All Topics / Legal & Accounting / tenants in common – Different legal interest in the property

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  • Profile photo of amsaini15amsaini15
    Participant
    @amsaini15
    Join Date: 2009
    Post Count: 64

    Hi All

    Myself and my partner would like to be joint owner of the our 1st IP purchase. Checking ATO website, we found out we may structure our purchase to have different legal interest in the property. I am on higher tax bracket and would benefit most if I can have 80% legal interest for negative gearing purpose.   

    Can somebody please advise how can we be "tenants in common" to achieve above results. What are the present and future implication of such arrangement.

    ATO Article –  http://law.ato.gov.au/atolaw/view.htm?docid=SAV/RENTAL04/00005


    "Dividing income and expenses according to legal interest

    Co-owners who are not carrying on a rental property business must divide the income and  expenses for the rental property in line with their legal interest in the property.  If they own the property as:

    – joint tenants, they each hold an equal interest in the property

    tenants in common, they may hold unequal interests in the property – for  example, one may hold a 20% interest and the other an 80% interest.

    Rental income and expenses must be attributed to each co-owner according to their legal  interest in the property, despite any agreement between co-owners, either oral or  in writing, stating otherwise."

    Thanks

    Aman  

    Profile photo of Paul DobsonPaul Dobson
    Participant
    @pauldobson
    Join Date: 2003
    Post Count: 1,196

    Hi Aman

    Some of our JV Partners buy their properties with one owning 99% and the other owning 1%.  It's a simple process.  Just tell your solicitor that you want to purchase as tenants in common and the percentages you want and she/he will be draw up the paperwork accordingly.

    Taking on 80% of the ownership now seems eminently sensible, due to the ability of the partner with the larger taxable income to get the benefit of the negative gearing on the property.  However all our buy and holds are long term positions and we look further into the future, i.e. we expect the property to become cash flow positive at some point in the future.  Of course, this would put us into a situation where the major income earner is now getting extra income.  Not good for us.

    And if we wanted to sell the property in the future, 80% of the Capital Gain (after all the usual deductions) would be added to the income of the high income earner.  Once again, not what we want.

    Cheers,  Paul

    Paul Dobson | Vendor Finance Institute
    http://www.vendorfinanceinstitute.com.au
    Email Me | Phone Me

    An alternative way to finance your home.

    Profile photo of amsaini15amsaini15
    Participant
    @amsaini15
    Join Date: 2009
    Post Count: 64

    Thanks Paul.. Very good explaination. I have to now think about it if I want to keep it different from 50-50.

    Profile photo of TerrywTerryw
    Participant
    @terryw
    Join Date: 2001
    Post Count: 16,213

    Also look at the long term implications. what will happen in a few years when your properties are cashflow positive.

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

    Lawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au

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