Increased Duty for Discretionary Trusts, SMSFs & LRBAs in NSW

Current as of: 13 February 2024.

The Duties Act 1997 (NSW) has been amended so that, from 1 February 2024:

Duty on the establishment of trusts over non-dutiable property in NSW increases from $500 to $750.
Duty on the establishment of LRBAs in NSW increases from $500 to $750 (assuming additional conditions satisfied).
Duty on transfers of dutiable property from custodian trustees to SMSFs increases from $500 to $750 (assuming additional conditions satisfied).
Duty on transfers of dutiable property as a result of a change in trustee in discretionary trusts (assuming trustee excluded from being beneficiary) and SMSFs increases from $50 to $100.

If you have any questions, please contact us.

An accountant, a conveyancer and a financial adviser walk into a bar. Kidding. Let me tell you what they really did: they all called Acis in the last few weeks, querying whether a trust established in Queensland needed to be “stamped” in New South Wales before it could acquire property there. It is certainly not an uncommon question for us to receive, but three times in the same number of weeks is definitely higher than usual. In this article we will answer that question, and other questions we regularly receive, in relation to duty and the establishment of trusts.

It is important to note first, however, that our discussions here are limited to:

the liability to pay duty on the establishment of a trust. If a trust, post establishment, goes on to purchase assets or transact in other ways that incur duty liabilities, it will be assessed for duty, generally based on the State in which the transaction takes place or where the asset is located. This is distinct from duty payable on the actual establishment of a trust, which we will discuss here.

trusts established over non-dutiable property. This article is not intended to provide guidance in relation to the establishment of a trust over dutiable or identifiable property. Rather, it will discuss the liability for duty of a trust established over non-dutiable or unidentifiable property only, for example, a $10 Settlement Sum.

Question: Does a trust established in Queensland need to be “stamped” in New South Wales before it can acquire property there (NSW)?

Answer: No

Any duty on the establishment of a trust is almost always determined by where the trust deed is signed. The New South Wales Duties Act only imposes duty on the establishment of a trust over non-dutiable property if the instrument (trust deed) is “executed in New South Wales”. If a trust deed is wholly executed in Queensland, no duty should be payable in New South Wales in relation to the establishment of that trust – the New South Wales Duties Act cannot “capture” the act of establishing the trust as the trust deed was not executed in “New South Wales”.

As mentioned above, if the trust goes on to acquire property in New South Wales then duty will be payable on that acquisition, in New South Wales. This is distinct, however, from duty payable on the actual establishment of the trust.

Question: If the trust deed for a trust that was established in New South Wales stipulates that the Jurisdiction or Applicable Law for the trust is Victoria, is there a Victorian liability to pay duty on the trust’s establishment?

Increased Duty for Discretionary Trusts, SMSFs & LRBAs in NSW

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Question: Does a trust established in Queensland need to be “stamped” in New South Wales before it can acquire property there (NSW)?

Question: If the trust deed for a trust that was established in New South Wales stipulates that the Jurisdiction or Applicable Law for the trust is Victoria, is there a Victorian liability to pay duty on the trust’s establishment?