Australia

*Updated July 2021*

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• Legal system
• Inheritance and succession
• Estate planning
• Taxation
• Residence and domicile
• Other relevant information

Legal system

Common law

Australia comprises of a federation of six states with a national government and three internal territories and seven external territories. Each state has an elected government with sovereign power to make laws for the state. The national government enacts federal laws and is described as the Commonwealth government. It is constituted by elected houses of parliament known as the House of Representatives and the Senate. The territories also elect their own legislatures to make laws, which are subject to disallowance by the Commonwealth. There are different laws in each state and territory, albeit there are areas where uniform legislative schemes have been agreed between the states and the Commonwealth. There is some overlap between the jurisdictional power of the states and the Commonwealth. Where laws are made within the scope of the legislative power of the Commonwealth Parliament, they take priority over state laws.

There is only one common law throughout the Commonwealth, including the states and territories, and that includes the common law and equitable principles relating to the law of trusts and property rights. In this sense, the Australian constitutional system is fundamentally different to that in the US.

The Australian High Court, which is the ultimate court of appeal in Australia, has a universal constitutional jurisdiction and is the ultimate appellate court for both state and federal supreme courts. Accordingly, the High Court enunciates the common law not only for the Commonwealth but also for each of the states and territories and, once enunciated, it becomes the common law for all the states and territories.

The legal system is adversarial not inquisitorial, albeit Royal Commissions may be established by either a state or the Commonwealth to enquire into matters of public interest.

There are statutory processes for review of administrative action in each jurisdiction.

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Inheritance and succession

Succession

As a general principle, a competent adult has testamentary freedom. By statute, wills may be made both formally and informally, subject to particular requirements being met.

Also by statute, categories of persons may apply for further provision from the estate of a deceased. The categories depend on the state or territory law engaged, which also defines the pool of assets available. These applications are known as ‘family provision’ claims. The applicant must show that they have not been provided with adequate or proper maintenance from the deceased’s estate.

The survivor or survivors of jointly owned assets with a deceased take by laws of survivorship. The law recognises a difference between joint tenancy and tenancy-in-common.

Upon intestacy, state law prescribes how the estate is to be distributed to a spouse and next-of-kin.

Insurance, and superannuation or pension arrangements can be used as a way of descreasing the risk that proceeds will fall into the estate of a deceased.

Family law and defined inheritance rules

• Family law is the law of marital and other domestic relationships. Marriage is primarily a matter of federal law. Orders may be made providing for transfer of property on divorce.
• De facto relationships fall within the power of state legislatures. Under referrals by all states except West Australia, the Family Court of Australia and the Federal Circuit Court of Australia can now deal with property and financial matters arising from the breakdown of de facto relationships (also known as domestic relationships).
• There is no forced heirship. In the absence of a will, state law prescribes how the estate is to be distributed.

Probate process

A grant of probate or letters of administration or a reseal (as the case may be) may be required in each jurisdiction in which the deceased left assets. Sometimes, a grant may be resealed in the jurisdiction. Practically, a grant made in one Australian state is usually sufficient to deal with movable property located in another Australian state.

A grant already made by the court of the deceased’s last domicile, being an Australian state (or certain foreign countries), may be resealed rather than applying for a fresh grant.

Where property in the jurisdiction in which the grant is sought consists solely of movable property, the court will generally follow the law of the domicile and make a grant to the person entitled under that law. Where the property in the jurisdiction in which grant is sought includes immovable property, the law of the place where the property is situated applies.

As a matter of practice each financial institution may set a monetary value for deceased estate funds deposited and other deceased estate assets held below, which the legal personal representative(s) may deal with the same without a grant or reseal (as the case may be). Often, a financial institution will request the legal personal representative(s) with a foreign grant to provide a release and indemnity.

Mental capacity

The common-law test applies. A testator must understand the nature of the act of making a will and its effects, they must also understand the extent of the property of which they are disposing, and they must comprehend and appreciate the claims to which they ought to give effect.

Each state also makes provision for a will to be made for someone lacking testamentary capacity, with the approval of the state’s Supreme Court. This facility has been used to ensure that a compensation receipt held for a child will pass substantially to the care-giving parent, not an absent parent, should the child die; to deprive a spouse suspected of injuring a person of the fruits of that harm should the injured party die; and for tax-planning purposes. The application must be made and determined during the lifetime of the person who lacks testamentary capacity.

Each state also has a Public Trustee, a Public Guardian (or equivalent) and a Guardianship and Administration Tribunal, which all have specified statutory jurisdictions to engage in the management or protection of a person under a mental disability and their assets.

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Estate planning

Estate planning in Australia focuses on dealing with the wealth preservation and transfer objectives of clients. With more than one in four Australian residents not being born in this country, dealing with the multiple jurisdictional connections of clients is a steadily increasing aspect of this work.

Use of trusts in estate planning

• The basis for the law of trusts in Australia is English trust law principles.
• For some purposes, trusts can be fiscally advantageous and can facilitate protection and distribution of assets and income.
• Trading trusts are a usual structure in Australia. Trusts are also used for more passive investments, for superannuation or pension plans and as an element in holding infrastructure assets and assets for long-term family financial support.

Use of foundations in estate planning

• Foundations are not available. The concept of a foundation remains problematic where, for example, the nature of a foreign foundation must be proved in an Australian court.
• For estate-planning purposes in Australia the foundation concept is utilised for the purposes of establishing charitable trusts.
• Charitable foundations exist in name in Australia, but they are comprised by the usual charitable trust structure with a trustee or trustees who has or have accepted the terms of the trust.
• The Attorney General of each state is empowered to act to protect the interests of charitable trusts where necessary.
• Such trusts are regulated by both Commonwealth and state law. They are subject to taxation if they do not comply with Commonwealth law.
• Each is required to be registered on the Australian Charities and Not for Profits Commission Charity Register, and also to receive endorsement as an income tax-exempt charity from the Commission of Taxation under the Taxation Administration Act 1953.
• An example of registered charities include private ancillary funds and public ancillary funds. The distinguishing feature between these two types is that the latter can appeal for public support.
• Gifts to charities who qualify as a deductible gift recipient may be tax-deductible.

Types of entities

• Proprietary companies, which are limited by shares. Unless a proprietary company qualifies as a large proprietary company it may have no more than 50 non-employee shareholders. They have limited ability to raise share capital other than from existing shareholders and employees.
• Public companies, which can be limited by shares or by guarantee. Public companies limited by shares are the usual vehicles for the more substantial trading enterprises. Companies limited by guarantee are not common in commerce, as they have practical difficulties raising members’ equity. Companies limited by guarantee do, however, occur in the charitable and not-for-profit sector.
• Partnerships on the model of the original English Partnership Act 1890, in which each partner has unlimited liability. Limited liability partnerships (where at least one partner has unlimited liability and at least one partner has limited liability) are not as common.
• Discretionary trusts, often used for family business and or asset holdings for families, where the trustee or another appropriate person or legal entity has discretion as to the distribution of income and/or capital among objects of discretion.
• Fixed trusts including unit trusts. Where the trust is unitised, the unitholder/beneficiary has an interest that is potentially marketable. There are restrictions on the marketing and transfer of such interests.

Taxation

Income tax system

The federal income tax is imposed on residents and non-residents. The taxable income is the assessable income of the person, less allowable deductions. Assessable income for a resident includes income from all sources including foreign income. Assessable income for a non-resident is generally income derived from Australian sources. However, specific rules apply to kinds of income so as to vary the source rule or the inclusion of an amount in assessable income.

Personal income tax rates

For the year beginning 1 July 2019, the table below shows how the rates apply to resident individuals.

Resident income tax rates 2019/2020

Taxable income	Tax on this income (excluding Medicare levy of 2%)
0 – AUD18,200	Nil
AUD18,201 – AUD45,000	19c for each AUD1 over AUD18,200
AUD37,001 – AUD90,000	AUD5,092 plus 32.5c for each AUD1 over AUD37,000
AUD120,001 – AUD180,000	AUD29,467 plus 37c for each AUD1 over AUD80,000
AUD180,001 and over	AUD51,667 plus 45c for each AUD1 over AUD180,000

• Not included in the table is a Medicare levy and a Medicare levy surcharge. The Medicare levy is 2 per cent. The surcharge is an additional 1.5 per cent. They are both income dependent, and the surcharge applies to those over a threshold income without private health insurance.
• In effect, the top marginal rate is thus 47 per cent inclusive of levies but excluding surcharge. The surcharge can be avoided simply by paying for private health insurance. There are other tax offsets available for families, particularly with dependent children. The interaction of these elements is complex, but at lower income levels can result in significant amelioration of the rates set out above.
• Minors who receive unearned income, for example investment income, can be subject to the top marginal rate relatively quickly. This provides a disincentive to split income in favour of minor children. On paper, a minor with unearned income will have a tax-free threshold of only AUD416, will be taxed at 66 per cent on unearned income between AUD417 and AUD1,307, and will have a 45 per cent rate on amounts of unearned income over AUD1,307. (These rates exclude the Medicare levy of 2 per cent.)
• Tax offsets (sometimes referred to as rebates) directly reduce the amount of tax payable on your taxable income. https://www.ato.gov.au/individuals/income-and-deductions/offsets-and-rebates/

Corporate income tax rates

The general corporate tax rate is 30 per cent but for companies having an aggregated annual turnover of less than AUD50 million the tax rate is currently 26 per cent.  The 30 per cent rate was originally reduced for companies having an aggregate turnover of less than AUD2 million by 1.5 per cent from 30 per cent to 28.5 per cent from the 2015/2016 income year (i.e. from 1 July 2015), with the goal of eventually reducing the corporate rate of tax for companies carrying on a business with an aggregated annual turnover of less than AUD50 million to 25 per cent. The changes are shown in the table below.

Progressive changes to the company tax rate

Income year	Turnover threshold	Company tax rate for entities under the threshold	Company tax rate for entities earning passive income or over the threshold
2015/2016	AUD2 million	28.5%	30%
2016/2017	AUD10 million	27.5%	30%
2017/2018	AUD25 million	27.5%	30%
2018/2019 to 2019/2020	AUD50 million	27.5%	30%
2020/2021	AUD50 million	26.5%	30%
2021/2022	AUD50 million	25%	30%

 

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Tax payable by non-profit companies that are a small business for the 2018/19 income year

Taxable income	Tax on taxable income
AUD0 – AUD416	Nil
AUD417 – AUD832	55% for every dollar over AUD416
AUD833 and above	27.5%

Capital gains tax

Capital gains tax (CGT) is integrated with the federal income tax. In essence, a net capital gain, after reductions and any allowed prior year capital losses, is brought into assessable income and taxed at the rates applicable to the taxpayer.

In the calculation of the net capital gain, concessions are available, including a standard 50 per cent reduction in capital gain in the calculation of the net capital gain of a trust or individual, where the asset sold was held for at least 12 months before the CGT event. (No general 50 per cent discount is available to a company). Anti-avoidance rules prevent the general discount being available where the asset sold is an interest in an entity, but where the entity’s assets substantially comprise things held by the entity for less than 12 months.

The main residence of an individual is exempt from CGT.

Restructuring of entities is facilitated by rollovers. Rollovers can also occur where property is transferred as part of a property settlement in the context of relationship breakdown.

Non-residents are taxable on Australian-sourced income including capital gains.

Non-residents no longer qualify for a general 50 per cent discount. In principle, a CGT asset held prior to 9 May 2012 by a foreign or temporary resident individual potentially continues to qualify for discount, but this applies in principle only to the gain that has accrued prior to that date. An apportionment is required. Particular difficulties will occur when attempting to determine the integers for this calculation, where the individual makes the discount capital gain via a trust.

In addition, non-residents are no longer entitled to the exemption on capital gains realised from the sale of their main residence. As a transitional measure the exemption continues to apply if a non-resident 

• acquired the main residence before 9 May 2017;
• subsequently became a non-resident; and
• sold it on or before 30 June 2020.

As from the start of the 2016/2017 income year (1 July 2016), small businesses may change their legal structure (such as from a company to a trust or from a trust to a company, or from a trust to a limited partnership, or vice versa) without attracting a CGT liability on the transfer of the business assets from one structure to another.

Capital gains on taxable Australian property (TAP) are defined as:

• Real property (including a lease of land if the land is situated in Australia; mining and like rights where the minerals and so forth are situated in Australia).
• Shares or other indirect interests in an entity where, on a look-through basis, the market value of the underlying real property or mining interests is greater than the market value of the non-real property assets.
• Property or rights used by the taxpayer in carrying on business through a permanent establishment in Australia if not otherwise covered.
• Options and rights to acquire any such asset.
• An asset where the non-resident has chosen not to recognise a capital gain on the non-resident ceasing to be an Australian resident.

Non-residents taxable on

• For non-residents, the income tax rates are shown in the table below for the year beginning 1 July 2019. Non-residents are not required to pay the Medicare levy.
• Individual taxpayers with business income from an unincorporated business having an aggregate turnover of less than AUD5 million in the income year are entitled to an 8 per cent discount on the tax payable on their business income as from the 2018/2019 income year (i.e. from 1 July 2018). The tax discount will increase to 10 per cent in 2024/2025, 13 per cent in 2025/2026 and reach a new permanent discount of 16 per cent in 2026/2027. However, the benefit is capped at a AUD1,000 rebate, and is thus immaterial.

Non-resident income tax rates 2020/2021

Taxable income	Tax on this income
AUD0 – AUD120,000	32.5c for each AUD1
AUD90,000 – AUD180,000	AUD39,250 plus 37c for each AUD1 over AUD120,000
AUD180,001 and over	AUD61,200 plus 45c for each AUD1 over AUD180,000

Withholding tax rate (non-treaty)

• General rates:
  • Dividends (unfranked portion): 30 per cent
  • Interest: 10 per cent.
  • Royalties: 30 per cent
• Franked dividends are generally exempt from withholding tax. The unfranked portion of a dividend is the part that has not been subject to company tax.

Withholding tax rate (treaty)

Australia has tax treaties with 46 countries. Treaty withholding rates vary but the most common are:

• Dividends (unfranked portion): 15 per cent
• Interest: 10 per cent
• Royalties: 10 per cent

Taxation at death

• No estate, gift, succession, or death duties apply in Australia. Probate fees are generally modest.
• CGT is generally disregarded on death, except certain assets passing to a tax-advantaged person or non-resident.
• Generally the executor or beneficiary (if the beneficiary takes the asset) inherits the CGT cost base of the deceased.
• If the asset is pre-CGT (owned by the deceased prior to 20 September 1985), the executor or beneficiary assumes a cost base of market value at date of death, and the asset ceases to be pre-CGT.
• If a beneficiary inherits an Australian residential property, changes to the tax law (made on 12 December 2019) may affect the beneficiary’s entitlement to claim the main residence exemption over that property. If the beneficiary has been a foreign resident for more than six years when they sell or dispose of the property, they will not be able to claim any main residence exemption over it for their ownership period. If the deceased had been a foreign resident for more than six years at the time of their death, any main residence exemption that the deceased may have accrued for that dwelling is not available to the beneficiary. There is a transitional period for these changes: they do not apply to a property held before 7.30pm (Australian Central Time) on 9 May 2017 and disposed of on or before 30 June 2020.
• Where funds have been held in a pension or superannuation account, the death benefits can be paid directly to a spouse, children, the deceased estate (legal personal representative) or persons in a dependent or interdependent relationship.
• Payment of the death benefit will incur income tax of:
  • where paid to a 'death benefits dependant' (a restricted category including spouse, children under 18 and certain people actually dependent): 0 per cent
  • to the extent a tax-free component is paid to anyone: 0 per cent
  • to the extent a taxable component is paid to a non-dependant: either 15 per cent or 30 per cent, plus 2 per cent Medicare levy (except where paid to the estate). The 15 per cent rate applies where the component was taxed in the superannuation fund.
• Taxable and tax-free components cannot be streamed to different people. They must be paid out proportionately.
• There is some scope for planning around who should receive superannuation via the will and who should receive provision directly from a superannuation fund as a pension or lump sum.
• If superannuation is paid into the estate, the legal personal representative will pay income tax on the death benefits depending on their taxable and tax-free components and the extent to which non-dependant beneficiaries have benefited or may be expected to benefit from those benefits in the estate.

Other taxes

• Australia has a number of taxes in addition to income tax and CGT.
• Other federal taxes include:
  • Goods and services tax (GST), imposed at a rate of 10 per cent, with GST-free or input taxed treatment for certain categories of supplies.
  • Fringe benefits tax, imposed on employers in relation to non-cash benefits to employees.
  • Minerals and petroleum profits taxes.
  • Customs and excise.
• Compulsory superannuation is paid by employers for employees at 9.5 per cent of salary / wages (ordinary time earnings).
• Each state and territory imposes taxes. The three largest are:
  • Stamp duty.
  • Pay-roll tax.
  • Land tax.
• Stamp duty is a transaction-based tax that can particularly affect land transactions and transactions with trusts or companies that have land holdings.
• The rates vary based on the value of consideration. Different rate scales apply in each state and territory.
• All six States and the Australian Capital Territory impose a surcharge duty on foreign investment in residential land.
• Land tax is increasingly important. Rates vary across each state and territory and is levied according to unimproved value. A number of jurisdictions (Queensland, South Australia, the Australian Capital Territory, Victoria and New South Wales) impose significant surcharges on non-resident landowners.
• Each state and territory also collects mining royalties.
• Check the tax rates in the state or territory where the property is situated. 

Tax treaties

Australia has double taxation agreements (DTAs) with 46 countries. For the current versions, refer online to the income tax treaties: https://treasury.gov.au/tax-treaties/income-tax-treaties

Tax information exchange agreements

• Australia has tax information exchange agreements with 36 Exchange of Information jurisdictions (https://treasury.gov.au/tax-treaties/tax-information-exchange-agreements) and has also revisited the information exchange articles in its DTAs.
• Australia has implemented the Common Reporting Standard for the collection, reporting and exchange of financial account information on foreign tax residents. 

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Residence and domicile

Special rules on becoming resident

• Australian immigration law applies. Advice should be sought from a legal practitioner or registered migration agent.
• From a taxation perspective, a person becomes a taxable resident upon becoming domiciled in Australia or spending more than 183 days (whether or not consecutive) in a fiscal year if they do not have a non-Australian permanent place of abode. There are deeming CGT rules that apply.
• On becoming a tax resident; all worldwide assets are deemed to have been acquired at the market value in AUD at that time. Future CGT on a disposal of an asset, wherever located, is calculated from this amount.
• On no longer being an Australian tax resident, a taxpayer is taken to have disposed of assets that are not taxable Australian property for the market value at that time and CGT may be payable in their last Australian tax return.
• However, concessions apply for temporary Australian residents. The concessions depend, in part, on class of visa.

Special rules on ceasing residence

A resident is subject to CGT on disposal of worldwide assets. A non-resident is subject to CGT on TAP. Thus when a person ceases to be an Australia-resident they are put to their election. They may be taxed immediately on assets that are not TAP, using market value. Or they may defer CGT by choosing to treat all assets as TAP. 

Domicile concept for gifts and inheritance

There is no gift or inheritance tax in Australia, however state and territory stamp duty can apply on gifts of land and CGT will apply to disposals of assets. There is no taxation on gifts of money.

Taxation of holdings by non-residents on            

• Gifts: not applicable other than through the operation of stamp duty and CGT.
• Death: not applicable other than through the operation of CGT

Taxation of holdings by non-residents on death and of gifts

• Gifts – not applicable other than through the operation of income tax and CGT.
• Death – not applicable other than through the operation of income tax and CGT.

Reporting/auditing requirements

YES

Annual income tax returns must be filed by all entities and persons that receive taxable income or seek tax concessions or rebates, other than individuals who receive taxable income below the tax-free threshold (presently AUD18,200).

The Australian tax reporting system is self-declared; the information declared by the taxpayer is the basis for taxation of their income or gains. Because of this, the Australian Taxation Office has extensive powers of review and investigation. Significant penalties apply for under-reporting income or over-claiming tax deductions or tax offsets. 

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Other relevant information

Asset protection laws

YES.

Commonwealth laws

• Bankruptcy Act 1966 (Cth) regulates the administration of a bankrupt person’s assets and the clawback of assets which fall within the relevant principles. Certain assets are exempt from creditor claims, including superannuation, life insurance, compensation payments, income to a certain level and other nominal personal assets.
• Corporation Act 2001 (Cth) provides limited liability to incorporated companies.
• State and territory trust laws protect trust assets (but not beneficiary entitlements such as loan accounts) from a beneficiary’s creditors.

Foreign currency restrictions

YES.

There are limited restrictions on transfer of foreign currency in and out of Australia. Some restrictions are based on sanctions. These are specific to a country or person. Some restrictions are based on movement of physical currency and valuables. For example, cash of AUD10,000 (or equivalent) must be declared if taken in or out of the country, and in certain instances bearer negotiable instruments must be declared. 

Foreign ownership restrictions

YES.

The details of the applicable law cannot easily be summarised, however by way of summary, and depending on the characteristics of the non-resident buyer, and the location and type/nature of an asset:

• the purchase and ownership of Australian assets may require: approval from the Foreign Investment Review Board, with thresholds and exemptions determining when approval is required; notification to be made to relevant government authorities; and additional duty to be paid to the relevant government authority;
• the ongoing ownership of Australian assets: may require ongoing notification to government authorities; and may result in additional and/or higher taxes; and
• the disposition, by a non-resident, of certain assets may attract withholding tax, and where appropriate clearance certificate should be obtained. 

Foreign trust reporting obligations

There are no reporting requirements exclusive to foreign trusts.

AML/due diligence and other requirements and regulatory procedures for advisors

The principal legislation is the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) and associated Rules (AML/CTF). The AML/CTF establishes the framework for monitoring suspicious financial transactions and requires financial, gambling, bullion or digital currency exchange services to:

• register with the Australian Transaction Reports and Analysis Centre (AUSTRAC);
• have customer identification and verification procedures;
• report regularly to government authorities; and
• keep appropriate records about certain customers.

There are no AML or due diligence requirements for advisors to establish a trust or to incorporate a company, however:

• to establish a trust: Some jurisdictions require trust deeds (declarations of trust, deeds of settlement, deeds changing trustee and deed of variation) to be lodged, stamp duty to be paid and stamped by the relevant government authority. Where deeds are required to be stamped significant information is required by the relevant government authority;
• for incorporation: the AML/CTF provides different due diligence and regulatory procedures for reporting entities;
• to open a bank account: the AML/CTF provides different due diligence and regulatory procedures for reporting entities, including extensive customer identification and verification procedures; and
• general criminal law contains offences related to AML/CTF, such that an advisor would be on guard if there were suspicious circumstances, and the advisor might be accused of assisting in the commission of an offence by establishing a trust or incorporating a company.

Other points of interest

Powers of attorney

The laws relating to powers of attorney are state/territory-based. A general power of attorney operates according to its terms and potentially up until the donor of the power loses capacity, whereas an enduring power of attorney continues even after loss of capacity. Commonly, power is given to one or more attorneys for financial/property matters as well as medical/lifestyle matters.

There is also the ability for individuals to make a health directive to provide instructions on future health care. Like powers of attorney, the format of such a document varies from state to state.

Key resources for further information

• http://www.austlii.edu.au/
• https://www.ato.gov.au/
• https://www.sro.vic.gov.au/
• https://www.wa.gov.au/organisation/department-of-finance
• https://www.revenue.nsw.gov.au/
• https://www.revenuesa.sa.gov.au/
• https://www.sro.tas.gov.au/

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STEP branches in Australia

We currently have six STEP branches in Australia.

• STEP New South Wales
• STEP Queensland
• STEP South Australia
• STEP Tasmania
• STEP Victoria
• STEP Western Australia

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