The investor’s guide to trusts

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There are three main factors to take into consideration when evaluating the most appropriate ownership structure for your next investment. If optimised properly, these three factors will help to minimise your overall risk and tax, as well providing you with peace of mind and maximum flexibility into the future.

These factors are:

Estate planning
Estate planning involves preparing your will, appointing an executor of this will, determining a power of attorney (if required) and establishing trusts (to preserve the assets for a particular person or group).

Asset protection
Asset protection is especially important for those individuals with high-risk occupation profiles, such as surgeons. It is important for people with these profiles to look at buying a property with a structure which protects their assets in the event that they are involved in any professional indemnity, public risk or product liability insurance claims or lawsuits.

Tax planning
If you’re the type of person who has all of their receipts in a shoebox, the tax process is only going to get more complicated once you introduce investment properties into the mix. So it is vital to have a solid tax planning strategy before buying and your structure should complement this strategy to benefit your wealth creation. For example, different structures will impact taxable income in different ways.

Trusts
Trusts are a popular choice for many investors, due to their benefits in all three of the above criteria. Trusts come in a few different forms and are typically more flexible than other structures available for investors. They also offer more asset protection. 

Of all trust structures, those most commonly used for property purchase are :

unit trusts,
family discretionary trusts
hybrid trusts

Advantages

  • Asset Protection
    Should any beneficiary become bankrupt or financially troubled, such as being sued for example, any assets that are owned by the trust cannot be touched by the creditors. This protection exists provided that the assets were transferred into the trust a number of years before the bankruptcy or similar proceedings commence. In this situation, only assets that are personally owned by the beneficiary are able to be repossessed.
  • 50% Capital Gains Tax Discount
    As long as the asset has been held for more than 12 months, most trust structures, including unit trusts, are eligible for a 50% CGT discount on all capital gains that are produced.
  • Cheaper and easier than a company structure
    A Unit Trust is cheaper to establish and maintain than a company. It is also generally an easier procedure to wind up a trust than to wind up a company.
  • Fewer regulations
    There are fewer regulations governing trusts than companies, and units can generally be easily transferred and re-acquired without any legal problems

Disadvantages

  • Transferring property into trust triggers stamp duty and CGT
    The act of transferring a property that is owned by an individual into a trust, will see the trust liable to pay stamp duty on acquisition of the asset. Additionally, the individual who is transferring ownership to the trust, will be liable to pay capital gains tax on the disposal of the asset.
  • Rental loss quarantined
    For investment properties that are owned by trusts, it is not possible to offset any rental loss amounts against other investment income. The loss must remain quarantined in the trust until such time that a rental gain is made and the previous loss can be offset against it.
  • Capital loss quarantined
    As with a rental loss, if a trust makes a capital loss on its assets, the amount is quarantined until there is a capital gain that it can be offset against. Beneficiaries or unit holders are not able to apportion this loss to offset their own individual income.

However, even between these relatively similar structures, there can be diverse taxation and other factors that need to be considered. As the details will differ for each individual situation, it is extremely important that you seek advice from both legal and accounting professionals before proceeding to make any decisions. Your lawyer and accountant can explain the long term intentions for the trust, not just the short term benefits, if in fact a trust is the right decision for your situation at all. Making the wrong choice initially could potentially cause problems down the track, with perhaps the most notable being the loss of tax concessions and deductions, as well as potential liability for other costs that may not apply to you otherwise.

Unit trust
A unit trust structure exists where the assets owned by the trust are divided into defined portions known as ‘units’. ‘Unit’ ownership by the trust’s beneficiaries (or unit holders) can be likened to the way in which shareholders hold shares in a company. Each beneficiary’s share of the trust’s income, and consequently the taxation liabilities and related expenses, is proportional to the number of ‘units’ that they hold.

This means unit trusts allow some flexibility in the distribution of the income and capital that is generated by the entity. In general terms, trust units can be allocated to beneficiaries as either ‘capital’ or ‘income’ units. This allows for unit holders who are on a lower marginal income tax rate to be nominated to receive the income generated by ‘income units’, as they will be taxed at a lower rate. Those unit holders who are on a higher marginal income tax rate are more likely to be allocated ‘capital units’. For example, ‘capital unit’ holders may choose to sell the asset when they retire and are no longer receiving other forms of income. In this case they will receive the lump sum of income produced by the capital gain on sale of the asset. The ‘capital unit’ holder will then be liable for less tax on this income amount as they currently have no other forms of income.

However, while there is some flexibility in relation to the distribution of income in a unit trust, the implementation and allocation of capital and income units is restricted by the conditions set out in the trust’s deed. Any requests for variation on these distribution conditions must be done so by formally amending the deed.
 
Individuals are not able to claim a deduction for any interest paid on monies that are borrowed and then injected into the trust for the purchasing of assets. However, the trust entity itself is able to borrow monies and then claim a deduction for the interest paid on those borrowings.

Further to that, individuals are generally able to claim interest on any monies that are borrowed in order to acquire units in the trust structure as this is deemed to be a similar action to that of purchasing shares in a company.

It should also be noted that each beneficiary has complete discretion as to the transferring of their units on their passing, as dictated by their will. Essentially, a beneficiary’s units can pass to whomever they choose. This may been seen as either a disadvantage or advantage dependant on each individual situation and whether it is viewed from the point of view of the beneficiary of the trust, the beneficiary of the will or the trust itself.

Family Discretionary Trust
Generally speaking, the most common structure of a family discretionary trust is usually controlled by a husband and wife and does not include anyone who is outside of the family. The trustee of this type of trust has complete discretion when it comes to the distribution of income and capital amongst the beneficiaries, unlike the unit trust where income is distributed in proportion to the amount of units held by each beneficiary and as dictated by the deed.

Family discretionary trusts offer maximum flexibility of the distribution of income. The trustee of a family discretionary trust determines how the income is allocated and this can be amended as seldom or as frequently as the trustee desires. This differs to the unit trust structure in that the unit trust’s deed dictates the allocation of income.

As with a unit trust, under a family discretionary trust structure, an individual is not able to claim a deduction for any interest that is paid on any monies that are borrowed and injected into the trust. The trust entity is, however, eligible to claim a deduction for any interest that is paid on any monies borrowed by the trust.

Unlike a unit trust, the family discretionary trust does not allow for beneficiaries to dictate the transfer of their portion of trust ownership on the event of their passing. family discretionary trust deeds dictate that there is a distinct and defined flow of ownership rights.

As a result of this, beneficiaries are not able to use their will to leave their share to any person other than as set out by the trust deed. Generally speaking, the deed sets out that the beneficiaries of the trust are determined as husband and wife, their children and children’s spouses and their children’s children. There are of course variations on this arrangement but this is a general demonstration of a common family trust agreement.  This can be seen as an advantage or disadvantage, depending on each situation and whether it is looked at from the point of view of the beneficiary or the trust.

Hybrid Trust
Hybrid trusts are a combination of both unit and discretionary trusts. Beneficiaries hold a defined amount of units, as per a unit trust, but the trustee of a hybrid trust structure has the discretionary power to vary each beneficiary’s entitlements and income.

As a hybrid trust has ‘units’, any interest that is paid on monies borrowed and used to purchase these units can be claimed as a deduction as this process is likened to the purchasing of shares, as with a Unit Trust structure.

Perhaps the biggest disadvantage is that the costs of establishing a hybrid trust are notably more than for other types of trusts. From both a legal and accounting perspective the establishment of a hybrid trust structure requires considerably more work than that of a unit or family discretionary trust, hence the associated costs are higher.

Note: This information is provided for general advice purposes only. You should to seek the advice of a professional lawyer and accountant before proceeding with the establishment of any trusts and related property purchases

 

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Comments
  • danny says on 07/07/2013 10:23:37 AM

    hello,

    are you aware of unit trust homeloans where mortage is held under tax payer name?

    thanks.

  • Trustee says on 25/09/2014 12:30:38 PM

    Hi, If you mean the loan is in the tax payers name and the title to the property is in the trusts / trustees name then yes many lenders are willing to do this structure. Is particularly relevant to unit and hybrid trust set ups. As a tip in NSW it also means you are not hit with loan duty (0.4% of amount borrowed) as the loan is in personal names not a company (trustee) name. [edited]

  • SHumaila says on 25/09/2014 04:33:13 PM

    nice discussion going on ............

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