Archives: Investax FAQs

The 5-year clawback period, often associated with bankruptcy law, refers to a period of time preceding a debtor’s bankruptcy filing, typically starting from the date of the bankruptcy filing. During this period, a bankruptcy trustee has the authority to review, and potentially reverse certain transactions made by the debtor, such as preferential payments to specific creditors or fraudulent asset transfers. The purpose is to prevent debtors from attempting to shield assets from creditors by engaging in questionable financial transactions shortly before declaring bankruptcy.

While it is possible to transfer properties and assets to a trust or a company, doing so with the intent to evade legitimate creditors or legal claims can have serious legal consequences. Transfers made with the intent to hinder, delay, or defraud creditors are typically considered fraudulent and can be challenged by creditors or the court. Australia, like many jurisdictions, has laws in place to prevent fraudulent asset transfers. It’s essential to consult with legal professionals to ensure any asset protection or restructuring measures are done within the bounds of the law and do not violate legal obligations to creditors or the court.

No, asset protection strategies cannot provide absolute protection from all types of legal claims or creditors. Certain legal claims, such as child support, alimony, or government obligations, may not be shielded by asset protection measures. Additionally, fraudulent or improper transfers intended to evade legitimate creditors can be challenged and deemed ineffective. Asset protection is best used as a proactive strategy to minimize risks rather than as a guarantee against all possible legal challenges. Consultation with legal and financial experts is crucial for tailored asset protection planning.

Asset protection is entirely legal when done within the boundaries of the law and regulatory requirements. It involves prudent financial planning and the use of legal mechanisms to protect assets from unforeseen risks. Engaging in fraudulent activities or hiding assets to evade legitimate creditors is illegal and can result in severe legal consequences.

Asset protection refers to strategies and legal mechanisms investors and businesses use to safeguard their assets from potential creditors, lawsuits, or financial risks. It’s crucial because it helps protect your hard-earned assets from being seized or depleted in the event of legal disputes, bankruptcy, or unforeseen financial challenges, ensuring the preservation of your wealth.

The main residence exemption under the CGT rules cannot generally apply to properties owned by a trust
The main residence exemption can generally only apply when the dwelling is owned by an individual – refer to section 118-110 ITAA 1997. There are some very limited exceptions to this including:

• Where the property is held by a special disability trust.
• Where the property was owned by an individual just before they died and is now held in a deceased estate or testamentary trust, there are some special rules which
  can potentially enable the main residence exemption to apply; or
• Where the occupier of the property is absolutely entitled to the property as against the trustee.

A testamentary trust is a trust that is established through a person’s will and takes effect upon their death. It allows the testator (the person making the will) to specify how their assets will be managed and distributed after their passing. Testamentary trusts are commonly used for various purposes, including providing for the financial needs of beneficiaries, protecting assets from potential creditors, and minimizing tax liabilities. These trusts can be highly customizable, and the terms and conditions are typically outlined in the testator’s will, providing detailed instructions on how the trust is to be administered for the benefit of specific beneficiaries.

While you can technically sell a property for $1, several crucial considerations apply. Tax authorities and legal entities typically assess property transactions based on market value, potentially resulting in tax obligations based on the property’s actual worth, despite the nominal sale price. Stamp duty, capital gains tax, and legal and financial implications, particularly if there are existing mortgages or loans, should be thoroughly evaluated.

Changing the property investment structure after purchase is possible but can be complex and may have legal and tax implications such as stamp duty and Capital Gain. Consult with legal and Tax experts before making any changes to your property ownership structure.