March Newsletter 2018

Chinese New Year - Year of the Dog

For the first newsletter of our year I wish a Happy New Year to all our clients and a Happy Chinese New Year to all our Chinese clients in this year of the dog. I trust it is safe, healthy, prosperous and full of grace.

 

 

We look forward to another year of challenge. There is one thing certain in all our lives apart from taxes and death and that is the increasingly rapid and constant pace of change. Our ability and our agility to cope with change is the key to our survival and prosperity. This in turn means a constant review of the way we do things now and acceptance that almost certainly will not be the way we will do many things in the very near future.

While there is much talk of a strong economy, we should not lose sight of the increasing debt both domestically and internationally. As we are all aware, living beyond our means one day comes to a grinding halt. There is no reason to suspect the global economy is really any different. It is more a question of when, not if.

We have seen dramatic rises and falls in crypto currency and a less dramatic but certainly significant movement ion the share market. Property prices are generally tending downwards, Sydney is certainly showing a clear trend in this regard, although presently Melbourne seems to be maintaining a small increase. There has been much talk of an oversupply of apartments. This has now been tempered with the acknowledgement that there is actually a shortage of accommodation due to inbound migration. Vacancy rates are still very low.

We have enjoyed quite a warm summer here however I suspect there are some dark clouds on the horizon. Life in all aspects goes in cycles, it’s really a question of length. In Australia, we have enjoyed an extraordinarily long one, so we would be naïve to think it will continue forever, As Jack Reacher says in his Lee Child novels, “prepare for the worst and hope for the best.”

We are currently undertaking a strategic review of the firm and this is an ongoing process. We need to focus on what we want to do, where we want to be and how we are going to get there. We are here not only to provide a service to our clients, but to fulfil your expectations. To do this we need an increasingly better understanding of your requirements. We need to harness that for the benefit for our clients, by being able to provide a cost effective and improved level of service. We look forward to that challenge.

Don’t forget to ask for our “famous” chilli sauce when next you are in our office.

Finally, if you need a meeting room with the use of our 80 inch touchscreen at any time please feel free to book it.

Peter Nevile Principal Lawyer

 

 

 

 

Peter Nevile

 

ILLEGAL CORPORATE ACTIVITY?

The Turnbull Government has recently announced that is taking action to crack down on illegal ‘phoenix’ activity.

Illegal phoenix activity occurs when a new company is created to continue the business of a company that has been deliberately liquidated to avoid paying its debts, including taxes, creditors and employee entitlements.

Whether you are an employee, contractor or business owner working with other businesses, there are signs to look out for that may indicate a company is involved in illegal phoenix activity.

If you are an employee or contractor working for a company warning signs include you don’t receive a payslip; the company ABN and name changes, but the phone number or address stays the same; your superannuation or other employment entitlements are not being paid and/or your payslip records a different employer name to whom you believe you work for.

If you own a business look warning signs from a company you are working with include the directors of that company have previously been involved with liquidated entities; the company requests payments to a new company and/or there have been recent changes of company directors and name, but the manager and staff remain the same.

If you suspect illegal phoenix activity contact us at Nevile & Co. to discuss steps that you can take to protect yourself and/or your business. 

At Nevile & Co. our senior commercial lawyers have operated successful businesses and have a real understanding of the risks involved, ensuring they are able to provide cost effective, plain language, practical and focused legal advice and services.

 

HOW TO AVOID PAYING CAPITAL GAINS TAX (CGT) ON THE SALE OF YOUR “RENTAL” PROPERTY

That has your attention hasn’t it!!  Well it can be achieved, it is legal and is all about timing and approach. 

Our tax laws provide that in circumstances where a person has lived in their home as their primary place of residence, and for whatever reason they vacate that home, the property can still be considered as their “Primary Residence” for up to 6 years,  and thus, not attract CGT on the sale.  

The first step is to buy your home and live in it for 12 months. As proof of your home being your primary residence, you would naturally intend to actually live at the home, ensuring that all of your ‘registered addresses’ with all the various authorities reference the property as being your home address. e.g. driver’s license, bank accounts, health cards, electoral roll, etc. Those actions assist in establishing the property as being your “Primary Residence” for tax purposes.

The next step is to then move out into alternative (and preferably cheaper accommodation), using whatever spare cash you now have, to pay down the mortgage as quickly as possible. You can now also rent your home and the rental income will also assist in paying down the mortgage. The tax rules surrounding negative gearing are also available to the home owner.

After the 6 years is up, you can then either sell the property and take advantage of whatever capital gain results from the sale, or you can move back in and start the cycle all over again.

The above process is particularly suitable for a young couple in that it facilitates them buying their currently unaffordable “dream” home, ensuring they are in the rising property market.   After perhaps after 5 or so years, there is enough equity in the property to allow the owners to move back in and afford the now reduced mortgage payments. 

Please note that the above advice is general in nature and as such should you contemplate such a strategy, the first step is to talk to your accountant and/or financial planner.  Talk to the team at Nevile & Co who are ready assist with all of your legal requirements.

 

IMPLEMENTATION OF NEW TEMPORARY SKILL SHORTAGE (TSS) VISA

The new Temporary Skill Shortage (TSS) Visa is to be implemented in March 2018. The new TSS subclass 482 visa will replace the 457 Visa program. There are three (3) Streams with the TSS Visa, as follows:

 

  • Short-Term Stream (STSOL)
  • Medium-Term Stream (MLTSSL)
  • Labour Agreement Stream

 

  1. Short-Term Stream (STSOL)

 

o   Occupations on the STSOL List (Short-Term Skilled Occupations) will be eligible for visas of up to two years;

o   Visas might be renewable once, for a further two years

o   TSS visa holders are allowed to remain in Australia for no longer than four years

o   There is no pathway for Australian permanent residency through the employer-sponsored skilled visa program.

 

  1. Medium-Term Stream (MLTSSL)

 

o   Occupations on the MLTSSL List (Medium and Long-Term Strategic Skills List) will be eligible for up to four years visa;

o   Occupations on this list will be eligible for permanent residency after three years.

 

  1. Sponsorship Stage

 

o   18 months sponsorship approval for start-up company will be eliminated;

o   One lifetime TRN will be utilised for all subsequent approvals;

o   All sponsorships will be approved for 5 years.

 

  1. Nomination Stage

 

o   Nominated occupation must be listed on the relevant list at the time of application. Occupation will not be reassessed at the visa stage, or if it is already removed from the list.;

o   Applicants will need to have 2 years of work experience within the nominated occupation for both medium term and short term lists;

o   Labour Market Testing (LMT)* is required for all applications except if International Trade Obligations (ITO) applies;

o   LMT needs to be undertaken for a minimum duration although no specific duration requirement is released yet.

 

  1. Transitional Arrangement

o   Applicants are allowed to continue their time spent on 457 Visa when they apply for the new 482 visa;

o   If the 457 Visa holder’s nominated occupation is removed from the STSOL or MLTSSL, the applicant cannot access the new TSS visa.

 

  1. Other Important Points

 

o   If your occupation is on the STSOL, you cannot lodge onshore twice. You must be offshore to lodge your second application;

o   Annual Market Salary Rate (ASMR) will be introduced and the TSMIT ($53,900) will continue. Guaranteed earnings must not be less than ASMR & TSMIT;

o   Mandatory Skills Assessment is required.

o   TSS Visa Applications will only be able to be linked to the original TSS nomination being lodged. The TSS nomination cannot be linked to a 457 Visa Application.

o   If you hold another kind of visa which has a “no further stay” clause, you are not permitted to apply for a TSS visa to extend your stay.

Decision-ready application with clear submissions should be provided for faster processing, usually within 2 months. Applications with no attached documents will be declined within 2 days.

For further enquiries of the above Visa, please email jstone@nevile.com.au

WILLS

The Medical Treatment Planning and Decisions Act 2016- New medical decision-making powers

The Medical Treatment Planning and Decisions Act 2016 (Vic) (“the Act”) will come into effect in Victoria from 12 March 2018, repealing the Medical Treatment Act 1988 (Vic). The Act will introduce a new scheme that will allow a person to create legally binding advance care directives, with respect to medical treatment and care, and to appoint a medical treatment decision maker and support person.

Prior to the implementation of the new Act, legally enforceable advance care directives were limited to making a refusal-of- treatment certificate made under the Medical Treatment Act 1988 (Vic).

While the advance care directive can be in any form, certain information must be provided, and steps followed to ensure that the directive is legally binding. For example, the directive must be in writing and witnessed by two people, with one being a registered medical practitioner. The advance care directive will only take effect once a person loses capacity to make medical decisions and will continue to apply until it expires or is revoked in accordance with the Act.

From 12 March 2018, there will be two types of advance care directives that can be made in Victoria, an instructional directive and a values directive.

Instructional Directive

An instructional directive, as the name suggests, allows a person to make binding instructions with respect to their future medical treatment and care, including whether they consent or refuse certain medical procedures or treatments.

Unlike directives made under a refusal-of-treatment certificate, a directive made under the Act is not limited to a current medical condition of the person, but rather can set out instructions to the medical decision maker for future medical conditions.

However, the instructional directive does not allow a person to demand medical treatment.

Examples of an instructional directive provided in the Act include;

  1. A statement that a person consents to a heart bypass operation in specified circumstances.
  2. A statement that a person refuses cardiopulmonary resuscitation.

Values Directive

A values directive allows a person to set out their preferences and values in relation to medical decisions made when they lack the capacity to do so. Such a directive may include a statement of medical treatment outcomes that a person would find acceptable to them.

When considering a values directive, a medical decision maker will need to make the decision that they believe, in all the relevant circumstances, that the person who appoints them would have made. To do this, they are to consider the following factors:

  1. Any valid and relevant issues and preferences in the person’s advance care directive; and
  2. Any preferences that the person has expressed to them, taking into account the circumstances in which a person may have expressed those preferences.

Examples of a Values Directive are provided by the following statements;

  1. “If I am unable to recognise my family and friends, and cannot communicate, I do not want any medical treatment to prolong my life.”
  2. “If a time comes when I cannot make decisions about my medical treatment, I would like to receive any life prolonging medical treatments that are beneficial. This includes receiving a medical research procedure to see if the procedure has any benefit for me.”

After the law changes, while a person can still make an enduring power of attorney to appoint someone with authority to make decisions about the financial and personal matters, it is important to note that ‘personal’ matters will no longer include health care matters. It is also important to note that a pre-existing agent appointed as an enduring power of attorney under section 5A of the Medical Treatment Act 1988 (Vic), will be adopted as an appointment of a medical treatment decision-maker under the Act.

 

PPSA….BE CAREFUL OF CONSIGNING YOUR GOODS!

Placing your goods on consignment, for example art, furniture or cars can result in a total loss of ownership of those goods to a Receiver or Liquidator.

An article in The Australian from the 17th February, headed “Mossgreen Administrators demand $1.8 million from clients” has brought the harsh reality home to a number of people. Many private individuals and businesses are unaware of the provisions of the Personal Properties Security Act which came into effect in January 2012. That legislation revolutionised the notion of ownership and title to personal property. The devil is always in the detail. Now, if you place your goods on consignment or in the case of Mossgreen your art works with an auction house for sale, without registering a security interest in those goods, then in the event of the business failing, and a Receiver or a Liquidator being appointed, you may lose ownership of those goods to the Liquidator or Receiver. The best you can hope for is that you can do a deal as appears to be the case with Mossgreen. This which effectively means paying something for the goods you used to own. An unpalatable thought.

There are many areas where Personal Properties Security Registration is essential. It applies not only to goods on consignment, but also for example, delivery of goods and materials by a supplier to a builder. If the goods have not yet been paid for, but are in the possession of the builder, without registration under the Personal Properties Security Act, a Liquidator or Receiver can take title to those goods if the builder’s business fails, which is not an unusual event.

There are a number of other areas including protecting outstanding monies, which can effectively be secured by registration.

Failure to register your interest in your personal property or your goods when placing them in the possession and control of a third party is a potentially risky business.

The process of documentation and registration is precise. Errors can lead to a loss of the protection offered by the legislation. Legal advice should be sought.

 

INVESTMENT OPPORTUNITIES

Restaurants

Gold Coast –  Well established Licenced, long leases Professionally managed  Price $2.6,000,000

Strong profit.  Excellent for business migration for qualified person.

 

Agribusiness

Farms

Farm1   Northern Victoria

1947 acres Dry land farming with opportunity to purchase a further 9,000 acres.

        Highly suitable for multiple crops- barley, wheat, canola, vetch, peas.

 

Farm 2  Central Victoria

        3610 acres highly developed irrigation property.

Excellent cropping opportunity for corn, tomatoes etc.

Access to main channel for irrigation.

 

Farm 3  Central Victoria

              1710 acres of premium soils including 336 acres of drip irrigation.

              Land 100% laser levelled for irrigation.

 

Farm 4  Southern NSW

5400 acres mixed cropping and grazing property comprising outstanding soil types and well developed infrastructure.

Murray river frontage.

For further enquiry on the above business opportunities, please contact ken.matheson@nevile.com.au

 

BEWARE – EMAIL SCAMS RELATING TO PAYMENTS TO AND FROM OUR TRUST ACCOUNT

Recently, we wrote advising you to be aware of scams. A number of lawyers have received false emails supposedly from clients requesting that funds be directed to another bank account.

To protect you against these scams, we have instituted a process where we confirm directly with you by telephone any request for payment made to us by email.

We now want to draw your attention to emails supposedly from our office requesting payment to a particular account.

For your protection, please ensure that no payment is ever made to an account relating to our firm other than the Nevile & Co. Law Practice Trust Account

BSB 183 334

Account no. 3018 74764

Swift Code MACQAU2S

For your protection, if you are ever in doubt, please telephone our office to discuss any email you think may be a scam or fraudulent.