The Family Trust protects assets and saves tax

A Family Trust is a popular vehicle set up by accountants and financial planners. It is great for both wealth creation and asset protection:

1. each year pay trust income to family members on low marginal tax rates

2. protect assets from creditors

3. succession planning – no CGT or stamp duty when you die

Your adviser and accountant have many strategies. They can set up loans from the trust to family members to buy investments. This delivers wider tax breaks. Or they can invest in insurance bonds to access lower aged care fees. Legal Consolidated’s Family Trust is cutting edge to allow your accountant and adviser to seek all tax savings.

A family trust is a discretionary trust. It is Australia’s most popular way of holding family’s assets or running a family business. It is commonly used to hold shares and units in a Unit Trust.

Pay less tax – hunt down family members on low marginal tax rates

The Appointor is usually mum and dad. The Trustee is often their company. The Appointor tells the Trustee who gets the trust income each year.

For example, Mum is earning a lot of money. She pays a high tax rate. Stay at home Dad earns no income. The children at university earn only a little income from part-time jobs. The Discretionary Trust merely distributes the yearly income to these beneficiaries on low incomes. The tax rate is as low as zero. Next year one of the children finishes at university and gets a job. They now pay a high marginal tax rate. Not a problem. The Discretionary Trust does not now distribute to them. Every year you hunt down family members on low marginal tax rates.

Family Trust beneficiaries include mum and dad, their company, adult children, children’s spouses, grandchildren and their spouses. It includes your parents and distant relatives.  When required, capital is distributed to beneficiaries with capital losses. This is called streaming.

Reduce land tax

Own more than one property? The more property in one person’s name the higher the marginal land tax rate. Instead, hold each property in a separate Family Trust with a different Trustee. You, therefore, take advantage of the tax-free threshold for each property. Secondly, you pay a lower marginal tax rate for each property.

a. Company vs Family Trust – CGT concessions trapped in a company

Discretionary Trusts often hold appreciating assets such as shares or land. CGT relief flows through to the beneficiary. Capital gains are taxed at concessional rates. In contrast, when you dispose of an asset out of your company the CGT concessions are lost. You can’t get them out of a company.

Also, when a trust makes a capital gain, 50% of the amount is tax-free. This is provided that the asset is held in the trust for over 12 months.

b. Last Will & Testament vs Discretionary Trust – you can’t challenge a Discretionary Trust

Your children’s divorce, spendthrift children and conniving children-in-law can’t touch the assets in your Family Trust. The only person that can attack your Family Trust is your spouse. In contrast, many people including parents, children and grandchildren can challenge your Will. Except for NSW, the Discretionary Trust quarantines assets from your Will.

A Will and your estate are contestable. However, a Family Trust is a separate entity to you. The trust assets are harder to attack.

c. Superannuation vs Discretionary Trust – super traps your money

Superannuation is a wonderful tax haven. The tax rate, going in, is 15%. But the money is locked away until you retire. Unlike a superannuation fund, your assets in a Family Discretionary Trust are not locked away. Also, potentially, you can get the tax rate down below 15%, even to zero. This is if you have beneficiaries on low incomes.

Often your accountant and financial planner maximise your super contribution levels first. They then put surplus funds into the Family Trust.

Company or a Human? Which one is best as the trustee of my Family Trust?

This question is about asset protection. If the Family Trust goes insolvent then the trustee of the Family Trust often goes down with the Family Trust. If your Family Trust is just going to hold passive safe assets like shares then there is no much value in having a company as the trustee of your Family Trust. But if your Family Trust is going to hold business assets then building a company and making it the trustee of your family trust is worth the extra cost. You can build a company here.

Why use the expression ‘discretionary’ trust?

A discretionary trust is often called a Family Trust or Family Discretionary Trust. It means the same thing. It gives the Trustee (acting under the Appointor) huge discretion on who gets the trust income each year.

Each financial year the Appointor tells the Trustee which beneficiaries are to get that financial year’s income.

Until the Trustee exercises its discretion, the beneficiaries have no interest in the trust property. This means that your children have little power to try to get money out of the trust.

Every year the Trustee can decide who gets trust income. The Trustee hunts down beneficiaries on low tax rates and uses those low tax rates to pay less tax. The beneficiaries rarely see any money out of the trust. Each year they merely forgive the debt by signing a Debt Forgiveness Agreement.

Trustee vs Appointor – which one is god?

There is only one power in a Family Discretionary Trust. That person is the Appointor.

The Settlor primes the trust with a few dollars. The Settlor is heard of no more.

The Trustee is merely the Appointor’s puppet.

The beneficiaries get nothing out of the trust. This is unless the Appointor tells the Trustee something different. The Default Beneficiaries only get something if the Appointor forgets to tell the Trustee to distribute income and capital. (This almost never happens.)

Advantages in building a Legal Consolidated Family Trust

Our lawyers are elite taxation and trust lawyers. We hold professorships and doctorates in these areas. We ensure:

1. Streaming – franking credits, attribution and separate accounts to reduce CGT & income tax, complies with Thomas v FCT [2017] FCAFC 57
2. Bamford’s Case – definition of Net Income – satisfies ATO
3. Loss Recoupment – retain and stream losses to particular beneficiaries
4. Appointors to act unanimously – so two Appointors can’t take the assets over the 3rd Appointor
5. Bank loans to the Discretionary Trust – the required bank clauses and Indemnity rights (CBA, NAB, ANZ & Westpac)
6. Bank loan Compliance Certificate signed on our law firm’s letterhead

What do I get?

Within seconds of building the Discretionary Trust Deed online you get via email:

1. Family Discretionary Trust Deed setting out the rules of your trust, naming the Trustees and Appointors
2. Minutes to set up the Trust, as required by your accountant and the ATO
3. Trust Opinion Certificate on our law firm’s letterhead, signed by one of our lawyers
4. The law firm’s covering letter confirming our law firm build the Discretionary Trust Deed

What else do a need to do?

1. Stamp duty. Only 4 jurisdictions still charge duty: NSW and Victoria charge $200. Tasmania charges $50. NT charges $20. There is no duty in SA, WA, QLD and ACT.
2. ABN. If you are trading (rather than just holding passive income) the trust may apply for an Australian Business Number (ABN) from the Australian Tax Office. You may also apply at the same time for a Tax File Number and for GST. These are all free.

Why build the Family Trust with the specialist taxation law firm, Legal Consolidated Barristers and Solicitors?

We are the only law firm in Australia providing legal documents online. Our law firm addreses:

1.            The Streaming Provisions

Since November 1992, the ATO has issued rulings for the “streaming” of income. “Streaming” reduces capital and income tax. For example, you may wish to:

• stream a franked dividend only to the beneficiary George
• distribute capital losses to another beneficiary, Mary
• stream income to a separate group of beneficiaries being John’s children

For this to happen your Trust Deed, according to the ATO, must expressly allow those specific categories:  ‘franked dividends’, ‘capital losses’ and income. This is so that each category retains its individual status when it enters and then leaves the trust. Unless you have streaming everything coming into the trust merges with everything else. It is like when your child mixes the plasticine colours – it all ends up grey. Each type of income loses its individual character.

If there was no streaming in the above example, then a bit of the franked dividend, capital losses and income has to go to George. George doesn’t want and can’t use the capital losses – so it is wasted on him. Also, more income to George is a disaster because he is already suffering the highest marginal tax rate. George only wanted the franked dividend, but that category of income merge with everything else.

The ATO states that ‘the Trustee must be validly empowered to selectively allocate each category of income’. That is, the Trust Deed itself must contain the ability to stream income. Most old Family Trust Deeds, including many brand new Family Trusts, fail to adequately deal with the full list of categories. Without proper streaming in your trust deed, the categories of income merge and can’t be untangled. The old Family Trust Deed must be updated first.

Here is one example:

Your old Family Trust sells a rental property and realises a capital gain. This capital gain is received into the Trust. It is part of the Trust’s net income. Correctly drafted, streaming provisions allow the capital gain to be distributed to one particular beneficiary. Another category received by the trust was franked dividends. They are also part of the Trust’s income. However, because of streaming the dividends don’t merge with the other categories of income, such as the capital gain. The dividends are not “mixed” with the capital gains tax income. The dividends can be distributed to another beneficiary.

Why does it matter which beneficiary gets different types of income?

Your accountant may suggest that the dividend (or foreign tax credit) be utilised by a resident individual beneficiary with high marginal tax rates. In contrast, net capital gains can be best utilised by another beneficiary with carry forward capital losses, low-income beneficiaries with carry-forward revenue losses and minor beneficiaries able to receive excepted Trust income.

Because of the marginal tax rates and myriad of rules, every taxpayer is unique and benefits from one type of income, rather than another type.

In effect your streaming allows you to distribute one type of income to one beneficiary and another type of income to a different beneficiary.

List of necessary categories

These are the necessary categories that we put in your Family Trust Deed.

Categories a category, character, type, class, part, item or source, including (but not limited to) the categories:

1. Net Capital Gains
2. Net Capital Losses
3. gains
4. profits
5. losses of capital
6. capital profit treated as assessable income
7. allowable deductions under the ITAA
8. Tax Act for the Trust Income for any Financial Year; gains and profits or any losses of capital or of a capital nature that are not treated as assessable income or allowable deductions for taxation purposes for the Trust Income for any Financial Year; any income, receipts, gains or profits or any losses, disbursements or outgoings of income or on income account that are or are treated as assessable income or allowable deductions for taxation purposes in relation to the Trust Income for any Financial Year; any income, receipts, gains or profits or any losses, disbursements or outgoings of income or on income account whether treated as assessable income or allowable deductions for taxation purposes for any Financial Year; any income, receipts, gains or profits that are exempt or otherwise not liable to tax under the Tax Act or any other act or regulation;
9. Franked Dividends;
10. Unfranked Dividends
11. foreign income
12. foreign income tax credit
13. other tax credit
14. interest
15. royalties
16. minors
17. minors who has died
18. proceeds from deceased estates
19. superannuation funds
20. life insurance
21. additional categories set out in any minutes
22. categories mentioned in any Australian Taxation Office publication, from time to time

What categories are required?

Have a look at our ‘Sample document’ above. We have developed a unique group of categories with open classes for streaming. This list is based on the ATO audits we have attended and our legal research.

2.            Franking Credits

At times your Trust may include gross income from franked dividends. A resident beneficiary in your Family Trust (other than a Trustee of another Trust estate) is entitled to a franking rebate if:

• a share of net Trust income is included in the beneficiaries’ assessable income; and
• some or that entire share of net Trust income is attributable to a franked dividend included in the assessable income of the Trust estate.

Notwithstanding wide discretionary powers being conferred on a Trustee, a Trustee’s discretion to selectively allocate dividend income to a beneficiary to the exclusion of another may be fettered by the terms of the Trust or by Trust law operative in the relevant jurisdiction. You don’t want that. Therefore, we have inserted a clause in your Trust Deed which expressly empowers you to selectively allocate particular types of income to beneficiaries.

Your accountant may suggest that you distribute that part of the net income to those beneficiaries who are able to take the greatest advantage of franking, foreign tax and any other non-refundable tax credits and rebates available to the Trust. Those beneficiaries who have made a loss or are at a low tax rate (especially if lower than the company tax rate) may derive little benefit from these credits.

3.            Attribution to distribute capital gain to beneficiaries

When the Trust derives net capital gain in the net income of the Trust, then the Trustee needs the power to distribute that part of the net income to certain beneficiaries. The beneficiaries are treated by the Commissioner of Taxation as having accrued a capital gain. It may be that one beneficiary has carried forward capital losses and another has carried-forward revenue losses. In this case, there are tax advantages in distributing the net capital gain to the beneficiary who has suffered the prior capital losses.

For some old Family Trusts, the Commissioner may take the view that either:

• both beneficiaries are treated as having been presently entitled to a proportionate amount of the net capital gain and other net Trust income; or
• the net capital gain loses its character and therefore no part of the Trust distribution is characterised as being a net capital gain.

Both outcomes are generally unfavourable. Our Trust Deed allows attribution.

4.            Ongoing extension of the Capital Gains Tax regime

Your Deed of Variation allows you to account separately and keep separate any funds received from different sources. Your Trust Deed is amended to allow the Trustee to account separately and keep separate any funds received from different sources. For example, sources may include:

• capital gains
• any dividend income (of all natures)
• income having an allowance for depreciation (inclusive of depreciation of buildings and plant and equipment
• any income from Superannuation investments or annuities
• income from deceased estates and Trusts (including testamentary Trusts) whether trading, investment or otherwise
• franked distributions
• credit trading income
• interest
• primary production income
• income from personal exertion
• rents and other property income
• royalties
• foreign source income

5.            Definition of Net Income

A Trust distribution often allows you to pay less tax. You normally distribute to the family members that are on the lowest tax rates. If you fail to distribute, then the Trustee (as the taxpayer) pays the tax at the highest marginal tax rate.

You distribute Trust income to the pool of potential beneficiaries. If you don’t distribute any part of the Trust income, then the Trustee is assessed on that part of the ‘net income’ at the highest marginal tax rate.

As the court in Bamford v Commissioner of Taxation [2009] FCAFC 66 said:

the only purpose of the concept of “income of the Trust estate” in section 97(1) is to determine the extent of the apportionment as between the beneficiaries and the Trustee. It is not, in itself, a metric by which tax is imposed.

There is a difference between ‘Trust income’ within the taxation legislation. Net income of the Trust estate is the taxable income of the Trust. A beneficiary is entitled to the Trust income. But they are taxed, instead, on the net income.

Your Family Trust deed allows you to:

• define Trust income appropriately; and
• make valid distributions.

6.            Loss Recoupment

The Trustee has the power to determine not to recoup carried forward losses, to have distributable income, which can be applied to various beneficiaries. If you did not have that power, there could be a situation arising where there is no income of the Trust estate to distribute. According to the ATO, the Trustee is assessed on the capital gain. To make matters worse a corporate Trustee is taxed on the grossed-up capital gain, without recourse to the tax legislation.

See also:

Telephone us for legal advice on building this document.

Adjunct Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, Dip Ed, BArts(Hons), LLM, MBA, SJD
Legal Consolidated Barristers and Solicitors
National Australian law firm

Toll free: 1800 141 612
Mobile: 0477 796 959
Email: brett@legalconsolidated.com
Skype: brettkennethdavies