A transfer to a beneficiary of the fixed trust (the principal trust) as trustee of another trust (the second trust) of which all the beneficiaries are natural persons of that second trust.
For the purposes of s36:
- Fixed trust is defined as being any trust other than:
- A discretionary trust under s36A.
- A trust to which a unit trust scheme relates.
- A superannuation fund under s41A.
- The relevant time means the time at which the property first became subject to the principal trust.
The following information is required:
- The Digital Duties Form.
- A copy of the duly stamped trust deed of the principal trust together with copies of all amending deeds.
- A copy of a stamped second trust deed.
- In relation to any trust deed for which a copy of the stamped deed cannot be produced:
- A statutory declaration declaring what steps have been taken to locate the original trust deed, made by a person having knowledge of those steps. If any unstamped copy of the trust deed is available, you need to attach a copy and explain how it was obtained.
- Copies of financial statements and income tax returns of the principal trust for the last three financial years showing the property was an asset of the principal trust.
- Any other material showing the property as an asset of the principal trust, for example:
- A copy of the contract of sale for the purchase of the property by the trustee (showing capacity as trustee of the trust).
- If the trustee is a corporation, minutes of a directors' meetings resolving to accept the appointment as trustee of the trust and acquire the property for the trust.
- A copy of the historical certificate of title.
- A copy of the duly stamped transfer to the trustee of the principal trust.
- Copies of financial statements of the principal trust for the last three financial years.
- If the property's title particulars have changed since the relevant time provide copies of the parent titles and the plan of subdivision or consolidation showing how the current title particulars were derived from the parent title.
- Evidence of the value of all the properties under the principal trust as at the date of the transfer, by one of the following:
- a letter of appraisal from a licensed real estate agent and a copy of the relevant rates notice, or
- a valuation by a certified practicing valuer who is a member of the API or by a member of the Real Estate Institute of Victoria with with sworn valuer accreditation, or
- In circumstances where a letter of appraisal or sworn valuation could not be obtained, an explanation of the steps taken to obtain either the appraisal or valuation.
- A statutory declaration by the trustee of the principal trust, addressing the matters set out below:
- State whether the transfer is to the beneficiary of the principal trust as trustee of the second trust.
Capacity of trustee
- State whether the trustee has held the property in any other capacity either before or after the relevant time and if so explain in what other capacity they acted.
- Identify the provision of the principal trust deed which provide the trustee with the power to distribute capital to the transferee.
- State whether any prior distributions of property have been made to beneficiaries of the principal trust and if s, identify the assets transferred and to whom.
The relevant time
- State the date the property first became subject to the principal trust.
- Identify the provision under the principal trust deed under which shows the transferee was a beneficiary at the relevant time.
- If the transferee is not named as a beneficiary in the principal trust deed:
- Explain how the transferee is considered to be a beneficiary of the principal trust at the relevant time.
- Identify the class of beneficiary that they fall into under the principal trust.
- State when they became a beneficiary of the principal trust.
- State the value of the beneficiary's entitlement under the principal trust at the date of transfer.
- Identify and state the value of each asset at the date of transfer.
- Identify and state the value of all liabilities of the principal trust at the date of transfer.
The second trust
- Identify the provision under which the beneficiaries of the second trust were beneficiaries of the second trust at the relevant time.
- If any beneficiary of the second trust is not named in the second trust deed:
- Explain how they are considered to be a beneficiary of the second trust at the relevant time.
- Identify the class of beneficiary under the second trust that they fall into.
- State when they became a beneficiary of the second trust.
Consideration and mortgages
- State whether the transfer is part of a sale or other arrangement under which there exists consideration for the transfer.
- State whether the transferee paid any amount to the transferor or to any other person in respect of the transfer.
- State whether a trust has borrowed funds from another person other than a financial institution (e.g. beneficiary loan accounts, loans from associates etc). State whether the transfer related to the forgiveness of any such loan. If yes, provide full details of the arrangement together with copies of loan statements before and after forgiveness of the loan.
- If loan accounts (as referred to in the previous point) exist and the loans are not to be forgiven as part of the transfer, state how the trust intends to pay out the loans.
- State whether the property was encumbered by a mortgage (whether registered or unregistered) immediately before the transfer. If so, provide evidence of the amount owing under that mortgage immediately before and after the transfer (e.g. account statement or letter from the financier).
- State whether the mortgage liability was:
- assumed by the transferee, or
- paid out by the transferee with a new mortgage over the property that secures the same or greater amount as that outstanding under the mortgage that existed before the transfer.
- Provide evidence of the amount of the new mortgage.
- State how the funds obtained under that mortgage were used.
- If the mortgage liability was not assumed or paid out in full by the transferee, explain how the mortgage liability was reduced or discharged and provide evidence of the source of the funds (e.g. bank/financial statements).
- If the mortgage liability was assumed or paid out by the transferee then state the circumstances for the initial mortgage, including:
- When was the mortgage created, in particular was it at or before the time the property became subject to the trust.
- Whether the mortgage was part of a refinancing of an earlier mortgage. If yes, provide details about when the earlier mortgage was created.
- Whether the mortgage was created to secure borrowings that have been applied to the improvement of the property. If yes, provide documentary evidence to support this.
- Whether the mortgage was obtained in connection with matters unrelated to the property. If yes, please set out what these other matters are.
- If the mortgage liability was not assumed or paid out in full by the transferee, explain how the mortgage liability was reduced or discharged and provide evidence of the source of funds (e.g. bank/financial statements).