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Property settlement - Trust and distributions

Discussion in 'Accounting, Tax & Legal' started by financialcontrol, 7th Dec, 2014.

  1. financialcontrol

    financialcontrol New Member

    Joined:
    7th Dec, 2014
    Posts:
    2
    Location:
    Melbourne, VIC
    Would love to hear others thoughts about the following scenario:

    A is an accountant (currently an equity partner in a large firm)
    B is A's spouse who earns around $20K per year part time
    A set up a company called XYZ who is the Trustee of the Family Trust (and A is the only Director)
    A set up a family trust called TRUST whose deed distributes to A and B

    The TRUST and XYZ have been receiving income from A's salary and distributions as a principal, then equity partner for around six years.

    A financially controlled B in their marriage, so B had no visual on any of the joint accounts, the Trust, nor credit cards or mortgage, even though A had put their matrimonial home into B's name for asset protection purposes.

    A has been income splitting into B's tax assessment to minimise tax.

    The last two returns have not been actually signed off/approved by B, but A has lodged them with the ATO, and paid the resultant tax bill. This makes it seem that B is actually getting around $60K plus, but not seeing any of the distributions into her possession (although it might be argued that this distribution has gone into the joint account to pay mortgage and living costs).

    During property settlement discussions, B has found that the resolution of the TRUST for 2014 shows that 4 other family members have been made discretionary beneficiaries. This has been done without the knowledge or consent of B. Two of these beneficiaries are A's siblings, who have been attributed large whacks of cash (A also does their tax returns, and they are low income earners). What's to say that the distributions (actual monies) haven't been distributed physically to his siblings either??

    SO.. A is an accountant, is the sole Director of the XYZ company who acts as trustee of the TRUST, and he is the sole decider of where monies are distributed to.

    Where does B stand in all of this? :confused:

    It appears a lot of money has gone through the TRUST, Mortgage and joint accounts and paid into various credit cards in large amounts of cash (over $70K in 12 months). Does this seem dodgy? :eek:

    B is trying to subpoena the statements for all accounts, and financial returns from the time A took on the principal role at his firm.

    Would appreciate any advice, thank you. :)
     
  2. Terryw

    Terryw Well-Known Member

    Joined:
    9th Jun, 2006
    Posts:
    653
    Location:
    Sydney
    B is a beneficiary and has a right to inspect the books and financial records of the trust. B also has a right to to have the trust prooerly administered.

    If I was B's lawyer I would attack the trust in a few ways. I would get a copy of every resolution and see if it has been done in accordance with the trust deed. If it hasn't then it is invalid. So every appointment of trustee, or amendment to the trust or appointor appointment etc could be challenged. Every distribution resolution would be looked at. Is the wording right? If not then it may fail. What happens to a failed distibution - read the deed. Is there a default beneficiary? Does the income accumulate?

    I would also try to attack the control of the trust so B takes over.

    unpaid distributions I would demand payment.

    If I was A I would be:
    a) worried, and
    b) seeking legal advice asap
    c) stop putting money into the trust
     
  3. Pete Ramoza

    Pete Ramoza Active Member

    Joined:
    29th Jul, 2012
    Posts:
    40
    Location:
    Brisbane, Qld
    As Terry says, A should justifiably be very worried. Looks pretty dodgy and any lawyer worth their salt would have a field day.