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  • Profile photo of TerrywTerryw
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    @terryw
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    your PPOR should only be security for the LOC (and original loan). The IP should be the only security for hte investment loan.

    You should not be paying the investment loan fortnightly as this would mean extra repayments – these should be going to the PPOR loan (not the loc) as this is non deductible.

    IO would revert to PI.

    Why is the loc interest rate so high? If that with a different bank?

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    In that example the unit holder wouldn't be entitled to the 100% of the deductions on the interest because they are not entitled to 100% of hte income and CG of the trust.

    There is a good thread about htis topic on somersoft – started by Chris Batten.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    @terryw
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    u36ma wrote:
    What I've taken from all this and my own research is:
    – Appropriate landlord insurance will take care of your risk of being sued by the tenant.
    – The HDT doesn't offer any legal tax benefits over and above having the properties under your own name.
    – There is a high cost of setting up and maintaining trusts with little personal benefit.
    – There may be a benefit for avoiding family disputes over inheritence (but who cares if you're dead?).

    Leaves me wondering why anyone would do it!

    Let me respond in order
    1. Yes, insure for all risks
    2. There are some tax benefits – see below – and general structuring benefits
    3. Yes
    4. Depends who owns the units – units are property so would be dealt with under a will whereas the trustee owned assets such as hte house wouldn't.

    I think that hyrbids can still be useful even if it wouldn't seem to give any benefits initially.

    Imagine a HDT buys a property. X borrows to buy units. 10 years down the track the property has double in value. X thinks it is time that this property was placed into a discretionary trust. If the property was in his own name he would have to sell it to the trust – title deeds would change.

    But as this is in a HDT – which is essentially a unit trust at this stage – he has 2 options:
    1. Transfer the units to a discretionary trust – stamp duty and CGT would apply. But not change in trustee or legal owner – ie no change in title.
    2. The trustee could buy back the units from X. CGT and stamp duty would apply.

    Stamp duty would generally be cheaper to transfer units than the transfer land. CGT could be reduced by selling the units in stages over  a few years. And with 2 the trustee could borrow to buy the units and to claim the interest on this as a deduction.

    It may also be possible to transfer teh units to a SMSF near retirement – many issues involved here.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    The company would be merely a beneficiary and any acts it does would be separate to the trust so it being sued shouldn't effect the trust – the units would be held by the individuals and at risk if they are sued.

    But, what are you trying to achieve? getting money into the trust with asset protection probably?

    To do that in this scenario you would have to have the shares of the company owned by the trust or to have the trustee of the trust being the company.

    If a trustee of a trust is sued in relation to their role as trustee (such as a tenant suing the landlord) the the assets of the trust would be at risk because the trustee would be indemnified out of the trust assets.

    If you had the company acting in its own right then this could work – but then you wouldn't get all the benefits of the trust such as income retaining its character and the 50% CGT discount.

    You could do it with a separate trust and then have the income distributed to the hybrid trust. But this may not work as you expect as the unit holders would need to borrow to buy income producing property – which the empty trust structure probbaly woudn't allow.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    mcgrandles wrote:
    Terryw wrote:
    Yes, could be done but would be very costly and you would probably need a prospectus lodged with ASIC.

    Also many tax issues.

    thanks for your help i have tried to sell my house for so long now with 2 sales fall through because of finance a friend suggested i split the house into shares what else can i do to i need to sell and move asap 

    Forget the selling in portions bit – it just won't work.

    Recently it took me 14 months to sell a property – you may have to reduce the price further and change agents to get a result.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    I don't know if that is correct – claiming before renting.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    A caveat is notice to everyone that someone else has an interest in the property. It may or may not prevent the dealing with that property – such as mortgaging it or changing names. However someone with a caveat could have their interest take priority over your interest.

    eg. in NSW there is a case Black v Garnot. I forgot who is who, but the seller of the property had money problems. The purchaser paid the 10% deposit and on the day of settlement the solicitor checked the title – looking for any last minute caveats. After checking they went to settlement – about 2 hrs later. It was during this time that someone who had a debt owed and had a judgment actually lodged a caveat on the title. They had a writ to take possession of the property and the question was who had the greater priority – the person with the writ or the person who had paid the deposit but hadn't settled yet.

    It turned out that both had interests in the property and both could have protected these itnerests by lodging a caveat. The one who lodged first was deemed to have prority over the one who didn't.

    Therefore in NSW now it is recommended that lawyers advise clients purchasing proerties that they should lodge a caveat after exchange of contracts.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    Sounds like you need a lawyer first. Many issues to consider

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    Yes, could be done but would be very costly and you would probably need a prospectus lodged with ASIC.

    Also many tax issues.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    Is it possible for you to not use the LOC for personal expenses – possibly use the rental income to live on while borrowing to pay the interest?

    Also if the house isn't available fo rent yet then you may find the costs associated with getting it ready are not deductible. Speak to a tax advisor about putting it on the rental market first and see if this changes things.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    You should also consider the CGT exemption available for first moving in and then out again – the property can be exempt for up to 6 years while you are absent and you still get to claim all the usual expenses.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    You should read the residental tenancy act in the state the property is in firstly.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    mahnovetsky wrote:
    Hi Guys My wife has an investment property in her name only. She will be stopping work for a while since we are having our first baby. Is there anyway I can claim negative gearing on her investment property? can I put her loan in my name? thanks Raf

    You could buy it off her.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    A mortgage wll take priority. Other debts won't generally, but if someone else has an equityable interest in the property and this interest is notified by caveat then they would likely have priority over your interest – which is just as a purchaser.

    So the person who lodged the caveat could get a judment and then an order to sell the property and this may override your interest even if you had echanged contracts.

    Just make sure you have the deposit low and have it in a trust account and don't release it to the vendor in any circumstances – check with you vic solicitor as there is something in the conveyancing or real property act down there about the release of deposits. I cannot remember the details now.

    You would also need a special condition that if it doesn't settle by a certain date then you get to rescind the contract and your deposit back.

    Also get cpies of the caveats to see what they are. If they are all valid and relate to monies owed etc then at the end of hte day teh vendor may be bankrupted.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    split your loan.

    If you use redraw then it will be one big loan. part of the interest will be deductible and part won't

    So you need to set up a new loan – split into different portions. Then the whole of the interest on the portion used for investment should be deductible.

    If you have one combined loan then every repayment will come off the one loan and you will be reducing your non-deductible debt. which means losing tax deductions which means losing money

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

    ATO doesn't need jurisdiction to consider you have a main residence overseas. The Tax act says:

    s118-145(4) ITAA 1997
    "If you make the choice, you cannot treat any other * dwelling as your main residence while you apply this section…"

    http://www.austlii.edu.au/au/legis/cth/consol_act/itaa1997240/s118.145.html

    I had never considered it before, but having a main residence overseas would probably be counted and this could mean the house in Australia may not qualify for the exemption.

    Rob would know better than me though.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    Yes, the general rule of thumb is to pay down private debt and to borrow for investment.

    But, before you do pay it into the loan make sure you can demonstate serviceability – you should restructure the loan so you have a new split rather than just using redraw. The bank may want to reassess you again.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    You should seek legal advice before hand.

    If you are prepared to wait and have your deposit tied up it may be worth it as most would be scared off and you may get it cheaply. But it could be more trouble than it is worth.

    What state is it in?

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

    No, I don't generally drink alcohol. Just a natural bad speller

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    You should seek tax advise as there are complex rules regarding continuing to claim deductions for a failed business.

    ps. Did you use the same entity for the business as the investment? very dangerous.

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