On 17 February 2020 the Australian Financial Review ran an article titled ‘Fresh scrutiny of trust payouts to beneficiaries’. 

For clients who may have seen the article, we wanted to further explain the issues, so that clients with family trusts are not unnecessarily alarmed.

The essence of the article, is that if family trusts are used to distribute income (or capital gains) to children who are over 18 (or other low income beneficiaries), then the ATO may look to apply an anti-avoidance provision (known as Section 100A).

This can occur in situations where the beneficiary reimburses the trust or other beneficiaries (for example if a child reimburses a parent) in a way which suggests that they were never the intended beneficiary.

We have set out below an example as a discussion point.

Example

The ‘Magic Family Trust’ derives income of $200,000 in a given tax year.

Mr and Mrs Johnstone as the directors of the Trustee company – decide to distribute $130,000 to Mrs Johnstone and $70,000 to Earvin Johnstone Junior who is now 20 years of age. 

On the $70,000 distributed to him Earvin pays significantly less tax than Mrs Johnstone would have paid, because Earvin is still studying and does not earn an income.

On the trust distribution Earvin pays $15,697 of tax whereas Mrs Johnstone would have paid approximately $27,500 on that additional $70,000, had the distribution been made to her.

Discussions between Mrs Johnstone and Earvin lead to a transfer of funds from Earvin’s bank account to Mrs Johnstone on the basis that it is ‘family income’ and Mrs Johnstone will spend or invest those funds as she decides.

If this scenario was reviewed by the ATO, they may seek to apply Section 100A to the affairs of the Johnstone’s. Although there is effectively an exception for ‘ordinary family dealings’ it is not clear whether a court would agree that the arrangement above would be considered as such.

In our example it would be necessary to determine what Mrs Johnstone did with the money and if the funds were effectively used for Earvin’s benefit. For example the AFR article says that “in some cases, senior external lawyers and barristers have been engaged by the ATO to review spending on household costs, family holidays, cars and a range of other living expenses.’ 

However if the funds were clearly used for something which did not benefit Earvin then in our view Section 100A would be likely to apply.

Section 100A would have the effect of treating Earvin as never being entitled to the income. It means that the Magic Family Trust could potentially be assessed to pay tax at 47% on the $70,000 distributed to Earvin, excluding penalties (which would be applied).

That would increase the tax to $32,900 excluding penalties, compared to the $15,697 that Earvin would have originally paid.

ATO Ruling pending

The Australian Financial Review article also reports that the ATO is developing a public ruling which will discuss interpretational issues associated with Section 100A.

It is hoped that the public ruling will outline the ATO’s views on the ‘ordinary family dealing’ exception, so that taxpayers can have certainty about what type of arrangements will be acceptable to the ATO when it comes to distributing trust income.

The big tax announcement in this week’s budget centred around:

• Further personal income tax cuts;
• Increased asset write offs for small business;
• Increased funding for the ATO to tackle tax avoidance and evasion.

Updates to previous announcements included:

• A delay in changes to Division 7A which deals with loans from private companies to shareholders;
• No mention of the Proposed Removal of CGT Main Residence Exemption for non-residents (including Australian Expatriates).

Personal Income Tax Cuts

What is changing?

The government will be increasing the Low and Middle Income Tax Offsets (LMITO). Under the changes, the reduction in tax provided by LMITO will increase from a maximum amount of $530 to $1,080 per annum and the base amount will increase from $200 to $255 per annum for the 2018-19, 2019-20, 2020-21 and 2021-22 income years.

The Government will also progressively reduce the number of income tax brackets to 3 by 2024-2025 by which time there would only be 3 personal income tax rates – 19%, 30% and 45% (abolishing the 37% bracket).

What does this mean?

Low to medium income earners (those earning less than $125,333) will pay less tax when the LMITO offset is applied.

The objective of the tax bracket changes is to have 95% of Australia’s population paying no more than 30% on income tax by 2024-2025.

Increased Asset Write Offs For Small Business

What is changing?

The instant asset write-off threshold for businesses with an aggregated turnover of less than $10m will be increased to $30,000 for eligible assets that are first used, or installed ready for use, from 7.30 pm (AEDT) on 2 April 2019 to 30 June 2020.

What does this mean?

Small businesses are able to completely write-off assets worth up to $30,000 in the financial year that they started using them rather than depreciating them provided the expenditure is incurred after 2 April 2019 and before 30 June 2020.

ATO To Receive $1 Billion Of Funding To Tackle Tax Avoidance And Evasion

What is changing?

The Government will provide $1.0bn over 4 years from 2019-20 to the ATO to extend the operation of the Tax Avoidance Taskforce and to expand the Taskforce’s programs.

What does this mean?

The Taskforce will undertake compliance activities not only targeting multinationals and large public companies, but also private groups, trusts and high wealth individuals.

Delay in changes to Division 7A (Loans from private companies to shareholders)

The government has been undertaking consultation in relation to changes that it wishes to introduce to Division 7A which would include, among other things, eliminating the possibility of 25 Year Division 7A loans.

The Government issued a Consultation Paper in October 2018 seeking views on the proposed implementation approach for the amendments to Division 7A of the ITAA 1936.

The Government said it received valuable feedback which highlighted that Division 7A is a complex area and changes being considered in the Consultation Paper warrant further consideration.

The Government has agreed to delay the start date for proposed changes by 12 months to allow additional time to further consult with stakeholders and to refine the Government’s approach, to ensure appropriate transitional arrangements so taxpayers are not unfairly prejudiced.

Proposed Removal of CGT Main Residence Exemption for non-residents (including Australian Expatriates)

There was no mention in the Budget of the Government’s intention in relation to the widely criticised Treasury Laws Amendment (Reducing Pressure on Housing Affordability Measures No. 2) Bill 2018.

Although there is no official comment, we do not expect that the Bill will proceed in its current form although depending on the outcome of the election, it may be re-introduced in a modified form. The Bill still has major and well documented shortcomings as we indicated in a previous article.

Author: Matthew Marcarian

The taxpayer, Mr Harding has appealed to the Full Federal Court of Australia from a decision handed down on 8 June 2018 by Justice Derrington, in Harding v Commissioner of Taxation [2018] FCA 837. In that case His Honour, found that Mr Harding was resident of Australia for tax purposes under the Domicile Test, because he failed to establish a ‘permanent place of abode’ in Bahrain during the relevant year, even though he left Australia permanently in 2009 and lived in Bahrain until 2015, before moving to Oman.

We believe the decision creates significant uncertainty and we are glad to see it appealed.

What Happened In The Case?

In 2009 Mr Harding departed Australia to take up full time employment in Saudi Arabia. He chose to live in Bahrain (as is commonly done) and obtained a visa to do so. Mr Harding and his wife Mrs Harding had previously lived overseas in the Middle East.

On the facts outline in the case, Mr Harding seemed to have lived in the one apartment in Bahrain for almost 2 years from June 2009 to 9 June 2011, including almost all of the year ended 30 June 2011 – which was the year in dispute in the case.

Matters were apparently made complicated for Mr Harding because on this occasion his wife (and his children) did not accompany him to Bahrain initially and after going so far as to enrol his youngest son into the British School in Bahrain, Mr Harding’s marriage did not survive.

There is a some suggestion that Mr Harding only secured a two bedroom apartment when he initially moved to Bahrain, perhaps because he knew that when his family moved (as he intended that they would) more suitable accomodation would be required. His Honour also appeared to be completely convinced that Mr Harding had departed Australia permanently – even going so far as to list the things which he considered were evidence of that fact.

What Was The Problem?

The problem for Mr Harding was that even though His Honour was convinced that he had left Australia permanently (and was not resident according to ordinary concepts), His Honour was not convinced that Mr Harding had established a ‘permanent place of abode’ in Bahrain. Consequently since Mr Harding was an Australian domicile – he was still a tax resident of Australia.

This is because of the operation of the ‘Domicile Test’ in Australia’s residency laws. The Domicile Test treats all persons who have their domicile in Australia as being tax resident, unless they can show that they have a ‘permanent place of abode’ outside Australia. We believe that the concept of Permanent Place of Abode is a settled concept under Australia’s tax law and has been so for over 40 years since FC of T v Applegate 79 ATC  4307 (Applegate). The concept of ‘place of abode’ has its ordinary meaning and the use of the word ‘permanent’ in connection with an abode simply implies a place which is not temporary.

Given that the Court agreed that Mr Harding;

– made his life in Bahrain;
– had a visa to reside in Bahrain and in fact resided in Bahrain;
– owned a car in Bahrain;
– had exclusive use of an apartment in Bahrain which he leased (which the Court agreed was not short-term accomodation; see para 75);
– travelled every day from Bahrain to his full time place of work in Saudi Arabia;

we find it difficult to see why Mr Harding was found not to have a permanent place of abode in Bahrain.

The factors that seemed to be held against Mr Harding were that he did not own many possessions (given the apartment was fully furnished) and it was reasonably easy for him to move between apartments in the same complex which he did in July 2011 (after spending almost 2 years in the fist apartment) when it became apparent that Mrs Harding was not going to move to Bahrain.

It also seemed to weigh strongly on His Honour’s considerations that Mrs Harding did not seem to want to live in the original apartment Mr Harding had chosen (even though it was big enough to house the family) and that Mr and Mrs Harding together looked at alternative accomodation when she visited him in Bahrain.

A relevant fact also apparently was that Mr Harding’s postal mail was not sent to Bahrain, but continued to be sent to his former home in Australia. In relation to this His Honour remarked in his closing remarks (para 149) that “It is indicative of an intention to reside at premises permanently or, at least, not temporarily if that place is used as the address for correspondence. Were a person to use their apartment address as that to which important correspondence is to be addressed it can be thought that they are intending to remain there for an extended period of time.” We cannot understand why His Honour considered that the receipt of postal mail in Australia was of material significance, when by contrast His Honour did not see it as particularly significant that Mr Harding had continuing financial arrangements with Australia (paragraph 85).

Factors Suggesting Mr Harding Did Have A Permanent Place of Abode Was In Bahrain

The strangeness of the decision here is compounded by the fact that although Mr Harding’s contract of employment was only for 12 months, when Counsel for the Commissioner argued that Mr Harding’s presence in Bahrain was ‘somewhat tenuous’ because of this, His Honour responded by remarking (correctly in our view) on the permanent nature of Mr Harding’s departure from Australia, his intention never to return to Australia to live, and his working history which demonstrated that was ’eminently employable’, effectively dismissing the Commissioner’s argument that the short term nature of the employment contract was a material weakness in the case.

Indeed at para 147 His Honour remarks that “An associated argument advanced by the Commissioner was that as Mr Harding’s employment in the Middle East might be terminated at short notice, his presence there was necessarily of a transitory nature. That submission, however, fails to take into account that Mr Harding was intent on remaining in the Middle East, although not necessarily in Bahrain, and his presence there was not, necessarily, tied to his continued employment with TQ Education.”

The decision in this case is all the more puzzling given that His Honour accepted that Mr Harding took leases of the apartments as extended term propositions also accepting that“that Mr Harding made his life in Bahrain. It was the place from which he commuted daily to his work in Saudi Arabia. He formed friendships there and it was where he attended restaurants and bars after work. He also went to the beaches there and engaged in go-carting at the local grand prix track. In general terms, he pursued the expatriate lifestyle with which he had been familiar for many years.”

Implications For Australian Expats

We hope that the decision in Harding is overturned on appeal. The answer to question of whether a person has established a ‘permanent place of abode’ overseas should be arrived at simply and in a common sense fashion, by considering whether the taxpayer has only a temporary place of abode in the country.

For residency purposes if a place is not temporary then it must be permanent otherwise a person cannot have any certainty.  Surely we cannot have a third class of residency, being a state of being somewhere in the middle of temporary and permanent.

If the Court accepts that Mr Harding ‘made his life in Bahrain’ it should accept that he had a permanent place of abode there, regardless of where his postal mail is sent to.

It is pertinent to conclude by reflecting on the often quoted words of Fisher J in Applegate who said;

“To my mind the proper construction to place upon the phrase ‘permanent place of abode’ is that it is the taxpayer’s fixed and habitual place of abode. It is his home, but not his permanent home..Material factors for consideration will be the continuity or otherwise of the taxpayer’s presence, the duration of his presence and the durability of his association with the particular place.”

We look forward to a common sense judgement from the Full Federal Court in Mr Harding’s case.

UPDATE: On 22 February 2019, the Full High Court handed down a decision on the Harding v Commissioner of Taxation [2018] FCA 837  case. Please see Residency – Harding’s Appeal Victory for the decision.

Author: Matthew Marcarian

Australia has a reputation as being a high taxing country. Most people are aware that if they are a resident of Australia they are taxable on all their income – whether from sources in or outside Australia.That is, Australia requires tax residents to declare income and capital gains from sources worldwide, regardless of whether the income is remitted to Australia.

However relatively few people are aware that Australia also has a generous concession for expats on their overseas assets. This is known as the ‘temporary resident exemption’ – which was introduced by the Australian government more than a decade ago.

New Zealand citizens who arrived in Australia after 26 February 2001 can also usually qualify under these rules which can give extremely favourable outcomes to New Zealand citizens with overseas assets.

If you are an expat and have the status of a temporary resident for migration purposes (i.e you hold a temporary visa, such as a 457 Visa) then you will most likely also be a temporary resident for income tax purposes. This applies unless your spouse is an Australian citizen or Permanent Resident, in which case you will not be able to benefit from the exemptions.

If you are a temporary resident for tax purposes in Australia then you are not required to declare foreign investment income such as foreign dividends, trust distributions or foreign bank interest, even if you bring this income into Australia. It is also the case that income that would otherwise be taxable under Australia’s controlled foreign company rules is also disregarded if a person is a temporary resident. Generous capital gains tax exemptions also apply to assets which are not Australian real property (i.e real estate) or interests in Australian real property.

These concessions mean that temporary residents are able to live and work in Australia, but often only pay tax on income from employment, while they can continue to hold significant foreign investments. The exception relates to employment related income which may be derived from foreign sources by a temporary resident living in Australia.

We are often contacted by people who wish to clarify their status under the temporary resident rules. Once people understand that they are temporary residents then many of their concerns about Australia’s worldwide approach to taxation tend to drop away.

However, temporary residents who are considering becoming Permanent Residents in Australia still need to be aware of how drastically their tax situation can change if they become Permanent Resident. This is because if you become a Permanent Resident you would be taxable under the normal rules on your worldwide income. We encourage global expats with significant overseas assets to seek tax advice as soon as they determine that they wish to apply for Permanent Residency in Australia.

If you are considering applying for Permanent Residency in Australia and have significant overseas assets our specialist team would welcome the opportunity to assist you with detailed tax advice so that you fully aware of the tax implications. CST’s Strategic Tax Review is an appropriate service for clients in this situation. If you are interested in seeking advice from us please contact us.

CST’s tax advisors have experience with advising high net worth global expatriates arriving in Australia from all parts of the world.

Our specialist integrated Australia/US advisory capabilities can also make a real difference for US expatriates living in Australia who have to lodge tax returns in Australia and the United States.

There have been considerable changes recently in Australia’s approach to levying tax on foreign nationals who own Australian real estate. In particular, various state governments have introduced land tax and stamp duty surcharges for foreigners who own Australian residential land.

The purpose of this blog post is to provide general information as to the issues of how family trusts are treated.

Generally, the issue with trusts is that it needs to be determined whether a trust would be treated as foreign trust for land tax and stamp duty purposes.

If your family trust is deemed to be foreign trust, then you will be required to pay land tax surcharges if your family trust owns land in New South Wales, Victoria or Queensland.

Whether a trust is a foreign trust

The rules that determine whether a discretionary trust is considered a foreign trust for duty and land tax purposes differs from state to state. The appropriate rules to apply will depend on the location of the property of the trust (i.e. if the trust buys property in NSW it will be subject to the NSW definition).

Essentially issues will arise in New South Wales if your Trust has any potential beneficiary who is not an Australian citizen or who is not permanently residing in Australia. Note that the question of whether a foreign person has in fact benefited is not relevant.

The law in Queensland and Victoria is less onerous because surcharges will generally only apply in those states if any of the default beneficiaries (i.e name beneficiaries) are foreigners.

Suggestion action

We recommend that you consider the position of your trust and consider who the beneficiaries of your trusts may need to be moving forward.

If you do not intend to benefit foreign persons, then your trust deed may be able to be amended to avoid future land tax and stamp duty surcharges being applied.

For trusts that own residential land in NSW we also recommend that you read this link  so that you are aware of the approach that the New South Wales Office of State Revenue is taking in relation to this issue.

If you have any questions, please do not hesitate to contact us.

What are the tax consequences of arriving in Australia and becoming tax resident?

From the date of arrival into Australia, you will generally be regarded as a tax resident of Australia and be required to declare income from worldwide sources from this day forth. Where you are classified as a temporary resident, only Australian sourced income will be taxable in Australia. In the first year, your tax-free threshold will also be pro-rated based on the number of months you will be a resident of Australia for tax. All of your assets will be deemed to have been acquired for their market value as at the date of your arrival for capital gains tax purposes. Your foreign income may also be subject to income tax depending on the movement of the exchange from the date of arrival to the date of actual conversion

What is the minimum time I can remain in Australia without being tax resident?

Australia has a 183-day rule with regards to determining whether you are a tax resident of Australia. However, there are also issues associated with one’s domicile which should also be considered.

Does Australia tax its residents on a world wide or territorial basis?

Australian tax residents are subject to income tax on their worldwide income. Territorial tax only applies if you are classified as a temporary resident of Australia for tax purposes.

Is foreign income taxable in Australia e.g. foreign rental income, foreign interest income and foreign dividend income?

As an Australian tax resident you will be taxable on foreign income derived during the year.

Does Australia tax income on a remittance basis?

No – Australia taxes foreign income as it accrues regardless of whether the income is remitted to Australia.

Does Australia have a sales tax or VAT tax on purchases?

Australia has a consumption tax called the Goods and Services Tax (GST). The current rate of GST is 10%.

Does Australia have a capital gains tax that taxes me when I sell foreign assets?

Yes – Capital gains tax applies in Australia on foreign assets for any capital growth arising from the date of commencement as an Australian tax resident to the date of disposal.

Does Australia have an estate tax or death tax?

No – Australian does not currently have an estate or death tax.

What is the top tax rate in Australia?

The top marginal tax rate for individuals in Australia is 45% with an additional 2% Medicare Levy and 2% Temporary Budget Repair Levy. This top rate applies on taxable incomes greater than $180,000.

Does the tax rate vary for different types of income and if so what are the rates?

The income tax rate applies to all forms of income , however there may be rebates which apply which will reduce the tax payable.

What are the common tax deductions available in Australia?

You may claim a deduction for any payments made in relation to the generation of income. Common deductions associated to employment income include out-of-pocket expenses such as:

• Motor vehicles
• Communications – cell phone, internet
• Travel
• Uniforms
• Self-education

Does Australia require joint tax returns to be filed for me and my spouse or are separate tax returns required?

In Australia each taxpayer must file a personal return. However the joint incomes will be considered in determining eligibility to certain rebates.

If I have a foreign company or foreign trust before I arrived in Australia is the income of that company or trust taxable?

In Australia, the Controlled Foreign Company (CFC) and Transferor Trust rules will apply to attribute income to you personally if you are considered to control the assets of a foreign company or trust.

Do children under 18 pay a higher rate of tax on certain types of income?

Yes – Children who are not working or regarded as an Excepted person are taxed at a higher rate than adult individuals. There are also certain forms of income receipts (such as a distribution from a deceased estate) which are not subject to the higher rates of tax in the hands of a child.

Is there a gift tax in Australia?

No there is no gift tax in Australia, however when assets are gifted capital gains tax may be relevant.

What are the personal tax exemptions in Australia e.g. a gift from an overseas relative or a foreign insurance payout?

Gifts and insurance payouts from overseas relations are generally not taxable in Australia.

If I receive shares as part of my salary is this taxed in Australia?

Shares are regarded as payments in lieu of salary and wages and taxed at your marginal rate of tax in either the year they are granted or the year in which they vest (depending on the terms and conditions associated with the employee share scheme).

When I leave the country is a ‘termination payment’ taxed by Australia before I leave?

Australian sourced income will be subject to Australian withholding taxes. This is the cases regardless of whether payment of the termination amount is done before or after you leave the country.

What are other tax consequences of leaving the country?

As a resident of Australia, you will be deemed to have disposed of your non-real property assets for their market values on the date of disposal. This will give rise to a deemed capital gains tax event and an associated tax liability. However, you may choose to defer this taxation event to the point when you dispose of the asset in the future.

If you do not declare a capital gain on the assets in the year that you cease being a resident of Australia, it will be assumed by the Australian authorities that you have elected to defer the taxation point.

Are there any tax consequences of me transferring money from Australia to my say home country?

There are no tax consequences arising from the transfer of money back to your home country unless the source of funds is Australian income in which case there will generally be a tax liability.

The Australian Government has recently introduced tax incentives for early stage investors.

The incentives have been introduced as the new Division 360 of the Income Tax Assessment Act 1997 entitled “Early Stage Investments in Innovation Companies”.

The incentives apply from 1 July 2016 onwards.

The Tax Incentives mean that investors in a qualifying Early Stage Innovation Company (ESIC) will received a tax offset (a reduction in tax) in the amount of 20% of their investment.

A capital gains tax exemption is also available for investors or investors who hold the relevant shares for at least 12 months.

The Tax Offset

The tax offset means that a person who invests say $100,000 in a qualifying innovation company, will received a $20,000 tax offset (meaning a reduction in tax) for the year of their investment.

The tax offset for the investor is capped at $200,000 meaning that investments above $1M will not attract any further tax offsets.

The tax offset is non refundable, meaning that if an investor does not have a tax liability in the year they make the investment they will not receive any benefit. However, the benefit can be carried forward and claimed in the next year when the investor has a tax liability.

Who Can Claim the Tax Offset?

The offset is generally claimable by all natural persons provided they are considered sophisticated investors under section 708 of the Corporations Act.

If the person is not considered a ‘sophisticated investor’ they are only able to benefit from the tax offset if not more than $50,000 was invested by them. Investors can be either be resident or non resident of Australia.

The offset is also available to investors who are are beneficiaries of trusts to the extent that the relevant trust would have been entitled to a tax offset if it was an individual. This would mean that trusts that would need to satisfy the ‘sophisticated investor’ criteria, like an individual would, if it is seeking to invest more than $50,000 into an ESIC.

The tax incentives were announced as part of the National Innovation and Science Agenda. The new laws which were introduced as part of the Tax Laws Amendment (Tax Incentives for Innovation) Bill 2016, received Royal Assent   on 5 May 2016.

The Capital Gains Tax Concessions

Essentially investor who qualify for tax incentives will receive a capital gains tax exemption on gains arising from their investment provided they hold the investor for at least 12 months and no longer than 10 years.

Where the investment is held for longer than 10 years the CGT rules provide for a deemed acquisition of the investment for CGT purposes on the 10 year anniversary of the investment for the market value of the interest on that day. That means that investors will receive the benefit of the CGT exemption for accrued gains up to 10 years.

Note that investors receive no CGT concessions for any short term gains made within 12 months.

What is a Qualifying Early Stage Innovation Company (ESIC)

Section 360-40 defines an Early State Innovation Company (ESIC). Essentially a company is an ESIC if it can satisfy all the limbs of that section. The two main limbs are the if it can show that it is:
(i) Early Stage
(ii) Innovative

Is a company Early Stage?

Generally, a company is early stage if either it is incorporated in Australia within the last 3 years or it can have been incorporate in the last 6 years if its total expenses over the last 3 years have been not more than $1,000,000.

Is a company Innovative?

Companies will qualify as innovative they can:

• Earn at least 100 points against the objective tests set
out in section 360-45;
• Self-assess their circumstances against the principles based
test; or
• Seek a ruling from the Commissioner about whether their
circumstances satisfy the principles based test.

The 100 Points Innovation Test

Under 360-45 a company can calculate whether it can get to ‘100 points’ by checking whether it has satisfied certain explicit innovation criteria.

These are set out in Appendix A to this document.

The Principles Based Test

A company will need to show that, it is

(i) the company is genuinely focussed on developing for
commercialisation one or more new, or significantly
improved, products, processes, services or marketing or
organisational methods; and
(ii) the business relating to those products, processes, services
or methods has a high growth potential; and
(iii) the company can demonstrate that it has the potential
to be able to successfully scale that business; and
(iv) the company can demonstrate that it has the potential to
be able to address a broader than local market, including
global markets, through that business; and
(v) the company can demonstrate that it has the potential to
be able to have competitive advantages for that business.

100 point innovation test

At a particular time (the test time) in an income year (the current year), a company has the points mentioned in an item of the following table if that item applies to the company at that time.

Innovation points potentially available at that time in the current year

Column 1		Column 2
Items	Points	Innovation Criteria
1	75	At least 50% of the company’s total expenses for the previous income year is expenditure that the company can notionally deduct for that income year under section 355-205 (about R&D expenditure).
2	75	The company has received an Accelerating Commercialisation Grant under the program administered by the Commonwealth known as the Entrepreneurs’ Programme.
3	50	At least 15%, but less than 50%, of the company’s total expenses for the previous income year is expenditure that the company can notionally deduct for that income year under section 355-205(about R&D expenditure).
4	50	(a) the company has completed or is undertaking an accelerator program that: (i) provides time-limited support for entrepreneurs with start-up businesses; and (ii) is provided to entrepreneurs that are selected in an open, independent and competitive manner; and (b) the entity providing that program has been providing that, or other accelerator programs for entrepreneurs, for at least 6 months; and (c) such programs have been completed by at least one cohort of entrepreneurs.
5	50	(a) a total of at least $50,000 has been paid for *equity interests that are *shares in the company; and (b) the company issued those shares to one or more entities that: (i) were not *associates of the company immediately before the issue of those shares; and (ii) did not *acquire those shares primarily to assist another entity become entitled to a *tax offset or a modified CGT treatment) under this Subdivision; and (c) the company issued those shares at least one day before the test time.
6	50	(a) the company has rights (including equitable rights) under a *Commonwealth law as: (i) the patentee, or a licensee, of a standard patent; or (ii) the owner, or a licensee, of a plant breeder’s right; granted in Australia within the last 5 years (ending at the test time); or (b) the company has equivalent rights under a *foreign law.
7	25	Unless item 6 applies to the company at the test time: (a) the company has rights (including equitable rights) under a *Commonwealth law as: (i) the patentee, or a licensee, of an innovation patent granted and certified in Australia; or (ii) the owner, or a licensee, of a registered design registered in Australia; within the last 5 years (ending at the test time); or (b) the company has equivalent rights under a *foreign law.
8	25	The company has a written agreement with: (a) an institution or body listed in Schedule 1 to the Higher Education Funding Act 1988(about institutions or bodies eligible for special research assistance); or (b) an entity registered under section 29A of the Industry Research and Development Act 1986 (about research service providers); to   co-develop and commercialise a new, or significantly improved, product, process, service or marketing or organisational method.

Please contact me on matthew.marcarian@csttax.com for more information on how the new incentives might apply to your situation.

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The Treasurer, Scott Morrison, delivered his maiden Federal Budget speech on Tuesday 3 May 2016. With the expectation of a double dissolution election being called by the Prime Minister Malcolm Turnbull, there was great expectations about the contents of the speech.

In summary, the Budget focuses on the following areas:
•A Ten Year Enterprise Tax Plan which aims to make Australian corporate tax more competitive in the global market;
•Incentives for early stage investors as part of the National Innovation and Science Agenda;
•A strategy for tackling the MNCs profit shifting;
•Substantial changes to superannuation; and
•Creation of a taskforce focused on tax compliance and avoidance.

From a deficit perspective, the Government plans to reduce the deficit from the current $39.9bn to $6bn by 2020 through a reduction in public spending, increased focus on tax compliance and provision of stimuli for jobs growth.

Click here to read the highlights.

1. What Is A Trust?

• Trustee;
• Trust Property;
• Equitable Obligation;
• Beneficiaries;

To restate the above in slightly more legalistic terms “a trust is a fiduciary relationship where one person, a trustee, holds an interest in property but has an equitable obligation to use or keep that property for the benefit of another person(s) (beneficiaries) for some committed object or purpose.

There are many types of trusts, however the common ones are:

• Express Trusts;
• Settled Trust;
• Discretionary Trusts;
• Unit Trust;
• Will Trust;

Express Trusts

Are trusts created by the express and intentional declaration of the settlor. Trusts dealt with in practice usually evidence this declaration by way of a formal trust deed.

Settled Trust

One form of an express trust is a settled trust created by settlor (or director). The settlor will intentionally create a trust by gifting the initial trust property to be held on trust by a trustee under an equitable obligation.

The most common trusts we implement are a discretionary trust, unit trust and a will trust (or deceased estate).

Discretionary Trust

A common settled trust dealt with in practice is a discretionary trust. A discretionary trust, which may also be known as a family trust, allows the trustee (who is usually the head of the family) to exercise discretion on an annual basis as to which beneficiaries will receive a distribution and to what extent each beneficiary shall benefit.

Unit Trust

Unit trusts are commonly used when arms length parties wish to enter into a commercial undertaking together.

Each party’s entitlement to income and capital from the trust is proportionate to the units held.

Will Trust

A will trust or a deceased estate arises on the death of a person. Upon death, property of the deceased passes to his or her estate.

The fiduciary obligation to administer the estate and the assets therefore falls upon the executor or administrator who assumes the role of trustee in respect of the property of the deceased estate.

The beneficiaries of a deceased are those nominated in the Will of the deceased.

2. Why Choose A Trust?

3. How Do You Set Up A Trust?

If you have made the decision that a trust is an appropriate structure the next step is to establish a trust.

Approaching A Solicitor

Prior to approaching a solicitor you should not only have considered the commercial and taxation issues noted previously, but you should also have determined:

• The purpose and activities of the trust;
• Nominated beneficiaries and future beneficiaries;
• Who is to be the trustee and settlor;

Review And Understanding

The solicitor will draft the trust deed in accordance with the client’s requirement and at this stage it is critical that a thorough review is done to ensure that the trust deed (or governing rules) reflects your commercial and legal requirements and allows flexibility for future contingencies.

If a solicitor who specialises in trust law is consulted you will often receive an information booklet setting a basic outline of a trust for administration purposes.

At this stage also it is critical that you read through the draft deed and that questions are addressed prior to creating the trust. In this regard the family or business solicitor (if he or she did not draft the deed) may be used to add his/her comments and to provide a different perspective and extra level of comfort to both the client and accountant.

4. Parties To A Trust

The Settlor

The Settlor is the person who brings the trust into being.

Typically the settlor is a family friend or business associate who will contribute initial capital to settle the trust.

For Australian tax purposes it is important that there is not any reimbursement by the trustee in respect of distributions made for children under 18 years old if a parent, who will usually act as trustee or a director of the trustee company of a family trust, settles or creates the trust.

It is also advisable that the advisers to the trust are not the Settlor, for the reason that many trust deeds contain clauses that the Settlor is excluded from any benefit or income under the trust.

The Trustee

A Trustee is the person who holds an interest in trust property for a committed trust object or purpose.
In a discretionary trust situation the trustee exercises control over trust property so the trustee can deal with it on behalf of beneficiaries.

The choice of a trustee is worth proper consideration for the reason that the trustee’s powers and duties are significant. In that regard the person who is appointed to the position must understand his/her role and responsibilities.

Trustees may be individuals but more commonly will be companies to limit liability.  In a family trust a parent or both parents will usually act as directors of a corporate trustee.

The Appointor or Protector

The Appointor or Protector is the person or persons who have the authority under the trust deed to appoint or remove the trustee of the trust. As such the appointor is often said be the controller of the trust.

Many trust deeds empower the appointer to remove the trustee and appoint a new trustee at any time in writing.

Unless specified in the trust deed or in the will of the Appointer, on the death of the Appointor, the legal personal representative of the deceased Appointer will become the Appointor.

Income Beneficiaries

These are beneficiaries who may at the discretion of the trustee receive entitlement to trust income. Most modern trust deeds are drafted very widely in this area to give the trustee very wide discretionary powers for the advantage of flexibility of distribution for taxation purposes. Common classes of beneficiaries are:

• Family members, including children;
• Unborn children of family members such as direct lineal descendants;
• Eligible entities in which the abovementioned beneficiaries of the trust itself has an interest (such as a corporate beneficiary)

Capital Beneficiaries

These are beneficiaries who are entitled to the corpus of the trust or the capital in the trust.
This entitlement does not usually arise until vesting day, or the day the trust is to be wound up, but entitlements to capital or corpus of the trust may occur earlier if permitted by the trust deed or agreed to by all beneficiaries.

Default Beneficiaries

A default beneficiary is simply the beneficiary to whom a distribution may default to in the absence of any other nominated beneficiary.
For example should an amended assessment be raised increasing assessable income that income will be distributed primarily in accordance with the relevant trustee’s distribution minute.

However in the absence of any guidance contained therein or in the event the resolution or minute cannot be located or was not made for the reason there was considered to be no income, the distribution may revert to the default beneficiary rather than be assessed in the hands of the trustee at the top marginal rate.

There are very few restrictions on who may be a beneficiary.  A beneficiary may be a resident or non-resident natural person (such as a company) or any legal entity.
Further, persons who have not yet been born or legal entities that have not yet come into existence may subsequently become beneficiaries.  However it is important to nominate who will be and who can become a beneficiary on drafting of the deed.

A trust, as stated above, is a fiduciary relationship.

The adding of unanticipated beneficiaries at a later stage may, in a worst case scenario, lead to a resettlement of a trust or the ceasing of the former relationship and creation of a new relationship, being the creation of a new trust.

Should there be considered to be cessation of one trust and the creation of a new trust, a myriad of unwelcome income tax, capital tax and stamp duty issues may arise.
Thus, upon reviewing the deed detailed consideration must be given to who and who might potentially become income, capital and/or default beneficiaries.

Contact Us

Should you be interested in discussing further how a trust may suit your purposes please do not hesitate to contact us at our offices.

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Disclaimer:
This document is intended as an information source only. The comments and references to legislation and other sources in this publication do not constitute legal advice and should not be relied upon as such. You should seek advice from a professional adviser regarding the application of any of the comments in this document to your fact scenario. Information in this publication does not take into account any person’s personal objectives, needs or financial situations. Accordingly, you should consider the appropriateness of any information, having regard to your own objectives, financial situation and needs and seek professional advice before acting on it. CST Tax Advisors exclude all liability (including liability for negligence) in relation to your reliance in this publication.