Insurance premiums & FBT

As many regular readers would be aware, one particular innovation in recent times in relation to insurance funded business succession arrangements is the so-called 'debt reduction' strategy.

One aspect of the arrangement that is often raised concerns the fringe benefits tax (FBT) implications of the premium payments.

Broadly, there are a number of reasons as to why FBT will normally not apply to the payment of insurance policy premiums.

Generally the accountant for the business will always be best placed to give the guidance, however some of the reasons FBT will not apply can include –

1.    the arrangements not having anything to do with employment;

2.    in some instances, the otherwise deductible rule; or

3.    while for administrative ease the premiums might be paid by the business, the actual tax position is that the amount is included as part of other payments made (for example, a dividend).

It is important to remember that aside from FBT, there are a number of other tax issues that may also be relevant (for example division 7A or capital gains tax) so it is also best to ensure the exact circumstances are considered by the accountant for the particular client.

Until next week.

Links to Advanced Health Directives in every state

As mentioned in last week’s post, each state offers the ability to prepare an Advanced Health Directive (AHD).

Set out below are the links to the relevant government websites that provide the standard statutory forms for AHDs.

Obviously, before relying on any link, you should satisfy yourself that the relevant document is up-to-date.

In summary then:

NSW http://www.health.nsw.gov.au/patients/acp/Publications/acd-form-info-book.pdf

VIC https://www.publicadvocate.vic.gov.au/your-rights/your-healthcare/making-an-advance-care-directive

QLD https://www.qld.gov.au/law/legal-mediation-and-justice-of-the-peace/power-of-attorney-and-making-decisions-for-others/advance-health-directive

SA https://advancecaredirectives.sa.gov.au/upload/home/Current_ACD_Guide.pdf

WA http://www.health.wa.gov.au/docreg/education/population/HP11536_advance_health_directive_form.pdf

NT https://nt.gov.au/law/rights/advance-personal-plan

TAS https://www.dhhs.tas.gov.au/palliativecare/advance_care_planning_for_healthy_dying

ACT http://www.health.act.gov.au/public-information/consumers/advance-care-planning or https://www.advancecareplanning.org.au/create-your-plan/create-your-plan-act


Until next week.

Difficulties with Advanced Health Directives

In last week’s post, an overview of Advanced Health Directives (AHDs) was provided.

As mentioned in that post, there are a number of significant practical difficulties with AHDs, and in summary, the main issues in this regard include:

1.       The person making the AHD tends to want to be able to have a ‘turn off the switch’ type provision (or perhaps even euthanasia).  No AHD allows this.  Unless the donor has specific religious or personal objectives, many of the questions are somewhat irrelevant.

2.       The attitude of a donor when signing the AHD is not necessarily any indication of their attitude in say, ten years time, when the issue arises.  Anecdotally many doctors are unwilling to rely on a document from years earlier in the heat of the moment (even if they find that document on an urgent basis).

3.       As the document needs to be completed with a GP it is unlikely that the GP is actually going to be involved in any sort of emergency situation in any event – again, another reason why the doctor actually performing the medical treatment etc, would be very unlikely to either try and find the AHD or even if it is found, look to rely on it.

4.       In contrast, doctors will generally place significant weight on whoever is appointed as the enduring power of attorney.  If that enduring power of attorney is also a next of kin and if there is no hint of any dispute in the immediate family group, then the wishes of the person seeking medical treatment will generally be respected.

In next week’s post, there will be links provided to the relevant government websites for AHDs in every Australian State.

Until next week.

What are Advanced Health Directives?

One issue that comes up relatively regularly in estate planning exercises relates to Advanced Health Directives (AHD).

In most jurisdictions, an AHD is essentially a document addressed to a person’s medical practitioner setting out the level of care that they would like to receive in a series of specific situations.  Normally, the document is crafted as a 'multiple choice' questionnaire listing out dozens of typical medical scenarios.  The document is normally completed in conjunction with a client’s GP.

As the document is a medical, not legal, one, most lawyers simply provide access to the standard document rather than providing advice on it.

One important issue to note is that in no Australian state does an AHD create the ability for euthanasia style directions to be articulated.

While a person has legal capacity they may revoke their AHD at any time. 

In an upcoming post, we will look at some of the practical difficulties of AHDs.

Until next week.

What roles do ‘quasi-ownership’ arrangements play in succession planning

As set out in earlier posts, and with thanks to the Television Education Network, today’s post addresses the issue of ‘What roles do ‘quasi-ownership’ arrangements play in succession planning ?’ at the following link - http://youtu.be/oUcuYyRXZ_U



As usual, a transcript of the presentation for those that cannot (or choose not) to view the presentation is below –

This is probably a really developing area in terms of what we've seen in recent times, because out of the GFC, the changes to trust law that many of us have experienced first hand in terms of the impact of relationship breakdowns and/or the intergenerational transfer that goes wrong; you find in many family scenarios they are effectively wanting to, if not fully rule from the grave, at least do a very good impersonation of it.

In that scenario, as much as we've spoken earlier today about secured loan arrangements and actually transferring assets down and securing those under a loan arrangement; a more ‘bespoke’ version of that is never having the asset leave the master trust in the first place and using tools such as letters of wishes or the way in which the trustee company constitution is crafted to allow the underlying beneficiaries to have indirect access to the assets, whether they be business assets or investment assets.

Beneficiaries will probably still have to meet KPIs in relation to their performance and running of those assets, but they never actually get the physical ownership or the legal control of them.

It may be overtime that beneficiaries do ultimately receive legal ownership or legal control, but for an interim period, which may last for many years, what this final form of structure does is effectively keep the assets within the initial master trust structure and really only have a synthetic or notional allocation of assets made, at a trustee level, for the underlying beneficiaries.

Until next week.

War stories

As many regular readers will be aware, examples are often used in these posts and our various seminar presentations based on client situations.

This said, unless the particular client scenario has gone through the court system (and is therefore publicly available information), we are always very careful to not base our examples entirely on any one particular client so as to ensure client confidentiality is maintained.

In this context then, we are also always supportive of any adviser that wants to use (and where appropriate embellish) case study examples that we may have historically shared when they are positioning concepts with clients.

Until next week.

Prohibitions on trust deed variations

As mentioned last week, we often find trust deeds have prohibitions on a trustee’s ability to vary the document.

Some of the issues to be aware of in this regard include:

1    Often variations can only be made with the consent of someone other than the trustee, for example an appointor, guardian or even the settlor.

2    In some cases, variations can only be made to the core (or trust) provisions of the deed, as opposed to the more general powers, which will usually limit the ability to vary the income provisions.

3    Alternatively, while powers can be added to a trust, a deed will sometimes provide that any existing powers cannot be varied – this can be particularly problematic where there is a desire to update the income distribution provisions.

4    There are countless other examples of restrictions on variations and indeed, we have come across deeds where there is a blanket prohibition on making variations to the deed, or at least on variations to particular clauses in the deed.

While there are often workarounds no matter what restriction is imposed, the fundamental rule to remember is that each and every deed must be read before embarking on a variation.

Until next week.