Structuring Checklist

Have you considered:

Yes

No

N/A

• the ability to isolate assets from risks such as:

• claims of creditors of a business;

• insolvent trading risks of directors and group companies;

• directors' liabilities in respect of both insolvent trading and tax;

• exposure to claims in relation to environmental issues, industrial matters, product liability or negligence;

• claims that are not sufficiently protected by insurance or where insurance liability is not admitted —– for example, claims involving public risk and professional indemnity issues;

• exposure of assets to claims by spouses (including de facto spouses) following the failure of relationships and risks relating to Court jurisdiction over disputed assets;

• cross liabilities through the provision of loans and guarantees;

• the ability to distribute the income of the structure amongst a wide range of beneficiaries;

• the establishment costs of the structure;

• the management and control of the structure;

• the administrative simplicity and cost efficiency of the structure;

• the regulatory requirements of operating a business through the structure;

• the ability to transfer interests between participants in the structure;

• the ability to introduce additional investors into the structure in the future;

• the ability to offer investment opportunities to the public at large including how general Corporations Act issues and more specific managed investment scheme issues may be relevant);

• the implications in respect of both stamp duty and the goods and services tax relating to transactions both within and external to the structure and any restructuring that may be necessary in the future;

• the ability to prepare the structure and the costs and implications of reorganising the structure to enable it to be listed on the Australian Stock Exchange;

• the capital gains tax issues relevant to the structure, including issues relating to the disposal of assets by the structure and the disposal of interests in the structure;

• the applicable rate of tax payable by the entities involved in the structure;

• the pay roll tax and WorkCover liabilities associated with a particular structure;

• the application of specific taxation rules such as the alienation of personal services income measures, the provisions of Division 7A of ITAA 36 which treat certain loans and payments as unfranked dividends and provisions dealing with the ability to offset income against losses (that is, negative gearing);

• the ability to access various concessions available under the income tax legislation in addition to those relating to CGT, such as research and development concessions;

• the ability to pay superannuation contributions from the structure;

• the GST issues in respect of both registration for the tax system and also the timing of tax periods for the entities involved in the structure, their ability to group and their requirement to comply with the PAYG measures.

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