Across NSW, fixed unit trusts that have satisfied the "relevant criteria" for years are being reclassified as special trusts — and family trusts are being deemed foreign on constructions of their deeds that we consider wrong. The result: lost thresholds, 5% surcharge land tax from the first dollar, and assessments in the hundreds of thousands. Many of them should not stand.
MGS Private accepts briefs from accountants, lawyers and financial planners directly.
Two distinct Revenue NSW positions are producing the same outcome for trustees: assessments that arrive without warning, on interpretations that do not survive scrutiny.
Deeds that have been accepted as meeting the s 3A "relevant criteria" — in some cases for many years — are now, on review, being classified as special unit trusts. A special trust receives no tax-free threshold, and its foreign status is determined by its unit holders.
A discretionary trust is deemed foreign unless its deed irrevocably excludes foreign persons. Revenue NSW is applying the widest available construction — including reading a general charities clause as capturing charities anywhere in the world — to deem ordinary Australian family trusts foreign.
MGS Private is running these disputes now — objections, private rulings, NCAT proceedings and correspondence with the Chief Commissioner. The pattern is consistent.
Objections disallowed without the grounds raised being addressed in the determination.
Determinations resting on evidence that does not withstand examination once tested.
Long-accepted deeds reclassified on review, with no notification that the Commissioner's view had changed.
Assessments sized and timed in a way that invites payment rather than review — when review is exactly what they need.
"Where the position is wrong, it does not improve by being paid. It improves by being tested — on objection, on review, and where necessary at the Tribunal."
Every matter turns on its own facts and deed. These recent results show what testing the position can achieve.
Chief Commissioner confirmed in writing that the transitional provisions applied — surcharge exposure removed.
Family trust with no foreign potential beneficiaries on or before 24 June 2020. The protection existed all along; it had to be put, properly, to Revenue NSW.
Unit trust initially classified "special" was confirmed as meeting the relevant criteria on escalated review.
Revenue NSW accepted the deed's entitlement clauses prevail, recommending a minor variation to put the position beyond doubt. Threshold preserved.
Determination that failed to engage with the objection grounds is now listed for review at NCAT.
Where the evidence said to support the assessment does not hold up, the proper course is administrative review — and we run it.
Outcomes depend on each client's facts and documents. Private rulings and determinations apply only to the taxpayer and circumstances to which they relate. Examples de-identified.
A Chartered Tax Adviser–led practice, in practice since 1999, working in the Land Tax Management Act 1956, the Land Tax Act 1956 and the Duties Act 1997 every day.
Line-by-line review of unit trust and family trust deeds against s 3A relevant criteria and s 5D foreign-person exclusions, with targeted variations that put the position beyond doubt — without triggering duty or resettlement.
Grounds properly framed and pressed — including transitional-provision arguments for pre–24 June 2020 trusts. An objection either succeeds or leaves the assessment unchanged.
Binding certainty on fixed trust status and foreign-person questions before assessments issue — not after.
Where a determination is wrong, we prepare and run the administrative review — and settlement discussions where they serve the client.
Converting discretionary and hybrid trusts to unit and fixed unit trusts, changing trustees (s 54(3)), and moving property to new structures without transfer or landholder duty.
Send the deed, the assessment and the Revenue NSW correspondence. We review, advise on prospects, and run the objection or ruling under your brief. You keep the relationship; we bring the technical bench.
Brief MGS PrivateDon't pay it reflexively. Take the assessment to your accountant, lawyer or financial planner and ask them to brief MGS Private. Objection periods run from the date of assessment — timing matters.
Ask your adviser to contact usInitial review of the deed and correspondence, an honest view on prospects, and a clear scope before any work begins.
Get in touchOr call (02) 9231 5111 · Level 7, 77 Castlereagh Street, Sydney NSW 2000
MGS Private accepts briefs from accountants, lawyers and financial planners directly.
This page is general information only and is not legal, tax or financial advice. Rates and thresholds are as published by Revenue NSW for the 2026 land tax year and are subject to change. Private rulings and determinations apply only to the taxpayer and circumstances to which they relate; outcomes depend on each client's facts. Examples are de-identified.
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