On 3 February 2020, the Victorian State Revenue Office announced that it will stop applying its practical approach to foreign purchaser additional duty from 1 March 2020. Under its practical approach, the SRO currently treats discretionary trusts that have foreign beneficiaries and who have not received any distributions and were unlikely to receive any future distributions, as not being a foreign trust.
From 1 March 2020, the SRO will treat discretionary trusts that have potential foreign beneficiaries as a foreign trust for the foreign purchaser additional duty surcharge purposes unless the trust’s deed is amended by the insertion of a clause that expressly excludes the foreign persons (as defined under the Duties Act 2000 (Vic)) as potential beneficiaries of the trust. Such amendment needs to be in place prior to the settlement of a dutiable transaction.
It is therefore important that trustees purchasing residential land in Victoria review their trust deeds prior to the settlement of any land contract to avoid foreign purchaser additional duty.
In light of the State Revenue Legislation Further Amendment Bill 2019 (NSW) (the Bill) not having passed the NSW Parliament and given the deadline of 31 December 2019 contained in the Bill for the amendment of trust deeds now having passed, the NSW Government intends to extend the deadline for trustees of discretionary trusts to amend their trust deeds in accordance with the legislation (to avoid foreign purchaser duty and land tax surcharge) to a later date in 2020.