Aussiegolfa Pty Ltd (Trustee) v Commissioner of Taxation [2018] FCAFC 122

FEDERAL COURT OF AUSTRALIA

Aussiegolfa Pty Ltd (Trustee) v Commissioner of Taxation [2018] FCAFC 122 Appeal from: Aussiegolfa Pty Ltd (Trustee) v Commissioner of Taxation [2017] FCA 1525 Aussiegolfa Pty Ltd as Trustee of the Benson Family Superannuation Fund v Commissioner of Taxation [2017] AATA 3013

File numbers: VID 54 of 2018 VID 83 of 2018

Judges: BESANKO, MOSHINSKY AND STEWARD JJ

Date of judgment: 10 August 2018

Catchwords: SUPERANNUATION – in-house asset rules – self-managed superannuation fund – where a self-managed superannuation fund acquired units of a particular class in a managed investment scheme – where the units were referred to as units in a sub-fund – where a particular property was acquired by the responsible entity of the managed investment scheme on behalf of the class of unit holders – whether the units held by the trustee of the self-managed superannuation fund constituted an investment in a "related trust" so as to constitute an in-house asset – whether there was a distinct trust associated with the class of units TRUSTS – definition of a trust – managed investment scheme – where the constitution of a managed investment scheme conferred on the responsible entity a power to create classes of units and to determine the rights, obligations and restrictions attaching to units in the class – where the responsible entity created a class of units associated with (what was referred to as) a sub-fund – where a particular property was acquired by the responsible entity on behalf of the class of unit holders – where the product disclosure statement stated that the assets of one sub-fund were not available to satisfy liabilities of another sub-fund and that an investor would acquire a beneficial interest in the underlying property held by the sub-fund – whether statements in product disclosure statement could be relied on as secondary evidence of a determination by the responsible entity – whether there was a distinct trust associated with the class of units SUPERANNUATION – sole purpose test – self-managed superannuation fund – where self-managed superannuation fund acquired units of a particular class in a managed investment scheme – where the responsible entity acquired a property, being an apartment in a student accommodation complex, on behalf of the class of unit holders – where the custodian of the managed investment scheme entered into a leasing and managing authority with a student housing entity – whether leasing the apartment to the daughter of the sole member of the self-managed superannuation fund at market rent would cause the fund to breach the sole purpose test