Trust买投资房

twins7

不会产生FBT，因为入住的个人不是employee。FBT is only assessable when benefit is provided to employees (or associates).

不过我也同意不能白住，除非charge market rent。如果under market rent，那么rental expenses也不能100％ claim。

而且我也认为不能claim main residence exemption for CGT purposes。Limited circumstances includes deceased estate, special disability trust and other specific trust structures.

yw0830

LENNY_DONG 发表于 2013-4-29 09:16
That is your inital post.which different what u said

Due to tax issues, no one would be that silly living in the house owned by trust. That's the reason why I said, "can not live in the house" owned under the trust. Possibly should use the language, "better not to live in the house owned by the trust".

yw0830

twins7 发表于 2013-4-29 22:56
不会产生FBT，因为入住的个人不是employee。FBT is only assessable when benefit is provided to employee ...

FBT covered beneficiaries of the trust. Any associated people to the directors or directors themselves of the trustee company would be captured by FBT.

LENNY_DONG

twins7 发表于 2013-4-29 22:56
不会产生FBT，因为入住的个人不是employee。FBT is only assessable when benefit is provided to employee ...

我认为FBT原则就是

你的费用是可以DEDUCTION吗，如果不可以，你还是要入账这个私人开销的话

那么很抱歉，需要PAY FBT

TRUST买房，我不报费用也要交FBT，说白话就是我自个贴钱给TRUST不行吗

算了，不想争了。。。随便了。。。。让他去死抗吧。。。

TRUST买的房还不能住，还SILIY.....好吧。我退出讨论

LENNY_DONG

yw0830 发表于 2013-4-29 23:20
FBT covered beneficiaries of the trust. Any associated people to the directors or directors themse ...

我建议你去学学FBT。
既然TRUST要交FBT那么也有办法不交FBT。受益人全权买单房子所有费用就可以。
这和公司买车给员工用一个道理。要么FBT要么EMPLOY CONTRIBUTION不交FBT。事务不一样原则一样

LENNY_DONG

yw0830 发表于 2013-4-29 23:18
Due to tax issues, no one would be that silly living in the house owned by trust. That's the reaso ...

我一开始就说可以住。你绕那么大个圈子始终没正面回答我的质疑。

LENNY_DONG

yw0830 发表于 2013-4-29 23:20
FBT covered beneficiaries of the trust. Any associated people to the directors or directors themse ...

当然我也可能错的。欢迎探讨

JohnnySu

twins7 发表于 2013-4-29 22:56
不会产生FBT，因为入住的个人不是employee。FBT is only assessable when benefit is provided to employee ...

You are right, FBT is only applicable when EMPLOYMENT RELATIONSHIP exists. Beneficiaries of a family trust are not necessarily employees of the trust. Therefore FBT does not normally apply.

Beneficiaries can live in a house held in a family trust. No problem at all, and because the property is used for private purposes, there are no tax deductions to be claimed.

Poweregg

LENNY_DONG 发表于 2013-4-29 23:36
我认为FBT原则就是

你的费用是可以DEDUCTION吗，如果不可以，你还是要入账这个私人开销的话

TRUST甚至可以不注册ABN，何来要交FBT

你有几千万，放在trust里面，买船房子游轮都没问题，只要你不是trading，不去拿这些买房子买游轮的钱去offset你的taxable income就行

achollis

把自住房放在信托下面主要的目的是为了asset protection。除去没有了自住房的cgt exempt，不会用其他税务方面的问题。
FBT因为不存在雇佣关系，没有FBT。
实际上很多高风险行业人士，如医生律师之类随时会吃官司的职业，有不少专门成立信托管理自住房以及其他很多个人资产，以避免在吃官司的时候损失资产。
另外婚姻财产纠纷的时候，在信托下的资产也可以避免因为离婚而失去。
另外，根据信托的成立初衷，也可以起到限制资产继承人对资产的控制权作用，例如为了避免子女在继承大笔资产之后随意挥霍，可以不让继承人有权利出售资产包括自住房，我正动用本金。
只要没用taxable 的activity，并且不违反trust deed的调，受益人怎么使用信托里面的资产都没有问题。

yw0830

taxbreak 发表于 2013-4-30 09:41
You are right, FBT is only applicable when EMPLOYMENT RELATIONSHIP exists. Beneficiaries of a fami ...

For the family trust, parents are normally the directors of the trustee company. Children would be beneficiaries and also are associated people to directors of the trustee company. Therefore, there should have FBT problem.

FBT benefits are also extended to associated people who are in relationship with employees.

yw0830

Poweregg 发表于 2013-4-30 10:02
TRUST甚至可以不注册ABN，何来要交FBT

你有几千万，放在trust里面，买船房子游轮都没问题，只要你不是tr ...

Poweregg

yw0830 发表于 2013-5-1 00:58
For the family trust, parents are normally the directors of the trustee company. Children would be ...

真建议你补补FBT的知识，这些都是针对taxable income，如果你拿员工或者associate的餐饮，住房等福利去offset taxable income，才会产生FBT

和parent是director，子女是beneficiary根本没关系
你不trading的话，拿自己的钱设立一个trust，买房子，买游艇，连abn都不需要，当然你也不能拿房子游艇的开销去offset income

同理，对于公司，FBT也是你想拿员工福利（车子，餐饮）等等的expense，去offset公司的taxable income，才会有FBT
要是老板从自己口袋里掏钱请客，也不拿发票去offset income，何来FBT

另外discretionary trust，和company最大的差别，就是trust里面的taxable，必须全部分完，否则要交46.5%的税，trust里的钱，都是税后的（不像company，才交了30%的税）

LENNY_DONG

achollis 发表于 2013-4-30 21:47
把自住房放在信托下面主要的目的是为了asset protection。除去没有了自住房的cgt exempt，不会用其他税务方 ...

另外婚姻财产纠纷的时候，在信托下的资产也可以避免因为离婚而失去。

Mate, I do not think so.

Even super fund balance need split, Trust asset need split as well

achollis

LENNY_DONG 发表于 2013-5-1 08:53
另外婚姻财产纠纷的时候，在信托下的资产也可以避免因为离婚而失去。

Mate, I do not think so.

我可没说养老金不需要分，养老金有fixed entitlement, discretionary trust是没有的，没有人对信托有实际拥有权。

LENNY_DONG

achollis 发表于 2013-5-1 09:24
我可没说养老金不需要分，养老金有fixed entitlement, discretionary trust是没有的，没有人对信托有实际 ...

let us back to family law

The Family Court has 4 main weapons in dealing with trust assets in a matrimonial property division:

1. Pool and divide:

This is the most common, where the court brings the net trust assets into the property pool. This occurs generally where the trust assets have accrued from the family efforts and are in fact used, or could be used, for the benefit of one or both of the parties of the marriage.  

The most important issue is the degree of control where the Family Court would look through the actual ownership by the trustee in determining the pool of assets. The Court doesn’t need to make a specific order transferring the trust asset out of the trust.  Usually the court makes an order against the party based on the trust assets, and then leaves it to them to source the funds.

2. Set aside transactions:

Section 106B gives the court power to set aside transactions which would have the effect of defeating claims in certain circumstances. The Court can use this power to set aside any attempts to remove control from a party of the marriage that could have the effect of preventing the Family Court from adding the trust assets to the pool, or from varying the trust deed.

3. Sham:

The curt can declare, in effect, that the trust is a shame and declare, pursuant to s78, that one or other of the parties actually own the property said to be held on trust.

4. Third party orders:

The court can make orders against a third party changing the ownership of assets. However, the court is only likely to exercise this power in very limited circumstances.

LENNY_DONG

achollis 发表于 2013-5-1 09:24
我可没说养老金不需要分，养老金有fixed entitlement, discretionary trust是没有的，没有人对信托有实际 ...

Case of varied trustee to avoid asset spliting






Kennon v Spry
On 3 December 2008 the High Court delivered Judgment in the matter of Kennon v. Spry [2008] HCA 56. The High Court upheld decisions of the Family Court (both at first instance and on appeal), to include assets which had been held in a family discretionary trust as property of the parties to the marriage.

The case involved a retired Melbourne barrister and a number of trusts.

17 January 1940 - Husband born –aged 68.

1 January 1968 - Husband set up orally trust (ICF Spry TRUST). He was settlor and trustee.

29 December 1978 - Parties marry.

1 October 1981 - Terms and beneficiaries of the trust settled. Beneficiaries were Husband, siblings, their issue and spouses of all.

1983 - Husband varied the trust by excluding himself as a beneficiary
1 December 1998.  Husband further varied the trust by excluding himself and wife as capital beneficiaries (marriage in trouble at this time).

1 December 1998 - Husband further varied the trust by excluding himself and wife as capital beneficiaries (marriage in trouble at this time).

30 October 2001 - Parties separate.

18 January 2002 - Husband established 4 trusts in favour of his 4 children, Elizabeth, Catharine, Caroline and Penelope Husband applied a quarter of all income and capital of the trust to these trusts.

20 January 2002 - Husband conveyed to the children any shares held by him beneficially.

19 April 2002 - Wife filed for property settlement.

20 May 2002 - Husband appointed E. Kennon as joint trustee with him of each of the children’s trusts.

1 December 2002 - Wife filed for divorce.

16 January 2003 - Decree nisi granted.

17 February 2003  Decree absolute.

The trial judge found that when the husband made the 1998 amendment to the Trust Deed and the 2002 dispositions to the various children’s trusts, he did so for the purpose of defeating an anticipated order under the Family Law Act by putting the assets of the ICF Spry Trust beyond the reach of the Family Court. The trial judge then included the assets of the ICF Spry Trust as part of the property of the parties for the purposes of their property settlement on the basis that the husband was entitled to distribute the assets of the Trust to himself. In so doing the trial judge overlooked the 1983 variation to the Trust Deed which excluded the husband as a beneficiary.

The High Court held that the 1998 variation and the 2002 distribution should be set aside. Once they were, the property of the parties to the marriage included the right of the wife to due administration of the Trust accompanied by the fiduciary duty of the husband, as trustee, to consider whether and in what way the power should be exercised. It was open to the husband to distribute the whole of the Trust funds to the wife. Therefore the value of the whole of the Trust funds should be included as part of the property and financial resources of the parties for division between them by way of property settlement pursuant to Section 79 of the Family Law Act.

The High Court also indicated that in determining whether property of a trust can be construed as being property of the parties or either of them, it is important to consider the nature of the trust and the source and purpose of the accumulation of the assets of the trust. Here the property in the trust came from “fruits of the marriage” and was the vehicle they used to provide for themselves and their family, and accordingly it is appropriate to treat the assets of the trust as the property of the parties to the marriage.

The High Court’s decision emphasis the broad power of the Family Court. Family lawyers have always known that the Family court will look behind formal trust structures and to have regard instead to the practical reality of the family’s financial circumstances, and the High Court has now put the Family Court’s power to do that beyond doubt.

JohnnySu

Poweregg 发表于 2013-5-1 08:27
真建议你补补FBT的知识，这些都是针对taxable income，如果你拿员工或者associate的餐饮，住房等福利去of ...

You understanding is largely correct

Mintlolly

信托税务高手如云啊。平常根本没机会接触这方面，进来学习一下，顺便把这个帖子顶起来。

茄菲

好久没有来， 上来学习来了。

jeff_lawsons

yw0830 发表于 2013-4-29 23:20
FBT covered beneficiaries of the trust. Any associated people to the directors or directors themse ...

The key issue is whether the property is being provided to the client in his capacity as an employee of the company or beneficiary of the trust. This will depend on the facts and the conclusion should be clearly documented.

The FBT Act (section 136) notes that a fringe benefit can arise when a benefit is provided to an employee by an associate of the employer or by an entity under an arrangement between the employer and the other entity (ie, the benefit does not need to be provided by the employer).

FBT only applies if a benefit is provided in respect of a person's employment. If a benefit is provided to an individual in their capacity as beneficiary of a trust rather than in respect of their employment then this should not trigger FBT (although there may be Division 7A issues to consider if there are unpaid distributions owing to a company by the trust).

If the property is provided to the client in his capacity as beneficiary of the trust then the trust would not be able to claim any deductions or GST credits in relation to the property.

In TD 94/D31 the ATO states that the presence of any of the following factors will indicate that a benefit has been provided to a person in respect of their employment:

• A reference in an employment contract, to the provision of the benefit, or
• The provision of a similar benefit to an 'arm's length' employee, or
• The benefit is of a kind more readily seen as employment related, e.g., private use of a business vehicle, or
• A reference in a director's minute, to the provision of the benefit being in an employment context, or
• A level of remuneration provided to the employee, which is not commensurate with the work performed, such that it will be concluded that the benefit was provided instead of adequate remuneration.


TD 94/D31 can be found at the link below:

http://law.ato.gov.au/atolaw/view.htm?locid='DXT/TD94D31/NAT/ATO'&PiT=99991231235958

Also make sure the trust deed allows the beneficary to occupy the property (it shall be fine for most cases)

suitaqua

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