cleaning up the div 7a loans and upe mess · 2016-05-16 · cleaning up the div 7a loans and upe...
TRANSCRIPT
CLEANING UP THE DIV 7A
LOANS AND UPE MESS
Chris Wookey, CTA
Deloitte Private
1997 Div 7A Genesis
2009 The Great Flood
2010 TR 2010/3 & PSLA 2010/4
UPEs subject to new rules
2011 PSLA 2010/4 revised
UPEs placed on terms
The journey
2
2011 + 7 = 2018
3
November 2014 BoT report recommendations
Will it last?
4
Balance reduction
schedule
75% by end of year 3
55% by end of year 5
25% by end of year 8
0% by end of year 10
Div 7A changes “will draw on a number of
recommendations” from the BoT report – NB: not all
“targeted amendments” – keeping the bulk of the rules?
“appropriate transitional arrangements”
“single compliant loan duration of ten years” – 25 years?
Self-correction mechanism
Safe harbour rules (use of assets)
Technical amendments
Effective from 1 July 2018 – too late for 2010 UPEs?!
2016 Budget announcements
5
Meanwhile in the real world…
6
Option 0
Option 1 Option 3
Option 2
Dividends
Trust balance sheet liabilities:
UPE – Corporate Beneficiary Pty Ltd <2009
UPE – Corporate Beneficiary Pty Ltd 2010
UPE – Corporate Beneficiary Pty Ltd 2011
UPE – Corporate Beneficiary Pty Ltd 2012
UPE – Corporate Beneficiary Pty Ltd 2013
UPE – Corporate Beneficiary Pty Ltd 2014
UPE – Corporate Beneficiary Pty Ltd 2015
Debit loans/trust entitlements receivable each year
Interest calculations on daily balance
Interest payments by deadline
What mess?
7
Option 0 trap
8
T2
T1
CB
$
DistributionOpt 0
Restructuring a unit trust
9
FT1 FT2
Unit Trust
FT1 FT2
Unit Trust
Co
122-A
FT1 FT2
Unit Trust
Co
Unit Trust
FT1 FT2
Co
12
4-N
Restructuring others
10
FT1 FT2
FT1 FT2
Co
12
2-B
FT1
FT1
Co
12
2-A
or 328-G
SB restructure
rollover?
122-A rollco balance sheet
11
$m $m
Debtors 1.0
Stock 1.0
Fixed assets 2.0
Goodwill 4.0
8.0
Overdraft 1.0
Loans 3.0
Share capital 4.0
8.0
Treatment
upon release?
PS para 56:
The payment of the principal funds invested in the main trust (that is,
the funds representing the UPE) and annual return to the private
company must be such that if those payments had instead been
repayments of a Division 7A loan made by a private company, they
would not be disregarded by section 109R.
Cash
Set off
In specie transfer
(Re)payment
12
Forgive the UPE
Deemed dividend
Commercial debt forgiveness?
Deduction or capital loss for company?
Refinance
External lender
Related party
Same
New
Alternatives to payment
13
Perpetual motion “washing machine”
14
Trust
Co
Owes UPE
NewUPE
CB declares and credits dividend
Set off against UPE
Refinance to 25-year s109N loan
15
Trust
Co
Owes UPE
18 year secured 109N loan
Refreshed UPE – same trust
16
Trust
CB2New UPE
CB1
Dividend set off
against UPEOwes UPE
Refreshed UPE – 2nd trust
17
T 2
CB2New UPE
CB1
Dividend.
$ receivable assigned
to T2 in satisfaction
T 1
Owes UPE
New s109N loan
Refreshed UPE – 2nd trust ver.2
18
T 2
CB2New UPE
T1 receivable assigned
in satisfaction
CB1
Dividend.
$ receivable assigned
to T2 in satisfaction
T 1
Owes UPE
New s109N loan
Non-payment consequences
19
Ordinary loans
Familiar statutory outcomes
UPE interest
Subdiv EA exposure
S-TrtTrtCB
Principal/loan
Unpaid interest Unpaid distribution
Corpus
Non-payment of UPE principal
20
S-TrtTrtCB
Owes UPE
Corpus entitlement
Subtrust does not
insist on payment
Actions attributed to…
Financial accommodation?
Pecuniary assistance? 109D loan?
Same controlling
mind
Complexity and artificiality
“Dealing with complexity is an inefficient and unnecessary
waste of time, attention and mental energy. There is
never any justification for things being complex when they
could be simple.” - Edward de Bono
Thank you
Please complete your evaluation forms
on the event app (or in your delegate
folder)
© Chris Wookey 2016
Disclaimer: The material and opinions in this paper are those of the author and not those of The Tax Institute. The Tax
Institute did not review the contents of this presentation and does not have any view as to its accuracy. The material and
opinions in the paper should not be used or treated as professional advice and readers should rely on their own enquiries
in making any decisions concerning their own interests.
This publication contains general information only, and none of Deloitte Touche Tohmatsu Limited, its member firms, their
related entities (collectively the “Deloitte Network”), or the author is, by means of this publication, rendering professional
advice or services. Before making any decision or taking any action that may affect your finances or your business, you
should consult a qualified professional adviser. No entity in the Deloitte Network or the author shall be responsible for any
loss whatsoever sustained by any person who relies on this publication.
23