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 Tax & Estate Planning 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.” On 26 February 2020 the Legislative Assembly passed this Bill, which was amended to change the deadline to December 2020. This provides a final window of opportunity for trustees to avoid retrospective duty and land tax.

Recent Articles

COVID-19: New regulations allow video conferencing to be used to witness legal documents in NSW

29th April 2020

The Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) came into effect on 22 April 2020. This... Read More

COVID-19 Webinars: Support for Individuals & Business

01st April 2020

ABOUT THIS BLOG Roberts & Morrow hold ourselves to a high standard of transparent communication with our clients and like you,... Read More

COVID-19 Business & Stimulus Updates

01st April 2020

Roberts & Morrow hold ourselves to a high standard of transparent communication with our clients and like you, have been... Read More

Act before 7 September 2020 to qualify for super guarantee amnesty

17th March 2020

The Government's Super Guarantee amnesty legislation, the Treasury Laws Amendment (Recovering Unpaid Superannuation) Bill 2019 received Royal Asset on... Read More