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  • Profile photo of TerrywTerryw
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    @terryw
    Join Date: 2001
    Post Count: 16,213

    If certainly would affect things. You are making a gift. Gifts are not returnable.

    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

    Profile photo of TerrywTerryw
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    Kali14 wrote:
    Just wanting to know what others would do in my situation – any comments or thoughts welcome!

    I'm 21 yrs old, still living at home (no board) and no other personal debts. I bought a cheap investment ($120k) end of last year through a private mortgage of family member. It's negatively geared at the moment and only costing me $100/month to keep. At the end of each year I was planning to pay a lump sum (between $15k-20k) onto the mortgage to pay it off ASAP then look to buy my own home.

    I know that it's best to pay off non-tax deductible debts first but seeing as I don't have any other debt and wanting to buy my own home in 3-4 years, would it be better to save that lump sum and use towards deposit for PPOR to pay that off sooner?

    Hopefully that makes some sense! And would love to know what others would do :)

    2 possible ways to achieve something similar.

    1. Refiannce it with a commercial lender
    2. Set up a discretionary trust. Gift the trust money as you go along, the trust then lends you money and you pay out the loan as you go along. The end result will be that the private loan is paid off and the trust has the loan. The terms of the trust will be such that you have an interest free loan.

    The trust can take a mortgage over the property too.

    Benefits
    1. Asset protection
    2. Home paid off and no itnerest payable, and
    3. If you need the money for private expenses the loan could be refinanced with a commercial lender and the interest should be deductible as you have just refinanced an investment loan.

    You can then use the cash for private expenses by controling the trustee position. This will be good if you buy a PPOR in the future as it will save you heaps of tax and the PPOR can be mortgaged by the trust too!

    Make sure you get legal and tax advice before attempting this at home! complex with many issues

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
    http://www.Structuring.com.au
    Email Me

    Lawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au

    Profile photo of TerrywTerryw
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    @terryw
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    1. Directors usually. Depending on the lender possibly the shareholders, and possibly the adult names beneficiaries.

    Take advice on putting your wife as a named beneficiary

    2. Depends on the wording of the dead – usually.

    3. Depends on the wording again, possibly not. Could possibly be a future formed company that does not exist now.

    4. Around $3000 with legal advice to set up, depending on a few things. Running costs depend on what assets the trust has and complexity. Roughly, tax returns, ASIC fees of around $230 and the occasional piece of legal and tax advice

    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

    Profile photo of TerrywTerryw
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    @terryw
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    Raasta wrote:
    Hi Terryw.

    Thanks for your comments. I acknowledge that capital growth potential is the main wealth creation avenue, however at this stage, I am trying to look for ways to supplement/replace my work income so that I can leave work and continue investing in capital growth properties. The replacement of income is why I thought of buying positive cash flow properties. Any feedback?

    Hmm, how much per week would these properties bring in? How many would you need to replace your job income? What potential are there for the rents to icnrease over time etc?

    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

    Profile photo of TerrywTerryw
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    @terryw
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    You are equating yield = good. Yield is just one factor, capital growth potential would be the main one in my book, and there are many others.

    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

    Profile photo of TerrywTerryw
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    Investor Al wrote:
    Terry,

    I'm not sure if this is allowed, but what if my partner goes guarantor? Then the loan is in my name, sure if would tie her down from getting future loans, but with all the assets in my name it'd be easier for me to reuse equity.

    But, what is the point of that? Are you wanting to do this because you could not service on your own? If so how will you service more investment property on your own. And what happens if you get equity in the PPOR – how will you access that if you cannot service?

    This all depends on your borrowing capacities. It may be more beneficial, in some ways, of getting the PPOR in her name solely.

    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

    Profile photo of TerrywTerryw
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    @terryw
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    A5h13y wrote:
    Does anyone have any links to or drafts of a basic vendor finance contract? Also how does one go about scrutinizing the buyers serviceability, is it simply a matter of asking to see pay slips, letters from the employers stating length of service etc?

    In NSW see the standard contract for the sale of land. There will be a few special conditions added

    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

    Profile photo of TerrywTerryw
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    @terryw
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    Instead of a TD another way with greater asset protection is to gift money to a discretionary trust. You can then borrow this money, interest free for 1 year and thereafter market rates. This will enable 105% borrowings. Trustee could even plance a second mortgage or a caveat :securing' an equitable mortgage.

    Later as equity builds up with growth you could refinance this loan with a major lender and the trust could get its capital back. Terms of the trust could be drafted so that it can make itnerest free loans to beneficiaries.

    Superior asset protection and something you could use over and over again. Can also assist with tax reduction strategies.

    Make sure you get legal advice on this as many issues involved.

    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

    Profile photo of TerrywTerryw
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    You could transfer the shares of this company to a discretionary trust. Or have the company operate as trustee to the discretionary trust – this may require modification of your ACL new ABN, new TFN etc.

    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

    Profile photo of TerrywTerryw
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    Woolies, that changes things dramatically.

    I think you need rethink and get some legal advice

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
    http://www.Structuring.com.au
    Email Me

    Lawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au

    Profile photo of TerrywTerryw
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    woolies2122 wrote:
    Hi All – I have a home valued at $1.2 million. This PPOR is mortgaged to a bank. The outstanding principal on this loan is now 230k, with monthly Principal+Interest repayment. The loan is a package homeloan (i.e. I pay an annual fee of $395).

    I am about to buy an investment property for $360k plus costs/stamp duty about 14k, so total acquisition costs = $374k.

    I am proposing to borrow $374k to buy the investment property by taking another loan under the homeloan package. The loan is not going to be a Line of Credit. It will be a regular loan (at same interest rate as my PPOR loan). I think it could be called a "split loan" and comes with a separate statement. This loan of $374k will be drawn down to pay the investment property. This loan account will be Interest-only repayment.

    As such, the investment property itself is NOT mortgaged to the bank i.e. the title is unencumbered. Only the PPOR title is mortgaged to the bank for both loans (the existing outstanding principal of 230k and the "split" loan of 374k).

    The question i am hoping someone could clarify for me is whether the interest on the 374k loan will be tax deductible given the title of the property itself is not mortgaged. I believe  it is since tax deductibility follows the purpose of the loan; and not where the security for the loan lies.

    Appreciate any comments on this proposed loan structure.

    There are a few issues you haven’t considered.

    I am assuming the owners of both properties is exactly the same? ie mum/dad own PPOR and mum/dad own investment?

    Under the conveyancing act a property left to someone in a will takes the loan secured on that property unless specified otherwise in the will. (NSW, but probably similar other states).

    This means if you are leaving the IP to one person and the PPOR to another the second person getting the PPOR will lose out because the loan for the property goes with it.

    Tax deductibility depends on purpose and use the funds are put to. Security doesn’t matter. But deductibility will depend on how the loan is set up because if you borrow extra money and park it in a savings account before writing a cheque then this will destroy deductibility.

    I don’t really see any other issues with using the PPOR as security for both. The loans wouldn’t be cross collateralised because only one property is being used as security. I myself would probably not do it this way, I would probably get a LOC on the PPOR and then borrow the deposit from this and the remainder from another lender. But if you don’t intend to buy any more properties then it may not be much of a issue.

    I wouldn’t really worry about the bank holding too much in security. They are secured only up to a certain amount anyway. If you default they could repossess either property if both secured, but your way they could only repossess the PPOR straight away. But if you did default they would probably quickly obtain a judgment and that would allow them to apply to seize both properties.. Still, it is generally a good idea to give them as little security as possible

    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

    Profile photo of TerrywTerryw
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    Qlds007 wrote:
    Hi Terry

    Was talking to Darryl from Hua Lawyers only this week and he tells me he could not act on a conveyance for any of our Buyers Agents clients we put into either NSW / Vic properties. 

    Cheers

    Yours in Finance

    No doubt this is due to lacking knowledge of the proceedures in other states. I wouldn’t know the proceedures in QLD either. I hear it is a bit tricky with the contract requirements too.

    I have a property lawyer friend in Sydney and he does conveyancing transactions for the whole of Australia. ie every state and territory. He wouldn’t do litigation in another state, but would do property transactions.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    JT7 wrote:
    Foglefar wrote:
    Hi all. We are looking for recommendations for an accountant in north Brisbane. We have recently purchased an investment property in NZ (NZ accountant not yet appointed) and need help with the tax in both countries and also a second planned IP to be purchased with through a self managed super fund (which is also yet to be set up).

    Cheers,

    Richard

    Just slightly off topic Richard….

    Whereabouts in NZ did you end up purchasing? No Capital Gains tax has got to be good! 

    I'm originally from the land of the long white cloud! 

    Jack 

    No CGT there, but you would pay it here on NZ property.
    BTW I read a recent article regarding overseas purchasers of NZ property. Apparently 22% of all purchases are by Australians and 20% are by Chinese!

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

    Profile photo of TerrywTerryw
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    The normal way.

    I would suggest you set up a a LOC on the existing properties and then lend then money to the entity purchasing the new properties. Depending your your price range etc you may want to put down 20% deposit to avoid LMI or to go aggresssive and go for 90 or 95% loans.

    BTW, the market and lending has changed dramatically in the past 10 years or so since that book was written.

    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

    Profile photo of TerrywTerryw
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    @terryw
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    There is mutual recognition legislation in for lawyers, I would be be surprised to find that QLD solicitors could not act outside the state of QLD. They could act in NSW for instance. A NSW solicitor could also act for QLD clients. I have acted for a few interstate clients myself, but I don’t think any were from QLD though.

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

    Profile photo of TerrywTerryw
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    Qlds007 wrote:
    Yes as long as they are Licensed to operate in the State.

    Like Real Estate agents some Solicitors close to the State border are able to operate across into other States.

    Albury Wodonga is a good example but not as good as Twins Towns in Coolangatta where 1 end of the road is NSW and the otherside is Qld.

    Certainly makes for interesting times when we NSW has daylight savings.

    Cheers

    Yours in Finance

    Not really Richard. A VIC solicitor can do conveyancing for a NSW property for a SA client for example. Not need to be admitted to the Supreme Court of NSW.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    Homemade wrote:
    Thanks terry, are you suggesting I should use a lawyer to set up a trust (or company) vehicle for developing and not an accountant?

    yes.

    A trust is an arrangement in equity, where one person holds assets for another. This is the area of law that accountants cannot advise on – 1 because it is legal services and 2 before they wouldn’t have the knowledge.

    Lawyers can also give tax advice, but you may want to run the tax side of things by your accountant too.

    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

    Profile photo of TerrywTerryw
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    Yes you can, lenders will lend up to 95% of both properties,

    The problem you will have will be tax effectiveness. You will be borrowing 105% for the new one and paying LMI but neither the interest nor the LMI will be deductible.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
    http://www.Structuring.com.au
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    Profile photo of TerrywTerryw
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    Sounds like you need a lawyer for the structures – this is legal work. No such thing as a 'correct' structure, only different structures, some of which may be better than others.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
    http://www.Structuring.com.au
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    Profile photo of TerrywTerryw
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    Speak to RPI who posted above. RPI is a QLD property lawyer.

    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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