The ATO was asked to provide advice on whether a superannuation death benefit that was paid from the estate to the testamentary discretionary trust should be treated by the trustee of the estate as if it had been paid to death benefit dependents.

Mr Busoli explained that the beneficiaries of the testamentary trust were defined as:

• The deceased's spouse and lineal descendants (i.e. primary beneficiaries), and
• The trustee of any trust in which the primary beneficiaries were named as beneficiary, and any proprietary company in which any primary beneficiary is a director or beneficial owner of any type of shares.

“For super death benefits to be tax-free, there needs to be certainty that only death benefit dependants will benefit from them,” Mr Busoli noted.

However, under the terms of the testamentary trust, beneficiaries could be a range of individuals such as lineal descendants including those not yet born and certain entitles including those not in existence yet.

As some of the beneficiaries were not death benefit dependants, the ATO stated that the death benefits were subject to tax as if they were paid to non-death benefit dependants, explained Mr Busoli.

“This would not have been the case if the terms of the testamentary trust had been restricted benefits to SIS dependants,” he said.

Mr Busoli said this means that existing testamentary trusts, intended to be be used in this way, should be checked.

The ATO stated in the PBR that where death benefits have been paid from an estate into a testamentary trust established under a will, the trustee of the testamentary trust holds the assets of the deceased that have been transferred to the trust, for and on behalf of, the nominated beneficiaries.

“Therefore, consideration of the terms of the trust and who has or may be expected to benefit from the superannuation death benefits is required in order to determine the relevant tax treatment of the death benefits paid to the deceased's estate,” it stated.

The ATO explained that in order for subsection 302-10(2) of the Income Tax Assessment Act 1997 to apply, there needs to be a certainty that death benefit dependants will benefit from the superannuation death benefits in their entirety.