DUTIES ACT 2001 - SECT 118 Exemption—trust acquisition or surrender in family trust

DUTIES ACT 2001 - SECT 118

118 Exemption—trust acquisition or surrender in family trust

(1) Transfer duty is not imposed on a dutiable transaction that is a trust acquisition or trust surrender of a trust interest if—

(a) the trust is established and maintained as a discretionary trust primarily for the benefit of the members of a particular family or a family company; and

(b) the person acquiring or surrendering the trust interest is a member of the family who, or is a family company that, does not benefit in the capacity of trustee.

(2) Also, transfer duty is not imposed on a dutiable transaction that is a trust acquisition or trust surrender if—

(a) the trust is established and maintained primarily for the benefit of the members of a particular family or a family company; and

(b) the trust acquisition or trust surrender is a result of—

(i) a member of the family becoming or ceasing to be a member of a class of beneficiaries of the trust because of the birth or death of the member; or

(ii) the person acquiring or surrendering the trust interest becoming or ceasing to be a member of a class of beneficiaries of the trust consisting of the children, stepchildren or grandchildren of a named member or members of the family.

(3) For subsection (1) (a) or (2) (a) , a discretionary trust is established and maintained primarily for the benefit of the members of a particular family or a family company if—

(a) the primary beneficiaries of the trust consist only of members of the family or the family company; and

(b) the takers in default of an appointment for capital by the trustee of the trust consist only of members of the family or the family company.

(4) However, subsection (3) (b) is taken to be satisfied if the last taker in default of an appointment for capital by the trustee of the trust is—

(a) a person decided under the Succession Act 1981 ; or

(b) a charitable institution.

(5) For subsection (2) (a) , a trust other than a discretionary trust is established and maintained primarily for the benefit of the members of a particular family or a family company if at least 90% of the trust interests in the trust are held by members of the family or the family company.

(6) For applying this section, a person (the
"first person" ) is a member of the particular family of another person (the
"other person" ) if—

(a) the first person is the spouse of the other person; or

(b) the first person, or the first person’s spouse, is any of the following in relation to the other person, or the other person’s spouse—

(i) child, stepchild or adopted child;

(ii) grandchild or great grandchild;

(iii) brother, sister, aunt, uncle or cousin;

(iv) parent, step-parent, adoptive parent, grandparent or great grandparent.

(7) In this section—


"family company" , for a trust, means a corporation in which all its directors and shareholders are members of the particular family for which the trust is established and maintained.


"spouse" includes former spouse.