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  • Profile photo of TerrywTerryw
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    @terryw
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    Woolies, that changes things dramatically.

    I think you need rethink and get some legal advice

    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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    @terryw
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    woolies2122 wrote:
    Hi All – I have a home valued at $1.2 million. This PPOR is mortgaged to a bank. The outstanding principal on this loan is now 230k, with monthly Principal+Interest repayment. The loan is a package homeloan (i.e. I pay an annual fee of $395).

    I am about to buy an investment property for $360k plus costs/stamp duty about 14k, so total acquisition costs = $374k.

    I am proposing to borrow $374k to buy the investment property by taking another loan under the homeloan package. The loan is not going to be a Line of Credit. It will be a regular loan (at same interest rate as my PPOR loan). I think it could be called a "split loan" and comes with a separate statement. This loan of $374k will be drawn down to pay the investment property. This loan account will be Interest-only repayment.

    As such, the investment property itself is NOT mortgaged to the bank i.e. the title is unencumbered. Only the PPOR title is mortgaged to the bank for both loans (the existing outstanding principal of 230k and the "split" loan of 374k).

    The question i am hoping someone could clarify for me is whether the interest on the 374k loan will be tax deductible given the title of the property itself is not mortgaged. I believe  it is since tax deductibility follows the purpose of the loan; and not where the security for the loan lies.

    Appreciate any comments on this proposed loan structure.

    There are a few issues you haven’t considered.

    I am assuming the owners of both properties is exactly the same? ie mum/dad own PPOR and mum/dad own investment?

    Under the conveyancing act a property left to someone in a will takes the loan secured on that property unless specified otherwise in the will. (NSW, but probably similar other states).

    This means if you are leaving the IP to one person and the PPOR to another the second person getting the PPOR will lose out because the loan for the property goes with it.

    Tax deductibility depends on purpose and use the funds are put to. Security doesn’t matter. But deductibility will depend on how the loan is set up because if you borrow extra money and park it in a savings account before writing a cheque then this will destroy deductibility.

    I don’t really see any other issues with using the PPOR as security for both. The loans wouldn’t be cross collateralised because only one property is being used as security. I myself would probably not do it this way, I would probably get a LOC on the PPOR and then borrow the deposit from this and the remainder from another lender. But if you don’t intend to buy any more properties then it may not be much of a issue.

    I wouldn’t really worry about the bank holding too much in security. They are secured only up to a certain amount anyway. If you default they could repossess either property if both secured, but your way they could only repossess the PPOR straight away. But if you did default they would probably quickly obtain a judgment and that would allow them to apply to seize both properties.. Still, it is generally a good idea to give them as little security as possible

    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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    @terryw
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    Qlds007 wrote:
    Hi Terry

    Was talking to Darryl from Hua Lawyers only this week and he tells me he could not act on a conveyance for any of our Buyers Agents clients we put into either NSW / Vic properties. 

    Cheers

    Yours in Finance

    No doubt this is due to lacking knowledge of the proceedures in other states. I wouldn’t know the proceedures in QLD either. I hear it is a bit tricky with the contract requirements too.

    I have a property lawyer friend in Sydney and he does conveyancing transactions for the whole of Australia. ie every state and territory. He wouldn’t do litigation in another state, but would do property transactions.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    JT7 wrote:
    Foglefar wrote:
    Hi all. We are looking for recommendations for an accountant in north Brisbane. We have recently purchased an investment property in NZ (NZ accountant not yet appointed) and need help with the tax in both countries and also a second planned IP to be purchased with through a self managed super fund (which is also yet to be set up).

    Cheers,

    Richard

    Just slightly off topic Richard….

    Whereabouts in NZ did you end up purchasing? No Capital Gains tax has got to be good! 

    I'm originally from the land of the long white cloud! 

    Jack 

    No CGT there, but you would pay it here on NZ property.
    BTW I read a recent article regarding overseas purchasers of NZ property. Apparently 22% of all purchases are by Australians and 20% are by Chinese!

    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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    @terryw
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    The normal way.

    I would suggest you set up a a LOC on the existing properties and then lend then money to the entity purchasing the new properties. Depending your your price range etc you may want to put down 20% deposit to avoid LMI or to go aggresssive and go for 90 or 95% loans.

    BTW, the market and lending has changed dramatically in the past 10 years or so since that book was written.

    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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    @terryw
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    There is mutual recognition legislation in for lawyers, I would be be surprised to find that QLD solicitors could not act outside the state of QLD. They could act in NSW for instance. A NSW solicitor could also act for QLD clients. I have acted for a few interstate clients myself, but I don’t think any were from QLD though.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    Qlds007 wrote:
    Yes as long as they are Licensed to operate in the State.

    Like Real Estate agents some Solicitors close to the State border are able to operate across into other States.

    Albury Wodonga is a good example but not as good as Twins Towns in Coolangatta where 1 end of the road is NSW and the otherside is Qld.

    Certainly makes for interesting times when we NSW has daylight savings.

    Cheers

    Yours in Finance

    Not really Richard. A VIC solicitor can do conveyancing for a NSW property for a SA client for example. Not need to be admitted to the Supreme Court of NSW.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    Homemade wrote:
    Thanks terry, are you suggesting I should use a lawyer to set up a trust (or company) vehicle for developing and not an accountant?

    yes.

    A trust is an arrangement in equity, where one person holds assets for another. This is the area of law that accountants cannot advise on – 1 because it is legal services and 2 before they wouldn’t have the knowledge.

    Lawyers can also give tax advice, but you may want to run the tax side of things by your accountant 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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    @terryw
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    Yes you can, lenders will lend up to 95% of both properties,

    The problem you will have will be tax effectiveness. You will be borrowing 105% for the new one and paying LMI but neither the interest nor the LMI will be deductible.

    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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    @terryw
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    Sounds like you need a lawyer for the structures – this is legal work. No such thing as a 'correct' structure, only different structures, some of which may be better than others.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    @terryw
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    Speak to RPI who posted above. RPI is a QLD property lawyer.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    @terryw
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    Going guarantor won't help with servicing – initially. You will still be considered to have the loan. But at least this allows you to remove the guarantee a few years down the track if your spouse is able to service the loan at that point on her own.

    Consider the access of equity too.

    No real easy way to answer, you need to speak to a broker and work out borrowing capacities based on the above scenarios and see how serviceability will be affected.

    Consider also asset protection, succession on death (if in her name and you die…), stamp duty, further strategies..

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    24 hours should be doable.

    Incidently, what did you pay and which state?

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    PropertyGuts wrote:
    Land tax and trusts.   Are other states (Qld, TAS, Vic, WA, SA) the same as NSW?    

    With respect to TerryW's comments

    ""in NSW most trusts don't get any land tax free threshold.

    Exceptions for fixed trusts, SMSFs and deceased estates"".

    Please some comments from trustee's with property in quennie, tassie etc

    Off the top of my head, there is a land tax threshold in QLD for trusts. Once you hit the threshold start a new trust and get a new threshold.
    Vic is similar to NSW, if fixed unit trust then individuals get the threshold. There is no threshold, or very small for non fixed trusts. In Tassie I am not sure but one of my trusts was paying land tax – the amount was too small to force me to look at the relevant act to find out the rules.

    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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    @terryw
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    Interesting. One of my friends is a NSW solicitor and he does Victorian properties from Sydney – actually I know a second solicitor too.

    Scott makes a good point.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    Just clicked on that link and a security threat was detected – take care

    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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    jenny111 wrote:
    Who regulates the Vendor Finance market?  I meant in the case of one vendor quoted the interest rate close to 7%, but I calculated it to be almost 10% (9.90% to be exact). This is on top of the quoted price of the property which was probably around 15% to 18% above its true value. Is there any regulatory body to ensure integrity in the industry?

    What I meant was if I were to buy a property through the Vendor Finance channel and if I later had a dispute, who could I turn to?  With my bank, if they incorrectly calculated the interest or fees they charged me, I know I could go to the Banking Ombudsman as a last resort.  But who do I go to with vendor finance deals? Thanks.

    Regards,

    Jenny

    Jenny,

    the relevant courts. This is just a commercial contract between 2 parties

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    The risk is that they damage the property or change it in a way that you don't like and then not settle. You may have to sue them only to find they have no assets. Make sure you get legal advice (from a lawyer!)

    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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    Not a good move.

    This will result in a mixed purpose loan and you will not be able to pay down this debt, when it becomes non deductible, independently of the investment loans. i.e. each repayment of principal must come off the investment portions as well. Obviously this is going to result in more tax payable and less non deductible interest.

    You need to seek advice and then refinance to fix this up.

    Also this property will always be subject to CGT based on a time basis – portion of time it was rented out.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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    Profile photo of TerrywTerryw
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    Right up RPI's area of practice.

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