Forum Replies Created

Viewing 20 posts - 61 through 80 (of 276 total)
  • Profile photo of GreatPigGreatPig
    Member
    @greatpig
    Join Date: 2004
    Post Count: 284
    Originally posted by surfermark:

    the dividends are CGT free under LAQC structure

    Dividends are normally treated as income, not capital gain. Are you sure that’s not the case in a NZ LAQC as well?

    Secondly I am trying to figure out if I can retain the profits within the company in NZ and use them to re-invest in other properties etc. (probably basic company accounting stuff) So avoiding paying out taxable profit dividends to me as a Aussie resident/shareholder.

    You may want to take a look through this stuff to answer that questions:

    http://tinyurl.com/4nhgh

    In particular, the first part about Controlled Foreign Companies and attributable income from them. An older version used to be downloadable as a PDF file, but I can’t find it on their site now.

    And if you’re feeling real keen, you can look through the tax act as well:

    http://tinyurl.com/466q3

    Part X is the bit you want.

    Finally, I’m not familiar with NZ company rules, but are you sure that capital gains in a company are in fact tax free and not taxed at the company rate?

    GP

    Profile photo of GreatPigGreatPig
    Member
    @greatpig
    Join Date: 2004
    Post Count: 284

    Profiteer,

    losses incurred by property owned by the trust could not be offset against our personal income but can be offset against any future income made by the trust

    Yes, but there are issues with trust losses. To carry forward trust losses the trust has to make a family trust election, which has certain consequences in relation to who the trust can distribute to at concessional tax rates.

    Also, income and capital gains are treated as separate types of revenue, with losses of one type only being able to offset gains of the same type (assuming the losses can be carried forward at all).

    What if the property owned by the trust are all negative geared

    For negative gearing property in a trust you need to use a hybrid discretionary trust, which is a combination of a discretionary and unit trust. Then the individual does the borrowing and buys units in the trust. The trust itself makes a profit (since no loan interest) which gets distributed to the unit holder. Any loss is then in the unit holder’s name and can be offset against other personal income (provided the trust is buying income-generating assets).

    apart from paying tax on any income earnt from the trust at company rates of 30%?

    A trust does not pay tax at any rate in itself (unless it doesn’t distribute income, in which case it’s taxed at the top marginal rate). Having a corporate trustee doesn’t make any difference in that respect. Instead, the beneficiaries pay tax at their individual rates.

    The tax advantages of owning assets in a trust are primarily the flexibility to distribute income to low income earners (or to a high income earner through units if negative gearing in a hybrid trust). There are also some extra deductions that can be claimed from a trust. The corporate trustee is for increased asset protection rather than tax advantages.

    As Derek said earlier on, get a copy of Dale Gatherum-Goss’s “Trust Magic”. It goes over a lot of this stuff and more (although for the trust loss provisions, you really need to wade through the ATO Website).

    Above all, seek professional advice before doing anything in this regard.

    Cheers,
    GP

    Profile photo of GreatPigGreatPig
    Member
    @greatpig
    Join Date: 2004
    Post Count: 284

    Chris,

    Originally posted by masteraccountants:

    The trust transferor rules only apply where property is transferred into the Trust for less than its market value.

    Here’s the exact wording of that part of the transferor trust provisions:

    You will be regarded as a transferor if you:

    • have at any time transferred property or services to a non-resident discretionary trust estate or

    • transferred property or services after 7.30 p.m. on 12 April 1989 to a non-resident trust estate that is non-discretionary for either no consideration or for consideration less than an arm’s length amount.

    So unless there’s been an update to those rules recently, the less than market consideration clause only applies to non-discretionary trusts.

    Also, what the provisions say about trust control:

    If the transfer was not made on an arm’s length basis in the course of carrying on a business, the transferor trust measures will normally apply if at any time after the transfer the transferor or the transferor’s associates were in a position to control the trust estate.

    and:

    A transferor is taken to be in a position to control a non-resident trust estate if the transferor or any associates:

    • have power, by whatever means, to obtain the beneficial enjoyment of the corpus or income of the trust estate

    • were able to control, directly or indirectly, the application of the income or corpus of the trust estate

    • were capable, under a scheme, of gaining the enjoyment or control referred to in the above two points

    • could expect the trustee to follow their directions, instructions or wishes or

    • have the ability to remove or appoint any trustees of the trust estate.

    Note the generality of their definition of control, and also that it applies to associates of the taxpayer as well as the taxpayer him/herself. Then there’s more than a page of definitions about what an associate is, enough to cover pretty much everyone.

    GP

    Profile photo of GreatPigGreatPig
    Member
    @greatpig
    Join Date: 2004
    Post Count: 284
    Originally posted by shar30441:

    He put me onto another accountant who specialises in overseas income.

    Yeah, me too.

    However,he did mention that in some circumstances now you can negative gear overseas. Something to do with some tax changes from 2001 but alot of accountants don’t know about it!

    Yes. See ID2002/764 in the ATO legal database. I can’t get the link to show up properly here, but go to the ATO legal database at http://law.ato.gov.au/atolaw/search.htm and use the search function on “2002/764”.

    GP

    Profile photo of GreatPigGreatPig
    Member
    @greatpig
    Join Date: 2004
    Post Count: 284
    Originally posted by shar30441:

    it would be CGT on our returns, however, it would be taxed at the same rate as any rental income we received would be taxed at ie whatever our income rate is

    If it’s CGT then hopefully you should be able to get the 50% discount if the property has been held for more than 12 months.

    Did the ATO mention his, or specifically say you wouldn’t with a foreign property?

    GP

    Profile photo of GreatPigGreatPig
    Member
    @greatpig
    Join Date: 2004
    Post Count: 284
    Originally posted by aptam:

    I have heard of LAQC a few times on the forums – what does it actually stand for ?

    Loss Attributing Qualifying Company. I gather it’s pretty much a standard company except that it can pass losses on to the shareholders.

    See http://www.approved.co.nz/resources/laqc.php for some info about them.

    GP

    Profile photo of GreatPigGreatPig
    Member
    @greatpig
    Join Date: 2004
    Post Count: 284

    Brenda,

    Regarding the shares, I wouldn’t personally put all that money into one share, as it leaves you too exposed if it falls – even with a blue chip. With $70K, I think you could buy at least half a dozen different companies without brokerage making too much of a dent (especially if you bought them yourself through an online broker).

    Also, when you buy shares at that price (sounds a bit like NAB), you’re getting low risk with relatively high yield, but at the expense of slow growth (and generally slow decline, if that’s the way it’s going, which is one reason why it’s low risk). Even so, with those big banks like NAB and CBA, the share price fluctuates up and down quite a lot within a relatively small range, so if this was only for the short term, you’d want to make sure you were on an up-trend otherwise you’d be better off having your money in the bank rather than in its shares (same yield but no capital loss).

    As always, if you want better returns you have to accept higher risk, and compensate for that by spreading your money around a bit and watching your investments closer.

    Not sure what you mean by it taking 18 years to show a profit. If the share price doesn’t fall, then you’re showing a profit from your first dividend, as you can always sell the shares and get your initial capital back. The dividends don’t have to have covered the capital cost for the investment to be showing a profit (although it would be nice to be able to tell the tax man it did [:D]).

    Another alternative is to invest the money into managed funds – either share or property. Easier than doing it all yourself, but again, likely to have lower returns. But I wouldn’t be putting the whole lot into just one of them either. You could look at something like Steve Navra’s share fund, which at last report was returning about 17% over 9 months, but of course past performance is no guarantee of future performance, as they say.

    And of course this is all just general comments based on my own opinions, and should not be construed as any type of advice.

    GP

    Profile photo of GreatPigGreatPig
    Member
    @greatpig
    Join Date: 2004
    Post Count: 284
    Originally posted by aptam:

    I dont think there is anything stopping you from putting the taxed amounts back into the trust

    Getting money from a company to a family trust is not that straight-forward. Any method that is not equivalent to an arms-length transaction is likely to be deemed a dividend under Div7a, meaning more tax for the shareholder if they’re on the top marginal rate.

    I asked about whether a company fully owned by a trust could be a beneficiary of the same trust but was told no. I don’t know exactly which rule disallows that though. Also, if you had two trusts, I’m not sure if the company could be owned by one and a beneficiary of the other to achieve the same result (something I might have to ask now that I’ve thought of it).

    Cheers,
    GP

    Profile photo of GreatPigGreatPig
    Member
    @greatpig
    Join Date: 2004
    Post Count: 284
    Originally posted by terryw:

    It only works for certain things which are GST exempt

    FBT exempt.

    GP

    Profile photo of GreatPigGreatPig
    Member
    @greatpig
    Join Date: 2004
    Post Count: 284

    Terry,

    There are witholding taxes when making distributions to non-residents. I know they apply to non-resident individuals, but not so sure about other entities.

    GP

    Profile photo of GreatPigGreatPig
    Member
    @greatpig
    Join Date: 2004
    Post Count: 284

    By my understanding, if the company buys the laptop for him, or reimburses him for it, then it’s from pre-tax dollars as laptops are exempt from FBT, even if used for private use. So as a salary sacrifice he would only be sacrificing the cost of the laptop itself from his gross salary, not the cost + tax (income tax I mean, not GST).

    If he’s unsure of the details, he should speak to his accountant or company accountant (sorry, financial controller [:D]).

    GP

    Profile photo of GreatPigGreatPig
    Member
    @greatpig
    Join Date: 2004
    Post Count: 284

    Andrew,

    I’m not sure, but I think I remember reading somewhere that retained profit in a NZ trust is taxed at 33% or 36% – or something like that.

    Except for capital gains from investment, which are not taxed at all.

    GP

    Profile photo of GreatPigGreatPig
    Member
    @greatpig
    Join Date: 2004
    Post Count: 284
    Originally posted by smet:

    3. Capital gains tax on companies is higher (though not significantly)

    What do you consider “significant”?

    The difference between the discounted CGT rate for someone on the top marginal rate and the company rate is 5.75% (allowing for the Medicare levy). If you sell a property for a CG of say $100,000, that “insignificant” difference is $5,750. If you’re dealing with higher-end properties that might give gains in the $1m area, then it becomes around $57,500. You can give me that “insignificant” amount any day! [:D].

    But that’s only the start. After the company has paid this extra $5,750 tax, the rest is then company money, the use of which is governed by some pretty strict rules (look at it sideways as an individual and it will be deemed a dividend). If the company shareholder is on the top marginal rate, getting the funds out to use personally would involve more tax – ultimately giving the full 48.5% tax rate on the initial amount.

    In my opinion, as someone stuck in this predicament right now, owning capital appreciating assets in a company structure is NOT a good idea.

    And if you do use a company for business or income-only type assets, I’d consider having the shares owned by a family trust rather than an individual, to give more flexibility in distributing dividends (although there is an issue to do with distributing franking credits from a trust).

    I’m also told there’s a new rule pending release that would turn interest-free or cheap private loans TO private companies into capital, making it difficult to start a $10 company and get sufficient funds in there to use. Don’t know how that rule will turn out yet though.

    GP

    Profile photo of GreatPigGreatPig
    Member
    @greatpig
    Join Date: 2004
    Post Count: 284

    Shar,

    I don’t know about having to do an Australian tax return for the NZ trust, but with a NZ trust you may have to declare any income the trust derives as yours even if you don’t actually have it distributed to you. This is due to the transferor trust provisions.

    As has already been stated, I’d recommend you get the advice of an Australian tax specialist who is familiar with foreign investment regulations.

    GP

    Profile photo of GreatPigGreatPig
    Member
    @greatpig
    Join Date: 2004
    Post Count: 284

    Geoff,

    If you haven’t already sorted the issue out, you could download and take a read through this:

    http://law.ato.gov.au/pdf/tr97-23.pdf

    While not the easiest thing to read, it goes over the definitions of repairs, renewals, and improvements and what’s deductible and what’s not.

    Cheers,
    GP

    Profile photo of GreatPigGreatPig
    Member
    @greatpig
    Join Date: 2004
    Post Count: 284

    Gumshoe,

    Well the intention you’ve specified to the lender doesn’t match the intention you’ve stated here. You may want to stick with just one intention to avoid later problems.

    I don’t see that being in a low income bracket would make any difference. It would just affect the rate of tax, not what percentage of the profits it was paid on.

    Again, I’d suggest you see an accountant for professional advice on this.

    GP

    Profile photo of GreatPigGreatPig
    Member
    @greatpig
    Join Date: 2004
    Post Count: 284

    Gumshoe,

    As your intention is to develop the property to sell for a profit, rather than use it for generating income, then I don’t believe you’ll get the 50% discount. I think you’ll end up paying tax on 100% of the profits.

    However, I’m not an accountant and this is just my understanding, so seek your own professional advice. An accountant may convince you that you are mistaken in your intentions…

    GP

    Profile photo of GreatPigGreatPig
    Member
    @greatpig
    Join Date: 2004
    Post Count: 284

    Loanwolf,

    I’d suggest you see a lawyer very quickly. From what little I know about it, trying to protect your assets after the proverbial has hit the fan is a bit late.

    GP

    Profile photo of GreatPigGreatPig
    Member
    @greatpig
    Join Date: 2004
    Post Count: 284
    Originally posted by terryw:

    I suppose the trustee could arrange it so not income was distributed to the unit holder.

    I think the issue is more that they may be able to force the trustee to buy back the units themselves – although I’m not sure if a unit holder has that right. It may depend on the trust deed.

    If the units just matched a personal loan from the bank though, then I suppose they wouldn’t really be an asset to you, since if the trust bought them back I presume the bankruptcy trustee would have to repay the bank first (although I’m just guessing how that would work).

    GP

    Profile photo of GreatPigGreatPig
    Member
    @greatpig
    Join Date: 2004
    Post Count: 284

    Hi Chris,

    so the Foreign Investment Fund (FIF) rules do not apply

    By that, are you including the transferor trust rules as outlined in the Foreign Income Return Form Guide? It would seem not from your later comments – and the T/T rules there do specifically include NZ as a broad-exemption country along with a few other countries (unless it’s changed, but that was the latest guide available when I downloaded it a few months ago).

    The only way that the transferor trust rules will apply is where the property is transferred at less than its market value…

    The last part of the paragraph applies to both types of trusts –

    for inadequate or no consideration

    I thought you agreed back in this thread https://www.propertyinvesting.com/forum/topic/13880.html that that was incorrect, the last statement only applying to fixed trusts (which is very clear in that document I mentioned above).

    Even if it did apply, adequate consideration for loans generally means at commercial interest rates, but in this case, according to that document, the amount of consideration doesn’t come into it, and the lending of money would, I believe, be considered a transfer of services and thus make the lender a transferor.

    The only other conditions I can see there where the rules wouldn’t apply for discretionary trusts is if the transfer was made in the course of carrying on a business (which wouldn’t normally apply) or if the transferor was not in a position to control the trust. Their definitions of trust control are pretty broad though, and I personally think it might be difficult to convince the ATO that the person concerned had no influence at all over the trust or trustee in the setup you’re describing.

    But of course this is only my own interpretation. Naturally everyone should seek their own legal advice if they have any doubts.

    Cheers,
    GP

Viewing 20 posts - 61 through 80 (of 276 total)