget foreign residents are taxed on Australian source income.

hy851021

HSH 发表于 2014-7-30 20:54
1. If neither the unit trust nor the foreign resident is carrying on a business (investing in shar ...

1. investing in shares/bonds doesn't necessary mean u r carrying on business,that is the question I asked in the first place, not sure if investing in units is carrying on a business.

2. ''If a foreign resident receives capital gains tax as trust distribution & the underlying asset sold is shares in Australian company, he or she will have to pay tax on the CGT'', you sure? because foreign investors pay CGT only if Taxable Australian Property rule applies.

HSH

hy851021 发表于 2014-7-30 21:05
1. investing in shares/bonds doesn't necessary mean u r carrying on business,that is the question  ...

Sorry u r right. Non residents do not pay CGT if it's not taxable Australia property.
In regards to "carrying on business", that depends on the facts, e.g. the frequency of share trading - hundreds of trades per month or only a number of trades p.a.? ATO has a really good list re "investors v.s.share traders" - read it & you should be able to figure it out.

zgz128

hy851021

HSH 发表于 2014-7-30 21:18
Sorry u r right. Non residents do not pay CGT if it's not taxable Australia property.
In regards t ...

Thanks a lot, ATO asked me to apply for a private ruling .....

I think its high likely that investors are not carrying on a business, especially they didn't use the CGT asset.

Cheers

jeff_lawsons

If the unit holder disposes the unit in the unit trust, then the Taxpayer in this case will be the non-resident unit holder, the unit holder does not carry a business in Australia, therefore "a CGT asset you have used in carrying on a business through a permanent establishment in Australia" will not apply.

You will only need to look the indirect Australian property test.

an indirect Australian real property interest - which is an interest in an entity, including a foreign entity, where you and your associates hold 10% or more of the entity and the value of your interest is principally attributable to Australian real property.

Since the unit trust does not have any investment in Australian real property, the units in unit trust are not taxable Australian real property.

jeff_lawsons

a CGT asset you have used in carrying on a business through a permanent establishment in Australia" will not apply------- one example, a non-resident company carries a business through a PE in Australia, it sold a CGT asset,trade mark for example , then the trade mark will be taxable Australian property.

hy851021

jeff_lawsons 发表于 2014-8-8 00:25
a CGT asset you have used in carrying on a business through a permanent establishment in Australia"  ...

Thanks Jeff, that helps a lot

JohnnySu

如果收入（不论是income or capital）在unit trust 或者managed fund里产生,  如何计算税收 取决于收入的性质和受益人的状态。

赚取Passive income的投资 不是business.