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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 ?
  • the trustee requirements,     VEA ?
  • the trust property requirements,     VEA ?
  • the preparation of financial statements, and     VEA ?
  • the audit requirements.     VEA ?
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.

According to section 52ZZZW of the VEA, a special disability trust is a trust that has been established solely in order to provide for the current and future care and accommodation needs of the beneficiary who is a person with a severe disability.