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Indeterminate Trust

Also written Discretionary trust

A trust whose beneficiaries and their beneficial interests cannot be ascertained from the trust deed. For an AIF, the trustee is taxed on the whole income at the maximum marginal rate under Section 164.

In plain language

Most Indian AIFs are set up as trusts, and for tax purposes one question about the trust deed matters more than almost any other: can you tell, from the deed, exactly who the beneficiaries are and what share each owns?

If you can, the trust is determinate. If you cannot, it is an indeterminate trust. The workbook defines it as "a Trust wherein the trust beneficiaries, and their respective beneficial interests, are not ascertainable as per the terms of the 'Indenture of Trust' or the 'Trust Deed'".

The consequence is severe. Because the beneficiaries are not known, income cannot be taxed in their hands at their own rates. Instead, the trustee pays tax on the fund's income at the maximum marginal rate (MMR). Chapter 4 puts it plainly: an indeterminate trust "is treated as an 'association of persons' and tax is charged on the entire income of the trust at the maximum marginal rate".

How it works

Discretionary and non-discretionary. Indeterminate trusts can be discretionary trusts, where the trustee exercises discretion on using the trust's assets, determines beneficial interests and decides the distribution of income. Non-discretionary trusts are administered as per the clauses of the trust deed rather than the trustee's discretion.

The determinacy test. The Income Tax Appellate Tribunal has clarified, per the workbook, that beneficiaries and their beneficial interests must be capable of being ascertained on the date of the trust deed itself, not left to be decided at a future date by a person other than the settlor. A deed that authorises adding further contributors over time, in addition to the initial contributors, does not by itself make beneficiaries unknown or shares indeterminate.

Taxation.

Determinate trustIndeterminate trust
Trustee's statusRepresentative assessee (Section 161)Representative assessee (Section 164)
Business incomeMMR, payable by trustee (Section 161(1A))MMR
Other income (e.g. capital gains)Assessed as it would be in beneficiaries' hands (Section 161(1)); MMR may not applyMMR on all income
Direct assessment of beneficiaries (Section 166)Possible if trustee not taxedNot invoked — beneficiaries are not known

The workbook gives the MMR as currently 30%. Surcharge and 4% Health and Education Cess apply on top — for AoPs, the surcharge rises to 25% where total income exceeds Rs 2 crore.

Where the status is fixed. The indenture of trust records whether the trust is determinate or indeterminate, which is why investors review it in due diligence.

A worked example

Illustrative figures. Two Category III AIFs, each set up as a trust, earn Rs 10 crore of business income in a year (taxed at MMR in either case). The difference shows up in their other income: each also earns Rs 8 crore of long-term capital gains on listed equity.

Fund D — determinate trust. Its deed identifies every unit holder and their share. The trustee is a representative assessee; the capital gains can be assessed as they would be in the unit holders' hands, so the MMR need not apply to them.

Fund I — indeterminate trust. Its deed lets the trustee decide, at a later date, which investors get what share of income. Beneficiaries and shares are not ascertainable from the deed. Under Section 164 the trustee pays tax on all income at the MMR.

Working the business income for Fund I at the workbook's rates for an AoP with income above Rs 2 crore:

Tax at MMR          = 30% x Rs 10 crore            = Rs 3.00 crore
Surcharge at 25%    = 25% x Rs 3.00 crore          = Rs 0.75 crore
Cess at 4%          = 4% x (3.00 + 0.75)           = Rs 0.15 crore
Total               =                                Rs 3.90 crore  (39% effective)

And Fund I's Rs 8 crore of capital gains is also pulled into MMR taxation, instead of being taxed as it would be in each unit holder's hands. A single drafting choice in the trust deed has made the whole fund's income taxable at the top rate.

Why NISM asks about it

Chapter 9 (Taxation) covers determinate versus indeterminate trusts at 9.2.1, with the ITAT clarification and the Sections 161, 164 and 166 treatment, and summarises it in Figure 9.1; its learning objectives list the concepts. Chapter 4 (Category III AIF: Fund Structures and Service Providers) describes the indenture of trust's role in fixing determinacy, and Chapter 7 includes it in investor due diligence. Expect questions on the definition, on MMR taxation under Section 164, and on why adding contributors does not make a trust indeterminate.

Common exam traps

  • Indeterminate = beneficiaries and their shares not ascertainable from the trust deed. Determinate = ascertainable at all times during the trust's existence.
  • Indeterminate trust income is taxed at MMR in the trustee's hands (Section 164) — the workbook gives MMR as currently 30%, plus surcharge and cess.
  • Section 166 (direct assessment of beneficiaries) is not invoked for an indeterminate trust, because the beneficiaries are not known.
  • Adding contributors over time does not make a trust indeterminate, if the deed authorises it — the ITAT clarification.
  • Discretionary trusts are a type of indeterminate trust; non-discretionary trusts follow the deed.
  • Revocability is a separate axis. A revocable transfer taxes the income in the transferor's hands (Section 61), whether or not the trust is determinate.
  • Category III AIFs lack Section 115UB pass-through whatever their trust type; that regime covers only Category I and II AIFs.

Where this is taught

Free preparation for NISM Series XIX-B

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