Trust Tax Update: Bucket Companies Preserved in Draft Rules

Jim Chalmers trust tax changes draft legislation showing fixed distribution election rules for Australian bucket companies and discretionary trusts.

Treasury Trust Tax Update: Chalmers’ Draft Legislation Preserves the Bucket Company

In a major reprieve for Australian family businesses and high-net-worth investors, Treasurer Jim Chalmers has released draft exposure legislation softening the Federal Government’s proposed 30% minimum tax on discretionary trusts.

Key Tax Takeaway: The draft exposure bills introduce a fixed distribution election that allows existing discretionary trusts to avoid the upcoming 30% trustee-level minimum tax—effectively saving the widely used "bucket company" strategy from crippling double taxation.

1 July 2028 Grandfathering Deadline
25%–30% Preserved Corporate Cap Rate
47% Penalty Rate for Breach

The Backstory: May 2026 Budget vs. September Draft Legislation

When the Government first announced its 30% minimum tax on discretionary trust income in the May Budget, tax advisors warned of a lethal blow to corporate beneficiaries:

  • The Original Budget Proposal: Corporate beneficiaries ("bucket companies") were set to receive no tax credits for the 30% tax paid at the trustee level. When profits were eventually passed down to individuals as franked dividends, the combined effective tax rate could have spiraled toward 55% to 70%.
  • The September Draft Compromise: Under the draft rules, existing trusts (created before 1 July 2028) can make a one-time election to lock in fixed distributions to pre-nominated beneficiaries (such as individuals or bucket companies). Doing so exempts the trust from the new 30% minimum tax framework altogether.

How the Fixed Distribution Election Works

By making a fixed distribution nomination, a trust can continue distributing profits to a corporate beneficiary to cap tax at the 25% or 30% corporate rate without triggering trustee-level double taxation.

Discretionary Trust Income ➔ Fixed Distribution Election ➔ Bucket Company (Tax Capped at 25%–30%)
  • Grandfathering Window: The election is available to trusts created before 1 July 2028.
  • Saves Restructuring Costs: Trustees who elect into fixed distributions avoid needing to wind up their family trust or transfer assets into a company, preventing massive capital gains tax and state stamp duty liabilities.
  • Preserves Asset Protection: Crucially, tax experts note that a fixed distribution election under the draft rules does not convert a discretionary trust into a standard unit trust. The core asset protection barrier that shields underlying trust assets from personal creditors remains intact.

The Catch: Loss of Annual Flexibility & Harsh Penalties

While the draft legislation saves bucket companies, it comes with a strict trade-off: loss of discretionary flexibility.

  • One-Time Nomination: Trustees make the election once and are locked into those distribution proportions permanently. Revocation or alteration is generally prohibited except under limited life events, such as death or divorce.
  • Severe Non-Compliance Penalties: If a trustee distributes income outside its fixed nomination, the trust immediately loses its exemption. In year one of the breach, the trustee is hit with a penal tax rate of 47% on all trust income, before defaulting into the standard 30% minimum tax regime in subsequent years.

Comparison: Trust Options Under the Draft Rules

Feature Option A: Fixed Distribution Election Option B: Standard Minimum Tax Trust Option C: Restructure to Company
Trustee Tax Rate Standard marginal rates of beneficiaries 30% minimum trustee tax 25%–30% corporate tax rate
Bucket Company Viable? Yes (Preserved without double tax) No (Triggers double tax up to 70%) N/A (Direct corporate ownership)
Income Flexibility Locked in permanently Retains annual discretionary flexibility Fixed profit allocation via shares
Restructure Costs None None Potential stamp duty / advice costs (backed by 3-yr rollover relief)

What Should Family Businesses Do Next?

The release of this exposure draft represents a significant pivot, but business owners and investors should refrain from making permanent structural alterations until the legislation is finalized.

  1. Review Existing Distribution Patterns: Audit how consistently your trust distributes to individuals versus bucket companies. If your allocations rarely change year-to-year, the fixed election may be an ideal fit.
  2. Evaluate Future Flexibility Needs: If your family circumstances or business earnings fluctuate wildly, locking into fixed percentages could create tax inefficiencies down the track.
  3. Assess the 2027 Rollover Window: For groups where a fixed election is unsuitable, the Government’s expanded three-year restructuring rollover relief (starting 1 July 2027) remains an alternative path to move assets into a company structure.

Need Guidance on Your Family Trust Structure?

Navigating changing tax legislation requires careful modeling of your group's income, asset holdings, and long-term succession plans before making permanent election decisions.

Book a Trust Tax Consultation
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