Discuss the case law on present entitlement. Include a discussion on the relevance of the knowledge of the taxpayer of their present entitlement. Can they disclaim this entitlement?


The terms “present entitlement” is defined as “beneficiary’s interest in the property of a trust” in Income Tax Assessment Act 1936 Determining whether trustee or the beneficiary will be subject to tax under Division 6, present entitlement is a crucial concept to the taxation of trusts because only when a beneficiary is5 or deemed to be6 presently entitled to the income under the trust.

Otherwise the income is assessed in the hands of the trustee.7 A taxpayer will have the present entitlement to the trust income where the beneficiary is entitled to request immediate payment from the trustee or would have have such a right if they were not under a legal disability.  FCT v Whiting; Taylor v FCT; Harmer v FCT; Dwight v FCT. 

The conditions of being presently entitled

First of all, for the issue that whether a beneficiary is presently entitled to income of the trust estate after his share has been paid, there are two different views. In Union Fidelity the court was of the view that there would no longer have present entitlement after the beneficiary has been actually paid, which means the position of a person who has the entitlement of receiving a share of the estate and the one who has been paid the amount of it should be clearly distinguished. The Union fidelity court argues that a legal distinction be made between the paid beneficiary and the beneficiary who is entitled to the payment but has not received it yet. It is important to make this distinction because once a beneficiary has been paid his status does not remain that of a beneficiary. A beneficiary no longer satisfies the description of a beneficiary who is entitled to a share of the net income of the estate in a tax year when the share of the income of the estate has been paid to a beneficiary in that year. Hence, if at the end of the taxation year the appropriate share of the income of the trust estate has been already paid to the beneficiary who before the payment was only entitled to it, the amount so paid to the beneficiary as his share of that income will be part of his assessable income. However, as a result of the case of Union Fidelity, Section 95A(1) states that a beneficiary continues to be presently entitled to income of the trust estate, even though the income is paid to or applied for the benefit of the beneficiary. This means that even if the exact amount to be given to the beneficiary is unknown, an income is sanctioned to him none the less. Moreover, Pearson and Tingle state that in despite of that the exact amount of income is unknown or it is not be able to be precisely calculated when the beneficiary has the present entitlement; a beneficiary can still be presently entitled even if the actual payment has not been made to the beneficiary.


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