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.