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Trust deed: section 58(2)

A comprehensive guide on the Establishment of a trust is now available in the Property Professionals Resource Centre to assist industry professionals understand the requirements when self-assessing and processing transactions using EDR.

Establishment of a trust relating to unidentified property and non-dutiable property

These are general guidelines for the establishment of trust transactions that can be assessed on EDR. It also sets out exceptions where they are not able to be processed on EDR and must be submitted to Revenue NSW.

Pursuant to Section 58, Duties Act, duty of $500.00* is chargeable on the establishment of a trust relating to non-dutiable property, section 58(1) and unidentified property, section 58(2).

The documents that are typically assessed pursuant to these sections are often referred to as Discretionary/Family Trust Deeds, Unit Trust Deeds or Security Trust Deeds.

This paper provides a general guide to aid the processing of these transactions.

Exceptions

The following complex assessments must be lodged with Revenue NSW.

A declaration of trust over dutiable property for example, dutiable property is identified in the document as a Lot/DP or property address.

Need to know

The following information may assist the user when processing the assessment on EDR.

  • Non-dutiable property is typically described in the trust document as a settled sum, issued units or mortgage documents (security trust)
  • Unidentified property is typically described in the trust document as future property acquisitions, or an intention to secure and hold monies or documents
  • Trust documents between custodians and trustees of self-managed super funds cannot be assessed under section 58. Refer to the evidentiary requirements or section 62B, Duties Act, for further information
CSP system information
Document TypeTrust deed
Date of executionDate of deed
Liable partyTrustee
Non-liable partySettlor/Unit holder
Stamping

For information on how to stamp the documents refer to the Duties Notice of Assessment (NOA) and statement.

Evidentiary requirements

You are required to submit documents listed in the evidentiary requirements to support the assessment.  All documentation must be obtained before an assessment can be made.

Record keeping and audit

Pursuant to Part 8 Section 53 of the Taxation Administration Act 1996, EDR approval holders must retain records for a period of 5 years to confirm that the correct tax has been paid.

This must include all documents listed in the evidentiary requirements, copies of all stamped documents and copies of any Duties Notice of Assessments issued.

Electronic Records – for audit purposes, we will accept electronic records. The records must be easy to access and read.

More information

For more information refer to Section 58 of the Duties Act.

Footnotes

*Duty of $750 will be charged on the establishment of a trust relating to non-dutiable and unidentified property entered into on or after 1 February 2024.