38ASpecial disability trusts

38A Special disability trusts S. 38A(1) amended by No. 18/2023 s. 7(1). (a) a declaration of trust that establishes a special disability trust; or (b) a transfer of dutiable property to the trustee of a special disability trust— in the circumstances set out in subsections (2), (3), (4) and (4A). (2) The person declaring the trust, or the transferor of the dutiable property (as the case requires) must be an immediate family member of the principal beneficiary of the special disability trust. (3) There must be no consideration provided for the declaration or transfer. S. 38A(4) substituted by No. 18/2023 s. 7(2). (4) The dutiable value of the property that is the subject of the declaration or transfer must not exceed— (a) for dutiable property that is an interest in land to which a building is affixed that the principal beneficiary intends to use as their principal place of residence, $1 500 000; or (b) for any other property, $500 000. S. 38A(4A) inserted by No. 18/2023 s. 7(2). (4A) For dutiable property referred to in subsection (4)(a), at the time of the transfer— (a) the dutiable property must meet the building requirement in section 38AB; and (b) it is intended that the principal beneficiary occupy the land in accordance with the residence requirement. S. 38A(5) amended by No. 18/2023 s. 7(3). (5) If, but for subsection (4), duty would not be chargeable in respect of a declaration of trust or transfer of dutiable property because of this section, duty is chargeable on the declaration or transfer only in respect of the dutiable value of the property that exceeds— S. 38A(5)(a) inserted by No. 18/2023 s. 7(3). (a) for subsection (4)(a), $1 500 000; or S. 38A(5)(b) inserted by No. 18/2023 s. 7(3). (b) for subsection (4)(b), $500 000. S. 38A(6) def. of *immediate family member* amended by No. 50/2024 s. 15(a). ***immediate family member*** of a principal beneficiary, means an individual— (a) who is a natural parent, adoptive parent or step-parent of the principal beneficiary; or (b) who is, or was when the principal beneficiary was under 18 years of age, a legal guardian of the principal beneficiary; or (c) who is a grandparent of the principal beneficiary; or (d) who is a sibling of the principal beneficiary. S. 38A(6) def. of *principal beneficiary* amended by No. 46/2019 s. 10, repealed by No. 18/2023 s. 7(4). S. 38A(6) def. of *Social Security Act* repealed by No. 50/2024 s. 15(b). S. 38A(6) def. of *special disability trust* repealed by No. 50/2024 s. 15(b). S. 38A(6) def. of *Veterans' Entitlements Act* repealed by No. 50/2024 s. 15(b). S. 38AB inserted by No. 18/2023 s. 8. 38AB Building requirement—special disability trusts For the purposes of section 38A(4A)(a), it is a requirement that, at the time of the declaration or transfer, there is a building affixed to the land that in the Commissioner's opinion— (a) is designed and constructed primarily for residential purposes; and (b) may lawfully be used as a place of residence. S. 38AC inserted by No. 18/2023 s. 8. 38AC Residence requirement—special disability trusts (1) For the purposes of section 38A(4A)(b), it is a requirement that the principal beneficiary occupies the land as the principal beneficiary's principal place of residence for a continuous period of at least 12 months commencing within the 12 month period immediately after the declaration or transfer. (2) In determining whether land is occupied as the principal place of residence of a principal beneficiary, account must be taken of every place of residence of the principal beneficiary, whether in Victoria or elsewhere. S. 38AD inserted by No. 18/2023 s. 8. 38AD Variation of residence requirement—special disability trusts S. 38AE inserted by No. 18/2023 s. 8. 38AE Liability for duty if residence requirement not complied with—special disability trusts (1) If the residence requirement for a declaration or transfer referred to in section 38A(4)(a) or (5)(a) is not complied with, the declaration or transfer is chargeable with duty— (a) at the rate set out in section 28(1) without any exemption or concession from duty under section 38A (that would otherwise have applied because of section 38A(4)(a) or (5)(a)), subject to any other exemption or concession (including the exemption or concession in section 38A that would apply because of section 38A(4)(b) or (5)(b)); and (b) the Commissioner may reassess duty on the declaration or transfer accordingly. (2) A liability for duty imposed because of subsection (1) on a declaration or transfer arises when the residence requirement for that declaration or transfer is not complied with. Section 16 provides that a tax default does not occur if the duty is paid within 30 days after the liability for the duty arises. (3) A reassessment referred to in subsection (1)(b) is authorised if more than 5 years have passed since the initial assessment was made. Section 9(3)(c) of the **Taxation Administration Act 1997** allows a reassessment to be made more than 5 years after the initial assessment if this is authorised by a taxation law. (4) If the residence requirement for a declaration or transfer referred to in section 38A(4)(a) or (5)(a) is not complied with, subsection (5) applies until the trustee has paid duty for which the trustee is liable because of this section. (5) For the purposes of subsection (4)— (a) section 38A does not apply to any other declaration of a special disability trust, or transfer of dutiable property to a trustee of a special disability trust, of which the principal beneficiary is the same person as the principal beneficiary in relation to the declaration or transfer for which duty has been reassessed under subsection (1)(b); and (b) section 57P does not apply to any other transfer of dutiable property to the principal beneficiary. S. 38AF inserted by No. 18/2023 s. 8. 38AF Trustee to notify Commissioner of change in circumstances—special disability trusts (1) A trustee who has received an exemption or concession from duty under section 38A, for a declaration or transfer referred to in section 38A(4)(a) or (5)(a), must lodge a written notice with the Commissioner within 30 days after becoming aware of any circumstances that may result in the residence requirement not being complied with. (2) A failure of a trustee to comply with subsection (1) does not affect the Commissioner's power to reassess duty under section 38AE or to exercise a discretion under section 38AD. Division 2—Superannuation S. 38B inserted by No. 39/2009 s. 9.