Anne Gibson

Anne Gibson is the Property editor of the NZ Herald

Family trust rules changing as gift duty ends

Rodney Dickens says once he knew the legislation was in the pipeline he stopped gifting. Photo / Paul Estcourt
Rodney Dickens says once he knew the legislation was in the pipeline he stopped gifting. Photo / Paul Estcourt

When Rodney Dickens set up the Devonport Dominion Trust seven years ago, asset protection was on his mind.

The professional economist's Orewa-based Strategic Risk Analysis hosts seminars, conducts private research for many clients and sends out data on monetary issues, real estate trends, foreign exchange and building sector trends.

But the ex-bank executive, who spurns economic mumbo-jumbo, is a divorcee who has suffered some bad financial experiences and says his reasons for creating the trust were less complicated than many other people's.

"After two divorces, I'm no longer independently wealthy. Now I have my own business, there's probably an element of wanting to protect my financial assets. You don't hear of too many economists getting sued but if you are in business with a reasonable risk of failing, there would be issues about that. For me, it's not about tax either. I pay whatever the applicable tax rate is."

Nor did he establish the trust to escape rest home fees later in life.

"People set up trusts so they can keep money aside but I'm not planning to rely on the Government in my old age," says the keen golfer, emphasising the trust - named after his former North Shore suburb's rejection of local government integration - is purely an asset protection vehicle.

"The trust owns a Waipu holiday home, cash and shares. I was gifting the allowable amount each year," he explains, following a pattern thousands have used, gifting the top allowable tax-free sum of $27,000 of their property holdings - often a family home - to the trust.

For couples, the tax-free amount was $54,000 and any higher monetary sums would incur the tax or duty.

Today, that all changes with the abolition of gift duty, the archaic tax that raised little state revenue but cost Inland Revenue $430,000 a year to administer and the country an estimated $70 million a year in compliance costs.

"Once I knew this legislation was in the pipeline, I stopped the gifting. I'll most likely gift all the property across in one go soon," says Dickens.

The Law Commission's trust examination document series will finish before Christmas. It noticed trusts registered for tax purposes ballooned from 146,000 in 2001 to at least 237,000 last year so it spat out four discussion papers asking why trusts are so popular, whether the existing law on them was adequate and whether limits should be placed on them.

"The next issues paper will address remaining issues such as trading trusts, registration of trusts, court jurisdiction and obligations of trust advisers," the commission says, indicating that fifth and final paper would be out in November or December.

Tammy McLeod, a trust specialist at Davenports Harbour Lawyers, says the new regime means people who put their assets into a trust will - barring insolvency - have far more certainty that assets will not be touched.

"Basically it means that people will be able to put their assets into trusts in one go, without having to go through a convoluted gifting programme. Immediately, they will have no assets listed in their name, whereas before they still had the debt that the trust owed them in relation to the asset," she says.

But think twice before establishing a trust to escape rest home fees, she advises.

"The Ministry of Social Development has discretion to look back for as long as they like, even at assets put into trusts 20 years ago or more. This highlights the fact that trusts are not a good vehicle for avoiding paying rest home fees.

"People don't last that long after going into a rest home. I know it sounds callous but often they only have a couple of years there and homes either ask you to pay your own way or you can get a loan which will be taken from your estate when you die. I have never advised people to set up a trust for rest home subsidiary issues," McLeod said.

Lawyers won't necessarily be out of pocket as a result of the change. Trust administration is likely to increase as laws around trusts tighten, she predicts, so payments to law firms could increase.

Michael Taylor of Howick's Galbraiths Lawyers says his firm doesn't charge annual trust administration fees, nor a flat percentage fee on assets in the trust. Instead, it charges on a time and attendance basis.

Post-gift duty, trusts will still need administration and should hold annual meetings, Taylor advises, so lawyers will still be closely involved "particularly if their trustee company is one of the trustees".

Abolishing the gift duty could well spawn more trusts, but Graeme Horsley, a professional company director and former national director of real estate for Ernst & Young, defends their creation and use.

"The question I would ask is 'do I know anyone who hasn't a family trust?' Any partner in a professional practice or even a tradesman who doesn't protect his or her assets by the use of a trust is being very silly.

"I've had all my assets in a trust for 40 years for this sole reason, nothing to do with income splitting or tax benefits. Most of my friends have similar arrangements, I'd think, and for similar reasons. The longer you have had a trust and the more independent you make it, the better you are able to withstand any challenges to its capital base," Horsley advises.

IRD has raised concerns about how axing gift duty might breed more trusts.

"The removal of gift duty and its associated compliance costs could be expected to lead to more instances of gifting to trusts, which may in turn lead to an increase in the number of trusts established," the IRD's policy advice division said in Gift Duty Repeal, its review of the changes.

"There are broad concerns across government and the private sector regarding the uses of trusts and their lack of regulation. These concerns go well beyond the scope of the gift duty project."

Dan Ormond, of Wellington public relations firm Ideas Shop, which has government and business clients, says the gift duty abolition could have big effects on businesses.

"I'll now transfer the remaining portion of the family home and the business across to the Ormond Trust," he explains.

The game is not entirely over yet.

The Ministries of Economic Development, Justice, Social Development, and Health, the Police and Housing New Zealand have all indicated to IRD that they will monitor the impact of gift duty repeal on their areas of responsibility.

- NZ Herald

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