NSW Disc Trusts with property and surcharge duty

The whole issue of amending disc trusts to excluded non-resident trust beneficicaries is back on deck. Respected law firm, Mazars, has shared some interesting developments with MikeA and myself I will share: This contains a time bomb loophole clause which trustees should consider PRIOR to 31december 2020. Its in bold below

NSW Land Tax Surcharge – Discretionary Trust Planning Still Possible
The NSW Government has kept two planning opportunities available for discretionary trusts hoping to escape the 2% land tax surcharge on residential land. One is expected, the other is surprising. As expected, the date by which trustees need to amend trust deeds to remove foreign person beneficiaries has been delayed to 31 December 2020. This will be of particular benefit to certain upstream discretionary trusts that hold interests in NSW residential land owning companies or trusts.

However, what is surprising is the continued delayed requirement for inclusion of the “no amendment” clause. This clause is to have the effect that the terms of the trust deed are not capable of later amendment in a manner that would result in there being a potential beneficiary of the trust who is a foreign person. The Amendment Bill before the NSW Parliament allows deeds to be varied, prior to the date of Royal Assent, to achieve land tax surcharge exemption without the relevant “no amendment” clause.

In simple terms, this means a trustee can vary a deed now to prevent foreign person beneficiaries and obtain the land tax surcharge exemption back to 2017. At some point in future, the trustee appears to be allowed to vary the deed again to allow foreign person beneficiaries and only pay land tax surcharge from that future date (or possibly not at all if the property has been sold).

The NSW Upper House does not sit again to debate the Amendment Bill until 24 March 2020. At the earliest, the date of Royal Assent may not be until 31 March 2020. Hence, trustees still have time to vary discretionary trust deeds to utilise this planning opportunity, which seems to be accepted by the NSW Government.

 

was a good solution from Mazars