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Entity Setup

Entity Setup Strategies Amid Discretionary Trust Tax Reforms

The proposed minimum 30% tax on discretionary trusts from mid-2028 means it's time to evaluate entity structure: trusts, companies, fixed trusts—and what will optimise tax outcomes under the new rules.

By NomadicTax Research Team · 7 min read

What the Reforms Propose for Trusts and Entities

  • Starting 1 July 2028, discretionary trusts face a minimum tax rate of 30% with some exceptions. (budget.gov.au)
  • Rollover relief allows trustees to restructure entities from 1 July 2027 until 30 June 2030 (three-year window) to prepare for the changes. (budget.gov.au)
  • Amendments will affect individuals, trusts, and partnerships when calculating capital gains and eligibility under CGT discount rules. Loss carry-forward and negative gearing changes will also interact with your chosen structure. (budget.gov.au)

Possible Structure Alternatives & Their Implications

Entity TypeAdvantagesDisadvantages under New Rules
Fixed trusts or hybrid structures**Might allow avoidance of discretionary distributions; can be more predictable for tax planning.May lose flexibility; could incur higher compliance & legal cost to establish or change.
CompaniesFlat tax rate, limited liability; more straightforward tax reporting.May miss out on trust-specific concessions; profit distributions taxed as dividends.
Family trustsElections and concessions previously allowed, but reforms diminish their tax advantages under discretionary distributions.Discretionary portion taxed at 30%; fewer beneficiaries may be conducive.
Self-managed Superannuation Funds (SMSFs)Typically excluded from discretionary trust minimum tax; favourable CGT exclusions half discount still available through super rules.Restricted by superannuation laws and contribution caps; liquidity and access issues.

Planning Steps for Entity Setup Before the Reforms

  1. Assess current distributions: Identify how much of your income flows through discretionary trusts and how it would be taxed under the minimum tax. |

  2. Use the rollover period (from July 2027) to restructure: Shift assets or income streams into more favourable entities before the reforms take full effect. |

  3. Compare marginal tax versus company tax rates: In some cases, using a company to receive income (then dividends) may be more efficient than experiencing the 30% trust tax. |

  4. Legal and compliance review: Ensure changes respect legal requirements (trust deeds, beneficiary rights, state legislation) and maintain proper valuations. |

Example of Structuring Under New Regime

Suppose a family owns a property portfolio under a discretionary trust, distributing income among beneficiaries in high tax brackets (> 37%). Under new rules, the trust income will be subject to a 30% flat minimum tax—higher than some beneficiaries’ brackets. If restructured into a company, some profits could be retained or paid as franked dividends, potentially creating tax savings and better cash flows. |

Alternatively, fixed trusts might be arranged to limit discretionary distribution, but they must comply strictly with fixed entitlements. |

Key Takeaways for Entity Setup

  • Act early: Use the window from 12 May 2026 until 1 July 2027 to plan, restructure, or dispose of assets to avoid unwanted tax outcomes. |
  • Seek professional advice: Trusts and companies involve complex laws—incorrect restructuring can incur unexpected tax liabilities. |
  • Keep an eye on enacted legislation: Reforms announced in the Budget may still require full passage through Parliament before being law. |

By understanding entity impacts now, you can structure your affairs to retain flexibility, limit tax impact, and align with long-term goals under the new environment.

Sources

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