A Family Trust – greater flexibility than a Will? | A legal tip from our Solicitors

A Trust – Greater flexibility than a Will?

You can leave your personal assets to a trust rather than directly to named family members when you die. This gives more flexibility than a conventional will. The trustee of a trust can then decide when to make payments to the trust’s beneficiaries and even whether to make such payments available at all.

This legal tip is provided by the solicitors at Quay Law. Our Auckland law firm currently serves clients in most areas of law, including:

Real estate, Property law and conveyancing
Commercial law
Wills and Estates
Trust law (establishing and breaking)
Relationship property matters and matrimonial
Social Media law
Taxation | IRD
Commercial Property and Leases

Please feel free to ask our lawyers about our legal fees. We endeavour to keep our costs reasonable and competitive.

Quay Law prides itself on its “open door” and friendly approach to business. Someone is usually available at short notice to assist you with your particular transaction or problem. We try to provide an approachable, friendly, efficient and professional service and to keep our clients’ best interests in mind.

Our contact number 09 5232408

Cracking down on tax benefits

Source: nz herald

Changes announced in this year’s Budget, cracking down on tax benefits for people who rent their holiday homes a few times a year, will not affect beachside property prices, says Real Estate Institute chief executive Helen O’Sullivan.

Until now, owners had been able to claim large tax deductions on losses made on the properties, even if they were most often used as private holiday homes.

But the changes mean owners can only claim on the rented portion. Those who rent their holiday home for 30 days a year and use it themselves for 30 days a year will now only be able to claim a deduction for 50 per cent of their costs, not the 90 per cent they had before.

But O’Sullivan said the removal of that perk would not be much of a blow. Most owners just saw the tax benefits as a bonus.

People would not buy a bach purely to cut their tax bills, she said. “I don’t see that it will have a big impact. I think people saw it as a bit of an upside but not a big driver [in purchasing].”

She did not expect to see a flood of properties on to the market when the changes took effect. “If they were bought as investments they will be run as investments – advertised and rented 365 days of the year – and these changes won’t impact them.”

Trusts face clampdown in Labours Strategy

Source: NZ Herald – Adam Bennett

Trusts, Family Trusts and Trust Law.

Labour would target hundreds of millions of dollars worth of income rich people shelter in trusts as a key part of its “tax switch” package unveiled this week.

The party believes it can raise $300 million a year in additional tax with new anti-avoidance measures, a forecast greeted sceptically in a number of quarters, including the Beehive.

Finance Minister Bill English said that figure was very optimistic. National had already pursued “the low-hanging fruit”, he said, by giving the Inland Revenue Department money to enforce tax rules on property investment which were expected to return $800 million a year.

With that done, “there isn’t a whole lot of easy revenue gains left there”, Mr English said.

But Labour finance spokesman David Cunliffe said there were two ways to address tax avoidance.

One was to police the existing boundary of the law more strictly and the second was to change the boundary of the law. “We’re going to do both. The National Party is not doing the latter.”

Labour’s anti-avoidance measures would include a serious push against the “trust law boundary”, building on the Law Commission’s recent review of trust law.

Critics have argued Labour’s plan to reintroduce a top tax rate of 39 per cent opens up a gap between that rate and the trust rate which would fuel a fresh wave of tax avoidance.

Mr English said the sharp increase in the use of trusts early last decade coincided with former Labour Finance Minister Michael Cullen’s introduction of a 39c top rate while the tax rate for trusts was kept at 33 per cent.

But the potential to use trusts as tax shelters was curbed when the top personal and trust rates were
aligned.

Nevertheless, the Government’s Tax Working Group estimated that income-sheltering using trusts cost the taxman about $300 million in
2007.

Mr Cunliffe said Labour would look at trust law to ensure that “people who are currently legally able to hide income in trust structures will increasingly be unable to do so”.

However, the use of trusts would appeal only to those who were hit with Labour’s top rate of 39c in the dollar.

Labour estimates that would be only the top 2 per cent of taxpayers.

Mr Cunliffe pointed to the $5.5 billion in outstanding tax, the $450 million worth of back tax that was caught up in only three cases at present before the courts and the recent $2.2 billion settlement between the Crown and the main banks.

“In the light of those numbers alone, a $200 million to $300 million per annum recovery is hardly an exaggeration.”

Newspaper article: Accountants expect capital gains tax bonanza

Source: Business Day

Tax experts are licking their lips at a boom in possible work to help navigate clients from being the haves to the “have yachts”.

Labour’s initial proposal for a capital gains tax came with a promise that a panel of experts would iron out any teething problems, but the accountancy industry wasted little time in pointing out what it believed to be obvious initial holes.

From exemptions on business sales when close to retirement, plus antiques, stamp collections and yachts, the complexity of the initial proposal would result in a vast annual project to calculate the capital value of assets, experts warned.

Grant Thornton Wellington chairman Peter Sherwin said the initial proposals were “back to the future” with the now simple income tax system and “pure” GST set to be replaced by complex schemes. “From a purely selfish point of view, this is very, very good news,” he said. “They say it is going to be a game changer; well, it’s certainly going to be a game changer for the accounting and legal industry in terms of where the opportunities to navigate through the exemptions.”

John Shewan, PricewaterhouseCoopers chairman, said aside from the exemptions, the issue of annual valuations of assets on “CGT day” also existed. “That is an enormous task and remember, valuation is an art, not a science.”

Shewan, who joked that the plan could triple PWC’s staff numbers, said because the proposed 15 per cent CGT rate was much lower than company tax, a huge body of work would occur to differentiate capital gains from other types of profits.

“I’m simply not persuaded by the suggestions in this package that it’s a simple tax. It’s far from simple.”

Deloitte’s Patrick McCalman said aside from accountants seeking loopholes, considerable uncertainty existed about how a new tax would alter consumer behaviour.

While Labour knew what it was giving away through cuts to GST and income tax, no-one knew how CGT would affect human behaviour, and therefore how much revenue it would gain.

“CGT is new to New Zealand, so we don’t know what kind of behaviours it is going to drive, and if the CGT doesn’t deliver what’s being spent elsewhere, the big question is, how do you balance the books?”

Economists, meanwhile, stuck up for the plan. Westpac chief economist Dominick Stephens predicted a CGT would cause lower house prices, especially at the lower end of the market, and higher rents, which would inevitably lead to higher rates of home ownership.

He played down the significance of the additional work for professional advisers. “What is the difference between paying an accountant to avoid CGT and paying a real estate agent to buy an investment property?

“They’re both just activities designed to avoid tax.”

Gift duty ‘switched from rich to poor’

 Source: Rob Stock – Sunday Star Times – 8 May 2011

The abolition of gift duty, which could prove a gift for the rich, will come just months after a backdoor form of gift duty was introduced for the poor, an anti-poverty action group says.

The Child Poverty Action Group (CPAG) said last week that the changes are entrenching inequality.

On April 1, the government changed the definition of “family scheme income” – income used to determine whether a family qualifies for Working for Families (WFF) credits – but CPAG says it includes a provision that is in effect a new gift duty for those at the bottom of the income ladder.

CPAG spokeswoman Susan St John, a respected academic at theUniversityofAuckland, says the new definition includes regular gifts of money from other family members, such as when a family member pays the electricity or the grocery bill on a regular basis.

While gift duty is abolished for the rich, saidSt John, regular transfers which total over $5000 in a year, or $96 a week, to struggling low income families are penalised.

Transfers totalling $5001 means $1000 loss of Working for Families tax credits, saidSt John.

“These low income working families are not the ones hiding money in PIEs and trusts. The government ought to be encouraging grandparents who can afford it to help their children. In the recession, without such help many more working families will resort to loan sharks and foodbanks,” she said.

CPAG said the changes, which aim to protect the Working for Families tax credit scheme from well-off cheats hiding assets in trusts, will hit the poor. CPAG says the rules are unfair. For example, daycare payments by a working grandparent are captured by family scheme income, but not the value of work by a grandparent looking after children for free.

CPAG’s Julie Timms pointed to a debate published in last week’s paper, asking why we should tolerate the hiding of incomes in the present system of trusts: “While those who have been encouraged to hide income in trusts and PIEs, are now having to declare this for some forms of social assistance, other families who do not have the means to set up trusts are being punished for simply trying to help their own.”

IRD said the changes mean a more comprehensive measure of family income is used when determining WFF tax credits and recognise that families may be receiving help from sources other than taxable income.

“The amendments improve the fairness and integrity of WFF by, for example, countering arrangements that have the effect of artificially inflating entitlements and filling in gaps in the earlier definition of family income,” IRD said

Talk to your lawyer!

quay_law

K:        Key – Get your lawyer involved early.

I:         Information.  Be prepared to provide your lawyer with the necessary information / supporting documents in regards to your situation.  Make sure you have all the important documentation on hand.  These can be sent either electronically (fax or email) or via mail to your lawyer’s office.  Ensure all communication with your lawyer is concise and to the point.

S:       Set an estimate of fees.  Do not be afraid to ask questions about billing or request an estimate of costs. 

No doubt, you will have questions after that initial discussion.  Record these and if critical to the outcome of your situation, do not hesitate to contact your lawyer straight away.  If non-critical, make a note to discuss with your lawyer when you next discuss or review your situation with him or her.

Debt provision swells as Westpac profit falls

By ROELAND van den BERGH – The Dominion Post

Westpac New Zealand is blaming the unprecedented economic downturn for a 15 per cent cut to its tax-paid profit of $202 million for the half year to March. Bad and doubtful debt provisioning ballooned to $184m from $61m a year earlier as the deteriorating economy impacted on business and households. A total of 140 Westpac customers lost their homes in mortgagee sales during the half year, the same number as for the whole of the previous year. Chief executive George Frazis said the result reflected an “unprecedented set of external circumstances”. He expected economic conditions to continue to be challenging for some time. Even if the recession ended next year, it would take six months before the effects washed their way through business activity, Mr Frazis said. “In the circumstances this is a sound result.” But while the bottom line was down, core earnings were up 13 per cent to $471m. Net interest income gained 10 per cent to $622m, while other income, including fees, was up 5 per cent to $214m. Mr Frazis said the reduced bottom line demonstrated that Westpac was shouldering its share of the economic downturn burden. “The fact that underlying profit is up is very pleasing from an economic perspective.” It showed that the bank was continuing to lend, which was the No1 concern for business, Mr Frazis said. That compared with the situation in the United States and Britain where widespread bank failures had seen lending dry up, hindering the economic recovery, he said. Business lending was up 9 per cent, mainly through the agriculture, infrastructure and small business sectors. “We have provided an additional $350 million over the last six months to help small businesses invest, grow and protect jobs,” Mr Frazis said. Most of the impaired loans were in business lending. Small businesses also often used their homes as a security for a commercial loan. Businesses have complained that lower official interest rates were not being passed through to the same extent as mortgage lending. But Mr Frazis said the interest rates the bank had to pay to attract domestic deposits, which made up 60 per cent of the bank’s funding, were significantly higher than the official cash rate. Funding rates from international wholesale markets, which made up the balance, were dramatically higher because of the global credit crisis which was showing little sign of easing. Margins on lending had improved slightly to 2.25 per cent, but were still below those earned three years ago. Deposits grew 6 per cent to $28 billion and total loans stood at $47.1b, up 4 per cent. Home lending had slowed to 3 per cent as households looked to reduce debt. Lending growth was expected to remain subdued as a result of reduced demand and more customers would come under pressure as the effects of the slowing economy became more widespread, including more job losses. “We are seeing more pressure across our business customers and expect consumer stress to grow as unemployment rises,” Mr Frazis said. As a result provisioning for bad and doubtful debt would remain high into next year, he said. Higher costs were offset by revenue growth giving a 250-basis-points improvement in the expense to income ratio to 43.7 per cent. Westpac was well placed to weather the current economic conditions, Mr Frazis said.

http://www.stuff.co.nz/business/industries/2390287/Debt-provision-swells-as-Westpac-profit-falls

Home business tax advantages

Not only can it be convenient to operate a small business from home, but there are definite financial upsides;

1. Save money by not renting office premises

2. Eliminate the time and cost of getting from home to work

3. Claim a portion of ‘personal’ expenses against your business revenue, therefore reducing your business’ income tax.

Sound good? Let’s look at how you can claim personal expenses against your business revenue. Assume your business uses a room in your home as a business office, and the room is not used for any personal use, you can treat some household expenses as business costs.

So just what household expenses can be classified as deductible business costs? Examples include:

• Mortgage interest – while your entire mortgage interest can’t be considered a business cost, it’s possible to classify a portion of it. How much will depend on the floor space your business occupies in your house – the business uses 10% of the floor space, then 10% of the interest is a deductible business cost. (Principal repayments are not deductible business costs).

 • Telephone – claim 100% of a business dedicated line (including the cost of installation), OR claim 50% of your private telephone line if this is used for business.

• Electricity/Rates/Insurance – these costs can be apportioned in direct relation to the percentage of floor space occupied by your business.

• Internet Expenses – 100% deductible if only used for business purposes, otherwise the portion used by the business is a deductible business cost.

• Depreciation of your home – depreciation at allowable IRD rates, is permitted on your home. Again, this must be in relation to the floor space your business uses. A cautionary note – if you cease using your home for business use, you will need to show the claimed depreciation as “depreciation recovered” in your income tax return, something you’ll need to talk to your tax advisor about.

• Depreciation on assets used in your home office e.g. office furniture, office computer equipment.

There are other deductions your home business may be entitled to make. Such deductions differ depending on your type of business. The IRD issues guides to assist you in determining allowable deductions.

It is critical you keep full and accurate records of the all business costs. If you’re unsure whether to claim an expense, or how much is considered business use, consult a tax advisor.

http://www.nzherald.co.nz/small-business-centre/news/article.cfm?c_id=1502221&objectid=10568179

Lattes, movies & paying off debt

BusinessDayBy ADRIAN CHANG – BusinessDay

A latte today is an education tomorrow so saving your tax cuts is the way to go.

That’s the advice of Tom Agee, a senior lecturer at Auckland University’s business school. He says saving the extra $15 per week the average worker receives from today, could add up to an overseas holiday or a university education over time.

Agee says if he and his wife save the $15 per week, between them they would save $1560 every year.  If put into a bank deposit earning 2.5 percent interest per year after tax and inflation, they would have $19,712 in 11 years – enough to pay for their seven-year-old grandson’s university fees.

Alternatively, in five years, those small weekly savings would become $8,300, which would pay for a nice overseas holiday.

“The tax cut is new found income and for those couples who possibly can, saving is the key and compounding interest is the secret,” says Agee.

How exactly the tax cuts, which come in from today, should be spent is a subject of robust debate.  BusinessDay asked leading figures and workers how they thought the tax cuts would be best spent.

Prime Minister John Key recently suggested he would like to see New Zealanders consider giving their tax cuts to charities, who are seeing donations dry up as the recession bites.

Key has also been a strong advocate of the tax-cut-as-stimulus theory and hopes that the extra money in people’s pockets will translate into extra spending to boost the economy out of the doldrums.

However, chairman of the Shareholders’ Association, Bruce Sheppard, disagrees with Key’s advocacy of “spend-spend-spend.” Sheppard says the extra income should go first into saving or paying off debt.

He acknowledges this would do no favours for the local economy because New Zealand’s debt is with foreigners and thus most of the $1.5 billion in tax cuts would be sent overseas.  Despite this, he advocates personal prudence. 

“We are entering unprecedented, unpredictable times.  It’s not quite every man for himself, but John extolling the virtues of spend and pray isn’t going to ring too many bells,” says Sheppard.

ASB chief economist Nick Tuffley says tax cuts elicit a range of responses from households.

“Some people will save the whole lot, some people will spend the whole lot.  You’re going to get the actual outcome fall somewhere in between, which does mean household spending – all other things being equal – is likely to be slightly stronger than it would otherwise be,” says Tufley.

He says last year’s tax cuts were likely to have contributed to the moderate boost in consumer spending seen in the last quarter of 2008.

Erin Johnston, an English teacher from Newlands Intermediate near Wellington, is relatively lucky in that she has the luxury of choice.  Earning the national average of $48,000 per year, she falls nicely into the new definition of the 21 percent tax bracket and therefore can look forward to an extra $15.67 per week.

Because she has no debts and feels secure in her job, she says the extra money will give her a bit more freedom to enjoy herself.

“I will be spending the money on extras like going out for lunch or a movie with friends once a week,” she says.

On the other hand, she says, if there is any extra money left over, it will go straight into a savings account.

“I’m saving because I’d like to go on holiday this year.  I was saving to buy a house, but the way things are, this would be impossible in the foreseeable future.”

Jade Haira does not have the luxury of choice.  She works full time at Burger King for the minimum wage, now $12.50 an hour.  She lives with her parents and pays half her wages as board to help support the family.

Assuming she works on average 37 hours per week, her annual income would be just over $24,000.  That means Haira misses out on direct tax cuts but stands to benefit from the Independent Earner’s Tax Credit (IETC). 

This would leave her with an extra $8 per week after levies, and while she’s grateful for any help, this would barely make a dent on her outgoings.

“There are so many more people out there like me, and none of us are benefitting from this.  All the other poorer people are not benefitting from anything the government is offering, but if you’re rich, you get more benefits from the tax cuts,” says Haira.

She says people at her work are trying to support their partners and children on minimum wages and inconsistent hours and these people are the most in need of a break.

Further, because she and others on the minimum wage only just fall within the threshold to qualify for the IETC, if she were to get sick or go on holiday, her annual income would almost certainly drop below $24,000.

“I feel tied to my job, and losing it would be devastating.  If something happened, like I got sick, well, you can’t help that and it feels like I’d be financially punished for something I can’t control.”

Meanwhile, Labour Party finance spokesman David Cunliffe says people are entitled to use their tax cuts as they want.

“But with a slowing economy, growing job worries and higher food prices, I suspect most New Zealanders will use them just to help ends meet.”

http://www.stuff.co.nz/business/industries/economy/2306373/Lattes-movies-paying-off-debt

Follow

Get every new post delivered to your Inbox.

Join 2,540 other followers