Where This Started
Back in May, Treasurer Jim Chalmers announced a 30% minimum tax on discretionary trust distributions, to commence 1 July 2028 with no grandfathering. The stated goal was to align trust income with the tax rates paid by ordinary workers targeting the practice of streaming trust profits to family members on lower marginal rates, or to “bucket companies,” each year depending on who benefited most.
A three-year CGT-free rollover window (1 July 2027 to 30 June 2030) was offered for families wanting to restructure out of a discretionary trust altogether. That relief, though, did not address state stamp duty, and under the original design, a bucket company receiving a trust distribution did not receive a credit for tax already paid at trust level creating a genuine double-taxation trap.
What Changed Overnight
Following sustained pushback from small business groups particularly the Council of Small Business Organisations Australia (COSBOA), the Mortgage & Finance Association of Australia, and the Commercial & Asset Finance Brokers Association Treasury released exposure draft legislation on 3 September 2026 that materially softens the original proposal. Consultation on this draft, closes 18 September 2026.
The core addition is a new election option. From 2028–29, trustees will face a genuine choice:
Option A – Stay In The Minimum Tax Regime (The Original Design)
The trust pays 30% tax at trustee level. Individual beneficiaries get a non-refundable 30% tax credit against their distribution. Bucket companies get no such credit, so income directed through a company can face an effective rate in the order of 63–70% before it reaches a shareholder as a dividend.
Option B – Elect Fixed Distributions (The New Alternative)
The trustee makes a one-off, largely irrevocable nomination of beneficiaries and their fixed share of income (and capital). In exchange, the trust bypasses the 30% trustee-level tax altogether. Individuals are taxed at their own marginal rates as usual, and a nominated bucket company is taxed once, at the standard 25–30% corporate rate provided that company has no discretionary share structure (share classes).
The trade-off: electing Option B means genuinely giving up the year-to-year flexibility that makes a discretionary trust discretionary. It appears that once the nomination is made, the election can only be revoked as a result of death or divorce. If distributions are varied outside the nominated fixed split, or anunauthorised beneficiary is paid, the election is automatically revoked. The trust is taxed at the top marginal rate plus Medicare levy (47%) for that year, and is permanently locked into Option A afterwards.
Other design points carried over from the original proposal:
- Fixed trusts, widely held managed investment trusts, bare trusts, complying super funds (including SMSFs), and special disability trusts remain outside the regime entirely.
- Primary production income and income for vulnerable minors remain exempt from the minimum tax.
- Genuine testamentary trusts funded before budget night (12 May 2026) remain exempt.
- Any discretionary trust established after 1 July 2028 will never be eligible to make the election.
What’s Still Unresolved
Industry reaction has been cautiously positive but not uncritical. COSBOA has welcomed the election as a genuine improvement while maintaining that the broader policy design remains flawed, and has specifically flagged the permanent lock-out penalty as excessive: “This is unnecessarily punitive and does not reflect the realities of family businesses.”
There are also open questions the draft doesn’t yet answer clearly most notably what happens to a beneficiary born or added to a family after an election is locked in, since the nomination list generally can’t be expanded except on death or a relationship breakdown.
Adapting The Restructuring Conversation
For clients currently modelling their options, this changes the shape of the conversation materially:
- The election is now the default question to ask first, ahead of any full restructure. For businesses and families confident they can commit to a fixed distribution pattern indefinitely, Option B avoids both the 30% trustee tax and the stamp duty exposure that would come with restructuring into a company or fixed trust.
- Bucket company strategies remain viable, but only in “clean” form. Any bucket company relied on for the election must have a single class of shares existing structures using dividend streaming or differing share classes to vary payouts between family shareholders would need to be simplified before they could be nominated.
- The permanence of the election is the real decision point, not just the tax rate. Families with growing or changing beneficiary groups (new grandchildren, evolving business partners) need to weigh the tax saving against locking in today’s family structure indefinitely.
- Restructuring into a company or fixed trust remains the fallback for families who value ongoing flexibility over the fixed-distribution tax saving, using the existing 2027–2030 CGT rollover window accepting that stamp duty relief from the states is still not confirmed.
Bottom Line For Clients
This remains draft legislation, not law and consultation closes 18 September 2026 and further tranches (including rules on unpaid present entitlements) are still to come. The formal election, once legislated, won’t need to be made until between 1 July 2028 and 30 June 2029. There’s no need to commit to anything now, but every family currently sitting in a discretionary trust should understand that a genuine third option beyond “pay the tax” or “restructure” is now on the table, and start thinking about whether their trust could realistically operate under a fixed distribution pattern.
*This article contains purely factual information and/or general advice and does not constitute personal financial product advice. The content of this article does not take into account your personal objectives, financial situation or needs and you must determine whether it is appropriate to your situation. We recommend you obtain financial, legal and taxation advice before making any financial investment decision.
About the Author:

Matthew McCarney – Executive Director & Private Client Adviser – Vantage Wealth Management
Matthew is an Executive Director of both Vantage Wealth Management Pty Ltd and VWM Financial Services Pty Ltd.
Matt holds a Bachelor of Commerce from the University of Wollongong with majors in Industrial Relations and Management Studies. Matt has also attained a Graduate Diploma in Financial Planning from the Financial Services Institute of Australasia (FINSIA). Matt is a Fellow of FINSIA and also a member of the Financial Advice Association Australia (FAAA). Matt commenced working in the financial services industry in 1996. He has worked for two of Australia’s leading fund managers, BT Funds Management and Colonial First State. Since 2003 Matt has specialised in providing quality strategic and investment advice to his clients.
Matt is passionate about making a meaningful difference in each of his client’s financial lives. Matt co-founded Vantage Wealth Management in 2008. He has served on the Board of The Dyslexia SPELD Found WA (Inc.) since 2013.







