Today’s post relates to an asset protection issue that unfortunately is too often overlooked.
Many of you will have heard our firm (and other lawyers) referring to the 'domino theory'.
This theory is one of the very basic asset protection concepts of ensuring that there is a deliberate limit placed on the number of assets owned by any one entity. Furthermore, the assets owned by a particular entity should be of comparable risk profiles.
A similar issue arises in a slightly different context where a company acts as trustee for a trust. In this situation, while the company will be the legal owner of all assets of the trust, it will not have beneficial ownership.
In a number of instances recently, we have seen situations where the trustee company does in fact own assets in its own right, even if this is simply cash, unpaid entitlements or at call loans.
In these situations, those assets are unnecessarily exposed to difficulties that might be encountered by the trust.
In order to maximise the trustee company structure, care must always be taken to ensure that its assets are no more than the initial capital paid up on establishment of the company (i.e. $2).
Next week, we will look at the specific scenario today’s post was inspired by, that being a trustee company that had also been used for many years as the corporate beneficiary for the trust.
Until next week.
Matthew Burgess
Monday, July 26, 2010
Monday, July 19, 2010
Insurance funded buy-sell arrangements
Over the last 2 to 3 years, there has rarely been a week gone by where we have not been fortunate to help a risk adviser implement an insurance funded buy-sell arrangement with their clients.
One issue that comes up surprisingly more regularly than it probably should occurred again last week in relation to the structure of these arrangements and the use of options.
There is an enormous amount of material on insurance funded buy-sell deeds (if you are interested, spend some time looking at our website – see the following link viewlegal.com.au).
Invariably, most advisers in this area will, for a multitude of tax and wider commercial reasons, recommend an option based contractual arrangement – these arrangements provide the most amount of flexibility possible for each party.
Where however a discretionary trust is involved in the business structure, it is generally the case under trust laws that the trust deed must expressly permit the granting of options.
The technical reasons for this position revolve around issues concerning the fettering of a trustee’s discretion – practically however the position is that unless the trust does have the power to grant options at the date the buy-sell agreement is signed, there is a risk that the agreement may not be enforceable as otherwise anticipated.
Until next week.
Matthew Burgess
One issue that comes up surprisingly more regularly than it probably should occurred again last week in relation to the structure of these arrangements and the use of options.
There is an enormous amount of material on insurance funded buy-sell deeds (if you are interested, spend some time looking at our website – see the following link viewlegal.com.au).
Invariably, most advisers in this area will, for a multitude of tax and wider commercial reasons, recommend an option based contractual arrangement – these arrangements provide the most amount of flexibility possible for each party.
Where however a discretionary trust is involved in the business structure, it is generally the case under trust laws that the trust deed must expressly permit the granting of options.
The technical reasons for this position revolve around issues concerning the fettering of a trustee’s discretion – practically however the position is that unless the trust does have the power to grant options at the date the buy-sell agreement is signed, there is a risk that the agreement may not be enforceable as otherwise anticipated.
Until next week.
Matthew Burgess
Monday, July 12, 2010
Can an enduring attorney be a company?
The issues in relation to attorney appointment over the last couple of weeks have generated a number of questions and comments.
One common theme has been in relation to the distinction between the appointment of an attorney and the role of an executor and/or trustee under a will.
There are a number of distinctions between these various roles, however one of the overriding practical points is that the appointment of an attorney can generally only be of an individual person.
In contrast, the appointment of an executor or trustee can be of a company or a particular role – for example, you will often see the executor of a will being crafted so that it is the 'senior partner from time to time in the firm of . . . . . .’.
Until next week.
Matthew Burgess
One common theme has been in relation to the distinction between the appointment of an attorney and the role of an executor and/or trustee under a will.
There are a number of distinctions between these various roles, however one of the overriding practical points is that the appointment of an attorney can generally only be of an individual person.
In contrast, the appointment of an executor or trustee can be of a company or a particular role – for example, you will often see the executor of a will being crafted so that it is the 'senior partner from time to time in the firm of . . . . . .’.
Until next week.
Matthew Burgess
Monday, June 28, 2010
Should I act as an attorney for a client?
A number of people contacted me following last week's post with questions in relation to the consequences of an accountant or financial adviser (or for that matter a lawyer) acting as an attorney for a client.
Many of you will have either professional body guidelines or guidelines that your firm has agreed to implement about the basis on which (if at all) you can take on the role of an attorney.
In a practical sense, the two biggest issues you need to ensure are addressed:
1. The conflict of interest rules are very strict in this area. It is always preferable to have a very clear statement in the attorney appointment document confirming that the person appointing you as their representative waives any prohibition on you acting due to an issue of conflict.
2. Similarly, on a number of levels, it is always our strong recommendation that the professional adviser be permitted to charge their standard professional fees. This ability should be clearly set out in the appointment document.
Until next week.
Matthew Burgess
Many of you will have either professional body guidelines or guidelines that your firm has agreed to implement about the basis on which (if at all) you can take on the role of an attorney.
In a practical sense, the two biggest issues you need to ensure are addressed:
1. The conflict of interest rules are very strict in this area. It is always preferable to have a very clear statement in the attorney appointment document confirming that the person appointing you as their representative waives any prohibition on you acting due to an issue of conflict.
2. Similarly, on a number of levels, it is always our strong recommendation that the professional adviser be permitted to charge their standard professional fees. This ability should be clearly set out in the appointment document.
Until next week.
Matthew Burgess
Monday, June 21, 2010
Further trust deed tips
A few weeks ago (see the posting 'Trust deed tip'), I mentioned the trust where a number of variations had been implemented over the years, but those variations did not comply with the rules set out under the trust instrument.
The short term fix (in order to satisfy financier requirements) was to implement a deed of confirmation of the historical changes.
To try and minimise future difficulties, we are also implementing the following:
1. With the settlor’s consent (given that he is still alive and has capacity to do so), we are removing the requirement for him to consent to any future changes. This step has some potential tax and stamp duty consequences, however on balance, the client’s accountant has agreed with us that it is the most logical next step.
2. We are also clarifying the requirements around the consent of primary beneficiaries. For this particular situation, all primary beneficiaries are currently over the age of 18 and alive, however the client did not want a situation in the future where there were infant beneficiaries (or beneficiaries that were no longer alive) given third parties might seek to challenge whether a future purported variation was in fact effective without the consent of those people.
Until next week.
Matthew Burgess
The short term fix (in order to satisfy financier requirements) was to implement a deed of confirmation of the historical changes.
To try and minimise future difficulties, we are also implementing the following:
1. With the settlor’s consent (given that he is still alive and has capacity to do so), we are removing the requirement for him to consent to any future changes. This step has some potential tax and stamp duty consequences, however on balance, the client’s accountant has agreed with us that it is the most logical next step.
2. We are also clarifying the requirements around the consent of primary beneficiaries. For this particular situation, all primary beneficiaries are currently over the age of 18 and alive, however the client did not want a situation in the future where there were infant beneficiaries (or beneficiaries that were no longer alive) given third parties might seek to challenge whether a future purported variation was in fact effective without the consent of those people.
Until next week.
Matthew Burgess
Topics:
Deed of variation,
Stamp duty,
Trust beneficiaries,
Trust deed
Tuesday, June 15, 2010
Corporate trustee duty (part 2)
Last week, I mentioned the unique way in which the Queensland stamp duty rules can operate in relation to the transfer of shares in companies that act as trustees for discretionary trusts.
As touched on last week, the provisions are such that the transfer of shares in these companies can be charged with standard stamp duty rates based on the underlying market value (ignoring any debt) of the dutiable assets in the discretionary trust located in Queensland or Western Australia.
In Queensland there is however the ability to legitimately avoid this stamp duty cost, if the transaction comes within an exemption set out under the stamp duty rules.
Broadly these rules provide that so long as the transfer of shares is between individual members of a family group, and the trust is established primarily for the benefit of members of that family, then there will be no duty payable.
As the ability to access the stamp duty relief is subject to the discretion of the Stamps Office, there is the ability to get an indication on whether stamp duty relief is likely to be available and with the client that I mentioned last week, we have submitted a ruling application on their behalf.
If an unfavourable ruling is received, we will need to explore other, less commercially appropriate, alternatives to achieve the client’s overall objectives.
Until next week.
Matthew Burgess
As touched on last week, the provisions are such that the transfer of shares in these companies can be charged with standard stamp duty rates based on the underlying market value (ignoring any debt) of the dutiable assets in the discretionary trust located in Queensland or Western Australia.
In Queensland there is however the ability to legitimately avoid this stamp duty cost, if the transaction comes within an exemption set out under the stamp duty rules.
Broadly these rules provide that so long as the transfer of shares is between individual members of a family group, and the trust is established primarily for the benefit of members of that family, then there will be no duty payable.
As the ability to access the stamp duty relief is subject to the discretion of the Stamps Office, there is the ability to get an indication on whether stamp duty relief is likely to be available and with the client that I mentioned last week, we have submitted a ruling application on their behalf.
If an unfavourable ruling is received, we will need to explore other, less commercially appropriate, alternatives to achieve the client’s overall objectives.
Until next week.
Matthew Burgess
Topics:
Company,
Discretionary trust,
Stamp duty,
Transfer of shares,
Trustee
Thursday, June 3, 2010
Trust deed tip
Again this last week, we have had some more issues arise in relation to family trusts.
As is often the case, the issue from this week was identified by a financier.
The issue arose due to a review of some historical variation deeds to the original trust documents.
Due to a relatively unusual provision, the original trust required that any variation could only be made with the consent of the settlor (i.e. the person who originally set up the trust) and all of the 'primary' beneficiaries who were set out in the schedule to the trust.
None of the earlier variations had received consent from any of the relevant parties.
The solution (which is still to be approved by the bank) was to implement a comprehensive deed of confirmation and obtain signatures from all relevant people – fortunately, the settlor was still alive and willing to assist.
Next week, I will touch on some other practical difficulties that we are going to need to consider and possibly address in the future.
Until next week.
Matthew Burgess
As is often the case, the issue from this week was identified by a financier.
The issue arose due to a review of some historical variation deeds to the original trust documents.
Due to a relatively unusual provision, the original trust required that any variation could only be made with the consent of the settlor (i.e. the person who originally set up the trust) and all of the 'primary' beneficiaries who were set out in the schedule to the trust.
None of the earlier variations had received consent from any of the relevant parties.
The solution (which is still to be approved by the bank) was to implement a comprehensive deed of confirmation and obtain signatures from all relevant people – fortunately, the settlor was still alive and willing to assist.
Next week, I will touch on some other practical difficulties that we are going to need to consider and possibly address in the future.
Until next week.
Matthew Burgess
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