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I think it is generally best to own the main residence in the name of the person who is less likely to be sued. This is often the wife, but not always.
Then for investments in growth assets such as property you need to weigh up land tax and other negatives and then if you do go ahead a use one then set this up under a company as trustee for a discretionary trust with the risk taker in control as director. Sometimes the ship sinks and sometimes the captain goes down too. The safe person also need to avoid giving personal guarantees.
Sometimes there is a toss up between staying very safe and/or moving forward. eg the risk taker may use up their borrowing capacity. If that is the case then best to form a new trust with the safe person in control to maintain some separation.
Selling your house and renting for a while is another matter. I think you should does some calculations and see how it goes. If you do decide to do it then you could group and plan the purchase of the new main residence in the future an some asset protection strategies for this.
Also consider moving in to a new house and then out again and take advantage of the benefits of claiming all expenses and still maintaining the house CGT free for up to 6 years.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Transferring the house into your name will result in stamp duty in NSW. This will be assessed on the value of the transferred amount at market value.
This won't result in much asset protection at all. Have a look at the Bankruptcy Act sections 120 and 121. If you transfer it without consideration for asset protection purposes it can be clawed back indefinitely. If you transfer it for full market value with money changing hands then it could be 5.5 years depending on the circumstances.
You would be crazy to sell and rent in my opinion. Your main residence will be the only CGT free asset you can get so why not have one. You will also be paying rent where you otherwise wouldn't.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Nope. See your lawyer
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
I don't want to give you legal advice as I know nothing about easements. Run it by your solicitor.
With regards to 3 the developer would just be a company which will cease to exist once this project is completed. So this is unlikely to be effective even if they agree.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
You could probably try for some form of compensation. But legals could be costly if it goes to court.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
You won't have a contract until the point of exchange. Before that time you could have an oral agreement but it wouldn't be binding. This means they could sell to someone else, even if you have put down a 'holding deposit'.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
It could be tresspassing.
Was there an easement recorded?
What did your solicitor say?
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
There is nothing illegal about working on the property before settlement, but this carries a bit of risk as if the property doesn't settle then you may have wasted your time and money.
Subject to finance clauses are pretty rare in NSW. Usually people just extend the cooling off period to 10 days so they can get finance organsed. You could do it subject to valuation but you would need to be specific.
Vendor finance wouldn't work if the vendor has finance on the property as they would have to discharge the mortgage. They could probably give you early possession with you paying in installments with title in the vendor's name. Or you could borrow a deposit off them – say pay 80% now an the remainder in x years. But a bank is unlikely to want to lend to you if this is in place.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Mr T.
What do you mean by point 2?
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
If you ha used a IO loan with 100% offset you could have saved the same interest but had your cash available for the new purchase. This would mean the old loan would have a high balance so more deductions.
You could sell to each other, but would have to sell a half share to one and then the one coul sell a half share to the other. If the property is in VIC you could save heaps on stamp duty.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
It all depends….You could probably get around it. But you should seek advice before signing contracts.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
If you are developing then CGT will generally not apply and therefore no 50% discount.
But if it did apply the time period is calculated from the dates of contracts.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
You would proportion the cost base based on land size I think.
eg. you would need to value the land when split – value each portion and this would be the cost base for the land when you were to sell.
Also, be aware that CGT may not apply if you are constructing to sell. It could be just income tax. This may also differ between the blocks.
It is a complicated area so seek advice.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Land tax could be exempt:
http://www.austlii.edu.au/au/legis/vic/consol_act/lta200590/s54.html54. Principal place of residence exemption (1) Subject to this Division, the following land is exempt land- (a) land owned by a natural person that is used and occupied as the principal place of residence of that person; (ab) land owned by a person that is used and occupied as the principal place of residence of a natural person who has a right to reside on that land; (b) land owned by a trustee of a trust that is used and occupied as the principal place of residence of a natural person who is a beneficiary of the trust.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
ideally you should be getting advice before you enter into transactions.
If you have a company then you may not need a trustee as there is a clear separation of the legal owner from yourself. Just make sure the company does nothing other than act as trustee.
Any remuneration would have to be at market rates. But if the trust has only one property the market rate for running it may not be too much.
Also, you will be living there rent free – so that would be an undermarket value transaction. Discuss this with your lawyer. You should read the bankruptcy act, esp look for claw back provisions and undermarket value transactions etc. ss120-121 in particluar.
You should also read the corporations act for the same – tho this is absolutely huge.
Why not talk to your accountant about paying market rent to your trust? The trust can then claim a deduction for all expenses.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
hi Q
For stronger asset protection you would have to plan how you set things up. There are ways a trust can be attacked. Gifts to a trust can be clawed back for example. A trustee acting for the trust without remuneration could also be attacked under the bankruptcy act. as can uncommercial transactions designed to defeat creditors.
If you are the trustee you should probably lodge a caveat as soon as settlement occurs to show you own as trustee. This will help distinguish it from your personal assets. Make sure the trust has a separate bank account and don't use it as if it was your personal bank account. All your wages for example shouldn't go in the trust account but into your personal account. You could gift money to the trust but don't keep taking it back to use personally.
Also don't declare the house as your own asset on future loan applications etc – because it won't be yours.
There are no CGT exemptions for a trust house (unless from a deceased estate in some cases).
Don't know about land tax in VIC. You could look thru the Duties Act and see what you can find..
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Properties owned by a trust do not get the main residence CGT exemption. You probably won't get the land tax exemption either. What state is it it?
Does the trust deed allow a beneficiary to live in the property without paying rent? if not then you may find you will have to pay rent to your trust with there being a taxable profit which would need to be distributed to beneficiaries which could mean you end up paying extra tax on what would otherwise be a tax exempt purchase.
So it could end up in a triple whammy – income tax, CGT and land tax.
Why purchase B in trust if you intend for main residence?
What sort of trust is it?Make sure you set up the estate planning side of htings too – succession of the appointor of the trust. Trust assets won't form part of your estate on death.
Property A could probably be sold CGT free
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Ideally if you could move into initially you could then move out and claim it as your main residence and maintain it CGT exempt under the absence from main residence rules. But you cannot claim it as a main residence until you actually live in it first.
Once it is rented you could claim all expenses associated with the property including interest, full body coporate, borrowing costs (over 5 years) and depreciation etc.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
You need to carefully plan names on title as this will largely determine who will be taxed.
It will also generally determine who is able to apply for finance – although it may be possible to add people as guarantors in some circumstances.Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
You could do it that way But you need to consider splitting the tax and finance as well.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au



