When commencing a business venture, it is necessary to consider the most appropriate type of business structure to put in place. Different business structures have different benefits and disadvantages. This article looks at trusts – how to establish a trust and the pros and cons of the trust structure.
Key Features
A trust is an obligation imposed on a person (the trustee) to hold property or income for the benefit of others (the beneficiaries). A trustee is responsible for the operation and management of the trust. A trustee can be an individual, partnership or a company or a combination of them. There are a number of laws which govern how a trustee must perform its obligations regarding the trust. The primary obligation of a trustee is to act in the best interests of the beneficiaries of the trust.
Trusts can be set up for a number of reasons, including family, commercial and charitable purposes. For business purposes, the most common types of trusts are:
- Discretionary trusts (also commonly referred to as a family trust): The trustees of a discretionary trust are (subject to the terms of the trust) able to distribute income and capital to beneficiaries in whatever way they desire. There is no fixed entitlement for each and every beneficiary.
- Unit trusts: A unit trust is in some ways similar to a company where the trust property is divided into a number of parts called units. The number of units held by each beneficiary determines his or her entitlement to a share of capital (assets of the trust) and its associated income.
- Hybrid trusts: are a mix between a Discretionary and a Unit Trust. Beneficiaries may hold a defined amount of units but the trustee may retain some discretion as to the payment of either capital or income.
How to establish a Trust
A formal deed is usually prepared in order to establish an expresstrust. A trust deed outlines the purpose of a trust, the initial trustee, the property involved, the rights and obligations of the trustee and beneficiaries and how assets will be distributed to the beneficiaries. It is recommended that a trust deed be prepared by a solicitor.
If operating a trust for business purposes a trust can have its own Australian Business Number (ABN), which can be obtained online through the Australian Business Register.
A trust may also need its its own Tax File Number (TFN), which can also be obtained online from the Australian Taxation Office.
A trust must be registered for GST if its annual turnover is $75,000 or more.
Trusts that run a business should complete an annual tax return, showing the income the trust earns, deductions it claims and the amount of income distributed to each beneficiary.
Pros and Cons
The advantages of a trust structure include:
- Flexibility in how income is distributed
- Tax planning flexibility, including income splitting advantages
- Asset protection
- Beneficiaries are generally not liable for the debts of a trust
- Beneficiaries of a trust pay tax on the income they receive from the trust at their own marginal tax rates
- A trust is more private than a company
The disadvantages include:
- A trust is a complex legal structure, which is expensive to set up and run
- There are considerable legal and compliance requirements
- There can be inflexibility, as powers are restricted by the trust deed and the law
- With a trust with many beneficiaries there can be disputes between beneficiaries and with the trustees
- It can be difficult to make changes to the structure (including taxation issues) once it is set up
Conclusion
A trust might be an appropriate structure if a business venture will involve a sizeable amount of property and money. That is because a trust can be beneficial in protecting assets and minimising taxation obligations. Trusts are also a common structure choice for family businesses as various family members can be made beneficiaries of the trust that is operating the business.
A trust one of the more complex of all the business structures, with complicated tax implications and legal and compliance requirements. As such, it is highly recommended that advice is sought from a solicitor to check whether a trust suits your circumstances.
If you need assistance or advice on how to proceed please contact us on (08) 8344 6422 or email [email protected].