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  • Profile photo of TerrywTerryw
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    This is a very complex question and the answer will vary depending on a number of factors – you need to seek specialist advice. If you demolish a house you may lose the main residdence CGT exemption for starters. And because you are doing a development there may be a chance that this could be assessed as income. GST needs to be considered as well.

    Generally only nominal stamp duty on the splitting of title if the names are the same before and after.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    Think very carefully about this. a SMSF can only borrow to acquire an asset. So once it is purchased there can be no release of equity or setting up a LOC etc.

    You may want to consider getting an IO loan with a 100% offset account at 80% LVR. Park the cash in the offset account and pay no interest but still have the cash available if need be.

    Also, property is generally only a good investment if it is leveraged.

    For the contracts, best to seek legal advice – also seek legal advice about the trustee set up. I would recommend you avoid using personal trustees – if one of you were to die there is a lot of mucking around to change the title deeds – it could ruin your day.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    No 505 discount for non residents. But, depending on your circumstances this could still be exempt as your main residence. Seek professional taxa advice.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    Nu2oz wrote:
    Thanks for your reply Terry,

    The idea is to look for distressed property and then assign it to an investor for a fee.

    This is called wholesaling in the USA, and I'm interested to know if it can be done (legally) in Australia ?

    Could be done in theory, but would be difficult in practice. What are you assigning? Legal lnterest = stamp duty and CGT, equitable interest would also be a dutiable transaction (i am guessing) and a CGT event. Any loans would need to be redone as it would be a breach of the terms of the loan agreement. Lender’s permission would need to be sought.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    It would be legal but there are many implications. There is a whole branch of law concerning the assignment of various interests in property. What are you trying to do?

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    ritchiematheson wrote:
    Jim, be very careful on how you proceed with this.

    It can land you in a lot of hot water with the ATO. and on the face of it (if you do not declare the facts, it is fraud)

    As stated in requirements of the grant (which is a reasonable sum of money, please don't forget this. Its a privilege in Australia not a right) you must reside in the property for six months in the first 12 months of ownership after completion of construction

    As Terry pointed out if you live in the property, and then it becomes an investment later on, and you sell (with in 7 seven years of you living there) the property may be deemed PPOR, thereby not subject to capital gains Tax (something to consider in your exit strategy) 

    Saying this as you asked for creative ideas, and I personally like to hear a slow yes than a fast no.

    an option maybe to take on a boarder while you live there (ie a house mate). there is certain criteria they have to meet, however, the income will have to be declared, but you deduct their portion of expenses (eg power phone, gas etc), and you may meet the conditions of FHG and PPOR.

    get the balance right (expenses = board)

    Could be the win you are looking for. however check your facts first!!

    Just on a side note (and perhaps a big learning point for you), buying a property as a home for yourself is NOT the same as buying an investment. please don't confuse the two, it can be very problematic, especially when it comes to financing and government grants

    Please let us know on how to go

    cheers

    Ritchie

    Ritchie you are confusing state law with commonwealth. Duties and FHoG grants are state law and administered by the OSR not the ATO. INcome tax, GST and CGT is commonweath law and administered by the ATO.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    see s118-145 ITAA 1997

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    Not necesarily fraud if you are not living there. You would have to look carefully at the relevant legislation.

    To avoid CGT you need to live in the property inititally. You could then move out for up to 6 years and keep it CGT exempt while rented out – depending on the circumstances.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    Why not just live there? What will you be doing for the first 2 years? You could poissible make it CGT free by living in it initially.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    Good news. Considering the penalties in China and the lack of proper legal process I find it amazing that anyone would give it a shot. The penalty is often death without a fair and proper trial.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    2 issues here

    1. You cannot reimburse yourself

    2. Part of the loan will be not deductible as a result, ending with a mixed purpose loan.

    There is a simple solution. Borrow the $60k from someone else, properly document it, and then refinance this loan. Needs to be done properly.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    I do.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    cybersimon wrote:
    Hi all,

    Just to give you some background to my question – My partner and I currently have two properties and are hoping to purchase another one before too long. Our current properties are both slightly negatively geared, so we would like to now find one or more positive cashflow properties to complement them.

    Our current properties are in both of our names, and are "cross securitised". (I'm now fully aware that this isn't the best situation, but we did it at the time as we didn't have the 20% deposit.)

    * The properties are worth about $600,000.

    * We owe about $480,000 on them.

    The questions I have are around choosing the correct structure for our next purchase…

    1. I recently read one of Steve's books, which indicated that there is a real benefit in borrowing with a trust and company setup, in order to borrow again and again without the limitations of being seen by lenders as "maxed out". Who has tried this? Does it really work?

    2. Is structuring our next purchase with a trust and company as the trustee where I am the director likely to work for us in terms of providing greater borrowing capacity? Or have we effectively shot ourselves in the foot by purchasing the first two properties in our own names?

    Your thoughts would be much appreciated.

    Cheers,

    Simon

    As a trust lawyer and mortgage broker I must say I agree with Jamie – it doesn’t work that way.

    There are many ways to structure things without trusts or with a trust but without it owning the property. Many things to consider also about structuring besides the obvious taxation and borrowing issues – one people often overlook is death and incapacity – what would happen to you/brother if either one died or became legally incapacitated (crazy, in a coma etc)? Add to that divorce!

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    Ynchai wrote:
    Hi, I am hoping someone can share with me the strategy to pay off your debt in 5 years. I currently have a mortgage of $400k with yearly income of $100k. Current loan repayment is IO. Rental income is $25k/yr.

    Appreciate any strategy sharing or even a comment if this is even achievable/ not. Thanks

    Firstly you should consider whether you should pay off a loan or not – many consequences.

    If you want to pay off $400k in 5 years then you must pay an average of $80,000 per year off the loan in addition to paying the interest. Based on that salary and rental income this may be a tad difficult. So think of ways to increase your income and decrease your expenses. Maximise the tax benefits by claiming everything possible that you could claim and go for the lowest interest rate possible – with the features you need.

    And finally, it is not a race. Home loans are meant to take 30 years to pay off so don’t worry too much

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    seti wrote:
    Hi all,

    Myself and a friend are thinking of starting a renovating for profit business and I have a few questions regarding finance, however just a few points to make sure you all know where our heads are at. We think that my friend will need to keep working while I renovate the properties, until the banks can see that the business creates enough money to service the loans, then he will quite his job and we will both work full time in the business. Now to the questions:

    1. Will the banks lend to us if the income we earn is through selling the properties that the loans are for?

    2. I imagine we would need to go down the path of low doc loans?

    Thanks for your assistance in this and i am sure there will be more questions that arise. I also have a post up in the legal side of house in regards to setups and taxes.

    cheers.

    It will be difficult. If the profits are listed as capital gains then it would be unlikely that this would be treated as a business. If income then maybe after 2 years or so.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    No Australian lender would be willing to lend based on overseas security. It would be a legal nightmare to lodge mortgages in a foreign jurisdiction and even worse to enforce if you stopped repayments.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    propertymistro wrote:
    I have a home loan with a 5.2% variable rate and offset account.  Basically, I am wondering is it necessary to have the offset account home loan for taxation purposes (as I claim tax deductions for the properties home loan interest expenses).  I have heard it is is complex to not have an offset account as when you take money out of a redraw home loan account it makes things messy for taxation reasons.

    However, a lot of the cheaper loans don't have an offset account and I'm looking to change to a home loan with just a redraw account.  If I change to another loan with just a redraw and no offset account and regularly have money coming in and out of the redraw account, will this create a mess come taxation time?

    Thanks in advance for your help.

    If the property is a main resident there should be no tax issues. But if it were to ever become an investment property then the issues would arise. Depending on the circumstances you could end up with a large loan without being able to deduct any of the interest.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    fredo_4305 wrote:
    HI All,

                  I will be more than likely buying out the other half of a property I own with my partner. 

    It is currently under finance and has LMI. I know I will have to pay more stamp duty but will I have to pay LMI again?

    I have also been making all the repayments myself which are trackable. Will this put me in good stead for the refinance approval? There is not much profit currently in the property so won't have to pay out much if anything.

    I think LMI would be payable again because ownership is changing.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    peo wrote:
    Thanks guys.

    Terry I had a look at the section you pointed me to, covered lots of areas simaler to mine, but  more from an angle of making a PPOR an IP.

    I will keep on digging.

    If anyone out there does have a dedinative answer or has been through this scenario I would live to hear the result.

    Cheers

    In that case it might be s118-190

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    s 118-192 ITAA 1997 from memory

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
    http://www.Structuring.com.au
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    Lawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au

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