I would advise against sole trader. It only costs $400 to start a company, so why not do it. Transferring later to a company may involve CGT and stamp duty too.
It also depends on other factors such as have you paid off your PPOR mortgage? If not then I would be keeping my cash in an offset account attached to that.
Don't pay any of the loans down, as you won't be able to get your cash out without tax consequences.
Try to use a 100% offset account attached to one of the loans to keep your savings and receive rent etc. keep saving, and this will reduce the interest payable which will mean more savings. Try to increase incomes and rents too and then your properties will grow in the mean time. When you want to purchase the next one, ideally you should use only equity (by accessing a LOC) but using your cash may speed things up.
Trusts are good, but they will not help your borrowing capacity in anyway.
There are a number of issues that you need to consider with asset protection.
Firstly, never enter into a partnership. It is extremely dangerous as all partners are liable to debts of the partnership. So you could both end up losing your assets if you get in trouble. You should look at using a pty ltd company as this limits liability, usually, to the company. The company is a separate legal person and If the company goes down the shareholders cannot be liable (unless given gurantees etc), and even the director is generally not liable unless something illegal has happened (insolvent trading, not paying PAYE tax etc). Def have just 1 director.
As for transferring assets, you have to be aware of the various claw back and voiding provisions of the bankruptcy act. Transfers can be voided within for up to 5 years if you go bankrupt and the transfer was at less than market value, s120. Transfers done to defeat creditors then the transfer can be voided – with no time limit. s121.
the NSW conveyancing Act also has voiding provisions for transfers done to defeat creditors. s 37.
Even if you owned a property in the wife's name only and she takes no risk at all, then the property may not be completely safe. An argument could be raised that your wife owns the property as trustee for your share. This would especially be the case if your funds were used to purchase the house, or deposit, and if you contribute to the mortgage.
This all needs to be considered in addition to the tax aspects.
I would suggest you immediately stop paying down the loan and change it to IO while you work out what to do.
Ben – I believe so, otherwise they won't be called a Bank and but instead a Pot-of-Gold-Free-4-All AM2778 – Not sure why you're not having your repayments coming direct from your offset instead? (if you're paying off your LOC loan with your LOC, you're capitalizing interest are you not?). I think ATO does not like that…(could be wrong)
I have structured the Loans like this:
1) Rental Income goes into the Offset ($1400) 2) LOC Pays for all the IP Expenses including the Interest Only Loan. ($1800) 3) LOC Interest Only Repayments get debited from the Offset Account. ($126)
Leaves a deficit of $1674 on LOC.. Do I pay the $1674 back in to the LOC??
AM2778
This strategy is a great way of paying off your home loan sooner, but you need to be careful how it is set up. Best to talk to your accountant about this and restructure it if necessary.
The accountant is incorrect. Unless he is referring to a unit trust. IT 2385 says it all. If your accountant needs any more confirmation he can look at the recent rulings concerning Hybrid Trusts were deductibility of interest was only possible subject to the wording of the deed concerning the discretion of the trustee.
Why not run an example by your accountant and see how he treats it.
If he takes money out of his offset account which is linked to an investment property, the interest expense will be higher and his tax benefit (tax shield) will be lower. If that 50K was put into a TD, then he would have to pay tax on the interest.
So the important thing here is the rates between the two. If the offset account rate is higher, put the money in there
If you are talking tax, then you have to look up the ATO website and find children's tax rates and also consider the low income rebate.
I think it is about $3,600 pa before they have to pay tax now – this is on unearned income. If they have jobs and get salary etc, then they are taxed at adult rates and may earn up to $16,000 pa and no tax.
Even if you are the only beneficiary for now you can add a company later if your personal tax rate hits 30% or more. this way the trust can distribute the income to the company which would pay a max 30% tax.
In addition you may get married, have children, adopt, get some step sisters, or some how end up with family on lower incomes to yourself who could then be beneficiaries.
It shouldn't affect serviceability. But you must have committed the sin of cross collateralising the loans so it will affect you.
The banks used to give notice to customers when valuations came in significantly lower than purchase price. I remember some banks required the client to sign something acknowledging they were aware of the low price and wanted to go head. Maybe this is what they have in the loan documents – but by then it is usually too late to pull out.
Yeah, with the deposit you have to pay tax on the interest received too – plus have your money tied up. I think the offset would be better – unless you had a spouse with no income maybe.
A trust is where someone (trustee) owns something in their name for someone else (beneficiary). There are many different types of trusts, but the most common for investing is a discretionary trust. This is where the trustee owns a property for a wide class of beneficiaries. Any profit is distributed by the trustee to the various beneficiaries (usually of one family) in a way so that the tax is minimised.
Because the trustee only owns the property for someone else, if he were to go bankrupt then the property is not considered his and is pretty safe from creditors. If a beneficiary goes bankrupt then the trustee simply stops giving them money – otherwise their creditors will get their hands on it. This is the asset protection side.
A company is a separate legal person and can own property. Companys are less flexible in terms of income, and so are not usually used to own property – except as a trustee. Since companys are separate legal persons they are able to be sued. The shareholders behind a company are generally safe if a company is sued – they can lose what they paid for the shares, but can't be pursed for the company debt.