Waiver

Last amended: 27 May 2011

Failure to comply

If a special disability trust (SDT) fails to comply with a requirement, the Commission may issue a waiver notice that maintains the trust's concessional status for a short time while the non-compliance is rectified.

Circumstances when a waiver notice cannot be given

A waiver cannot be given where the purpose requirements are not met because of fraudulent behaviour. In addition for all trusts, regardless of when they were established, a waiver notice cannot be given if any of the following provisions of a SDT are not met:

• the beneficiary requirements,    
  VEA →

  Section 52ZZZWA VEA

  VEA → (go back)
• the trustee requirements,    
  VEA →

  Section 52ZZZWD VEA

  VEA → (go back)
• the trust property requirements,    
  VEA →

  Section 52ZZZWE VEA

  VEA → (go back)
• the preparation of financial statements, and    
  VEA →

  Section 52ZZZWF VEA

  VEA → (go back)
• the audit requirements.    
  VEA →

  Section 52ZZZWG VEA

  VEA → (go back)

When a waiver notice may be given

A waiver notice may be given if the non-compliance relates to:

• contravention of a requirement relating to the trust purpose, trust deed, or reporting, for a trust created before 1 January 2011, where the trust deed cannot be varied;
• contravention of a requirement relating to the trust purpose, or reporting for all other trusts;
• contravention of a reporting requirement not caused by the trustees;

contravention of a requirement relating to the purpose of the trust, where total expenditure in a financial year is no more than $5,000.  Consideration must also be given to the nature of the breach and the number of times a similar event has occurred.

Unavoidable delay

If there is a delay in providing the financial statements of the trust and the delay is not due to the actions of the trustee, a waiver notice can be given for a period of up to three months from 31 March of the relevant year. This can be extended if the circumstances warrant it for an additional three month period, up to a maximum of twelve months.

Waiver notice

The waiver notice must be in writing and contain:

• the start and end date of the period of the waiver,
• the matter to which the waiver applies, e.g. the lodgement of the trust's financial statements by 31 March, and
• the conditions, if any, that the trustee must comply with, e.g. the trustee must provide the trust's financial statements.