Introduction: is the orthodoxy correct?

Most accountants do not recommend owning growth assets in companies. They prefer individuals, trusts or SMSFs. This is because  individuals and trusts enjoy a 50% CGT discount and SMSFs enjoy a 33.3% CGT discount on assets owned for more than 12 months.

This may not be wise advice.

It may be better to instead own growth assets in a private company with the shares owned by a family trust, pay tax on income and capital gains at the company tax rate of 30%, and then pay out a fully franked dividend in a later year to a low or no tax beneficiary who can claim a credit/refund for all or part of the tax previously paid by the company.

It is quite probable that this structure will lead to less tax being paid in the long run.

This is because the real rate of tax, ie the 30% tax paid now less the (indeterminate) tax refund later will be less than otherwise will be the case. In some cases it can be close to zero, and certainly less than the 15%/10% tax rate paid by a SMSF.

The position is diagrammed here:

 

Long term holding period

Ultimately the tax effect of this structure depends on unknown future variables. Its not possible to be 100% certain or confident that it will produce the best possible tax outcome because we do not know what will happen in the future, to either asset values or the tax profiles of the family trust’s beneficiaries. However, for most clients it is probable, but not certain, that this structure will minimize the long term real rate of tax, net of franking credit refunds, particularly on concessionally taxed investments such as franked shares.

Company tax is the best tax

This highlights the importance of paying tax at the company level, if at all possible. If you pay tax at the company level, rather than the individual level, you live to fight another day. The tax is not a final non-refundable payment. Its an installment, with a credit or even a 100% refund some time down the track, depending on your family’s future tax profile.   

Further relevant reading

You can read further on tax efficient investing here: The Dover Way. Tax Efficient Investing.

You can read further on tax planning for financial planners here: The Dover Way. Tax Planning for Financial Planners.

Table summarizing the ownership options

Table summarising different legal structures	Sole owner	Partnership of Individuals	Partnership of Trusts	Discretionary Trust	Hybrid Trust with a company as a beneficiary	Unit Trust	Company with individual shareholders	Company with discretionary trust shareholder
Ability to defer tax under franking credit protocols, and limit current year tax to 30%	No	No	Yes, if the trust has a company as a beneficiary	Yes, if the trust has a company as a beneficiary	Yes, if the trust has a company as a beneficiary	Yes, if the trust has a company as a beneficiary	Yes	Yes
Income sharing capability	No	No	Yes	Yes	Yes	No	No	Yes
Offset losses against other income from external activity	Yes	Yes	No	No	No	No	No	No
Amenable with other tax planning strategies	Low	Low	High	High	High	Moderate	Low-medium	Moderate
Organisational complexity	Low	Moderate	High	Moderate	Moderate	Moderate	Moderate	High
Cost to set up and run	Low	Moderate	High	Moderate	Moderate	Moderate	Moderate	High
CGT 50% discount	Yes	Yes	Yes	Yes	Yes	Yes	No	No
CGT active asset exemption	Yes	Yes	Yes	Yes	Yes ( 20% income & capital test)	Yes, but cost base reduced	Yes	Yes
CGT retirement concession	Yes	Yes	Yes	Yes	Yes ( 20% income & capital test)	Yes	Yes	Yes, subject to conditions
CGT 15 year concession	Yes	Yes	Yes	Yes	Yes	Yes	Yes	Yes, subject to conditions
CGT small business rollover	Yes	Yes	Yes	Yes	Yes	Yes	Yes	Yes