Trust Circular #17: Recent New South Wales Trust Legislation Redefining and Then Excluding Foreign Trustees and Beneficiaries

Hi Folks

Mark Pytellek here again, of Private Trust Makers (PTM), the makers of your Trust.

Here’s the next chapter of the Non Registered Trust story on how you can engage your Trust to favor your financial future.

To all our valued Trust clients, including the most recent new ones, welcome to our monthly free educational circular as part of our program to educate and upskill our Trust clients so they learn to competently use their Trust without having to run to and rely on lawyers or accountants, thus saving you time and money. The earlier Trust Newsletters are available, free, on our website www.solutionsempowerment.org within the “Non Registered Trust” section under the tab “Resources”

Today’s subject matter topic is “Recent New South Wales Trust Legislation Redefining and then Excluding Foreign Trustees and Beneficiaries”.

Notice 1 the information delivered below is not legal ad-vice.

Notice 2 I am not a practicing lawyer nor a Certified Accountant.

Notice 3 the information delivered below is strictly private and confidential, delivered for your personal benefit

The Recent Introduction in New South Wales of New Trust Legislation Redefining and Then Excluding Foreign Trustees and Beneficiaries

Folks, make no mistake, the new legislation, only applicable within the State of New South Wales (N.S.W.), is nothing more than a money grab by the Office of State Revenue (O.S.R.).

On the back of the recent introduction of universal legislation precluding foreign Trustees and Beneficiaries from having any interest in property, assets, capital or income of a Trust, newly created N.S.W. legislation, only for and applicable to the State of N.S.W. now redefines what is interpreted as a foreign Trustee and Beneficiary from what was once a Trustee and Beneficiary. Note, although the legislation applies to registered Trusts, our Trusts are impacted by these new draconian pieces of legislation.

The issue is complex and is derived from a very poorly Lawyer drafted Trust that was the object of a legal case “ENLACE PTY LTD ATF ENLACE TRUST v CHIEF COMMISSIONER [October 2025] NSWCATAD 253” that gave rise to some very poor assessments and decisions by the presiding N.S.W. Judge, creating detrimental outcomes for all Trust holders in N.S.W.

Although the decision was handed down in October 2025, it directly addressed issues that had been causing confusion throughout 2022–2024, and it effectively confirmed and crystallised the legal position that NSW Revenue had been applying.

For example, if the Settlement Date of the Trust Deed containing the Exclusions (Or the Deed of Variation) is October 2025, and you put the property in the Trust 20 Jan 2026, the Trust is still assessed for foreign‑person status for the entire 2025 land‑tax year.

This is because NSW surcharge land tax is determined by the Trust’s status at midnight on 31 December of the relevant year; and not the financial year. Later Variations or Amendments do NOT fix the past. The Deed Variation must be submitted with the Original Trust Deed and dated within a week or so after the original Trust Deed Settlement date, not the date of Transfer of the intended land purchase.

If the Originating Trust Deed was drafted in 2024 and the Trust amendment was made in 2025 and the new property was purchased in 2026, the NSW Revenue will look at the status of the Trust right back to the 31 December 2024.
If the Trust was amended in 2025, then the surcharge is payable for all three years.

The effect

The net effect to our Trust holders is that for those people wishing to purchase property in their Trust, will incur land tax at double the normal rate! Yes, a grab for more money!

Is there a solution around the money grab

My colleague and close affiliate in Tasmania, Ron, has been diligently researching and assembling the facts associated with the creation of the new N.S.W. Trust legislation.

The outcome of Ron’s research into the N.S.W. legislative changes that affects Trusts and Trust law culminated in a simple two option process for ensuring Trustees and Beneficiaries cannot be legitimately or validly be deemed “foreign” Trustees or Beneficiaries, thereby ensuring no adverse levels of land tax be applied to property transactions in the name of a Trust can be validly applied to the purchaser.

The Two Options

The First option deals with pre existing Trusts created prior to the legislative changes.

Here, a Deed of Variation, is delivered to all non registered Trust purchasers within N.S.W. and/or purchasers from other States who employ their Trust to purchase property within the State of N.S.W. declaring an irrevocable and permanent exclusion of foreign “Persons”, Trustees and Beneficiaries, such that the Trust can never be deemed to be a foreign Trust, thereby mitigating any risk of application by the Office of State revenue (OSR) of excessive land tax. 

The second option is that a Deed of Trust is drafted solely for the purchase of real estate with all the appropriate compliance wording so the Trust never attracts the presumption of being a foreign Trust and hence only the standard land tax will ever be applied. If the disposition is to never own property within the State of N.S.W. then the standard Trust Deed can be supplied to the prospective purchaser.

If you currently reside in N.S.W. (or elsewhere) and either intend to or have purchased property in the name of the Trust in N.S.W., then please contact us for a copy of a Deed of Variation.

We hope this information alleys any concerns about disbursements to foreign Trustees and Beneficiaries and was useful and beneficial to you.

Trust Newsletter Addition

A) If you have opened a Trust bank account and have NOT received your $10 Settlement Sum. 

Please send an email to cherie@solutionsempowerment.org with:

Precise full name of the Bank account

BSB and Account Number

Note: Account Name (should include Trustee Name/s and Trust Name)

EG. SALLY PEARSON ATF SUNNY-CAT TRUST
EG. SALLY PEARSON AND ROBERT SMITH AS TRUSTEE FOR SUNNY-CAT TRUST

B) If you haven’t received the electronic Trust support documents please send a request to:
members-support@solutionsempowerment.org

Subject : Trust Support Documents Request

Look for the next Trust circular for further insights into practical and exciting applications of the use of your Trust.

 

Kind Regards,

Mark Pytellek
Principal
Private Trust Makers 
in conjunction with
Solutions Empowermentment