CONDUCTING A HYBRID TRUST

A trust is not a separate legal entity in the same way as an individual or a company, rather it is a relationship which exists whereby a person (Trustee) is compelled to hold property for the benefit of others (Beneficiaries or Unitholders).  The relationship is formalised to the extent the units are held by the beneficiaries and the rights attached to such units can be structured in a similar fashion as shares in a company.

The Trust is constituted by the payment to the Trustee of an amount called the Settled Sum which the Trustee agrees to hold, together with any other money paid or property transferred to it, in accordance with the terms and conditions of the Deed of Settlement executed by the person making the initial donation (the Settlor) and the Trustee at the time that donation is made.  The Settled Sum together with any other money paid or property transferred to the Trustee, is called the Trust Fund.

The Deed provides that the Trust is to terminate on a day called the Vesting Day stipulated in the Deed or such earlier date as the Trustee may determine.

On the Vesting Day, the Unitholders are entitled to the whole of the Trust Fund as it exists at that time.

The Trustee’s powers of investment of the Trust Fund are specifically set out in the Deed, but basically, the Trustee is authorised to do all things which an individual or a company could do in respect of his or its own property.

Duties of the Trustee

The law imposes upon a Trustee a duty to act in good faith for the benefit of beneficiaries and unitholders.  The Trustee must administer the trust in accordance with the terms, conditions and powers enumerated in the Deed and implied by law.

Provided that a Trustee acts in accordance with the terms, conditions and powers contained in the Deed and implied by law, the law will protect it from any liability in respect of those actions or any claim by any beneficiary or unitholder, notwithstanding the result of those actions.

All decisions of the Trustee, if a company, in relation to the trust should be made at a meeting of the directors of the Trustee properly constituted in accordance with the provisions of the Trustee’s Articles of Association.  Proper Minutes of each such meeting of the directors of the Trustee should be kept.

Similarly, proper accounting records should be maintained by the Trustee.  Indeed, the Trustee, if a company, must maintain two sets of financial records - one in respect of its own affairs and the other in respect of its activities as Trustee of the Trust.

If the Trustee’s sole purpose is to act as Trustee of the trust constituted by the Deed, and it will not be engaging in any business on its own account, the books of account and financial records in respect of its own affairs will be extremely simple and should not change from year to year.

It will be necessary for the company generally to comply with the provisions of the Corporations Law in relation to notification of changes in directors, holding of Annual General Meetings, etc and to prepare and approve formal accounts each financial year.

The books of account to be maintained by the Trustee in respect of the trust must record all receipts and payments by the Trustee, all distributions of income, etc.  A formal balance sheet and profit and loss account should be prepared for the trust in respect of each financial year of its operation, and if the trust has earned income during the period, an income tax return must be lodged with the Commissioner of Taxation.

Distribution of Income

The Deed allows the Trustee various alternatives in relation to the net trust income earned in each financial year.  Essentially the Deed requires the net income to be divided into proportions equal to the number of units on issue in the year of income.  For each registered unitholder the net trust income allocated to their units can then be distributed to associates of the unitholder.  Associates are essentially defined to mean the family of the unitholder.

In respect of net trust income not applied as described above, the Trustee holds the remaining net trust income on behalf of the unitholders in proportion to the number of units held.

If the whole of the trust income is distributed to adult Unitholders, the amount received by each unitholder is taxable in the hands of the recipient as an addition to the total income of that recipient.  Thus, if a particular Unitholder received a distribution of $10,000 from the Trustee and earned salary or wages resulting in a taxable income of $40,000, his total taxable income for the year in question would be $50,000.00 and the tax payable by him would be the amount of tax payable on a total taxable income of $50,000.

When distributing income to unitholders it is possible to separately characterise the amounts concerned.  For example, where the trust income includes, say, the receipt of franked dividends, interest income and taxable capital gains then the distribution received by the unitholder can be divided into these three portions.  This will be particularly important where, for example, franking credits are to be passed onto unitholders.

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Distributions of capital

At any time before the winding up of the trust on the Vesting Day the Trustee may exercise its discretion to distribute Capital of the Trust Fund to associates of registered unitholders.  The Trustee is limited to the amount it can distribute in any year of income to associates of a registered unitholder to the proportion of the units held by the registered unitholder.

Capital Gains Tax

With the introduction of capital gains tax, careful consideration will need to be given to the consequences for the Trust of various types of transactions which may give rise to a taxable capital gain.

If the Trustee sells a trust asset to an arm’s length person and realises a gain on the disposal, the gain will be included in the assessable income of the Trust to be distributed or accumulated as any other income.  Capital losses may be subtracted from the gain before a net amount is included as assessable income of the Trust.

Other situations may give rise to deemed capital gains and require careful consideration.  For example, if Trust assets are appointed or distributed to any specific beneficiary, the Trustee is regarded as having sold the asset to the beneficiary at its then market value and a capital gain may arise (depending on the cost base of the asset adjusted to take account of inflation).

For capital gains tax purposes, the units in the hybrid trust will be treated as an “asset”.  Accordingly, the disposal of units by a unitholder could give rise to capital gains tax implications.  Further, the capital gains tax legislation provides for deemed disposal of units where tax free distributions are made on units and the tax free amounts exceed the so‑called “indexed cost base” of the units.

For this reason, it is very important that advice is sought prior to entering into major investment transactions using a hybrid trust structure.  In general, it is our advice that any borrowings that need to be undertaken be entered into by the unitholders.  The unitholders would then invest these funds (together with their own capital) on unit capital subscriptions.  This will ensure that the “cost base” on units held by a Unitholder are maximised.  This could avoid the unitholder from unnecessary tax exposures in future years.

A distribution to a unitholder need not entail a physical payment of the amount distributed to the unitholder.  If the Trustee wishes to retain the money which it has decided to distribute to a particular unitholder it may, with the consent of the unitholder, establish a loan account in the books of the trust in the name of that unitholder and credit the amount of the distribution to that loan account.

However, this creation of a loan account is sanctioned under certain circumstances by the new Section 109UB of the ITAA. Section 109UB states that where a trust makes an unpaid distribution to a corporate beneficiary, and proceeds to loan money, forgive a debt, or distribute an unrealised gain to a shareholder or associate of that corporate beneficiary, a deemed unfranked dividend exists between the corporate beneficiary and the shareholder or associate.

Therefore, provided the loan does not come within s 109UB, the Trustee can deal with the amount of the loan in accordance with the powers given to it by the Trust Deed, but in the absence of any arrangement to the contrary, the unitholder can call for payment of the amount credited to his account at any time.  It should be noted that the amount credited to the new account is nonetheless taxable income of the unitholder.

Winding‑Up

On the winding‑up of the trust on the Vesting Day, or at any time before, the capital of the Trust Fund will be distributed to the unitholders in proportion to the number of units held.

From the Vesting Day, any assets belonging to the trust or constituting the Trust Fund are thereafter held by the Trustee until payment or transfer specifically for the unitholders and in the proportions in which units are held.

The Trustee need not realise the assets of the trust on the Vesting Day, but may transfer those assets to the beneficiaries in specie.

Entering into Contracts

As previously indicated, a trust is represented by the Trustee, which enters into contracts and legal relationships with other persons in its own name.

It is not necessary for the Trustee to disclose to the other party to the dealing that it is acting in its capacity as Trustee of a trust.

Indeed, registers maintained by the Registrar General and company share registers cannot have recorded in them transactions which recognise that a person or company is acting in the capacity as Trustee.  However, it should be noted that companies do have the power, under the Corporations Law to obtain information as to the beneficial ownership of their shares.

Documents of transfer should only name the Trustee and should not refer to the capacity in which the Trustee is contracting.

In all circumstances where the Trustee is entering into contracts or dealing with property, it is essential that the decision of the Trustee to contract or deal with the property in its capacity as Trustee should be properly recorded in minutes of a meeting of the directors of the Trustee.

Conducting the Trust Bank Account

The Trustee should conduct a current account in its own name on behalf of the trust if there are a sufficient number of transactions.  Alternatively, where only a small number of transactions will take place, a savings or building society account will suffice.

All payments to or by the Trustee should be effected through the Trustee’s account.

Control and Change of Trustees

Most Deeds empower the unitholders to remove any trustee of the trust and appoint a new or additional trustee at any time by instrument in writing.

General

This memorandum has been prepared as a general guideline, and is not intended to be an exhaustive or complete statement concerning the operation of a trust.  There are many particular legal and accounting matters which have not been dealt with in this memorandum and clients are urged to discuss any aspect of the operation of the trust not discussed herein with their professional advisers.

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WARNING
 

This memorandum has been prepared by Gadens Lawyers as a general guideline, and is not intended to be an exhaustive or complete statement concerning the operation of a trust.  There are many particular legal and accounting matters which have not been dealt with in this memorandum and clients are urged to discuss any aspect of the operation of the trust not discussed herein with their professional advisers.

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