Duty on transfer to a discretionary testamentary trust beneficiary

According to Revenue NSW section 63 of the Duties Act (NSW) 1997 does not extend concessional relief to the transfer of dutiable property by a testamentary trust (TT) trustee to a beneficiary.

Concessional duty of $50 applies to:

(a) a transfer of dutiable property by the legal personal representative of a deceased person to a beneficiary, being–

    (i) a transfer made under and in conformity with the trusts contained in the will of the deceased person or arising on an intestacy, or …

under sub-paragraph 63(1)(a)(i) of the Duties Act (NSW) 1007

Accepting that a TT trustee is a LPR of a deceased person, or at least disregarding cases where it is not the case, a transfer of NSW real estate by a TT trustee to a TT beneficiary named in the will of the deceased person (Will) in conformity with a TT in the Will appears to make out the requirement of the concession. But Revenue NSW differs.

In Revenue Ruling DUT 46 – Deceased Estates, Revenue NSW states at paragraph 30:

Testamentary trusts

30. Often a will may establish a trust with a named trustee and beneficiaries, with a gift to the trustee of that trust. A transfer from the legal personal representative to a beneficiary of the testamentary trust will not obtain the benefit of the section 63 concession, however, a transfer to the trustee of the testamentary trust will be liable to duty of $50 under sub-paragraph 63(1)(a)(i).

Revenue Ruling DUT 46 – Deceased Estates, Revenue NSW states at paragraph 30

Denial of concession explained?

There is no explanation in DUT 46 as to:

• why a transfer to a beneficiary seemingly in conformity with the section 63 concession doesn’t attract the concession; or
• how sub-paragraph 63(1)(a)(i) may apply where a beneficiary of a TT has an absolute or indefeasible interest in dutiable property under the TT in the Will.

Scope of statutory exemptions (concessions)

An adage and exhortation about stamp duty, statutory exemptions to duty and those who seek to rely on an exemption is:

find an exemption and get within it

could be trite.

A corollary of no lesser importance is that where a situation doesn’t meet all requirements of an exemption there will be no exemption.

Figuring out what Revenue NSW mean

I understand Revenue NSW to be saying that not all requirements of the formulation:

in conformity with the trusts contained in the will of the deceased person

are met in the case of transfer of dutiable property by a LPR to a TT beneficiary.

Some indication of what Revenue NSW means is at paragraph 7 of DUT 046 which states:

7. The transfer must be made both under and in conformity with the trusts of the will or arising on intestacy. It is not sufficient that the transfer not be inconsistent with those trusts.

with Sanders v Chief Commissioner of State Revenue [2003] NSWADTAP 22 cited in support.

Paragraph 7 hints at the problem an LPR or a TT trustee of a discretionary TT in a Will may have with the section 63 concession. A transfer to a specific discretionary beneficiary in a class of beneficiaries under a discretionary TT is not a stipulation of the testator contained in the Will. The transfer occurs instead because someone other than the testator has been given a power beyond the Will to decide who among the class of TT beneficiaries is to receive the dutiable property.

That exercise of discretion by a living person is extraneous to the Will but is authorised by the Will. Yet, because a discretionary TT beneficiary doesn’t take the dutiable property by direction of the testator and the Will, Revenue NSW seem to say that the transfer is not in conformity with the trusts contained in the Will. That is an undeniably strict interpretation of section 63 bearing in mind that a transfer to an identifiable discretionary beneficiary of a TT to give effect to a valid gift to the beneficiary in the Will is entirely within, anticipated by and “in conformity with” the wishes of a testator expressed in his or her Will.

To describe a transfer made in pursuance of a Will-reposed discretion to gift property among a class of named discretionary beneficiaries as a mere consistency with the Will is somehow inadequate.

Testamentary trust planning

An ongoing discretionary TT included in a Will by a testator may not necessarily be of use to or in the interests of TT beneficiaries who are to take the testator’s property. So a collapsible TT can be desirable and useful to a testator’s survivors instead. Broadly a collapsible TT is where a LPR, TT trustee or appointor is given ability under a Will to collapse a discretionary TT and take the TT property as if the Will had made a gift of the property bypassing holding the property on the TT.

Based on the above such a gift on collapse of a discretionary TT to a named beneficiary is or should be wholly in conformity with a stated gift in the Will and so should attract concessional duty under sub-paragraph 63(1)(a)(i). It follows that a collapsible TT can lead to a duty saving where:

• the TT is over property including dutiable property;
• the TT is collapsed, bypassed and doesn’t take effect as a TT; and
• the dutiable property that was to be held on the TT is instead transferred to the named beneficiary expressly under the terms of the Will and the sub-paragraph 63(1)(a)(i) exemption can thus be made out.

Containment

So to achieve a stamp duty exemption in conformity with the trusts contained in the Will under the Revenue NSW regime no actions extraneous to the Will, such as the exercise of a Will-based discretion to distribute dutiable property to a TT beneficiary, are “within” the concession. That is: the gift pathway of the dutiable property from testator to beneficiary needs to be wholly contained in the Will.

Perpetuities

There is a curious comparison between the approach of Revenue NSW to duty on transfer by a LPR to a discretionary TT beneficiary and the approach of the Federal Court to the rule against perpetuities.

In an earlier blog How perpetuities law limits can impact trust distributions to other trusts I considered the “wait and see” rule as it applies to the perpetuities following the Federal Court decision in Federal Court in Nemesis Australia Pty Ltd v Commissioner of Taxation [2005] FCA 1273. What would the outcome in that case have been if such a narrow or strict approach to the “wait and see” rule, which is effectively an exemption from the common law rule against perpetuities now codified by statute in most states (the Perpetuities Rule), been taken?

All jurisdictions except South Australia have retained the Perpetuities Rule.

Uneasiness

I am uneasy about the Nemesis Australia decision as the last words in my blog suggest. If Nemesis Australia is later found by a court to be incorrectly decided then the consequences will be severe for trusts impacted: where the Perpetuities Rule applies to a trust, the trust is void and treated as if it was never valid. This harshness was the reason for the introduction of “wait and see” rule, under which dispositions of property under a trust, that would otherwise be void under the Perpetuities Rule, are not void from the outset and the parties can “wait and see” whether the disposition of property under the trust will vest within the applicable perpetuity period. Only where the property does not so vest is the trust then invalidated by the Perpetuities Rule.

Policy to prevent remoteness of vesting

The policy of the Perpetuities Rule (the Policy) is:

• to prohibit lengthy remoteness of vesting of property interests in private hands and indestructible private trusts;
• to limit property owners’ capacity to restrict free alienation of property ; and
• to limit the control of property by trust founders or testators to a reasonable period.

The Perpetuities Rule applies to private trusts aside from charitable trusts and superannuation funds to achieve this Policy.

Significance of a trust discretion

The Nemesis Australia decision turned on the significance of an exercise of a discretion: it was found that the “wait and see” rule could be applied because the trustee of Trust B had a discretion to bring forward the vesting day and the parties could then “wait and see” whether the vesting day of Trust B will be brought forward by exercise of discretion to the earlier vesting date of Trust A. Should that happen property from Trust A, received into Trust B as a distribution from Trust A, would not vest outside of the Perpetuities Rule perpetuity period for property vested in Trust A. (See my blog  How perpetuities law limits can impact trust distributions to other trusts )

Disparity of approach to statutory exemptions

There is a disparity between how the “wait and see” rule was interpreted in Nemesis Australia where a discretion, whose exercise is not dictated by the terms of a trust, was acceptable to invoke the “wait and see” rule and Revenue NSW’s rejection of exercise of a Will-based discretion not dictated by a Will as not being in conformity with the trusts in a Will for section 63 of the Duties Act 1997 purposes.

There are a number of principles of statutory interpretation that can be applied to exemptions which were not considered in Nemesis Australia. These principles do not support a construction of the “wait and see” rule that saves a trust from being void under the Perpetuities Rule where the parties wait to see if a trust terms-based discretion will be exercised to bring forward the vesting date of the trust:

• an interpretation of a statute which will permit a person to take advantage of his or her own wrong is to be resisted (Resistance); and
• an interpretation of a statute that promotes the purpose of a statute is to be preferred to a literal construction (Preference).

Resistance

An instance of a Resistance given in Pearce & Geddes “Statutory Interpretation” 7^th ed. is in Holden v. Nuttall (1945) VLR 171 where, on an application for possession of leased premises, a court was required by statute to take into account whether an order for possession would cause the lessee “hardship”. Evidence showed that the lessee had acted in a manner contrived by the lessee to enable him to take the benefit of the hardship exception. Herring CJ found that the meaning of “hardship” should be limited so that no injustice would be brought about by allowing a person to benefit from his or her own wrong.

This is comparable to where a trust is established with say a last vesting date of 160 years which is well beyond perpetuity periods allowed under Perpetuity Rules. (See also the similar hypothetical raised by the Respondent referred to in paragraph 43 in the judgement in Nemesis Australia.) This differs much from a case of say, a trust where when property may vest turns on a genuine and unplanned contingency or contingencies that may or may not occur within the perpetuity period, such as how long a beneficiary of a trust may live for, which is the type of contingency the “wait and see” rule ordinarily contemplates.

Still trust terms may allow a trustee, or some other person; a discretion to bring forward the vesting day as in Nemesis Australia, or even in the absence of a term allowing the bring forward of the vesting date of the trust, state law may allow a trustee to apply to a state court for a vesting order prior to expiry of the applicable perpetuity period. If Nemesis Australia is correctly decided the parties to the trust may then “wait and see” whether a vesting order is applied for and vesting happens within the perpetuity period of a trust flagrantly in breach of the Perpetuity Rule and the Purpose and, in the meantime, the trust would be valid.

But a 160 year last vesting date for a trust may be a wrong, such as considered in Holden v. Nuttall, by the founder of a trust. That is a wrong that is contrary to the Policy when considered in the context of the Policy. Shouldn’t a trust established on the premise of that wrong, if it is a wrong, be considered:

• contrived to take advantage of the “wait and see” rule?; and
• beyond what is meant as a “wait and see” under the “wait and see” rule?;

and denied “wait and see” exemption from the Perpetuities Rule?

Preference

The construction of the “wait and see” rule in Nemesis Australia is literal. The Preference, as Pearce & Geddes explain, is that an interpretation of a statutory provision under section 15AA of the Acts Interpretation Act (C’th) 1901 and comparable state and territory legislation should promote a construction of a statute based on the purpose of a statute as preferable to a literal construction.

Pearce & Geddes also refer to the explanation of Dawson J. in Mills v. Meeking (1990) HCA 6 at para. 19 as follows:

19. However, the literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act. Section 35 of the Interpretation of Legislation Act must, I think, mean that the purposes stated in Pt 5 of the Road Safety Act are to be taken into account in construing the provisions of that Part, not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open. The requirement that a court look to the purpose or object of the Act is thus more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction. The mischief or purpose rule required an ambiguity or inconsistency before a court could have regard to purpose: Miller v. The Commonwealth (1904) 1 CLR 668 at p 674; Wacal Developments Pty. Ltd. v. Realty Developments Pty. Ltd. (1978) 140 CLR 503 at p 513. The approach required by s.35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done. However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section 35 requires a court to construe an Act, not to rewrite it, in the light of its purposes.

Dawson J. in Mills v. Meeking (1990) HCA 6 at para. 19

The purpose of the Perpetuities Rule is the Policy. The Policy is defeated where a contingency that a trustee could apply for a vesting order prior to the expiry of the perpetuity period applicable to the trust prevents the Perpetuities Rule from taking effect in an abundance of cases. The Respondent’s submission referred to in paragraph 43 in the Nemesis Australia judgement cogently establishes why the Policy fails where the “wait and see” rule is applied literally but the Federal Court in the Nemesis Australia seemed to gives minimal credence or importance to the Policy as the legislative intent of the Perpetuities Rule.

Conclusion

All requirements to make use of a statutory exemption from a law need to be met. Occasionally exemptions, including exemptions which are not clearly expressed, will be construed strictly perhaps to unanticipated standards. Equivocally drafted statutory exemptions can lead to unexpected outcomes so, where much turns on whether or not an exemption is available, caution should be exercised and a conservative approach taken.

Hopefully Revenue NSW’s view in paragraph 30 of Revenue Ruling DUT 46 on duty on transfers of dutiable property to a beneficiary of a testamentary trust will eventually be tested and explained in a reported court decision.

With regard to perpetuities, the Perpetuities Rule and the “wait and see” rule I suggest that appropriate fail safes should be included in discretionary trust deeds so that the Perpetuities Rule can be complied with and the trust will remain valid, just in case Nemesis Australia doesn’t persist as the accepted Australian understanding of how the “wait and see” rule applies on some basis I have or haven’t anticipated.