Business insurance taxation in less than 35

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1 Business insurance taxation in less than 35 minutes Andrew Lowe OnePath Technical Services May 2012

2 Taxation of business insurance applications of life insurance Ownership of life insurance Keyperson Business succession

3 Ownership of life insurance Ownership of a life insurance policy provides the legal right to deal with the policy Ownership, in the absence of a nominated beneficiary, provides a legal right to any proceeds of the policy

4 Ownership of life insurance Self Cross Joint Superannuation fund Entity Trust

5 Ordinary life insurance policies Policy ownership Nomination of beneficiaries

6 Policy ownership Ownership of an ordinary (non superannuation) life insurance policy provides the legal right to deal with the policy Ownership, in the absence of a nominated beneficiary, provides a legal right to any proceeds of the policy

7 Nomination of beneficiaries Some life policies allow a nomination of beneficiary Any person or entity An effective nomination cannot be disregarded by or overturned by a life company - There is no discretion - Does not expire

8 Ownership of life insurance via superannuation Life insurance policy (ordinary) must be owned by the trustee of the superannuation fund A superannuation fund can not pay the premiums for a policy owned by a member Existing life insurance policies can not be transferred from a member (or relative) to a superannuation fund Some life companies may allow a policy to be cancelled with a new policy issued to a superannuation fund without a requirement for underwriting

9 Ownership of life insurance via superannuation Why consider using superannuation to fund life insurance? Taxation benefits associated with payment of premiums Tax effective structure for payment of proceeds Cashflow flexibility

10 Ownership of life insurance via superannuation Types of cover available through superannuation include: - Death - TPD - Income protection - Trauma?

11 Superannuation death benefits Taxation of lump sum death benefits Component Dependant Non-dependant Tax free - - Taxable - 15% max Taxable (untaxed) - 30% max Also applies to lump sum payments made from a death benefit pension within latter of 6 months from member s death 3 months from grant of probate

12 Death benefits paid via an estate Death benefit can only be paid to the estate as a lump sum Taxation implications of paying death benefits via the deceased s estate include: Executor of estate responsible for withholding taxes Taxable component does not impact assessable income of a non-dependant beneficiary as it is added to estate s assessable income instead No medicare levy if paid via estate Beware of proportional drawdown rule!

13 Taxation of an ordinary life policy Life policy proceeds are generally not assessable as income Exception for policies held for revenue purposes Capital Gains or losses from the disposal of a life policy is exempt from CGT where the owner of the policy is the original beneficial owner acquires the policy or interest in the policy for no consideration Disposal includes payment of a sum insured, transfer of ownership/assignment, cash payment

14 Taxation of an ordinary life policy Beneficial owner The person who receives the benefits of the policy Trustee of a trust estate is generally the legal owner, not the beneficial owner, of a policy of life assurance taken out for the beneficiaries of that trust Exception: a trustee will be regarded as the beneficial owner of the policy where the trustee possesses all the normal incidents of beneficial ownership

15 Taxation of an ordinary life policy Trauma and TPD policies Are considered accident and disability policies by the ATO (not life) CGT exemption does not extend to trauma or TPD policies CGT exemption may apply where proceeds capital in nature Should be owned by the insured or their spouse to obtain CGT exemption

16 Business Insurance Key person insurance Business succession (buy/sell)

17 Key person Taxation considerations From a taxation perspective, there are two key considerations: - Deductibility of premiums - Assessability of claim proceeds Capital purpose Premiums are not tax deductible Proceeds not assessable as income - But, must consider CGT on certain benefits Revenue purpose Premiums tax deductible Proceeds are assessable as income

18 Ascertaining the purpose Revenue purpose is where a key person is protected because it would affect the business financial performance and would reduce costs of: - Temp replacement costs - Training costs - Reduction in fall of revenues - Receivable or bad debts Capital purpose is where a key person is protected because it would affect the business financial position, for example: - Repayment of loans or debts - Lost goodwill - Replacement of supplier arrangements - Recruitment

19 Business succession The purpose of business succession planning is to facilitate the efficient withdrawal of a business partner without expensive legal proceedings Provides fairness and certainty for all parties Guarantees a buyer for a business interest Establishes a favourable agreement for transfer of the business prior to contingency, crisis or trigger event Provides effective taxation and financial solutions

20 Business succession In the event of death, TPD or trauma a properly structured and funded transfer agreement ensures funds are available for the departing principal (or their estate) while the surviving principal/s achieves control of the business

21 Business succession planning Two key components of a business succession plan Business succession agreement Funding the business succession agreement

22 Business succession agreements Buy/sell or transfer agreement Transfer of business interest of one partner to other partners if first partner triggers an exit condition The business remains in control of remaining partner(s) The departing business partner has financial security Minimises business interruption Should get legal and taxation advice before entering into buy/sell agreement

23 Business succession agreements Three types of business succession agreement, each with different treatment for CGT purposes Compulsory agreement - Disposal date is date of agreement Condition precedent - Disposal date is date insured event occurred Put and call options - Disposal date of date of exercise

24 Business succession agreements Important considerations for a business succession agreement Form of transfer agreement Trigger events Business interests Relevant parties Business valuation method Provision of funding for a funding agreement

25 Business valuation method Fixed transfer value Fixed valuation methodology

26 Impact of ownership on buy/sell agreements How does ownership affect the effectiveness of a buy/sell agreement? Individual (self) Trust Superannuation fund Cross Company

27 Impact of ownership on buy/sell agreements Individual (self) ownership Most common ownership arrangement Proceeds are generally free of CGT Premiums are generally not tax deductible Easy to alter parties to business succession agreement

28 Impact of ownership on buy/sell agreements Trust ownership Taxation outcome highly dependant on nature of trust - Proceeds may be free of CGT where appropriately drafted Premiums are generally not tax deductible Important to seek specialist taxation advice - Absolute entitlement Deed and arrangement packaged by providers Can be used to combine multiple needs under one structure and with one policy

29 Impact of ownership on buy/sell agreements Superannuation fund ownership Restrictions on who can receive the proceeds directly - Cannot have an agreement with the trustee of super fund Taxation dependant on who receives the proceeds Contributions to superannuation (to fund premiums) may be deductible Sole purpose test must be considered

30 Impact of ownership on buy/sell agreements Cross ownership Simple to understand Premiums generally not tax deductible Potentially adverse CGT implications - TPD, trauma, terminal illness - Change of ownership Administration difficulties with changing business ownership Difficulties with more than 2 business owners

31 Which ownership arrangement is best? One size does not fit all Seek appropriate legal advice

32 Taxation of business insurance applications of life insurance Ownership of life insurance Keyperson Business succession

33 OnePath Adviser Services GOP Box 5306, Sydney, NSW, This information is a summary based on OnePath s understanding of the relevant legislation. It is only intended to be general financial product advice. It is general in nature and may not be relevant to individual circumstances. You should not do or refrain from doing anything in reliance on this information without obtaining suitable professional advice. You should consider any relevant Product Disclosure Statement before making any decision about whether to acquire any product. OnePath Product Disclosure Statements are available on request by calling OnePath or by visiting the OnePath website. Certain of the statements contained herein are statements of future expectations and other forward-looking statements. These expectations are based on management's current views and assumptions and involve known and unknown risks and uncertainties. Actual results, performance or events may differ materially from those in such statements due to, among other things, (i) general economic conditions, in particular economic conditions in OnePath s core markets, (ii) performance of financial markets, including emerging markets, (iii) the frequency and severity of insured loss events, (iv) mortality and morbidity levels and trends, (v) persistency levels, (vi) interest rate levels, (vii) currency exchange rates (viii) general competitive factors, (ix) changes in laws and regulations, (x) changes in the policies of governments and/or regulatory authorities. OnePath assumes no obligation to update any forward-looking information contained in this document. onepath.com.au

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