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Estimated Time to Build: 14 - 19 Minutes
Jurisdiction: Australia Wide
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On the face of it, owning units in a Unit Trust is similar to owning shares in a company. The High Court of Australia stated that a unit in a Unit Trust can be better than a share in a company. A shareholder has no interest in the assets of the company. A Unit Holder has a proprietary interest in all the trust property: Charles v Federal Commissioner of Taxation (1954) 90 CLR 598.
A unit holder can therefore lodge a caveat over land held in the Unit Trust. A shareholder in a company has no such right.
Other differences are:
* A Unit Trust is cheaper to set up and maintain than a company.
* A Unit Trust can take more of the CGT roll over exemptions. However, a Unit Trust can not retain profit. (If it does retain profit then it is taxed at the highest marginal tax rate.) Conversely a company can retain income at only the company tax rate of 30%. Two comparative advantages that Unit Trusts have are eligibility for 50% CGT discount (unlike a company) and a reduced impact of the family trust election rules (unlike a non-fixed trust).
* A trust comes into existence as the result of a private rather than a government Act. There is less governmental regulation of trusts.
* A company is a legal entity in itself. A trust is not a separate legal person and offers more flexibility.
* In a Unit Trust the trustee holds property, such as shares in a company, on trust for the Unit Holders. The Unit Holders are, like beneficiaries under a trust, equitable owners of the investments held by the trustees.
* A company is linked together by a contract in the company’s Constitution. On the other hand, investors in a Unit Trust are not necessarily in any contractual relationship with each other. There is more flexibility in a Unit Trust.
* Although a trust is not a corporation or company, a person connected with a trust may be a company. A company can be a trustee of the unit trust.
* You can sell both shares in a company and units in a Unit Trust. Good Unit Trusts are drafted so that you have to offer your units to other unit holders before you sell them on the open market. Shareholders in a company can enter into similar restrictions through a shareholders’ deed.
1. SHAREHOLDERS AND DIRECTORS CAN GO DOWN WITH THE COMPANY
If you are not careful both a shareholder in a company and a unit holder in a unit trust can be bound for any shortfall. For example, if the shareholder is a director then if the creditors can prove that the director was trading the company while the company was insolvent then the director has to pay the company's shortfall out of his own pocket. What if the shareholder isn't a director? You still aren’t off the hook. If the creditors can show you "acted" like a director then you deemed a director. (For example, if your wife attends your director meetings and helps decides what the company is doing then she is deemed a director.) Therefore, both shareholders and directors can go down with the company.
Does that mean that a Unit Trust has better insolvency protection than a company? To help, put in another layer of protection you can make the trustee of the unit trust a company.
2. UNIT HOLDERS AND TRUSTEES IN A UNIT TRUST DON’T GO DOWN IF THE UNIT TRUST GOES BROKE
When you build and purchase your Unit Trust you will get hints on how to protect the Unit Holders and the Unit Trusts Trustee.
The Unit Trust that you are currently building has plenty of powers for the Trustee to make its own decisions. If you follow the rules then you will protect both the Trustees and the Unit Holders.
The Unit Holders are not generally liable for the debts of the Unit Trust. They generally only lose the money they put into the Unit Trust. Obviously if the Unit Holder signs guarantees then the Unit Holder is liable for the guarantee.
Trustees of the Unit Trust can be liable for occupiers liability and other obligations. You may wish to put in another layer of protection by making the trustee a company.
TAXING OF COMPANIES AND UNIT TRUSTS
The ATO treats a company as an "individual taxpayer". However, companies only pay 30% on every dollar of profit. Human beings instead pay tax on a sliding scale. E.g. Tax on the first $6,000 is actually tax-free. While at the top end the human being pays 48.5% of the income to the ATO.
The ATO has many complex rules on dividends, "franking" and exempt income.
Although a company is entitled to certain tax deductions and incentives, such as the 50% small business CGT concession, these benefits are lost by "clawing back" (i.e. subjected to tax) when the company's "accounting income" is distributed to shareholders in the form of unfranked or partly franked dividends.
Many people can't believe the company misses out on all the CGT exemption. Although this is technical (sorry) the "claw-back" works like this:
1. your company declares dividends from "accounting profit", while the tax a company pays is determined with reference to "taxable income";
2. a dividend from "accounting profit" is franked only to the extent that the company has paid tax on its "taxable income";
3. when "taxable income" is less than "accounting profit", due to tax concessions, there is a portion of the company's "distributable profit" that can only be distributed without attaching a "franking'', or essentially tax-paid, credit; and
4. the taxation deductions or concessions which cause "taxable income" to be less than "accounting income" are taxed or "clawed back" in the hands of the shareholders when they are taxed on the non-franked portion of their dividends.
At the end of the day the Unit Trust is cheap to operate and has many advantages over a company.
This hint is provided by Law Central Legal.
The names of trusts are nothing more than “nick names”. Eg you could have the McScrooge Unit Trust. It doesn’t make any difference to anyone. People often call a Unit Trust after their surname or even after what they do. E.g. The Brick Layers of Double Bay Unit Trust. You can’t register a Unit Trust name anywhere.
You can of course (and you should register) a business name. If the Unit Trust is trading under its Unit Trust name then it is also a business name and should be registered.
Another idea is to call the partnership after the names of the unit holders. e.g. Smith Weston Unit Trust. (The words "Unit Trust" appears automatically. You don't need to write it in.)
This hint is provided by Law Central Legal.
It is not fair to pit a Unit Trust against a Family Trust. They do different jobs.
A Family Trust can only have, at most, mum and dad running it. A unit trust can have a number of arms length people running it.
In a Family Trust mum and dad are God. No one can tell them what to do. If they have a wayward son then just stop distributing income to him. A Unit Trust has nothing to do with families. It has everything to do with running a business or holding assets with non-family members.
The Unit Holders get a number of units. Say, you get 50 units. I get 40 units. If the Unit Trust makes $90 profit then I must get $40. You get $50. Even if you hate me I still get my entitlements, based on the number of units I hold.
Conversely, Family Trusts don't have any fixed entitlements. Mum and dad just distribute income to the lowest income earners (to reduce tax). Unit Trust holders get whatever their entitlement is - no discretion.
If you only need an entity for you and your spouse then think about a Family Trust. If you need an entity for others like business people and other members of the family then think about a Unit Trust.
Do you love the discretion to distribute income as you see fit? That can only be found in a Family Trust. Then consider the unit holder as the Trustee of the Family Trust.
This hint is provided by Law Central Legal.
Unfortunately unit holders can be liable to pay any shortfall of assets on the Unit Trust going broke. This is the case especially if the trust is not properly drafted.
In Broomhead Pty Ltd (in Liquidation) v Broomhead Pty Ltd Justice McGarvie stated that the unit holders in a Unit Trust were liable to indemnify the trustee against liabilities incurred in carrying on a business. In this case the share of each beneficiary’s liability was limited to the proportion of his or her beneficial interest.
Careful planning can protect the unit holders. Your Unit Trust is designed to ensure that the Unit Holders are not liable for any shortfall in the trust. There are also practice directions and hints given to you after you purchase the Unit Trust.
This hint is provided by Law Central Legal.
Tax Advantages of Unit Trusts
Unit Trusts are taxed very favourably when compared to a company.
INCOME
As with all trusts, the net income or loss of a unit trust is subject to the general provisions of Div 6 of ITAA 1936. So far as net income is concerned, in the case of a unit trust where the unitholders have a vested and fixed interest in the income and capital of the trust, the unit trust essentially a "flow-through" entity. This means that the unitholders are assessable on their proportionate share of the total net income in each year.
SELLING UNITS OF THE UNIT TRUST
A taxpayer selling units in a unit trust:
* can qualify for the 15-year exemption, provided that you held the units for at least 15 years, the unit trust had a "controlling individual" for that entire period (although it need not have had the same controlling individual) and the disposal happened in connection with the individual's retirement;
* can qualify for the additional 50% small business reduction, provided that the unit trust whose units are sold has a "controlling individual" just before the time of the disposal;
* can qualify for the small business retirement exemption (up to the $500,000 lifetime limit), provided that the unit trust whose units are sold has a "controlling individual" just before the time of the disposal. If the unitholder is under 55, the relevant capital proceeds must be paid into a complying superannuation fund; and
* can qualify for the small business rollover relief, provided that the unit trust whose units are sold has a "controlling individual" just before the time of the disposal and the proceeds are used to acquire other active assets within a period of two years.
SELLING ASSETS DIRECT OUT OF THE UNIT TRUST
A unit trust selling assets:
* can qualify for the 15-year exemption, provided that the unit trust held the assets for at least 15 years, the unit trust had a controlling individual for that entire period (although it need not have had the same controlling individual) and the disposal happened in connection with the individual's retirement. There is no recapture of the exempt amount when it is distributed to the unitholders or their spouses;
* can qualify for the additional 50% small business reduction. It is not necessary to identify a controlling individual in these circumstances. However, when the exempt amount it distributed to the unitholders in the unit trust, it will take the form of a non-assessable amount, and therefore triggers CGT event E4. The benefit of the additional 50% reduction in these circumstances is therefore only a timing benefit, as it is ultimately recaptured at the unitholder level;
* can qualify for the small business retirement exemption (up to the $500,000 lifetime limit), provided that the unit trust has a "controlling individual" just before the time of the disposal. If the unitholder is under 55, the relevant capital proceeds must be paid as an ETP and rolled into a complying superannuation fund; and
* can qualify for the small business roll over relief. It is not necessary to identify a controlling individual in these circumstances, although the proceeds must be used to acquire other active assets within a period of two years.
The upshot of all of this is that access to these great CGT small business concessions are a lot more simple than a company.
This hint is provided by Law Central Legal.
INTRODUCTION
Under the in-house asset rules, a self managed superannuation fund (SMSF) can’t have in-house assets of more than 5% of the SMSF’s total assets.
An "in-house asset" includes an investment in a "related party".
A SMSF is "related" to your Unit Trust if a member (including relatives) of the SMSF is also a trustee or Unit Holder.
The rule is that your SMSF can't own Units in a related Unit Trust. If you or an "associate" owns units then your SMSF can't also owns units in the Unit Trust. This breaches the "in house asset" rule.
This makes a lot of people upset. You may have wanted to buy a block of flats for $2 mill. You have $1 mill in your SMSF. The Unit Trust buys the flats. The SMSF buys 1 million units at $1.00 each. You borrow (in your own name - nothing to do with the SMSF) $1 mill and buy your units in your own name. You Unit Trust now has the $2 mill it needs. Sounds great? Sorry your Unit Trust can't own units in this Unit Trust. The SMSF is "associated" with the Unit Trust. It therefore breaches the "in house asset" rules. Like I said a lot of people get angry over this.
EXECEPTIONS
Certain assets are specifically excluded from the in-house asset definition. The most important exemptions are investments in business real property, leases between the fund and a related party, and investments in widely-held unit trusts. (A “widely-held trust” are a bit like shares on the stock market – you need a lot of owners.)
Your SMSF can also invest in related unit trusts that meet specific conditions prescribed by SISR. You won't like these much either. But here is a way that your Unit Trust have both you and your SMSF as Unit Holders:
Your SMSF can purchase Units in a "related" unit trust if you can meet SISR regulations 13.22B or 13.22C. These conditions are:
* the unit trust does not borrow;
* there is no charge over an asset of the unit trust;
* the unit trust does not invest in or loan money to individuals or other entities (other than deposits with authorised deposit-taking institutions);
* the trust has not acquired an asset from a related party of the SMSF (after 11 August 1999) other than business real property acquired at market value;
* the unit trust had not acquired an asset (apart from business real property acquired at market value) that had been owned by a related party of the superannuation fund in the previous 3 years (not including any period of ownership prior to 11 August 1999);
* the unit trust does not, directly or indirectly, lease assets to related parties, other than business real property;
* the unit trust does not conduct a business; and
* the unit trust conducts all transactions on an arm's length basis.
The above concession means that a SMSF may jointly invest with members and employer-sponsors in a unit trust that owns real property that is used for business purposes, and the business real property may be leased to members and employer-sponsors. This provides greater flexibility to funds which prefer to have such joint investments using a unit trust, rather than a tenancy in common arrangement (which is also an exception to the in-house asset definition). This flexibility allows a fund to effect a change in ownership of the investments by selling the units in the unit trust instead of disposing of the business real property itself.
CONCLUSION
The good old days of being able to gear up your SMSF via a Unit Trust are gone. SMSFs are complex and you need to get legal advice before you think of getting your SMSF to take up Units in a Unit Trust.
This hint is provided by Law Central Legal.
Family Trusts and Self Managed Super Funds need updating often. Unit Trusts however don't need as much amending to keep them up to speed.
As the years roll on there may be times where there are additional tax benefits by amending your Unit Trust.
As they come to hand, we will post them on the LawCentral.com.au web site.
Much like maintenance on a car, the cost of upgrading a Unit Trust can be as expensive, if not more, than the initial cost of the Unit Trust.
This hint is provided by Law Central Legal.
Your Unit Trust is drafted to make sure that you can borrow money - that is only one of its many powers given to it. (If you are thinking of giving Units to your Self Managed Super Fund then forget it, you can't gear up your SMSF via your Unit Trust.)
Just because your Unit Trust has the power to borrow money doesn’t mean that a bank will loan you money. The bank wants good security like mortgages over assets and guarantors. Unless you have a lot of money or net wealth in your Unit Trust the bank wants the Trustee(s) to go as guarantor. They may even want Unit Holders and their first-born child to go as guarantors. The bank wants to know that if the Unit Trust can't pay back the debt then others will do so.
WHAT OTHER POWERS DOES THE UNIT TRUST HAVE?
Here is a taste:
1. To
advance and lend moneys to;
borrow and raise moneys from; or
secure by mortgage or otherwise howsoever the payment of or obligation to pay money to,
any Person (including a Unit Holder) and upon any terms with or without security or interest and to join with any Person in executing any mortgage or other document for the purpose of securing the payment of money to or by the Trustee jointly with any Person or for the purpose of securing the payment of money to or by any Person.
2. To give guarantees or indemnities for the payment of money or the performance of any contract obligation or undertaking by any Person.
3. To vary or transpose any investments into or for any other or others of any nature and to vary the terms of or property comprised in any security.
4. To hold, use, purchase, construct, demolish, maintain, repair, renovate, reconstruct, develop, improve, sell, transfer, surrender, let, exchange, take and grant options or rights in, mortgage, release or discharge or otherwise deal with any property.
5. To pay out of the Trust Fund or the income all costs charges and expenses of and incidental to the management of the Trust Fund.
6. To exercise all rights and privileges and perform all duties and do all acts matters and things appertaining to any shares stock or debentures in any Company for the time being comprised in the Trust Fund as the Trustee could do if it was the beneficial owner of the shares stock or debenture or was personally interested or concerned in the Company.
7. To acquire carry on or join in carrying on any business either alone or in partnership with any other Person.
8. To act as manager or to employ any persons (including a Trustee or a Unit Holder) contractors managers solicitors accountants clerks workmen employees or agents to transact all or any business of whatever nature.
9. To partition or agree to the partition of or to subdivide or agree to the subdivision of any land.
10. To establish promote or acquire any corporation or join in the promotion establishment or acquisition thereof.
11. To open accounts with any bank or building society and to operate by and in all usual ways any such accounts.
12. To give effectual receipts and discharges for any moneys received by or on behalf of the Trustee or otherwise relating to any of the acts matters and things provided for in this Deed.
13. To grant an option for any part of the Trust Fund to any person and to take an option on behalf of the Trust Fund from any person.
14. To become a director of any Company in which the Trust Fund may be invested or to appoint any person to act as director of any such Company.
15. To take such action as the Trustee thinks fit for the adequate protection of any part of the Trust Fund.
This hint is provided by Law Central Legal.
Yes the LawCentral Unit Trust will have discretionary units. These are called "par units" by lawyers.
These "par units" are Self Managed Super Fund "friendly". The "par units" don't offend or operate for Self Managed Super Funds that are unit holders.
This hint is provided by Law Central Legal.
Some people say that offends the rules relating to Trust Law. That is not the case.
Consider John. John is the sole Trustee of the Unit Trust and John is the sole Unit Holder. This would offend the rule of Trust Law. Trust Law requires that a Trustee holds something in trust for someone different than themselves.
However let’s say that John's wife Linda also becomes a Unit Holder. That is perfectly acceptable.
What about if John and Linda are Trustees and they are also the sole Unit Holders. That is also fine. This is because John as Trustee is holding part of the Unit Trust assets in trust for someone different than himself. The same is true for Linda. That is a valid trust.
If you want to be more technical, John can even be the sole Trustee and sole Unit Holder. This would be OK if John was holding the units in the Unit Trust on trust for his Family Trust (very common) or as Trustee for someone else.
SUMMARY
John is both sole Trustee and Unit Holder (only OK if John holds the units in trust for another)
John & Linda are the only Trustees and Unit Holders (this is perfectly acceptable).
John is sole Trustee and the Unit Holders are only John and Linda (perfectly acceptable).
This hint is provided by Law Central Legal.
You can have one or more Trustees.
For example you and you business partner can both be Trustees. Therefore, Luke and his business partner Diana can be the sole Trustees.
What about if Diana wants her company (Diana Pty Ltd) to be Trustee? You business partner can be Trustee via her Company. (Companies cost over $1,200 to set up and cost a lot to maintain each year.)
In that example, the Trustees are Luke and Diana Pty Ltd
This hint is provided by Law Central Legal.
It is a personal call whether you want a company to be one of the Trustees. You can have both humans and companies as Trustees together in the same Unit Trust. Alternatively, the Unit Holders can share the cost setting up and maintaining a company between them.
A company costs over $1,200 to set up. They also cost a lot to maintain each year. Mistakes in operating a company incur the wrath of the ASIC. There are criminal and personal fines attached to a director that is a "silent" director and allows his other directors avoid the strict rules and guidelines contained in the 2nd largest piece of legislation in Australia's history known as the Corporations Law.
Some people argue that you get "Limited Liability" from a company. This is more relevant if your Unit Trust is going to "trade" (rather than just hold assets like property). However, since the Corporations Law was introduced in Australia it is now the case that the directors (and even shareholders) can go down with the company.
Let’s say that Ryan, Jason and Nikita set up a company and make it the Corporate Trustee of this Unit Trust. They agree to share the cost of maintaining the company between the 3 of them. They have equal shares in the company. Ryan tells you that he wants to be a director because "I want to know what is going on". Jason and Nikita aren't so certain. If the company trades insolvent then the directors (and deemed directors) go down with the Unit Trust. They however also want to keep and eye on things. The Trustee has to follow the rules of the Unit Trust. The Unit Trust is ultimately controlled by the Unit Holders and not the Trustees.
Also, if you have a Corporate Trustee, all your minutes relating to the Unit Trust need to comply with the Corporations Law. This forces greater administrative burden onto the Unit Trust.
So it is your call whether you need a Corporate Trustee. If you have the money then feel free to stick in a Corporate Trustee.
This hint is provided by Law Central Legal.
You can get these Units in your own name personally.
Or you can acquire these units in trust for say your "Jason Thomson Family Trust".
Or you can acquire these units in trust for your baby that was born only 3 weeks ago.
Or you can acquire these units in trust for your father who is too sick to attend to these things.
Or you can acquire these units as Trustee(s) of your Self Managed Superannuation Fund.
Go to the bottom of the page which asks: "This Unit Holder(s) holds these Units:"
FOR A FAMILY TRUST
All you do is complete the name of the trust and date in the bottom text box. Eg "Jason Thomson Family Trust" or any other words that adequately describe the trust. (You could put in the date as well, so it would read "Jason Thomson Family Trust dated 6 December 2005".)
If you and your spouse are the Trustee then in the "Last Name" put in your surname and then put in "and Spouse Full Name".
HOLDING ON TRUST FOR ANOTHER PERSON
All you do is complete the bottom text box with that person's name and date of birth.
E.g. "Mary Thomson whose date of birth is 17 August 1960".
HOLDING ON TRUST FOR 2 OR MORE PERSONS
If you are holding the units in trust for 2 or more people then just type in:
"Mary Thomson whose date of birth is 17 August 1960 - as to 20 units and John Thomson whose date of birth is 23 May 1963 - as to 14 units"
HOLDING ON TRUST FOR A SELF MANAGED SUPER FUND
If you are the trustee or trustees of the Self Managed Super Fund then put in the name of your Super Fund:
"Smith Self Managed Superannuation Fund"
This hint is provided by Law Central Legal.
The Australian Tax Office (ATO) regulates Self Managed Superannuation Funds (SMSF). The ATO wants all the Trustees of the SMSF to own the shares.
Therefore, if you, your spouse and your best friend James Ketchell are trustees of the SMSF then all of your would need to be named as the trustee of these units.
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QUESTION: But what if only my spouse acquired these units for the SMSF. James and I don't want the units. We don't want them in our names because they are not for our benefit. It is my wife that is buying the Units for the SMSF - not us.
ANSWER: I understand that the SMSF is acquiring the Units only for your spouse's benefit. I understand that you and James will never gain a benefit from the Units. The SMSF is buying the Units for one of its members - that is your spouse. However, all 3 of you MUST be the legal "owners" of those Units. You see, all 3 of you must hold in your own names all assets of the SMSF.
For example, if James wants to purchase some land for the SMSF - but just for himself - then all 3 of you need to go as the owners of that land. You would record the fact that the SMSF only holds the land for the benefit of James.
The same is the case here for Units in a Unit Trust. These units may be acquired by the SMSF just for your spouse but all of you must be recorded as the owners because all of you are the Trustees.
If you break this rule then your auditor will refuse to sign off on your yearly audit. The ATO will also come down on you.
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QUESTION: Can we just hold 1/3 of the units each as Trustees of the SMSF?
ANSWER: No you can't. All 3 of you have to hold 100% of the units that the SMSF will own.
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QUESTION: Ok, I get it. How do I record myself, my spouse and James as the Unit Holders? There is only space for one person on this page?
ANSWER:
First Name: John
Middle Name: Jeffrey
Last Name: Smith and Joanne Louise Smith and James Ketchell
This hint is provided by Law Central Legal.
A Unit in a Unit Trust is like a Share in a Company. It is your measure of wealth in the Unit Trust.
If you wanted 55% of the company and you were putting in $5,500 then give yourself 5,500 Units. You would then give the other Unit Holders a total of 4,500 Units.
Each Unit Holder automatically also gets a "Par" or "special" unit. This unit has no value but it helps you distribute money to other members of the family.
For true flexibility think about your Family Trust holding the Units.
This hint is provided by Law Central Legal.
The Trustee or Trustees hold the Unit Trust assets in trust for the Unit Holders.
The Unit Holders are therefore the beneficiaries of the trust.
Each Unit Holder gets a number of units in the Unit Trust. In a company you get shares. In a unit trust you get units.
If you have 20 units and your friend has 80 units in the Unit Trust then you get 1/5th of the income and voting rights. Your friend gets 4/5ths of the income and voting rights.
Any human being or company can be a Unit Holder.
This hint is provided by Law Central Legal.
You can have one or more unit holders.
You can have one Unit Holder if you want. However, you can't be both the sole Trustee and sole Unit Holder. Trust law states that you the Trustee has to hold it on trust for an object or person other than just yourself. If you and your friend were Trustees then you could be the sole Unit Holder.
It is also OK if you and your friend were both the Trustees and the Unit Holders.
E.g.
This is NOT ok: John Smith as sole Trustee and sole Unit Holder.
This is fine: John Smith as sole Trustee and John Smith "as trustee of the Smith Family Trust" as sole Unit Holder. (This is OK because John holds the Units in trust for his family trust).
This is fine: John Smith and Jenny Smith as Trustees and John Smith as sole Unit Holder.
This is also fine: John Smith and Jenny Smith as both the Trustees and Unit Holders.
This hint is provided by Law Central Legal.
You date the Unit Trust after it is signed by the parties or once it starts to operate - which ever is the earlier date.
Usually, all the parties sign the document over the next few days. The last person dates the document.
But what happens if one of the parties never signs the document? For example, if John signs the Unit Trust but Fred never does then you date it when you started using the Unit Trust.
Once the Unit Trust comes into effect you need to lodge it for state duty. There is a kit that tells you how to do this, once you purchase this Unit Trust.
This hint is provided by Law Central Legal.
Well I am sorry about that.
Pretty much everyone uses $1.00 for the unit value. If you are going to put in $50,000 then you get issued 50,000 units.
If you are going to put in $10 then you only get 10 units.
If that does not suit you then you will not be able to use this document.
This hint is provided by Law Central Legal.
This document has been prepared by the law practice Law Central Legal
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