ASSETS AT RISK FROM "FRIVOLOUS CREDITORS"

Protecting Your Assets by Ken Raiss Director of Chan & Naylor Platinum

Thanks Ken for identifying this very real risk

Protecting your assets against frivolous creditors is increasingly becoming a common concern. It has been quoted that Australia is closely following the trend of USA litigation numbers with NSW, Victoria and Queensland only just behind California where 1 in 3 people in the USA either sue someone or are being sued by someone.
Traditionally people have used trusts to protect their assets. A trust is useful in this regard as the individual does not own the asset, it is owned by the trust. Therefore if the individual is sued they have no assets to lose. The individual controls the trust but has no ownership.
Typically assets were owned by either a company or trust (normally a discretionary trust or family trust).
The problem with a company, is the individual usually is the shareholder so they could lose the shares in a successful lawsuit and therefore the assets. The other problems with a company are it does not receive the 50% general Capital Gains Tax discount, it is inflexible on who can receive distributions, plus if the asset was negatively geared, the individual could not take advantage of the tax credits of the negative gearing.
The use of a discretionary trust gives asset protection and the ability to claim the 50% CGT General Discount, but again did not give any tax credits to the individual for negatively geared assets. Land tax is also a concern in that NSW does not receive the land tax threshold and Victoria only receives a $20,000 threshold.
Trusts and companies in the way they are typically used, do not allow an individual to receive the main residence tax concessions or any first home owner’s concessions which would apply if the family home is held in the individual’s name.
All the above can make things very confusing and without very specialised advice many people built up their wealth in their own names. With changing views on asset protection and estate planning, many people are now looking at how they own assets and are looking for strategies to give them asset protection. While it is true that people believe they will never be sued, or if so they have adequate insurance, the facts suggest a different answer in reality.
For assets to be acquired, the use of trusts can be an easy decision. But the question is “how do I now protect my assets which have been purchased in an individual or company name”. A simple solution is to sell them to a trust but that is not without a substantial cost. When you sell assets you pay tax on the profits and you would also need to pay stamp duty, which again is substantial on property. You may also need to refinance if you have debt as the “legal owner” of the asset changes and if the finance market is tight this refinancing may not be easily completed. So what do you do?
Chan & Naylor have developed four strategies that can assist clients wanting improved asset protection and estate planning, ranging from simple solutions for assets which are low in number or value ie: the family home and one investment property, to more complex solutions for larger asset bases where an individual wants both asset protection, estate planning and the ability to redirect who receives distributions. All four strategies do not trigger capital gains tax and in most cases does not trigger any stamp duty on the underlying assets.
Equity Shift
This solution allows an individual to shift the equity as opposed to the asset from an unsafe environment to a much safer environment. Assume the person has a family home with significant equity (market value less debt) and wishes to purchase an investment property. A properly arranged loan will allow the investment property to be purchased in a property investor trust, while still allowing the individual to claim any negative gearing and have the debt which would have been allocated to the investment property to the home. The interest on the debt, if structured correctly, is still fully tax deductible as the purpose of the loan is for investment. This leaves no equity on the home and shifts the equity into the property investor trust where it is protected. No CGT or stamp duty on the assets.
Equity Bank Trust
This trust structure and relevant agreements was developed to assist clients with a more substantial asset base including properties. The EBT takes on the role of a lender and places a second mortgage on your assets thereby reducing to nil your equity. It is your equity which a law suit goes after, not the asset, so the protection of your equity (net wealth) is the primary consideration. No CGT or stamp duty on the assets is triggered. Depending on the second mortgage documentation, there may be a stamp duty on the mortgage document, which is a small percentage of what would be the case on the asset.
Contractual Will
A will is essentially your wishes on how your assets are to be distributed on your death. If you are sued the will cannot protect your wealth. If a court action by unsecured creditors successfully takes your wealth then the will has nothing to pass on. The contractual will creates a legal binding obligation to move ownership of your assets and therefore your net wealth on death to a specially designed bloodline trust to ensure your assets stay within the family and not to in-laws etc. If sued prior to death, then it is this contractual obligation that is used to protect the assets in that you effectively have passed on the ownership of the assets at the time of the contract. No CGT or stamp duty on the assets. There may be a small stamp duty on the documentation depending on the location of the assets as different states apply stamp duty on documentation.
Absolute Entitled Trust
A more complex strategy for those with significant assets including business assets or the shareholding in a company operating the business. This strategy allows the transfer of assets to a trust without CGT and also maintains the pre CGT status of any assets, a very valuable benefit. This strategy creates asset protection, as the assets are now in a trust. Once in the trust any income or profits are capable of being directed to other individuals or trusts. Most states other than Queensland would have no stamp duty applied.
Main Residence Trust
As an additional strategy, clients who believe they are in a high litigation risk environment can purchase their family home in a trust and still receive the normal main residence tax benefits including zero stamp duty. In some states a second stamp duty may apply but this cost may be offset by the other advantages. Interest deduction on borrowed moneys used to purchase the property would normally not be deductible, but maybe, depending on the circumstances.
Care must be taken in the drafting and execution of these strategies and in particular the relevant claw back provisions of the bankruptcy legislations which would require a four year waiting period from the commencement of the strategy until asset protection is fully available. This time period is the window in which a receiver in bankruptcy can go back to unravel any strategy. Appropriate documentation should also be prepared and executed showing solvency statements and the confirmation that there are no potential litigations pending. The cost of the various strategies must also be considered against the benefits.
If you want to discuss any of the strategies please contact Chan & Naylor on 02 9391 500 who will arrange a suitable time to meet with one of our team.
Disclaimer
The above is general information only and is intended as educational material. Chan & Naylor nor its associated or related entitles, directors, officers or employees intend this material to be advice either actual or implied. You should not act on any of the above without first seeking specific advice taking into account your circumstances and objectives.

This article was written by Ken Raiss Director of Chan & Naylor Platinum