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  • Profile photo of TerrywTerryw
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    Rory1 wrote:
    Thanks Terry, not a simple situation for me to work through!

    Very complex. Most lawyers couldn’t advise. I wouldn’t advise on something like this as I don’t know enough about international tax aspects.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Rory1 wrote:
    Hi all,

    There is some great info here which is really helpful, but I also have some questions that I am hoping you can assist with.

    My situation: I now live in Norway with my wife and our 2yo son. I have an Australian salary until at least Dec 2014, but probably Dec 2015. My current gross salary is about $78K as I am on part time leave without pay (normally about $120K). I have about $80K in the bank, of which I am prepared to spend about $40K, keeping the either $40K as contingency. I have an investment property which I owe about $51K to NAB. I declined an offer on this place in March 2012 for $230K (kicking myself!).

    I am looking to replace my Australian income with passive income from property. To do this I estimate I need approx 10-12 properties (minimum), based on a net positive cashflow of approx $10K per property. I am looking at acouple of high cashflow investments such as unit blocks and between 4-6 NRAS properties as the core of my portfolio. Once I have sufficient passive income, I would also seek to acquire acouple of properties in CBD of Sydney, Melbourne, Brisbane or Perth which may initially be negatively geared, but have a very good capital gains prospect.

    I need a suitable finance structure to achieve this goal, and after reading 'From 0 to 130 Properties in 3.5 Years', I am hopeful a Trust structure may be suitable for me. My main issue is, before I go through the process of establishing a Trust, how can I be confident of getting suitable finance to acquire multiple properties (I estimate at least $4 million in finance is required for me to gain enough suitable properties)?

    I would likely be sole director and beneficiary as my wife is Norwegian and doesn't have Australian residency or citizenship, or bank account (and we live in Norway). Is this an appropriate structure? Am I able to make small dispersals to my infant son if I establish an Australian bank account for him? (I have read comments about tax implications for distributing to minors).

    I have spoken previously to my accountant who has advised I am, and can remain, an Australian resident for tax purposes.

    Also, as I said, I have read 'From 0 to 130 Properties in 3.5 Years', which was a great help, and I have also read 'Value Investing in Property' by Gavin McPherson, and the way I understand it, Gavin is very critical of the Trust structure methods that Steve talks about as a method of quickly acquiring significant numbers of properties. Any thoughts?

    Many thanks for your assistance and feedback

    R.

    Rory,

    Again, very complex because of the international aspects. You may be a resident, or you may not depending on your situation. This may also change in the future.

    Assuming you are a resident then the trust structure may work. You should probably speak to a broker and make sure you can service before setting up the trust.

    Also ask your accountant of the consequences for the trust if you were to become non residence. Foreign controlled trusts and companies are the complex part.

    You can distribute to your son, but ask what are the tax consequences when distributing to a non resident child – withholding tax etc.

    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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    You may be hard pressed to justify this other than claiming a small percentage based on use.

    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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    se7en wrote:
    Hi Terry,

    I have always planned on seeking advice from an accountant, lawyer and broker but I have always found it hard to work out which order was best.

    Because of my situation I figured accountant was best as most of my concerns revolve around taxation. This said, what worries me is that if one pays for an accountants advise (and as you said it could be expensive in my case) and then sees a lawyer, what happens if there is a discrepancy between what the two are saying. its almost as if you need to have everyone in the same room at once in order to avoid any back and forth and therefore larger fees.

    After looking on the ATO website it seems that I am a nonresident for tax purposes – I have moved overseas indefinitely with no plans to return permanently (I have no idea how they can measure this) I have a bank account in AUS but nothing is going in except a small amount of interest and this will be shut down shortly, other than that I have nothing there. I have canceled all insurances, registrations and own no assets there.

    Would you say it is wise to see an accountant for advise about structure re. tax and resident status and then see a lawyer to do the actual set up?

    Also I know it will be an approximate number but could you give me a ball park figure for such complex advise?

    Thanks for your help! 

    Its almost certain that no 2 advisers would agree! This sort of stuff is not black and white. e.g. residency for tax purposes – there would be arguments that you are a resident and arguments that you are not a resident, one may be stronger than the other depending on the circumstances. Circumstances change too.

    Don’t assume you are a non resident. Get some proper advice on this, as many people think they are one but end up being the other.
    see this summary of recent cases
    http://www.mondaq.com/australia/x/206608/Income+Tax/non+australian+resident+for+tax+purposes

    Instead of seeing an accountant, why not a tax lawyer? It is tax law you are after advice on after all.

    You are looking at around $500 upwards per hour for this sort of advice. Its not for the average accountant, but someone with good international tax knowledge.

    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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    se7en wrote:
    I plan on contacting my accountant re. setting up a trust possibly offshore to help me take full advantage of the tax free situation I find myself in now that I am working in Dubai for this I need to educate myself so I can ask the right questions.

    Any advise on this, in terms of the things I need to be asking? or any clues about structures that can be used to help me in my situation. My goal is to buy property in AUS while living here in Dubai but if it works out better for me to look to tax free regions of the world to take advantage of my situation then perhaps I will do that, but again that will require a lot more education, whereas I already have a fairly good understanding of the AUS markets/processes.

    Any advise would be great.

    Cheers

     

    You might want to contact a lawyers as well. Trusts are legal promises – a set of legal and equitable obligations. They should be set up by lawyers who are legally able to explain the roles of the parties to a trust and the legal implications and duties. A non lawyer cannot do this.

    Also if you have overseas connections then you need specialist advice. Firstly you may be a non resident for tax purposes, or you may still be a resident despite living and working overseas (there is a recent case where an Aussie living in Dubai for approx 2 years was still deemed to be a resident here and therefore taxed here).

    There are also implications if you are a resident and control a foreign trust and/or company. Complex stuff.

    Expect to pay large sums for this complex advice too!!

    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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    Its more complicated.

    you will have to read the deed very carefully and find out who has the power to do this and how it can be done. You should also consider that changing things could force a resettlement of the trust and this could mean CGT and Stamp duty on the whole of the assets of the trust.

    Consider also what happens if you die – who takes over, it is the person you want to control the trust? Could it fall into the hands of someone you don't want – such as the executor of your will, which could end up being the public trustee.

    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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    So why do you want to refinance?

    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 own the properties are you wanting cash out? Do you have existing loans on them?

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    based on rent only, probably 65% LVR with a rate of around 8.14% for a commercial property

    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

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    simonanderson wrote:
    Thanks Terry and Richard.

    Yes, I think a broker, accountant and lawyer are all key to the success of the structure and finance of the purchase.

    Richard, I assume in your scenario the daughter was named as beneficiary on the trust deed? I could not imagine them asking for her to be guarantor unless she was named as beneficiary, trustee or director of corporate trustee.

    Terry, regarding naming my wife as beneficiary, if I just put myself as beneficiary, would I still be able to distribute to my wife and her family if needed?

    Thanks for your help.

    Regards

    Simon

    Dear Simon,

    Make sure you seek legal advice on this as not naming a person will affect the class of beneficiairies too. She would generally be included, but her family may not, depending on the word of the Deed.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    I have a friend who is can experienced property lawyer. he does't do litigation, or debt recovery, but be does conveyancing for around $1100 plus GST and disbursements. he does every state in Australia too. I think this is very cheap as some conveyancers charge more!

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    If certainly would affect things. You are making a gift. Gifts are not returnable.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Kali14 wrote:
    Just wanting to know what others would do in my situation – any comments or thoughts welcome!

    I'm 21 yrs old, still living at home (no board) and no other personal debts. I bought a cheap investment ($120k) end of last year through a private mortgage of family member. It's negatively geared at the moment and only costing me $100/month to keep. At the end of each year I was planning to pay a lump sum (between $15k-20k) onto the mortgage to pay it off ASAP then look to buy my own home.

    I know that it's best to pay off non-tax deductible debts first but seeing as I don't have any other debt and wanting to buy my own home in 3-4 years, would it be better to save that lump sum and use towards deposit for PPOR to pay that off sooner?

    Hopefully that makes some sense! And would love to know what others would do :)

    2 possible ways to achieve something similar.

    1. Refiannce it with a commercial lender
    2. Set up a discretionary trust. Gift the trust money as you go along, the trust then lends you money and you pay out the loan as you go along. The end result will be that the private loan is paid off and the trust has the loan. The terms of the trust will be such that you have an interest free loan.

    The trust can take a mortgage over the property too.

    Benefits
    1. Asset protection
    2. Home paid off and no itnerest payable, and
    3. If you need the money for private expenses the loan could be refinanced with a commercial lender and the interest should be deductible as you have just refinanced an investment loan.

    You can then use the cash for private expenses by controling the trustee position. This will be good if you buy a PPOR in the future as it will save you heaps of tax and the PPOR can be mortgaged by the trust too!

    Make sure you get legal and tax advice before attempting this at home! complex with many issues

    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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    1. Directors usually. Depending on the lender possibly the shareholders, and possibly the adult names beneficiaries.

    Take advice on putting your wife as a named beneficiary

    2. Depends on the wording of the dead – usually.

    3. Depends on the wording again, possibly not. Could possibly be a future formed company that does not exist now.

    4. Around $3000 with legal advice to set up, depending on a few things. Running costs depend on what assets the trust has and complexity. Roughly, tax returns, ASIC fees of around $230 and the occasional piece of legal and tax advice

    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

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    Raasta wrote:
    Hi Terryw.

    Thanks for your comments. I acknowledge that capital growth potential is the main wealth creation avenue, however at this stage, I am trying to look for ways to supplement/replace my work income so that I can leave work and continue investing in capital growth properties. The replacement of income is why I thought of buying positive cash flow properties. Any feedback?

    Hmm, how much per week would these properties bring in? How many would you need to replace your job income? What potential are there for the rents to icnrease over time etc?

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    You are equating yield = good. Yield is just one factor, capital growth potential would be the main one in my book, and there are many others.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Investor Al wrote:
    Terry,

    I'm not sure if this is allowed, but what if my partner goes guarantor? Then the loan is in my name, sure if would tie her down from getting future loans, but with all the assets in my name it'd be easier for me to reuse equity.

    But, what is the point of that? Are you wanting to do this because you could not service on your own? If so how will you service more investment property on your own. And what happens if you get equity in the PPOR – how will you access that if you cannot service?

    This all depends on your borrowing capacities. It may be more beneficial, in some ways, of getting the PPOR in her name solely.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    A5h13y wrote:
    Does anyone have any links to or drafts of a basic vendor finance contract? Also how does one go about scrutinizing the buyers serviceability, is it simply a matter of asking to see pay slips, letters from the employers stating length of service etc?

    In NSW see the standard contract for the sale of land. There will be a few special conditions added

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    Instead of a TD another way with greater asset protection is to gift money to a discretionary trust. You can then borrow this money, interest free for 1 year and thereafter market rates. This will enable 105% borrowings. Trustee could even plance a second mortgage or a caveat :securing' an equitable mortgage.

    Later as equity builds up with growth you could refinance this loan with a major lender and the trust could get its capital back. Terms of the trust could be drafted so that it can make itnerest free loans to beneficiaries.

    Superior asset protection and something you could use over and over again. Can also assist with tax reduction strategies.

    Make sure you get legal advice on this as many issues involved.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
    http://www.Structuring.com.au
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    You could transfer the shares of this company to a discretionary trust. Or have the company operate as trustee to the discretionary trust – this may require modification of your ACL new ABN, new TFN etc.

    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

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