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  • Profile photo of TerrywTerryw
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    s0805 wrote:
    Terryw wrote:
    s0805 wrote:

    Hi Terry,

    I had identical situation and had just settled on my first IP. I need your opinion to understand if I've done this right or not. Bank allowed me to borrow $90K as equity of my PPOR as separate loan, when I was settling on $90K loan I advised bank to open new offset account and link it to $90K and put all money into the newly created offset (which they did), same day I wrote a cheque for 10% deposit of IP and given to RE agency's trust account.  Have I done the right thing here?

    Later on, I used rest of the money from this newly created offset on final settlement. Even after the final settlement this account still has 8K. I do not want to keep newly created offset as it is costing me admin fee. I had chat to my Account and he advised that i can park this 8K in to Offset linked to PPOR and when it come TAX time, he can proportionate the 8K amount (which has not used for investment purposes). Do you think it is right thing to do? Is there any better way this situation can be handled

    thanks

    S0805

    Strictly speaking what you have done has created a mess. Interest wouldn't be deductible because you borrowed money and placed in a savings account. However ato may not be so strict and may allow the dectiin if you can clearly trace the funds. Mixing borrowed money with not borrowed will result in even more mess. It will cause the original loan to be a mixed purpose loan and any subsequent repayments must come off each portion. Bit of a mess. But interest on $8k will be minimal.

    Hi Terry,

    Thanks for your reply. Just to be clear, I haven't yet mixed my 8K with my home loan offset.

    You've said

    Strictly speaking what you have done has created a mess. Interest wouldn't be deductible because you borrowed money and placed in a savings account. However ato may not be so strict and may allow the dectiin if you can clearly trace the funds.

    I quite don't understand this, I understand that I borrowed money and place it savings account(offset), but this was brand new offset account created on the same day when 90K was drawn and only linked to this 90K loan, ,on the same day 32K was given to agent and it had 90K-32K sitting in it for 40 days. On 41st day I used the rest of the money from this offset for my final settlement and at the end of that till now it has 8K sitting in it offsetting my 90K initially drawn. These are the only transactions (both transaction for investment purposes) happened on these offset account.  is this still incorrect method?

    Mixing borrowed money with not borrowed will result in even more mess. It will cause the original loan to be a mixed purpose loan and any subsequent repayments must come off each portion.

    I Agree on this 100%. The 8K left on my newly created offset account which is offsetting my 90K loan is my problem now, not really sure where to park this money (as i want to close my offset account) . My Accountant has suggested that we take this 8K and put in my Home Offset and in tax time we'll proportionate (deducting) interest on 8K before filing return.  The only way i see out of this is to leave the offset with 8K open unless you think proportionating 8K interest every year should not be an issue from ATO point of view. I am going to use this 8K in future only & only for investment purposes if the need arises otherwise it will be sitting there for good.

    Apologies if my questions are repetitive, i need to advise my account which way i should progress and i want to get my head around this.

    thanks

    S0805

    Hi s

    This is what you pay your accountant for-advice.

    Whar you did was borrowe money and place it in savings account. Once there it is no longer borriwings.

    The $8k could be redeposited into the loan.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    s0805 wrote:
    Terryw wrote:
    jmsrachel wrote:
    kat13 wrote:
    We pulled out the equity on our house – 90K which got paid into cash into our offset account until we were ready to get something…but we are also using 30K for personal improvements which is maybe why it was done that way????

    We are currently waiting on preapproval for the rest (not sure how much we can get – but broker indicated up to 400K all up).  

    What should we be doing?  What sort of account do I need to stash it in?

    Can I be a pain and ask where should Kat put the money once the equity is pulled out as cash. Now that I have learnt not to put it in the offset, where do you park it? Or do you wait till you've signed contracts then organise to pull it out?

    You have to be careful to pay the money straight from the loan to the investment without passing through any savings account. So best method is to use a LOC or increase the loan without taking the money and then use a bank cheque to pay the deposit etc.

    Hi Terry,

    I had identical situation and had just settled on my first IP. I need your opinion to understand if I've done this right or not. Bank allowed me to borrow $90K as equity of my PPOR as separate loan, when I was settling on $90K loan I advised bank to open new offset account and link it to $90K and put all money into the newly created offset (which they did), same day I wrote a cheque for 10% deposit of IP and given to RE agency's trust account.  Have I done the right thing here?

    Later on, I used rest of the money from this newly created offset on final settlement. Even after the final settlement this account still has 8K. I do not want to keep newly created offset as it is costing me admin fee. I had chat to my Account and he advised that i can park this 8K in to Offset linked to PPOR and when it come TAX time, he can proportionate the 8K amount (which has not used for investment purposes). Do you think it is right thing to do? Is there any better way this situation can be handled

    thanks

    S0805

     

    Strictly speaking what you have done has created a mess. Interest wouldn’t be deductible because
    you borrowed money and placed in a savings account.

    However ato may not be so strict and may allow the dectiin if you can clearly trace the funds.

    Mixing borrowed money with not borrowed will result in even more mess. It will cause the original loan to be a mixed purpose loan and any subsequent repayments must come off each portion.

    Bit of a mess. But interest on $8k will be minimal.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    buying with the intention of selling for a profit would not fall under cgt provisions but just ordinary income tax.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    Hi

    You will need a contract of sale drawn up before the agent can start marketting the property. But I would first talk to some agents to get a feel for the market and what price rhey could achieve. Take 10% off whatever they tell you too.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    One of my goals is to be legally able to offer advice on 4 main areas of investing
    1 law
    2 financial planning
    3 finance
    4 taxation.

    I plan to open my own law firm and a separate company for financial planning. Aim is first half of 2013

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    There are heaps of legal issues with using your parents equity. Most people dont consider but wjat woulf happen if either or both parties:
    Died
    Divorced
    Went bankrupt
    On centrelink benefits
    Etc

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    The property cannot be used as security for any loan. But the smsf could possibly borrow from a member without offering security. But legal advice would be needed as any stuff up could mean tjose funds could count as a contributiin.

    Same with buying stuff for the project. The smsf must buy it and jave the trustees name on any invoices. Otherwise it would probably be classed as a contribution.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    My point iz that small thi gs lime this can escalate way beyond expectations. So if one is contemplating court action you should thi k carefully a d get legal advice first.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    Freckle wrote:
    New South Wales Consolidated Acts

    LOCAL COURT ACT 2007 – SECT 39

    Appeals as of right

    39 Appeals as of right

    (cf LCA 1982, section 73)

    (1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law.

    (2) A party to proceedings before the Court sitting in its Small Claims Division who is dissatisfied with a judgment or order of the Court may appeal to the District Court, but only on the ground of lack of jurisdiction or denial of procedural fairness.

    That is the small claims court.

    What would happen if one party appealed and went to the district court? More grounds to appeal and more escalation of court costs. I know someone who lost 3 houses because he thought a $10k dispute which was a appealed

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Jak. Bit hard to read on my phone but that looks like the one.

    Dirdt link
    law.ato.gov.au/atolaw/view.htm?Docid=SFR/SMSFR20121/NAT/ATO/00001&PiT=99991231235958

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    I recall that the ato has put out a comprehensive ruling out on what can and cannot be done with property in a smsf. I am in japan now so dont have the reference handy.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Freckle wrote:
    Can only appeal on lack of jurisdiction or denial of procedural fairness not judgments. Appeals are rare.

    I disagree again with the first part. Of course there must be grounds for appeal. A party cannot appeal just because they dont like the decisions but there are many other reasons why an appeal could be made. Eg.mistake of law.

    Appeals are rare. But a quick search will show there are many hundred appeals each year possibly thousands.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    As is exercising an option.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Granting an option is a cgt event.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    make sure you get legal advice before signing contracts otherwise this commission could be passed on to you

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    you cnnot renovate using borrowed funds but it is possible using cash as long as you dont change the nature of the property.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    It may be possible to take the agent to a small claim court and it may be very cheap to do so without much financial risk. But consider what could happen if there was an appeal to a higher court. Things can escalate.

    When you go to court you generally lose, even if you win

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Freckle wrote:

    My understanding is that within the British realm legal precedents are transferable between jurisdictions. The Auckland case was a bank (who owned the mortgage) moving to protect the asset assigned to the mortgage. My guess is that it may well set a precedent acceptable in Australian courts.

    Foreign judgments are not binding in australia. Not even british judgments. They can be looked at by australian courts and noted. But they are not australian law unless the high court uses the principles in a judgment and then’makes’ it law.

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    DaveS wrote:
    Hey Guys

    Have just done a quick search and came across this thread and as I am just about to use some of my equity in my PPOR to buy an IP I thought I'd better ask to make sure I get it right first time.  Here's a little information about my situation – I owe 340k on my PPOR which is worth about 520k.  This mortgage has a 100% offset account and a redraw facility too.  I am looking to spend about 310k on the IP and I would like to put 20% deposit down to avoid LMI so I need to borrow about 62k plus expenses.  I have found a couple of properties I am looking at putting offers on.  After reading this thread I now know not to put the new funds in the offset so my question is should I borrow the 62k plus expenses and "park" it in my existing loan on top of the 340k and then use the redraw facility to get access to it when I need it or is there somewhere else the 62k plus expenses should be "parked". 

    Thanks

    David

     

    if u do as described your loan wont be deductible and furthermore you will end up with a mixed purposes loan which will affect future deductibility of your other loans possibly.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Freckle wrote:
    Interesting..

    This is largely contract law (tort) unless specific legislation covers aspect of this disagreement. In the main during a contract dispute an installer of (whatever) can't simply walk in and reclaim the goods even if it states he can on a contract. He still has to get a court order to clarify the situation and where the dispute is at. This was tried some years ago in Auckland by a joinery company that had installed doors, windows, shutters, cabinetry etc in a luxury house. They rolled up early one morning and began removing all their product. A few days later they were ordered by the court to reinstall everything until such time as the matter was resolved in court.

    The small claims process is by comparison almost costless. Here in WA I simply file online when I have a client withhold payment or not pay for whatever reason. Costs about $120 which is added to my claim and the papers are served via registered post. Two weeks later I'm usually paid. Some try to hold out to the death but they always cough.

    The great thing about small claims court is no legal representation if you don't want it and no awarding of legal cost either way. Judgments are usually final so no appeals rubbish etc.

    In a claim the defendant usually gets a few options prior to committing to a tribunal namely; defend, pay part or pay all of the claim. The time frame is usually 4 weeks to respond so that leaves time for the RE and parties to negotiate a settlement.

    If I was Jo I would encourage the plumber to take the action against the RE and then act in a supporting role (no cost) and then go with whatever happens after that.

    sorry freckle. i disagree with almost everything you have written above. the poster should think carefuly about this as it could be costly and time consuming.

    torts is a different area of law to contracts. a tort is a civil wrong such as negligence etc. whst we have here is a contract dispute. nz law doesmt apply. the poster entered into an agreement with the plumber via the agent. the plumber can sue the poster. the plumber has done the work and is entitled to the money so he would have a strong case. losing would mean a judgme t on the credit report and this would affect all future finance applications for 5 years. the plumber may be entitled to the items as they belong to him. the agreement entered into could allow him to enter the premises to do so. it would not be stealing and the police are unlikely to want to charge him or to even become involved. trespass is a tort so you could possibly sue him if u hadnt given him permission, but this would be costly and unlikely to get you anywhere.

    i would suggest you just pay the plumber and forgetabout it.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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