Uncertainty regarding whether state-level transfer duties will apply to entities utilising the new Excluded Election Trust (EET) mechanism should be resolved before this legislation is finalised. The Commonwealth should work with state governments to resolve this ambiguity. This may require extending the window during which EET elections can be made beyond the 2028-29 income year.

State-level transfer duties should not be applied to businesses transitioning out of discretionary trusts under federal roll-over relief. Despite the introduction of the new EET mechanism, the Commonwealth should work with state governments to secure a duty exemption for other protected rollovers as well.

A substantive set of ‘family change provisions’ should be developed that identifies all appropriate circumstances in which EET nominations can be changed. This will ensure that births and other relevant family changes are recognised as legitimate grounds for variations, alongside the death and relationship breakdown circumstances currently identified in the draft legislation.

Continuity requirements for the roll-over of non-family discretionary trusts should be defined and included in the legislation. This has been a known issue since the July consultation paper and requires resolution. Deferring these requirements to a subsequent legislative instrument leads to uncertainty for affected entities and should be resolved now.