You've established that there are good economic reasons for changing the shareholding in your LTC that owns rental residential property. You and your life partner are the shareholders. What things do you need to consider so that you don't get hit with a nasty (and unexpected) tax bill?
1. Brightline Test
2. Shareholders Current Account
Let's say that the company owes the shareholders $150,000. This is tracked in the Shareholders Current Account, and is a liability (debt) of the LTC.
Bob has 99 shares, and Mary has 1. Bob will sell/transfer 49 of his shares to Mary so that they each have 50 shares. Let’s say at the moment, Bob and Mary are owed $75,000 each by the company.
The LTC has made losses so is technically “insolvent”. The ramification of this is that as 49% of the shares are transferred there is a deemed disposal of 49% of the both advances being a total of $73,500 at a market value of zero (due to the company being insolvent).
Under special tax rules the $73,500 is initially deemed to be income of the LTC to be taxed to the owners in proportion to their shareholding (Bob $72,765 and Mary $235). Under recently-amended income tax rules, this income will not be taxed to the extent it is in proportion to shareholding. In this example Bob has debt of 50% for a shareholding of 99% and Mary has debt of 50% for a shareholding of 1%. Under the new rules he will be taxed on 49% of the debt being $73,500 and Mary will not have taxable income.
In this scenario, the de minimis* threshold of $50,000 would be exceeded when Bob transfers his shares (as the deemed income is $73,500). This same issue arises when either the LTC status is revoked or the company is wound up.
Going forward, ideally all LTC shareholder debt should be in proportion to shareholding. Between family members this can be achieved by way of an assignment of debt as that is another way of presenting what is happening. Then going forward debt should be transferred along with shareholding so the debt stays in proportion.
3. Depreciable Assets With Costs Over $200,000?
Is the cost of any of the LTC’s depreciable assets more than $200,000 each? If so, you then need to ask: Is the value of the accumulated depreciation on assets per shareholder more than $50,000 (the "de minimis" threshold)? If so, then there could be tax implications.
Be aware that changing shares now (or ownership % in a partnership) partially starts the 10-year Brightline Test again.
For example, if you moved 5 shares (of a total of 100) from you to your wife, then sold the property within 10 years of that change, then 5/100 (5%) of the sale profits (sale price less fees less original purchase price = sale profits) would be classed as taxable income (for the person who “sold” the shares).
So, if the gain was $100,000, 5% is $5,000. So in this scenario, $5,000 would be taxable income.
Please contact us for advice. You may also want to read this related blog article "Are Tax Benefits a Good Reason to Make Changes?"
* "de minimis" is a Latin expression meaning about minimal things, normally in the locutions de minimis non curat praetor ("The praetor does not concern himself with trifles") or de minimis non curat lex ("The law does not concern itself with trifles") a legal doctrine by which a court refuses to consider trifling matters.
You and your significant other each own 50% of the shares in an LTC. It owns negatively-geared rental property. At tax time, you get your 50% share of the loss, which generates a nice tax refund.*
Previously you both earned about the same, but now there is a child in the mix, and one of you is working less as a result, and earning less as a result.
Suddenly that 50/50 company shareholding doesn't look so good. Should you change it to 99/1 to get better tax refunds?
The short answer is no. If you do anything with the motive to purely pay less tax, then you leave yourself open to being accused of tax avoidance.
What to do then? Well, there may well be economic reasons for the change, which had not previously been considered. When you take these into account, any so-called tax benefits could well become purely incidental.
As each situation is different, it's not practical to outline these here, so please feel free to contact us to discuss.
You may also wish to read a related article: Changing Shares in LTCs: Considerations
* From 1 April 2019, tax losses will no longer flow through from LTCs that are residential land rich. Please see us or call for advice on how to get the best results from your portfolio, build wealth and minimise tax
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