Lots of Auckland, North Shore residents and business owner consider establishing a family trust. It is often believed that this is a good method for protecting assets and making some tax gains too. While this is correct, there are some rigid guidelines and obligations that a trust must adhere to. If the trust does not, then the status of the trust can be questioned by the IRD and the trustees might be liable to financial penalties. This post is not legal advice so before you go any further, consult a North Shore trust lawyer who will be able to help you avoid these pitfalls.
Is your trust set up with the correct intention?
A trust can be tested in court to establish if it was set up with the right intent or not and many trusts have been declared null and void for having the wrong intent. For example, if you think you can lower your income tax by placing assets in a trust, which is an illegal tax motive and will probably be successfully challenged in the courts. Also, if the owner of assets sets up a trust to prevent a spouse from gaining access to shared relationship property, then that is the wrong intent and is likely to fail in court.
In 2011, the IRD was awarded a landmark case in the NZ Supreme Court against two business owners artificially lowering their income to avoid paying the correct amount of tax. This case was against two surgeons, Drs Penny and Hooper who set up trusts and paid themselves lower salaries to avoid tax. Subsequently, the IRD offered a voluntary disclosure option to other trustees whereby they could pay tax arrears for two years. For those who did not come forward, there would be no leniency and they would have to repay all outstanding tax.
So it is plain to see that it is essential that your family trust is created in the right way for the right reasons. A trust lawyer on the North Shore will be able to help anyone interested.
Some other thoughts about forming a family trust
As long as your intention is right and you follow the advice of a competent trust lawyer, then you will be fine. However, you do need to bear in mind some other issues.
Control and ownership of assets
Once an asset is transferred to a family trust, the trust is now the actual owner. The previous individuals who owned that asset are not the owners from that date onwards. This can create some headaches for people especially if they have placed their main residence into a trust. It can be a challenge to remember that you cannot treat the home as you own it. For example, if you want to build an extension, then you have to get the approval of the Trustees. The issue of home ownership can become even more complex if the trustees decide to sell the dwelling and the family is still living in it.
A lawyer will help you understand the potential issues if you want to take this route.
Fees for forming a trust
Many people think they only fee they will incur when setting-up a trust is the charge from their lawyer. Certainly there will be a fee for creating the Trust Deed but you will probably face other charges from the lawyer and 3rd parties too.
To avoid any potential challenges from the IRD, assets have to be transferred at the current market value. So for a house or business that you may want to transfer, you will need to organise professional valuations that can be presented to the tax department. Obviously these will attract fees.
But your lawyer will also have to go through a formal sale and purchase process to legally transfer those assets. It’s just like selling a house in the normal way. So you will also be charged for that too.
Seeing as you are selling the property to a new owner, you may also be liable to mortgage-break costs depending on the terms of any property mortgages. Your lender may be a bit lenient of the trust is going to take out a similar mortgage with them but be prepared for that cost.
One of the other major requirements for a trust is that it is managed correctly. There are lots of minute details that absolutely must be followed for the trust to remain lawful. If these tasks are not carried out, the IRD can claim that it is a tax avoidance issue with appropriate penalties.
Given the intricate requirements for the administration of a trust, it is best practice to use a specialist trust administrator. This can be an accountant or a lawyer.
You should also remember that a trust is required to produce a set of Annual Accounts verified by an accountant.
Obviously, both of these will incur annual charges.
Forming a family trust – a summary
From the above it is clear that there are significant issues to take into account when forming a family trust. With the complex legal issues involved, it is best to talk a specialist family trust lawyer on the North Shore before you go very far down the track. This could save you a lot of money later on.