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  • Profile photo of TerrywTerryw
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    @terryw
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    Janine FMS wrote:
    Hi PropertyPaul

     Here is an example

    I do a loan a homeloan of $500k for Johnny, the loan process takes a minimum of six weeks.  The loan settles after six weeks and then approximately a month after the loan has settled the upfront commission is paid to me.  Within that month the lender sends through (this is based on a 0,5 upfront commission) $2500 to my aggregator, the aggregator then sends $2250 through to my company, then deposits $1687 to my account.  Remember the timeframe is approximately 10 weeks (2 1/2 months), therefore for that period I earned $1687 on that loan. 

    Then the trail commission, which is what traditionally grown to be your base income (your stable if you like), comes through, if you are lucky and your clients have chosen a lender that pays trail in the first year.  The trail is worked out the same way and for this example I have used .2% (although many pay under this).  Therefore on a $500k loan a $1k per annum trail is paid, this is distributed monthly and therefore once the aggregator has taken their cut, my company taken it's cut I am left with approximately $56 per month.

    Janine

    And then in the 11th month the client sells the property or refinances with another bank and you have to give back 100% of the upfront received. Or, worse, the client has their LOC sitting there, and only used 20% of the limit and the lender demands 100% of the upfront back.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    Yes, why not. You can claim all associated costs of maintaining a rental property – travel, loan costs etc too.

    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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    Discretionary trusts can help with asset protection and tax minimisation. I agree that they won't help borrowing capacity directly, but they can help indirectly by adding or changing guarantors – something which may not be possible if you borrow in personal names.

    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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    Also be aware that simplying paying 12 months worth of repayments in June won't work – you need a special loan with the interest up front, otherwise you will be paying a lump sum off the principle and then be charged interest each month.

    Some people haven't been aware of this.

    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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    No worries

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    It may be worth the trouble, but not for the interest savings. Imagine if you have a high income this fin year and expect a very low income next year – you could bring your deductions forward and save a heap of tax.

    Also consider the paying in advance will mean fixing you loan for a year too.

    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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    If you hang on to your existing house you will probably have to pay tax on the rent – the rent received would be more than all the outgoings. All of your cash will be tied up in it too, so that will mean you will have a larger loan on your new PPOR and will be paying a lot of interest which isn't tax deductible.

    If you sell you will end up paying legals, loan exit fees, agents fees and eventually stamp duty again when you buy a replacement property.

    You will have to do some sums and work out if you think the selling costs will make if worthwhile to sell.

    Loans won't really have much affect on depreciation – in fact none. Names on titles can affect tax payable – but there would be no tax payable on the new place and it is too late to change the old place now – or stamp duty.

    I would suggest you look at getting a IO loan with a 100% offset account for the new place. Don't pay it down (in case you may move out again). Just put your cash into the offset – but only do this if you are disciplined.

    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, true. Usually around 0.1% though.

    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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    Company tax rates to reduce to 29% and then 28%.

    Small business write off assets of up to $5000.

    Nothing much else applies to property investors.

    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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    for serviceability purposes guaranteeing a loan is the same as taking a loan in your personal name. So if you cannot qualify for a loan in your own name you won't qualify by using a trust.

    If you want to know the legal aspects of a trust then talk to a lawyer, tax aspects then to your tax advisor.

    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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    House Call wrote:
    kong71286 wrote:
    From my understanding you have a 'company' that acts as trustee on behalf of your 'family trust' to purchase a 'property', whereby you act as the 'guarantor' and also lend the company the 20% deposit costs.

    Hi I want to gatecrash this thread with my own related question.  In the first entry Kong wrote the above.  We have a family trust, which does not own any assets itself. My wife is director of the company with her and our kids as benficiaries.

    How do we go about loaning the deposit 20% to the trust and then obtaining a loan for the other 80%?  For our other IP (in my wife's name) I have acted as guarantor as she was not working.  How would this work for a trust?  Would it be me acting as guarantor for the trust?  Or should I make myself a director of the Co. to make borrowing easier?

    If you want to loan your trust money you should do it properly with written loan agreements.

    For borrowing purposes spouses can usually guarantee for the other spouse. If you a using a trust  lenders will ask each trustee and/or director to guarantee. If your non working wife is sole director then you may have to offer yourself as a guarantor too.

    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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    kong71286 wrote:
    Hey Terry,

    Thanks for your concise answers =)

    With regards to the 'wording of deed' – can it be altered in the future, or is this a once off event, which you need to ensure you get right from the start?

    Kong

    A deed can be altered if the deed allows it. But, changing a deed is very dangerous as it could cause a resettlement. If a resettlement happens then it is considered that a new trust is formed and all the assets of the trust are transferred to the new one. This means stamp duty and CGT would be payable. Adding a beneficiary could  result in a resettlement.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    1, anyone. Even future people – those not yet conceived. You do this by the wording of the deed. any children, step children, adpoted children of x. etc. The only condition is that they have to clearly fall within the definition in the deed so they can be identified for certain..

    2. yes, but there are special rules with dividends.

    3. would be better from an asset protection pov to separate them up. don't have all your eggs in one basket. May be tax advantages too.

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

    What you would have done is either gifted to the trust or purchased units. Neither are very safe.

    Units are considered property. If you were to go bankrupt a bankruptcy trustee would take over your financial affairs. They would step into your shoes and take control of your assets. They would control your units in your trust and likely sell them or take control of the trust and sell the property. The cash obtained would be used to pay your creditors back. Unit trusts offer no asset protection.

    Assuming you had used a discretionary trust to own the units, then it would be much safer. But when someone goes bankrupt transations in the near past can be unwound. So if you have gift money to a trust it may still be possible for the bankruptcy trustee (if you went bankrupt) to claim that gift back. It would be safer than loaning it to the trust, but there is still a possibility that it could be clawed back.

    There are also tax issues to consider in whether to gift or loan. Say you had $100,000 cash in your bank account – you could just gift that without too many issues. But if you had to borrow the $100,000 from your LOC then you will be paying around $6,500 pa in interest. If you gifted the $100,000 borrowed, then you could not claim this interest, whereas if you borrowed it and onlent it to the trust then the trust could claim the interest.

    As for personal guarantees, there is no lender out there that will lend to a trust without personal guarantees. It doesn't matter if the property is positive geared or not, it is just standard practice for lenders – it may be possible when taking out huge multimillion dollar loans, but not for residential property.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    T_H_G_H wrote:
      Now I presume that for example if someone owns a house worth 500K, and owes 400K to the bank, and the bank forecloses on their house, then the bank sells their house @400K.  

    This is not quiet correct. The lender will need to sell the property for market value or risk being sued.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    Not sure why you would want to by pass paying CGT – unless you are selling within 12months. Companies pay a flat rate of 30% tax, whereas an individual would pay 46.5% – if you keep for more than 12 months this is halved which is less than the company rate. But I am not suggesting you buy in your own name, but should consider using a discretionary trust.

    GST will only be payble on new or substantially new residential property.

    You may be able to claim expenses for a company that isn't set up yet if the expenses were incurred on behalf of the company – better check with your tax advisor.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    Once it has its own title it is no longer exempt from tax, I think the value at the point of sub-division is the new cost base. If you sell it for more than the cost base then you will be up for tax.

    have a look at the pdf booklets at bantacs.com.au one called how not to be a property developer.

    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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    I doubt you would find a bond issuer who would go past settlement date.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    There is a sale of goods act in NSW and would be a similar Act in QLD. Look on austlii.edu.au. You will need to determine if the frame and steel is classes as goods under the act (I think they probably would be) and then look at your agreement with them – whether verbal or written. If you paid for certain goods and they haven't supplied them then you have a case

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    The best place to look is the actual legilsation.

    In NSW this would be  the Duties Act 1997. http://www.austlii.edu.au/au/legis/nsw/consol_act/da199793/

    an option to purchase land in nsw is classed as dutiable property under s11.

    there are special rules for put and call options under s107.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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