Hi all,
I am looking at setting up a small business with a business partner and I am looking at the best way to protect my assets. I will be utilising a mix of cash and some of the existing equity in my investment property which originally was my PPOR and is still in me and my wife's name. What type of trust/company structure would be best to set up the business in? I was thinking a corporate trust structure but would my business partner need to set up a seperate trust or could be part of the one? I would have my wife and daughter to potentially split income with and my business partner would have her husband to split income with. Would it be worthwhile to transfer my investment property to the trust for protection or would I lose the capital gains tax exemption.
Some advice before consulting my accountant would be much appreciated.
Regards,
Confusedwhat you want is to protect your existing personal assets if the business folds.
A company is the way to go because of the limited liability factor. A company is a separate 'person' to yourself. If the company goes down only (usually) its own assets are at risk (- maybe you will need another company or trust to hold any assets of the business).
you can have the shares of the company owned by your own discretionary trusts. So each partner can then distribute their share of the profits to other family members etc without inolving the other party.
Becareful of giving personal guarantees as then your personal assets will be at risk.
And be careful of being a director as this is a serious responsibility with lots of risk. If you break the law while director, eg insolvent trading, then your personal assets can also be at risk.
In your own family you should probably have one person who is the risk person and one who is the safe person. The safe person should control all the investments/assets through separate trusts so if one of the businesses fail, they are safe.
A failing business can also affect future borrowings as it can result in court judgments and administration/liquidation which stay on the credit file for 5 years.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Very broadly, you would want a discretionary trust to protect valuable assets that will grow in value. The trust will cater to both tax and asset protection needs.
A business should generally be run by a company because of liability risks. The shares in the company may perhaps be owned by the trust (and your partner's own discretionary trust).
If the business needs to use the assets in the trust, the company can pay a market value "royalty" to use the assets.
This is very very general and must be tailored to your individual circumstances.
I have a question regarding PAYG variations and discretionary trusts. I currently have no IP's and no property of my own. Yep starting a fresh (I should have this post in green). I was wondering if I set up a trust and have myself as the trustee can I use my PAYG cash flow against that trust and vary that against property I have purchased in the trusts name, How does this work ?
abarsby
If the trust owns the property you cannot claim the deductions (unless a unit trust is used). The trust claims the deductions – so no you cannot claim the variation for your income tax.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Thanks Terry
I appreciate your help. I am looking at tax minimisation so I might look at purchasing in my own name.
Cheers
AB
abarsby wrote:Thanks TerryI appreciate your help. I am looking at tax minimisation so I might look at purchasing in my own name.
Cheers
AB
AB, That could result in more tax!
eg one of my friends was on $100,000, wife on nil. He bought in Perth before the boom. I told him to look at a discretionary trust, but he went ahead buying in his own name.
He sold a year later and made $200,000 gain – all had to go to him, so he had a huge income and paid nearly 50% tax (after the 12 month discount) while his wife still had no income.Consider the possibilities.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
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