How to Build a Div 7A when the borrower is a Family Trust

Need a Division 7A when the Family Trust lends money to a bucket company?

You distribute Family Trust income to your children and spouse. As much as you can. But you run out of family members on a low marginal tax rates. The Family Trust then distributes the rest of the Family Trust income to the ‘bucket’ company.

But the Family Trust has no actual money to pay the beneficiarys (including the company) the income.

This is the case for most Family Trusts. The Family Trust is actually ‘borrowing’ money from your children, spouse and the bucket company . These could be called ‘loans’. But such unpaid moneys are correctly called “Unpaid Present Entilements” (UPE). But for the sake of simplicity we will call them a “loan” from the bucket company to the Family Trust.

In effect the Family Trust now owes that money to the ‘bucket’ company. The company is lending the (unpaid distribution) as a loan to the Family Trust.

Therefore, you must build a Division 7A Loan Agreement.

Tax advantages of a Family Trust distributing to a bucket company.
But becareful of Div 7A

A corporate beneficiary is a company. It receives a distribution from a discretionary trust.

The company declares its trust income. The bucket company pays tax at a constant tax rate of 30% (or less).

This 30% tax rate is less than the hightest marginal tax rate of a human. A human pays tax of up to 47%. Therefore, the distribution to the company saves 17% tax.

The use of a bucket company may help protect the wealth of humans that are exposed to business risk.

A Discretionary Trust is an ‘assoicate’ for Division 7A

A Division 7A Loan protects loans from your company to a shareholder or ‘associate’.

Your Family Trust is an ‘associate’. Your Family Trust must have its own Div 7A Deed. Mum, Dad and the children each need their own person Div 7A Loan Deed. So to, the Family Trust must also have its personal Division 7A Loan Agreement.

Example of where a family trust needs a Division 7A Loan Deed

Kenneth Nominees Pty Ltd is trustee of the Ken & Julie Smith Family Trust ABN 8383738373837. (It is not being used as a bucket company.) It only acts as a Corporate Trustee of that family trust.

Bucketto Pty Ltd is a beneficiary of the Ken & Julie Smith Family Trust. Buketto Pty Ltd is a bucket company.

The Appointor of the Ken & Julie Smith Family Trust direct Kenneth Nominees Pty Ltd (as the trustee) to sign a Distribution Minute.

The Distribution Minute distributes all family trust income to Buketto Pty Ltd.

Sadly there is no actual cash to make good on the distribution. So the Family Trust owes this money to Buketto. But the proper name is a UPE.

To comply with Division 7A, the Family Trust must build a Division 7A Deed:

Lender: Bucketto Pty Ltd

Borrower: Kenneth Nominees Pty Ltd is trustee of the Ken & Julie Smith Family Trust ABN 8383738373837

But a company lending to a another company does not need a Division 7A Loan?

That is correct. A company (in its own right) can lend money to another company (in its own right). This is without getting involved with Division 7A. In that instance, no Division 7A Deed is required.

But in the above example, Kenneth Nominees Pty Ltd is not itself borrowing any money. Instead, Kenneth Nominees is acting in the capacity of trustee of a family trust. It is the family trust that is borrowing the money from Bucketto Pty Ltd. Therefore, a Dision 7A Loand Deed is required.

How to build a Div 7A Loan when the family trust is borrowing money from the company?

This is how to build a Div 7A when the borrower is a Family Trust:

• Lender: the company lending the money
• Borrower: the Trustee of the Family Trust borrowing the money

1. Example when the Trustee of the Family Trust is a company:

• Lender: Generous Pty Ltd (this is the company lending the money)
• Borrower: Abacus Pty Ltd as trustee of the Smith Family Trust

2. Example when the Trustee is a single human

• Lender: Generous Pty Ltd (this is the company lending the money)
• Borrower: Colin James Smith as trustee of the Smith Family Trust

3. Example when the Family Trust’s Trustee is two humans

• Lender: Generous Pty Ltd (this is the company lending the money)
• Borrower One: Jake Chen James as trustee of the Smith Family Trust
• Borrower Two: Mary Chow James as trustee of the Smith Family Trust

Why build a Div 7A when the borrower is a Family Trust?

By building a Div 7A, the loans by the company to the Family Trust are not classified as dividends and do not suffer penalty interest rates. These rules are set out in Division 7A of the Income Tax Assessment Act 1936 (Cth).

A requirement of a Div 7A Loan Deed is that the Family Trust (borrower) repays 1/7th of the loan each year, as well as interest rate set by the ATO.

Why did the government make this law about Div 7A when the borrower is a Family Trust?

Companies pay a low flat tax rate of 30% or less. In contrast, mum and dad pay up to 47% in tax. Therefore, in the good old days (before Div7A) mum and dad would:

• have the company earn the income and pay the low tax rate
• the company then lends mum and dad the money
• mum and dad buy a boat, have a holiday or whatever with the money
• mum and dad never bother to pay back the debt
• therefore, mum and dad never bother to pay the difference between the low company tax rate and the higher tax rate that mum and dad would of have to have paid if they had earned the money
• there was an indefinite tax deferral.

The government got sick and tired of this. It introduced Div 7A. Now, mum and dad need a proper commercial loan deed. This is called a ‘Div 7A Loan Deed‘. Plus mum and dad have to pay back the money that the company lent them.

ATO starts applying Div 7A to bucket companies – ATO TR 2010/3

The ATO issues TR 2010/3 in June 2010. The ATO’s long standing position changes on bucket company UPEs and Division 7A. Now under TR 2010/3 the UPE is allowed to subsist. But it is treated as a loan. And the loan is now subject to Division 7A.

In recognition of the change of fashion, the ATO quarantinedsUPEs in existence before 15 December 2009.

The effect of TR 2010/3? There is no longer an indefinite tax deferral. This is for distributions made to bucket companies after 15 December 2009.

But these pre 2009 ‘loans’ can go out of date. This is how to refresh them without converting them into the Div 7A regime.

What is the purpose of Div 7A when the borrower is a Family Trust?

Div 7A ‘ensures that private companies will no longer be able to make tax-free distributions of profits to shareholders (and their associates) in the form of payment or loans’: Explanatory Memorandum to Act No 47 of 1998. Further:

‘It ensures that all advances, loans and other credits by private companies to shareholders (and their associates), are treated as assessable dividends. This is to the extent that there are realised or unrealised profits in the company. In addition, debts owed by shareholders (or associates) which are forgiven by private companies are treated as dividends.’

What does Division 7A have to do with Family Trusts?

Family Trusts earn money each year. The Family Trust hunts down beneficiaries with the lowest marginal tax rate. Often the Family Trust distributes to a company. This is because the company pays a low fixed rate of tax.

The Family Trust then ‘distributes’ income to the company beneficiary. However, as is commonly the case no money actually changes hands. The Family Trust merely has an obligation to pay the money to the company. This is called a ‘present entitlement’ and is enough to have the company pay the tax (at its low tax rate). This obligation use to be called a ‘loan’ from the company back to the Family Trust. But now we call them a much fancier name: ‘Unpaid Present Entitlement’ (UPE).

You need to build a Div 7A Deed between the company (as Lender) and the trustee of the family trust (as Borrower).

Why not just use the name of the Family Trust as the Borrower?

Trusts only operate through a trustee. The Borrower is the ‘Trustee’ of the Family Trust.

What if the Trustee of the Family Trust also borrows money in her own right?

Let us say mum is the trustee of the Family Trust. The Family Trust borrows money. Mum also borrows money from the company to buy a new necklace. You need two separate Div 7A Deeds. You need a separate Div 7A when the borrower is a Family Trust. Then you need a separate Div 7A for mum, as well.

Family Trust Div 7A: “corporate beneficiary” vs “bucket company”

A company that you have an interest in is usually automatically becomes a beneficiary of a Family Trust. Such a company has two common nicknames:

• corporate beneficiary
• bucket compay

Both expressions mean the same thing.

What do I get when building a Division 7A?

Build the Div 7A online. You get:

• Our law firm’s signed letter of advice on our law firm’s letterhead confirming our law firm authored the Div 7A Deed
• Minutes
• Division 7A Loan Deed for a Family Trust

Why is it better to prepare my Div 7A with the Family Trust as a borrower on our law firm’s website?

You are dealing directly with a law firm’s website, therefore you:

• we are responsible for the Div 7A Loan for a Family Trust
• free legal advice as you build the Family Trust Div 7A Agreement
• hints and videos for every question as you build the Div 7A
• see a full sample of Div 7A before you start building
• law firm letter confirming we authored the document
• legal professional privilege

Start building the Div 7A Loan agreement for a bucket company. Read the hints and training videos for each question. Telephone the law firm to check the answers to your questions.

Adj Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, LLM, MBA, SJD
Legal Consolidated Barristers and Solicitors
National Australian law firm

National: 1800 141 612
Mobile: 0477 796 959

Email: brett@legalconsolidated.com

See also:

/bucket-company-for-family-trust/

/divorce-tax/