Duties Act 1997

Section 104JA extends to a surcharge duty transaction that occurred before the commencement of that section.

If the trustee of a discretionary trust is liable as a foreign trustee for surcharge purchaser duty on a transfer of dutiable property that occurs before the commencement of section 104JA, or after that commencement but before midnight on 31 December 2020—

the trustee is exempt from that duty if the terms of the trust have been amended, before midnight on 31 December 2020 and before the due date for payment of duty, so that the trust prevents a foreign person from being a beneficiary, or

if that duty has been paid, the trustee is entitled to a refund of that duty if the terms of the trust have been amended, before midnight on 31 December 2020, so that the trust prevents a foreign person from being a beneficiary.

A trust that satisfies the no foreign beneficiary requirement under section 104JA immediately before the commencement of that section is considered for the purposes of that section to prevent a foreign person from being a beneficiary of the trust (without having to satisfy the no amendment requirement under that section).

Despite section 104JA, the trustee of an Australian testamentary trust is not in that capacity a foreign trustee for the purposes of Chapter 2A (even if the trust does not prevent a foreign person from being a beneficiary of the trust) if—

for a trust arising from a will or codicil—the will or codicil was executed on or before 31 December 2020, or

for a trust arising from the administration of an intestate estate—the deceased died before, or within 2 years after, the commencement of that section, or

for a trust resulting from an order of a court varying the application of the provisions of a will or codicil or of the rules governing the distribution of an intestate estate—the order was made on or before 31 December 2020.

The Chief Commissioner may in a particular case extend the due date for payment of surcharge purchaser duty by a trustee so that the trustee qualifies for exemption from that duty under this clause if the terms of the trust have been amended before midnight on 31 December 2020 (but after the date that would otherwise be the due date for payment) so that the trust prevents a foreign person from being a beneficiary.

In this clause—

Expressions in this clause have the same meanings as in section 104JA.