Legislation update

Amend your discretionary trust deeds with NSW property by 31 December 2020

By Michael Patane and Catherine Nufer-Barr / 30 November 2020
3 min.
Worthwhile read for: Landowners, Trustees , Advisors, Accountants, Financial Planners, Lawyers, Property Developers, Property Owners

Key points

  • From 1 January 2021, discretionary trusts with the potential for foreign beneficiaries and which hold (or intend to hold) residential land in New South Wales (NSW) will be subject to an additional stamp duty of 8% and additional yearly land tax of 2%. 
  • Amendments to the discretionary trust deeds to exclude potential foreign beneficiaries must be made by 31 December 2020. If the deed is not amended the trust is deemed to be a foreign person and automatically subject to the additional stamp duty and yearly land tax. 
  • The deadline has already been extended from 31 December 2019 and we don’t expect any further extensions.
  • Trustees of unit trusts should also review which of its unitholders are discretionary trusts. A unit trust will be considered a foreign person and subject to the additional duty and land tax rates if any of its unitholders are discretionary trusts which have not been amended to exclude potential foreign beneficiaries.
  • Other jurisdictions (including Queensland, Victoria, Western Australia and South Australia) have similar surcharge duties and land tax rates applying to discretionary trusts. Trustees of discretionary trusts and unit trusts should consider whether amendments are required in these jurisdictions where the trust holds (or intends to hold) residential land in those jurisdictions.

In NSW, an additional surcharge purchaser duty of 8% and an additional surcharge yearly land tax of 2% are payable on residential land held by a foreign person. These rates are payable in addition to the general rates of duty and land tax.

A discretionary trust is deemed to be a foreign person if the deed does not specifically and irrevocably prevent a foreign person from being a beneficiary of that trust. If the trust deed has not been varied before 31 December 2020, the trust will automatically incur foreign surcharge land tax on existing NSW landholdings and will be required to pay foreign surcharge duty on any new residential property acquisitions in NSW. In addition, once a deed has been amended it should be submitted to NSW Revenue for them to record the trust is not subject to the changes and to avoid assessments being issued.

A unit trust will also be considered a foreign person in NSW (and surcharge will automatically apply) where one or more of its unitholders is a discretionary trust which has not been amended to exclude foreign persons as beneficiaries.

For example, an NSW residential property worth $1 million would incur an estimated additional surcharge purchaser duty of $80,000 and additional surcharge land tax of $20,000 per year.

Exemptions and concessions are available for commercial residential properties and Australian-based developers. Eligibility requirements must be satisfied before the exemptions apply. An application will need to be made for consideration by NSW Revenue.

For more details, please refer to our previous alert

How we can help

HopgoodGanim can provide advice in relation to foreign duty and land tax surcharges in NSW (or other jurisdictions) and make the amendments required to exclude foreign beneficiaries.

Our Taxation team are specialists in tax, including stamp duty and land tax, in all Australian states and territories and work exclusively in this space every day.

All members of our Taxation team have dual qualifications in law and accounting and are experts in assisting clients with duty and land tax issues in a commercial and practical manner.

If you would like further information or to discuss your own circumstances, please contact a member of our Taxation team.

Catherine Nufer-Barr
Senior Associate
Catherine is a Senior Associate in our Taxation practice and a Chartered Tax Advisor.

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