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Trusts, foreign persons & 31 December 2019…

By Luis Batalha, Director

 

New laws are due to start very soon that could mean that changes need to be made to trust deeds of trusts that own residential property in NSW by midnight on 31 December 2019.  If changes are not made, then significant stamp duty and/or land tax will apply to the trustee of the trust, as the trustees of discretionary trusts will then be considered foreign trustees.

Since legislation has come in, all our deeds are upgraded to include these provisions

Summary of measures

A summary of the impact of the measures is below.

Which trusts are affected?

Potentially all discretionary or family trusts, which own residential property in NSW.  Trading trusts, unit trusts and SMSFs are not affected.  Hybrid trusts, however, may be affected.  If a trust owns property, that is not residential property then it is not affected.

What change must be made?

All foreign persons must be excluded as beneficiaries, under the trust, in both a theoretical and a practical sense.  Thus, in addition to removing foreign persons from the trust deed, in a general sense, all individuals who are foreigners must be removed as beneficiaries under the trust deed.

Absolute deadline

Midnight on 31 December 2019

Realistic deadline

Now.  The earlier you request changes to your trust deed the better.  Most lawyers are busy towards the end of the calendar year and will close from 21 December 2019, so if your trust deed needs to be amended you better act quickly.

Comparison table

Changes may need to be made to trust deeds because of the different rates of stamp duty and land tax applicable, in NSW, to foreign persons and non-foreign persons, for residential properties only:

NSW

Usual non-foreigner rate

Foreigner rate

Stamp duty

5.5%

13.5%

Land tax

1.6%

3.6%


The rates of stamp duty above are charged on the unencumbered value of property (and include the surcharge for foreign persons).  By contrast, the rates of land tax above are charged on the unimproved value of land.

The above stamp duty rates could potentially apply to any property acquired by a trust before 31 December 2019 (and after 31 December 2019).  The above land tax rates could apply to the 2017, 2018 and 2019 calendar years.

Many land-owning trustees may have already been informed about the changes by Revenue NSW to amend their trust deeds by 31 December 2019.

A refund of the higher stamp duty and/or land tax applicable may be available for those trusts that previously paid the higher rate of duty or land tax from the date the higher rates started on 21 June 2016.  If the required changes are made to the trust deed of the trust, by midnight 31 December 2019, then a refund of stamp duty and land tax may be applied for to the Revenue NSW. batallion legal can help with applications for a refund.

Conclusion

The changes proposed to the law regarding making changes to trust deeds have not yet been formally enacted into law.  They are currently before NSW Parliament.  Once the changes have passed through NSW Parliament though they will become effective from the date they receive Royal Assent.  Considering we are nearing the end of the year, however, it is best to arrange for foreign person beneficiaries to be removed now from all discretionary trust deeds, that may own residential property in NSW in the recent past and in the future.  While there is a possibility the changes may not pass this year at all, it is better to be safe than sorry and make changes to trust deeds as soon as possible.

COST OF VARIATION

Email us on info@batallion.com.au with a full copy of the trust deed (and any variations to date) you would like amended, for a quote.  batallion legal’s fees start from $330 (GST-inclusive) for a standard trust deed variation.

 

 

SMSF ADMIN DOCUMENTS UPGRADED

We have upgraded SMSF Admin Documents with more documents, categories & new design on Trustdeed.

Please follow below simple steps and you can also access upgraded SMSF Admin design and documents for superfund.

 

Step 1: Login to https://www.trustdeed.com.au

 

 

Step 2: Please click on New SMSF under My Documents

 

 

Step 3: Please click on Admin Docs Download button next to super fund

 

 

Step 4: SMSF Administration Documents new Design, categories & added new Documents

Download document and purpose of Document

If you need any help, please call our Support Team on 02 9684 4199.

Thank you for continued Support,

Team Trustdeed

https://www.trustdeed.com.au
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