3ASpecial trust—meaning

#### 3A Special trust—meaning 3A Special trust—meaning > > (1) For the purposes of this Act, a trust is a special trust if— > > > > > (a) the trust property includes land, and > > > > > (b) the trustee of the trust is the owner of the legal estate in the land, and > > > > > (c) the trust is not a fixed trust. > > > (2) For the purposes of this section, a trust is a fixed trust if the equitable estate in all of the land that is the subject of the trust is owned by a person or persons who are owners of the land for land tax purposes (disregarding section 25 (3)). > > > (3) For the purpose of determining whether a trust is a fixed trust under this section, any equitable interest of the trustee as trustee of the trust is to be disregarded. > > > (3A) If a trust satisfies the relevant criteria, the persons who are beneficiaries of the trust under the trust deed are taken to be owners of an equitable estate in the land that is the subject of the trust and, accordingly, the trust is taken to be a fixed trust. > > > > Note. > > > > Under section 25, owners of an equitable estate or interest in land are liable in respect of land tax as if they were legal owners of the land. Owners of an equitable estate in land are treated as secondary taxpayers. > > > (3B) For the purposes of this section, the relevant criteria are as follows— > > > > > (a) the trust deed specifically provides that the beneficiaries of the trust— > > > > > > > (i) are presently entitled to the income of the trust, subject only to payment of proper expenses by and of the trustee relating to the administration of the trust, and > > > > > > > (ii) are presently entitled to the capital of the trust, and may require the trustee to wind up the trust and distribute the trust property or the net proceeds of the trust property, > > > > > (b) the entitlements referred to in paragraph (a) cannot be removed, restricted or otherwise affected by the exercise of any discretion, or by a failure to exercise any discretion, conferred on a person by the trust deed, > > > > > (c) if the trust is a unit trust— > > > > > > > (i) there must be only one class of units issued, and > > > > > > > (ii) the proportion of trust capital to which a unit holder is entitled on a winding up or surrender of units must be fixed and must be the same as the proportion of income of the trust to which the unit holder is entitled. > > > (4) A trust is not a special trust— > > > > > (a) if the trust is solely a charitable trust, or > > > > > (b) if clause 9 of Schedule 1A applies in respect of the land that is the subject of the trust, or > > > > > (c) if the trust is a concessional trust, or > > > > > (d) in relation to any land tax year in which it is a superannuation trust, or > > > > > (e) if the trust is established by will, but only during the period ending on the expiration of 2 years after the date of death of the testator, or > > > > > (f) in relation to any land tax year in which it is a family unit trust, as provided by Schedule 1AA. > > > (5) For the purposes of this section, a trust is a superannuation trust in relation to a land tax year if— > > > > > (a) the trust was established on or before 30 June in the year before that land tax year and, in relation to the year of income ending in that year, the trust is— > > > > > > > (i) a complying superannuation fund (within the meaning of section 42 or 42A of the Commonwealth Act), or > > > > > > > (ii) a complying approved deposit fund (within the meaning of section 43 of the Commonwealth Act), or > > > > > > > (iii) a pooled superannuation trust (within the meaning of section 44 of the Commonwealth Act), or > > > > > (b) the trust was established after 30 June in the year before that land tax year and, as at midnight on 31 December in that year, the trust is— > > > > > > > (i) a regulated superannuation fund (within the meaning of the Commonwealth Act) or is taken to be a regulated superannuation fund under that Act, or > > > > > > > (ii) an approved deposit fund (within the meaning of the Commonwealth Act), or > > > > > > > (iii) a pooled superannuation trust (within the meaning of the Commonwealth Act). > > > (6) Despite anything to the contrary in this section, a trust is taken to be a special trust in relation to a land tax year if the trust is classified as a special trust in respect of that land tax year under section 25A, and the classification has effect in respect of that land tax year. > > > (7) In this section— > > > > Commonwealth Act means the [Superannuation Industry (Supervision) Act 1993](http://www.legislation.gov.au/) of the Commonwealth. > > **s 3A:** Ins 1997 No 41, Sch 2 \[3\]. Subst 2002 No 108, Sch 2.2 \[5\]. Am 2003 No 80, Sch 4 \[2\]; 2005 No 111, Sch 4 \[2\]; 2006 No 87, Sch 2 \[1\]–\[3\]; 2010 No 118, Sch 3 \[1\]; 2012 No 20, Sch 2 \[1\]; 2014 No 19, Sch 2 \[2\].