No CGT exemption for homes held on trust

It’s pretty well-known that a foreign resident (for tax purposes) cannot get a CGT exemption for a main residence (if they are a foreign resident at the time they entered the contract of sale).

Also, if the home was acquired after 8 May 2012 they won’t be entitled to any 50% CGT discount to reduce the amount of the assessable gain. And if they acquired the home before that date, then the amount of discount available will be reduced on a (disproportionate) sliding scale.

Of course, all this means that if a person is going to become a foreign resident and they want to get the CGT exemption on their home, they need to enter that contract of sale before they leave the country (even if the appropriate transaction takes place at the airport just before they leave!).

However, what is probably less well known is that you can’t get a CGT main residence if you own the home on trust for someone else.

And this means any form of trust, ranging from one that arises from a formally executed trust deed to one that arises “accidently” in the circumstances where a court of equity would rule it appropriate to find that one person own the home on trust for another in the interest of fairness.

It would also include the case where a home is held under a bare trust arrangement – which essentially means that the person for whom it is held essentially “owns” it and can call for its legal transfer to them at any time. And this is regardless of who lives in the home.

This bare trust arrangement is often used when the true owner of the home does not want his or her identity known as the real owner of the home – so it is held in trust under another name.

Which leads to the next point.

In the light of the Government’s recent announcement to place a temporary 2 year ban on foreign investors buying residential property in Australia, attempts may be made to circumvent this ban by arranging for a resident taxpayer to buy the property on behalf of a foreign resident.

In such a case, among other problems, no CGT main residence exemption would be available - regardless of who lives in it. And in any event, the broad rule that makes a foreign resident liable for CGT on any real estate they (beneficially) own in Australia would apply.

And presumably, the practice was fairly widespread even before the temporary ban – in every type of situation ranging from a defined strategy to buy the home on trust for a major overseas person or entity to the case where, say, a foreign student buys a property from parents’ money as an investment for the parents (and a place to live for the student) to “accidental” cases.

But, above all, be careful if you sign up for this – because if it is pursued by the ATO, then it will be you as the trustee who is liable for tax on any capital gain (or profit) made on the property to which the overseas owner is entitled. And you may no longer have the funds to pay it!

So, if you think you may this type of thing may apply to you, come and talk it us about it.

< Older Post

Newer Post >

Previous Blog Posts:

Surviving (and maybe avoiding) an ATO audit

By Brad Dickfos • January 27, 2026

This article focuses on self-employed clients. If you’re a salary earner or retiree, you might find one of our other blogs more helpful.

The 50% CGT discount: More than meets the eye

By Brad Dickfos • January 9, 2026

There is much in the media about how the 50% capital gains tax (CGT) discount has contributed to the housing affordability problem in Australia (although no doubt the problem is a lot more complex than attributing it mainly to any taxation measure or measures).

Could you be missing out on thousands in lost super?

By Brad Dickfos • December 18, 2025

Most of us keep a close eye on our bank accounts. But superannuation can be easier to lose track of, especially if you’ve changed jobs, moved house, changed your name, or simply set up a new fund and assumed everything followed you. That’s why the Australian Taxation Office (ATO) has issued a timely reminder. There is now $18.9 billion in lost and unclaimed super sitting across Australia. That’s up $1.1 billion since 2024 and spread across just under 7.3 million accounts. In other words, a lot of Australians have retirement savings that aren’t currently working for them and some of it could be yours. What “lost” or “unclaimed” super actually means Super doesn’t vanish, but it can go missing from your radar. It typically happens when an account becomes inactive and your super fund can’t contact you, or when you end up with multiple funds over the years. The ATO also holds certain amounts of super on behalf of individuals, for example, small inactive balances that have been transferred to the ATO, or other unclaimed amounts. The average amount of lost or unclaimed super is around $2,590 per person. That might not sound life-changing today, but over time it can grow into tens of thousands by retirement. A special note if you have an SMSF If you have an SMSF, this ATO update is particularly worth paying attention to. When you established your SMSF, you might have transferred most of your super across, but kept some behind, for example, to retain insurance cover through another fund. That means there could still be older super accounts from past jobs or retail/industry funds sitting in your name. The ATO is urging SMSF members to do a check, because a share of the $18.9 billion in lost and unclaimed super might be yours and could be rolled into your SMSF. One important practical tip is that if you locate lost super and want to move it into your SMSF, but your SMSF doesn’t show up as a transfer option in ATO online services, it’s often due to the fund’s compliance status. Take a moment to confirm your SMSF is listed as “complying” or “registered” on Super Fund Lookup. How to check for lost super (it only takes minutes) The ATO has made this super simple (pun intended!). You can: 1. Log in to myGov and go to ATO online services 2. Navigate to the Super section to view: Super held by the ATO Any lost or unclaimed accounts 3. Request a transfer to an eligible super account. Even if you don’t find anything, you’ll at least know everything is where it should be. Simple habits that help you stay on top of super Finding lost super is great but preventing it from happening at all is even better. A few easy habits can make a big difference: Keep your details up to date with your fund and the ATO so you stay contactable. Check whether you’ve got more than one account. Multiple accounts can mean multiple fees and duplicated insurance Consider consolidating if it suits your situation. Fewer accounts can mean lower fees and easier management but just be sure to check any insurance you might lose before rolling over Read your annual statement. It’s a quick way to confirm contributions, fees, returns, investment mix and beneficiaries. Why acting now matters Since 2022, the ATO has already reunited Australians with about $5.5 billion in previously unclaimed super. But there’s still nearly $19 billion waiting to be found. A few minutes today could translate into a healthier retirement balance later. It’s easy to put super in the “deal with it later” basket, but it’s still your hard-earned money. If you want a hand finding lost super, combining accounts, or moving money into your SMSF, reach out to us. We can guide you through the steps and make sure you’re able to claim any lost super without any hassles.