Getting Money Out of Trusts and Companies Tax Effectively – a recorded online conference

Session 1: Withdrawing Company Funds: Optimising the Tax Outcome

A perpetual issue for tax practitioners is tax effectively dealing with funds withdrawn or to be withdrawn from a company by the business owners. The situations can vary from business owners drawing funds on an ad hoc basis, to extracting surplus company funds when a company’s trading operations have ceased. This session examines tax effective methods of addressing the issues, including:

• The various methods available to withdraw funds from a company and the tax implications of each
• The pros and cons of liquidating a company to achieve a more tax effective result, including:
  • treatment of retained earnings from pre CGT assets and use of the “Archer Brothers Principle”
  • tax benefits of “drip feeding” future dividends
• Dealing with retained funds in a company as a result of previous income being attributed to an individual under the PSI regime (sec. 86-35 ITAA 1997)
• Tips and traps when managing Division 7A implications, including the impact of an increasing interest rate environment
• Situations when use of various small business CGT concessions may result in different tax outcomes once funds flow to shareholders
• Strategies for dealing with “top up” tax
• Can dividend access shares be tax effective? (TD 2014/1; TA 2012/4)
• Allocating professional firm profits in a company in accordance with PCG 2021/4

Session 2: Getting Funds Out of Trusts: Maximising the Tax Benefits

The ongoing tightening of flexibility in relation to the use of trusts has no doubt left many practitioners scratching their heads when it comes to managing the tax effective appropriation of trust income. This session delves into the strategies available to maximise the tax effectiveness of the trust structure, including:

• Practical strategies to manage discretionary trust distributions in accordance with:
  • sec. 100A ITAA 1936 (TR 2022/4, PCG 2022/2)
  • Division 7A ITAA 1936 (TD 2022/11)
• Managing use of the CGT small business concessions to minimise potential impact of CGT event E4 for unit trusts
• A guide to identifying and calculating amounts that impact on CGT event E4 (sec. 104-70, 104-71 ITAA 1997)
• A heads up of situations where sec. 99B ITAA 1936 may apply to Australian resident trusts
• Is the distribution tax effective if the reasoning behind the distribution lacks “real and genuine consideration to all beneficiaries? (Owies v JJE Nominees Pty Ltd [2022] VSCA 142)
• Allocating profits of a professional firm conducting business in a trust (PCG 2021/4)
• To wind up or continue? Is vesting an option? (TR 2018/6)
• When a restructure from a trust arrangement may be tax effective and the processes available to achieve the desired result

Session 3: Managing the Buildup of Retained Profits: Is it Time for a Restructure?

The build-up of retained profits in a trading company over time can cause an asset protection risk to that company. However, paying out the retained profits to existing shareholders may not necessarily assist with asset protection aims or the tax effective distribution of profits. This session explores how restructuring by inserting a holding company between the trading company and the existing shareholders may achieve a desirable outcome, including:

• What are the tax benefits of inserting a holding company?
• How capital gains tax rollover relief can be applied when restructuring
• How the CGT rollovers impact on the parties to the transaction
• If the trading company is a base rate entity, will dividends received by a holding company also be subject to the base rate entity tax rate?
• Tips, trips and concerns to be mindful of when considering a restructure, including:
  • the 45 day holding period rule
  • whether ATO could view an initial and substantial dividend payment to the holding company as dividend stripping?
• Are there situations where it may be more beneficial to use the small business CGT concessions to facilitate the restructure?
• Could a restructure impact on benefitting from the small business CGT concessions in the future?
• Case study