Discretionary trusts – Take action now to avoid extra land tax and stamp duty charges!

In NSW the extra 8% stamp duty and extra 2% land tax surcharges for foreign persons, trusts and companies have been in place for a few years. These surcharges apply on top of the usual stamp duty and land tax liabilities.

Until now the trustee of a discretionary trust that owns residential land in NSW has not needed to worry about these extra charges unless they were going to distribute to a foreign beneficiary. However this is about to change.

The change proposed is that the trustee of a discretionary trust will be treated as a foreign trustee unless foreign persons are excluded from being beneficiaries. It follows that unless the trust deed is amended to exclude foreign persons as beneficiaries before 31 December 2019, the discretionary trust will be liable to surcharges on purchasing or holding residential land in NSW.

It is critical that discretionary trusts with direct or indirect interests in NSW residential land take action before 31 December to avoid these extra charges.

We note that the definition of ‘residential land’ for surcharge purposes includes any land or strata lot with a building that has rooms that can be occupied (which would include commercial residential properties), except land which is used for genuine primary production activities. It also includes vacant land that is zoned for residential purposes.

Our Specialist Tax & Estate Planning (STEP) team are currently reviewing our client base and will assist discretionary trust clients impacted by these changes to amend their trust deeds before the deadline.

UPDATE: Revenue NSW by media release dated 13 December 2019 has stated that:
“As the Bill has yet to be passed by the Parliament, the Government intends to extend this deadline to a later date, in 2020.”
Hence this provides a final window of opportunity for trustees to avoid retrospective duty and land tax.

Recent Articles

Has your business been affected by a natural disaster?

10th February 2020

RMTICT are offering the ICT Care Package to business owners affected by recent natural disasters such as fires and... Read More

Intern program completion!

10th February 2020

In 2019 Roberts & Morrow launched the Internship Program with the University of New England (UNE). We offered four intern... Read More

Future proofing your business. From financial planning to business structure: how prepared are you?

10th February 2020

One of the key topics covered at the 2020 Tamworth Business Summit is "future proofing your business" and Paul... Read More

Proposed broadening of NSW Landholder Duty

02nd December 2019

Landholder duty only applies to relevant acquisitions of shares in companies or units in unit trusts that hold interests... Read More