Unit trust overview long form

Transcription

1 Adviser Services trust overview long form OVERVIEW Set out in this document is a summary of the unit trust structure ( Trust). A general discretionary trust creates an equitable obligation binding a person, people or company (the Trustee) to deal with property over which it controls (Trust Property) for the benefit of beneficiaries or classes of beneficiaries (Beneficiaries). In the case of a Trust, beneficiaries are normally referred to as Holders. A Trust is specific type of trust which divides the beneficial ownership of the Trust Property into a number of units (s). A Trust is governed by the same general principles as for discretionary trusts, that is, there must be property vested in the Trustee for the benefit of the Beneficiaries. In contrast to a discretionary trust however, the Trust Property in a Trust is held upon trust absolutely for the Holders. Generally, the Trustee does not have discretion regarding the determination or distribution of capital or income among the Holders, unless s are of different classes with different rights attached to each class. For this reason Trusts are often referred to as fixed trusts. Care must be taken in using this term for tax purposes as fixed trusts have a specific definition under tax laws, and many Trusts will not satisfy this definition. s Trusts also permit the association of a number of unrelated entities in a venture with all income faxed at the Holder level. This should be contrasted with companies that are taxed at the entity level, and then franked distributions made to the underlying owners (the Shareholders).

2 UNIT TRUSTS The key features of our Trust are as follows: It is established by a Settlor (please refer to The Settlor section below). The terms of the Trust are contained in a document signed by the Settlor and the Trustee called the Trust Deed. The Trustee can be one or more individuals or a company. For the reasons outlined at The Trustee section below, it is often recommended that a company established for this purpose be appointed Trustee. The Trustee is conferred with extensive powers under the Trust Deed, including: being authorised to expend money to make certain investments and to collect and receive all dividends, interest, rent and other income from the investments forming the Trust Property. The Trustee is also authorised to pay any debts and expenses incurred in the administration of the Trust out of the gross income of the Trust the Trustee is required to pay, apply or set aside the net income of the Trust Property for each accounting period (ie. each financial year) to or for the benefit of the Holders, in proportion to the number of s of each class of which they are registered as Holders the Trustee may at their discretion issue further units in the Trust to new persons who are not existing Holders. The Trustee may redeem s from existing Holders provided there is compliance with the restrictions imposed upon the transfer or redemption of units (called the pre-emptive rights. This concept is explained in more detail at Preemption section below), and assets (including a business) may be acquired by the Trustee (deemed to be purchased at market value if the transaction is not at arm s length) and the purchase price may remain as a loan, free of interest and repayable on demand. Loans or gifts may also be made to the Trustee and can be used by the Trustee to purchase assets that form part of the Trust Property. The Trust terminates on a date known as the vesting day. The vesting day is generally is 80 years from the date of execution of the Trust Deed, however further comments in this regard are set out at Asset protection and limited liability section below. Alternatively the Trustee may decide to wind up the Trust at an earlier date. There is a formal legal process that must be followed to wind up the Trust. The Trust Property may be classified as either income or capital and may be split into a variety of categories to effectively manage the Trustee s and Holder s tax liability. A Trust can be diagrammatically represented as follows: holder 1 THE SETTLOR The Settlor should be an independent person or entity who should not be either: a Beneficiary, or the Trustee. holder 2 trust Trust holder 3 Owns units Owns units Owns units The Settlor contributes a nominal sum to establish the Trust (usually $10). If no settlor is appointed, a partner from McCullough Robertson will be the default settlor. The payment of the settlement sum is recorded in the books of the Trust, and is the first amount deposited into the relevant bank account which has been established for the Trust. It should be noted that no amount (including the settlement amount) should ever be paid to the Settlor from the Trust.

3 THE TRUSTEE It is usually recommended that the Trustee of the Trust be a company as opposed to an individual person or persons. A Trustee is liable for any debts or liabilities it incurs in the course of carrying on activities for the Trust. The Trustee holds a right of indemnity from the Trust Property to satisfy liabilities incurred in its capacity as Trustee however if the funds of the Trust are insufficient and the Trustee is an individual, they will be personally liable for the debts or liabilities. So if the Trust gets sued because something goes wrong, the Trustee s personal assets, including (for example) their family home, are potentially exposed. In contrast, the use of a corporate trustee provides a mechanism to limit such liability. The directors of the Trustee company can be liable for the debts of the company, but only in limited situations (such as for breaches of workplace health and safety requirements). The Trustee may be changed at any time, however a formal deed of appointment and retirement of the Trustee is required. The powers and discretions conferred upon the Trustee are extensive. If at any time you are uncertain as to the nature of any power conferred upon the Trustee or as to whether a particular transaction may lawfully be entered into by the Trustee, specialist advice should be sought, particularly as the decision may have significant tax, stamp duty and other consequences. THE BENEFICIARIES OR UNIT HOLDERS As noted above, the beneficiaries of a Trust are called Holders. The Trustee may issue s in different classes and may do so at a discount or issue them partly paid. All units will be of the same class unless stated otherwise in the Trust Deed. If classes of s with different rights attaching to each class are required to be issued, specialist advice should be obtained. s may be sold, transferred or assigned by a Holder in accordance with the terms of the Trust Deed. It is important to note that such actions may have tax and stamp duty consequences. A unit certificate listing the number and class of s should be issued to the new Holder by the Trustee. The Trust Deed also allows the Trustee, upon application, to allot further s to Holders and to other persons as additional Holders in accordance with the pre-emptive rights provisions of the Trust Deed. The Trust Deed requires that the distribution of the capital and undistributed income of the Trust to the Holders occurs throughout the duration of the Trust and on termination. INCOME ATTRIBUTION Under the Income Tax Assessment Act 1997 (Tax Act), it is important to consider income attribution. If required, the Trust Deed can be prepared to allow for income attribution by classifying s into different classes and having different types of income distributed to certain classes of s. The Trust Deed can be also be drafted to provide that the income specified in the Tax Act is to be distributed separately from the balance of the income of the Trust to certain classes of s. Income-streaming provisions are important in relation to interest income, dividend income and capital gains, and together can result in enhanced flexibility when using a Trust as opposed to other entities. If a Trust does not satisfy the requirements to be a fixed trust for tax purposes, it will be deemed a discretionary trust for tax purposes and any accumulation of income will be taxed as special income at the rate of 45%. ASSET PROTECTION AND LIMITED LIABILITY Unlike a company, a Trust is not a separate legal entity at law. Rather, it is a special type of relationship between a Trustee and the holders. Assets held by the Trustee are held for the benefit of all the Holders. However the Holders cannot secure their debt against the assets of the Trust. Nonetheless, Holders may encumber their s with the consent of other Holders and the Trustee. Similarly, the Trustee is unable to incur personal debts and/or secure those debts against the assets of the Trust except in those circumstances where the debts are incurred for the benefit of or for the purposes of the Trust. If the Trust is correctly utilised, assets are effectively isolated from both the liabilities of the Holders and the Trustee. The use of a corporate trustee further enhances asset protection as it limits the liability of the Trustee only to the extent of the assets held by the company (which should be only $2).

4 CAPITAL DISTRIBUTIONS The Trustee has discretion under the Trust Deed to distribute the whole or a part of the capital to the Holders on or before the vesting day nominated by the Trust Deed. In certain circumstances, the distribution of capital can be made by redemption of s prior to the vesting day. In all cases, any capital distribution can have potential tax implications and therefore before any distribution specialist advice should be obtained. CAPITAL GAINS Special classes of s to can be classified to allow for the distribution of capital gains from the Trust. In determining whether or not this is necessary, regard must be had to: whether there are to be special classes of s entitled to receive distributions of this kind, and whether the Holders have capital losses that may be offset against capital gains. Consideration must also be given to the distribution of the capital gain in light of the relevant the provisions of the Tax Act. LOSSES Losses incurred by the Trust, regardless of whether they are of an income or capital nature, cannot be transferred or distributed to Holders. They are effectively quarantined or trapped in the Trust to be carried forward indefinitely to offset against future net income or net capital gains. Losses which are not used to offset against income before the vesting day of the Trust are simply lost. RECORDS AND ACCOUNTS Although the Trust is not a separate taxable entity, the Trustee is still required each year to file a Tax Return and, in certain circumstances, may be liable to be assessed and to pay tax. The Trustee has a duty to account to the Holders. Therefore all decisions of the Trustee are required to be recorded in minutes and the transactions recorded in the books of account of the Trust. The Trustee must ensure that Trust Property is not mixed with the Trustee s personal assets or any other assets that are not associated with the Trust whether on the books of account of the Trust or in the bank accounts that have been set up by the Trustee. If the Trustee is a company, it is recommended that the company s sole activity is to act as Trustee for the Trust. Where a corporate Trustee performs several roles, the distinction between the Trustee acting in its capacity as trustee as opposed to its acting on its own behalf must always be maintained. Such measures include keeping separate books of account for the Trust and the company and correctly labelling bank accounts. The accounts of the Trust need not necessarily be audited. In circumstances where the Trustee is a company, the company s annual accounts and reports will reveal its position as Trustee and show the assets and liabilities of the Trust. The accounts of the Trust should indicate whether or not the assets of the Trust are sufficient to meet the liabilities that the Trustee has incurred in that capacity. PRE EMPTION There are a series of restrictions imposed upon the Holders contained in the Trust Deed, preventing them from selling or transferring any s in the Trust to a person who is not an existing Holder, without first offering those s to the existing Holders. These obligations are referred to as rights of pre emption, that is, rights conferred upon the existing Holders. The Trust Deed provides that any Holder wishing to sell or transfer all or any of their s must give written notice of their intention to the Trustee. The Trustee is then appointed as their agent for the sale of the s to one or more of the existing Holders at a price to be agreed upon, or failing agreement, an independent person, to be determined, by the Trustee. The Trustee, after the price of the s has been agreed upon or fixed, will give a notice to the other existing Holders which states the number and price of the s to be sold. The Trustee then invites each of the existing Holders to confirm in writing whether they are willing to purchase any of the s on offer, and if so, the maximum number of those s the Holder wishes to purchase. The Trustee, after a period of 21 days has expired, then allocates the s being sold to those Holders who have indicated an intention to purchase them in proportion (or as nearly as possible) to the number of s held by them prior to the sale. The exiting Holder can then sell any excess units to any other person for a price not less than the price offered to the existing Holders, if no existing Holders.

5 In the case of the death of an individual Holder, these pre-emptive rights do not apply. APPLICABLE LAW Initially, the law applicable to the Trust will be that of Queensland, unless otherwise provided in the Trust Deed, and thereafter the State or Territory of residence of the Trustee. If required, the Trust can be established under the laws of a different state or territory. For instance, South Australian trust law differs from Queensland trust law in that there is no applicable perpetuity period. This means that Trusts established under South Australia law can have a vesting date longer than 80 years. STAMP DUTY Stamp duty is no longer payable on the creation of a trust in Queensland provided that the only property owned by the trust when it is established is cash. The Trust is therefore normally created (or settled ) with a cash amount (i.e. $10). If an asset of the Trust is transferred to a beneficiary and such a transfer necessitates signing an instrument of transfer, then it is likely that the instrument will attract ad valorem (conveyance) duty on the full unencumbered value of the property transferred. Concessional rates of duty may apply in some cases. Before signing any documents of this nature, specialist advice should be sought. Further information For further information please telephone or adviserservices@mccullough.com.au. This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication BRISBANE Level 11, 66 Eagle Street Brisbane QLD 4000 GPO Box 1855 Brisbane QLD 4001 T F SYDNEY Level 32, 19 Martin Place Sydney NSW 2000 GPO Box 462 Sydney NSW 2001 T F NEWCASTLE Level 4, 251 Wharf Road Newcastle NSW 2300 PO Box 394 Newcastle NSW 2300 T F info@mccullough.com.au