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There are obvious advantages in a non-fixed trust over a company because of the ability to distribute out the benefit of the small business concessions from a non-fixed trust (assuming of course that CGT Event E4 does not ultimately apply to it). Of course, these propositions are only a guide and every case needs to be considered on its own merits. (Y=yes, N=no) Company Non-Fixed Trust Fixed Trust Individual Tax Rate 30 percent 30 percent beneficiaries marginal rates marginal rates CGT Discount for beneficiaries Small Business Concessions Y1 Y1 Y1 Y Ability to Distribute Proceeds of: SBC – 15 year exemption Y (tax free section 152-125) Y2 Y (tax free section 152-125)4 N/A SBC – 50 percent active asset N (taxed as a dividend) Y2 Y (subject to CGT Event E4)3 N/A CGT Discount N/A N/A Y (subject to CGT Event E4)3 N/A Distribution of tax preferences – free cash N (tax as divided) N (subject to profits first rule) Y (subject to CGT Event E4) Y Notes: Ability to access SBC more difficult for certain entities. Some beneficiaries of non-fixed trusts may be treated as having an interest which is subject to CGT Event E4. The Government may decide to give some widely held fixed trusts which invest in passive investments relief from the operation of CGT Event E4.
 
 
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