Potential Changes to Discretionary Trusts From 1 January 2020
Important changes to anyone who is currently, or intends to become, a trustee within a discretionary trust in New South Wales.
Discretionary trusts (also known as ‘family trusts’) are a good way to ensure asset protection, distribute capital and take advantage of tax benefits in New South Wales. In these, a person (trustee) takes legal ownership of a property for the benefit of another person or persons (beneficiary/beneficiaries).
Under discretionary trusts, the trustee distributes the property, assets or proceeds amongst the beneficiaries at their discretion. The terms of the trust limit this discretion.
For a complete breakdown of how a discretionary trust is formed and why it used, read our previous article here.
For this article, all you need to know is that the beneficiaries are the ones who pay tax, duties and surcharges on the distribution of the assets.
This is why, for example, parents may create discretionary trusts with their children as beneficiaries. As the children likely earn less money than the parents, they will pay lower tax rates on the distributed profits.
This is not tax advice and we advise obtaining your own advice from an expert.
Changes to discretionary trusts
The State Revenue Legislation Further Amendment Bill 2019 (NSW), proposes changes regarding the classification of ‘foreign beneficiaries’ within discretionary trusts. The proposed changes are effective at midnight (12:00 am) 31 December 2019.
Relevant to discretionary trusts is the change to how ‘foreign persons’ classified within a discretionary trust. Currently, it is based on factors like residency and citizenship.
Instead, it will be based on whether the beneficiary could potentially be foreign.
What this means is that the terms of the trust must now explicitly state that the beneficiary cannot be a foreign person.
This may mean that, under your current trust agreement, you or another party may be classified as a foreign person.
How this may affect your discretionary trust
Currently, in New South Wales, foreign persons pay an 8% surcharge purchaser duty and 2% surcharge land tax on residential-related property. This will be paid on any trusts that include foreign trustees or beneficiaries.
Under the proposed Bill, it doesn’t matter if you or the beneficiary are Australian citizens. At law, a foreign trust will exist unless the agreement specifies that the beneficiary cannot be foreign.
What you may need to do
Fortunately, you can be exempt from the surcharges or will be refunded if you have already been charged. You just need to amend the terms of your trust before midnight (12:00 am) 31 December 2019.
The terms just need to exclude the possibility of a foreign beneficiary to be effective. This will, of course, require compliance. You cannot include this term if the beneficiary is actually a foreign person.
Contacting a lawyer is the best way to ensure compliance.
Take note: you cannot later amend the clause preventing a foreign beneficiary to then allow one.
The proposed changes pose a blanket effect to any discretionary trusts existing in New South Wales. Ensure you avoid these changes by being proactive and reviewing your agreements now.
We recommend keeping up to date where possible as this is an ongoing process.
Daniel is a Legal Tech Intern at Lawpath. He is currently studying a Bachelor of Laws/Bachelor of Business at the University of Technology Sydney. His principal fields of interest are in commercial, corporate and intellectual property law.