Missing the vesting date of your trust can have serious tax and trust law implications – it is not a date to be overlooked.Bridie O'Shannessy, Maddocks Lawyers
The ATO recently released a draft tax ruling on the tax implications of a trust vesting, which provides a timely reminder of the importance of paying attention to a trust’s vesting date.
The vesting date (or termination date) is the date upon which the trust will end, and in almost all cases this date is specified in the trust deed.
You cannot change the vesting date of a trust after that date has passed. Generally the vesting date can be extended prior to it being reached without adverse consequences, however:
On the vesting of a trust the relevant beneficiaries (who are entitled under the terms of the trust deed) become absolutely entitled to the property of the trust: that is, the interests in the trust property become fixed and vested in the relevant beneficiaries.
The powers of the trustee change when the trust vests. For instance, in the case of discretionary trusts the trustee loses its discretion to distribute income or capital of the trust and the relevant beneficiary can call for its fixed entitlement to be paid.
Vesting of a trust may create capital gains tax (CGT) and income tax obligations. You should read the ATO draft tax ruling to understand the types of CGT events that may occur and income tax implications that may arise, these include:
Alternatively, seek advice from your accountant on whether the vesting of your trust will have CGT or income tax consequences. The tax implications will depend on the terms of your trust deed.
This is true to an extent, in that family trusts (and other private trusts such as unit trusts) only really became commonplace in the 1970s and 1980s. However sometimes by design, and sometimes by error, deeds do include vesting dates of much less than 80 years.
For instance, Maddocks has advised a client on the extension of a vesting date for a trust which held more than $40 million of Australian property from 2020, to a date 80 years from the trust's creation (2050). Because the potential CGT and duty consequences of any change to the trust deed which amounted to a creation of a new trust (or 'resettlement') were so substantial, rulings were obtained from the ATO and Victorian SRO prior to execution of the deed of variation.
You should take this opportunity to check the vesting date of your trust deed and carefully read the terms in relation to the trust vesting so that you do not risk the trust being administered incorrectly after the vesting date and face tax and trust law consequences for doing so.
For more information, contact Maddocks on (03) 9258 3555 and ask to speak to a member of the Commercial team.
You can read earlier ClearLaw articles on a range of trust topics.
Paul is a Senior Associate in the Maddocks Commercial team with particular expertise in commercial agreements for the supply of goods and/or services, the Personal Property Securities Act 2009, the National Consumer Credit Protection Act 2009 and the National Credit Code and the Australian Consumer Law.
Paul's key areas of practice include:
Before joining Maddocks, Paul was employed for 13 years with the Victorian Department of Justice, principally as a Deputy Registrar in the Victorian Magistrate's Court, but also as a legislation, policy and project officer for the Department.
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For more information, contact Maddocks on (03) 9258 3555 and ask to speak to a member of their team.