Business Advantages and Disadvantages For Partnerships

by | Sep 25, 2013 | Commercial Law

Which structure is right for me? Business advantages and disadvantages for partnerships

Partnerships are structures that involve the carrying on of a business with two or more people. The Partnership Act 1891 (Qld) (‘the Act’) governs the way partnerships are formed, governed and dissolved in Queensland.

Section 5 of the Act defines partnership as ‘the relation which subsists between persons carrying on a business in common with a view to profit’. The broad legal definition of the word ‘person’ means that a partnership can be carried on by a combination of two or more entities, meaning that even two companies may act as a partnership.

A partnership is an interesting structure in that it can come into existence without the intention of the parties to create it. A partnership is formed where: a commercial relationship is in existence between the parties; the parties use such commercial relationship to conduct a common business; and such business is conducted with a view to profit.

A partnership can be distinguished from a joint venture, which will be explored in more detail in a later publication. There are many Business Advantages and Disadvantages in partnerships.

Types of partnerships

There are a number of different types of partnership. These include:

  1. General Partnerships – where all partners are equally responsible for all aspects of the business. This means that each partner can be held liable for the debts and obligations incurred by other partners relative to the business conducted by the partnership.
  2. Family Partnerships – general partnerships that are established between members of the same family.
  3. Limited Partnerships – a partnership where some partners are able to limit their liability for the debts and obligations incurred by the partnership. There are one or more general partners, whose liability is unlimited. Then there are limited partners, whose liability is limited to an amount proportional to their investment in the partnership.
  4. Incorporated Limited Partnership – a specialised type of partnership which results in the incorporation of a separate legal entity. An ILP, as they are referred to, is responsible for its own debts and obligations. However, in contrast to a company structure, if an ILP is unable to meet the requirements of its debts and obligations, the general partner must meet those obligations.

What are the advantages of a partnership?

The advantages of a partnership include:

  • The relatively small expense to establish (with the possible exception of ILPs);
  • Partnerships allow separate people (including two companies) to pool together experience, knowledge and assets to run a mutual business together;
  • Certain tax benefits available to family partnerships (e.g. where the partners are husband and wife);
  • Limited partnerships can encourage investors to invest in your business, as they are able to limit any liability in the partnership to the proportion of their investment; and
  • Partnerships are relatively easy to change into company structures at a later date, if this is deemed necessary as the business grows.

What are the disadvantages of a partnership?

The disadvantages of a partnership include:

  • There is opportunity for disputes between partners about the sharing of profits an how the business is administered;
  • Liability of partners is the biggest concern – partners can be held liable for debts and obligations incurred by other partners relative to the business;
  • Profits must be shared in proportions provided in the ‘partnership agreement’ (usually in proportion to investments in the partnership);
  • Profits are taxed at marginal tax rates of individuals; and
  • Personal liability can result in personal assets being used to make payment of partnership debts.

Regulations

There are regulations and legislative requirements imposed on partnerships. For this reason, it is important to seek legal advice about your obligations in relation to your partnership BEFORE you commence your business venture.

Further, it is advisable to have a partnership agreement in place to govern the terms of your partnership (including regulation profit sharing). This is especially important if you will seek investors in your partnership as the business grows.

Nautilus Law Group is able to help you with all business structuring matters. We welcome you to contact our offices on (07) 5574 3560 or email info@nautiluslaw.com.au. We thank you for considering Nautilus Law Group.

Submitted by:  Katrina E. Brown BA JD ATIA TEP SSA

Does a Company Structure suit the needs of My Business?

by | Sep 25, 2013 | Commercial Law

We understand that it is stressful starting and operating your own business. How do you, as a business owner, know which structure will be best for the management and progression of your business? There are a number of different ‘business structures’, including sole traders, partnerships, companies and even trusts. This article focuses on the advantages and disadvantages of operating under a company structure.

What are the types of companies?

A company is comprised of shareholders (also known as members) who own the company, and officeholders (directors) who are responsible for the running and management of the company. It is possible to be both a member and a director, and in fact many sole-directorship companies are formulated this way.

Companies can be classified as private companies or public companies. Private companies (or proprietary limited companies – being those with “Pty Ltd”, “Pty. Ltd.”, “Pty Limited” or some variation of same listed after the company name) are either companies limited by shares or unlimited with share capital. They must also have no more than 50 shareholders that are not employees. There are also restrictions on fundraising activities that can be undertaken by a proprietary company, in that a company of this type cannot undertake fundraising activities that would require disclosure to investors (such as through a prospectus). A proprietary company can similarly not offer its shares to the public.

Public companies are companies with more than 50 non-employee shareholders. The main difference between proprietary and public companies is hat public companies can raise funds by offering shares to the general public. These activities require disclosure documents (such as a prospectus) be issued to potential investors when offering shares to the public.

As small businesses are almost always operated by a proprietary company, we will not consider the regulation of public companies further.

What are the advantages of operating within a company structure?

The key advantage of incorporating a company to operate your business is the limitation on liability that individuals are awarded. Incorporation of a company creates a ‘legal person’, capable of entering into legal arrangements (contracting with third parties), owning real and personal property, and incurring liabilities (such as debts). This means that the people managing the company, the directors, are not personally liable for contracts or liabilities entered into or incurred by the business. Similarly, a company can sue or be sued.

This limitation on liability is not without exception. Many third parties will require personal guarantees from company directors before entering into contracts with companies (in particular new or smaller companies) which will make a director liable for compliance with the arrangement or payment of the liability.

Similarly, personal liability can arise where a director incurs debts negligently or recklessly, and against the best interests of a company. These restrictions are in place to ensure that directors cannot abuse their power, nor make needlessly risky business decisions under the belief that the company will bear all liability should he venture turn pear-shaped. However, the limitation of liability can be very useful where directors are undertaking a potentially risky business venture and should separate their liability from their personal assets through strategic use of the corporate veil.

Members are only liable for the debts of the company to the extent that there are any unpaid amounts on their shares, and their only potential loss is the value invested in their shareholdings.

Tax on income received by a company is a 30% flat rate. Further, franked dividends can be issued to members who may be entitled to claim a refund of excess imputation credits (after application to income tax liability).

What are the disadvantages of operating within a company structure?

Despite these advantages, there are some disadvantages to operating a company structure. A company can be complex to administer in compliance with relevant legislation. The Corporations Act 2001 (Cth) provides standards and regulations which will ensure that a company is compliant and being administered correctly. There are penalties for non-compliance with regulations contained within the Act.

There are also strict obligations on directors, called ‘directors duties’. The failure of directors to meet their legal obligations can result in penalties and in some circumstances even criminal liability.

Further, the effectiveness of the limitations on liability have been a reduced as lenders and supplies are reluctant to enter into agreements with small or new companies without the safety of a directors guarantee. This is having a negative effect on the biggest advantage of incorporation of a company for operation of your business – the protection from personal liability and the protection of personal assets.

Further, a company can be expensive to establish and maintain. ASIC fees for incorporation of a company are up to $433, and further annual fees apply.  There are complex rules regarding taxation and the distribution of profits and losses.

 I have an idea and want to start a business. How do I know what structure is right for me?

A properly run company comes with many benefits which can outweigh the additional fees and complexities associated with incorporation and running of a company structure. The key to obtaining the most out of any company structure is ensuring that you receive the requisite advice and guidance. Nautilus Law Group can assist your company from the beginning through to assisting with issues that arise in day to day operation.

If you are unsure whether a company structure would suit the particular needs of your business, we encourage you to contact the office to discuss your matter. Should you require any further information, we welcome you to contact our offices on (07) 5574 3560 or email info@nautiluslaw.com.au. We thank you for considering Nautilus Law Group.

Submitted by:  Katrina E. Brown BA JD ATIA TEP SSA

Unfair Contract Terms

by | Sep 25, 2013 | Commercial Law, Consumer Protection

On 30 July 2013, the ACCC issued a media release advising that it has been granted a declaration by the Federal Court that the standard terms and conditions used by Bytecard Pty Limited, an Internet Service Provider, contains terms which fall within the unfair contract terms provisions of the Australian Consumer Law.

This is the first declaration that the ACCC has received under the unfair contract terms provisions (as a sole course of action), and serves as a reminder to businesses the importance of ensuring compliance with the legislation.

What are unfair contract terms?

The Australian Consumer Law (the ACL), located in Schedule 2 of the Competition and Consumer Act 2010 contains in Part 2-3 the provisions relative to unfair contract terms.

Section 23 is the operative provision, and provides that “a term of a consumer contract is void if: (a) the term is unfair; and (b) the contract is a standard form contract.” A consumer contract is defined in Section 23(3) as a contract for “(a) a supply of goods or services; (b) a sale or grant of an interest in land; to an individual whose acquisition of the goods, services or interest is wholly or predominantly for personal, domestic or household use or consumption.”

Section 24 provides the meaning of the term “unfair”, and provides that a term is unfair where:

  1. The term would result in an imbalance in the rights and obligations of the parties relative to the consumer contract;
  2. The term is not reasonably necessary to protect the legitimate interests of the advantaged party (note that there is a presumption in Section 24(4) that such a term is not reasonably necessary until the party advantaged by the term proves otherwise); and
  3. The term would cause detriment to a party to the contract if the term was exercised or relied upon by a party to the contract.

However, these are not the only guidelines that must be taken into account when considering whether a term is “unfair”. The ACCC, under Section 24, is also required to take into account the transparency of the term, and must consider the contract as a whole. A term is considered to be transparent where it is expressed in plain language, it is legible and presented clearly, and the term is readily accessible to any party to the contract that would be affected by the operation of the term.

What is a standard form contract?

The unfair contract terms provisions are applicable to contracts that are “consumer contracts”, but also fall within the definition of “standard form contracts”. It is a common business practice to offer each consumer a standard contract which contains the same terms. This is efficient where businesses, such as mobile phone retailers, are entering into large numbers of contracts with their customers.

Section 27 of the ACL contains some guidelines for determining whether a contract could be considered to be a standard form contract:

  1. If one of the parties has most or all of the bargaining power in relation to the contract;
  2. If the contract was prepared and presented by one party to the other without any negotiation or discussion between the parties;
  3. If one party was required either to accept or reject the terms, of the contract (meaning that there was no ability to negotiate terms);
  4. If one party was given no opportunity to negotiate terms of the contract; or
  5. If the contract failed to take into account the specific needs or characteristics of one of the parties, or the transaction itself.

It is worth noting that Section 26 of the ACL provides that a term dealing with the main subject matter of the contract, or that sets the price payable, or is a term required by statute cannot be considered an unfair contract term.

Examples of unfair terms

Section 25 of the ACL provides some examples of terms that could be contained in standard form contracts and be deemed unfair:

  1. A term that allows one party to the contract, to the exclusion of the other, to avoid or limit their obligations to perform in accordance with the terms of the contract;
  2. A term that allows one party, to the exclusion of the other, to unilaterally terminate the contract;
  3. A term that places a penalty on one party, to the exclusion of the other, where that party commits a breach or terminates the contract;
  4. A term that allows one party, to the exclusion of the other, to unilaterally vary the terms of the contract;
  5. A term that allows one party, to the exclusion of the other, to decide to renew or not renew the contract;
  6. A term that allows one party, to the exclusion of the other, to vary the prices payable under the contract, without allowing the opportunity to the other party to terminate the contract for such variation;
  7. A term, where the contract is for goods, services or land, that allows one party, to the exclusion of the other, to vary the nature or characteristics of the goods, services or land to be supplied without allowing the opportunity to the other party to terminate the contract for such variation;
  8. A term that allows one party, to the exclusion of the other, to determine whether a breach of the contract has occurred, or to determine the interpretation of terms of the contract;
  9. A term that limits the vicarious liability for the agents of one of the parties;

10. A term that limits one party from exercising its right to sue another party to the contract;

11. A term that attempts to limit the evidence that one party can put forward in the event that legal proceedings are brought in relation to the contract; or

12. A term of the kind prescribed by the regulations.

The Bytecard Case

In the Bytecard matter, the relevant unfair contract terms were as follows:

Section 1.7: NetSpeed reserves the right to change prices or services at any time without prior notice to customers or the public, except when the service is an Australian Broadband Guarantee Service. Price changes will not be retroactive for existing prepaid customers. It is the User’s responsibility to check this online.

This Section 1.7 would appear to be akin to that of Example 6 above, in that it allows Bytecard (also known as NetSpeed), to vary the price payable under the contract by the consumer, but offers no right to terminate and requires no notice to the consumer.

Section 4.1: The User agrees to indemnify and hold NetSpeed, its affiliates, its licensers, its contractors or their respective employees harmless against any and all liability, loss claim, judgment or damage. This indemnity includes, but is not limited to an indemnity against all actions, claims and demands (including the cost of defending or settling any actions, claim or demand) which may be instituted against us, as well as all expenses, penalties or fines (including those imposed by any regulatory body or under statute).

Section 4.2: The User agrees to indemnify NetSpeed for any expenses including, but not limited to:

  1.  Attorney’s fees and cost of litigation;
  2. Its licensers;
  3. Its contractors or their respective employees as the result of any and all use of User’s account whether authorised or not authorised or as a result of the negligence;
  4. Wilful misconduct;
  5. Breach of any of the terms of this Agreement by User, (including but not limited to claims, liabilities, losses, damages, judgments and costs); or
  6. Disruption to User’s telephone services during the installation of an ADSL Service.

Sections 4.1 and 4.2 placed an obligation on the consumer to indemnify Bytecard against any loss incurred, regardless of whether there was a breach of contract, or whether such loss had been caused by the breach, negligence or any other wrongful act of the consumer, and extends even to an indemnity against any loss that may be caused due to the fault of Bytecard. It is important to note that this term was not reciprocated to the benefit of the consumer.

Section 6.5: With the exception of obligations under the Broadband Guarantee Program, NetSpeed reserves the right to terminate any account at any time with or without cause or reason. In the event that NetSpeed would choose to take this action the User understands and agrees that the Users (sic) only compensation would be a prorated refund for the current period that User has already paid.

This Section is akin to that of Example 2 above, in that it grants the right to Bytecard to terminate the contract at any time and for any reason whatsoever, without granting the same rights to the consumer.

What if my standard form contracts contain unfair contract terms?

This action by the ACCC serves as a warning to businesses that the ACCC intends fully to enforce the unfair contract term provisions of the ACL. If you believe that your contracts may be in breach of these provisions, we strongly encourage you to obtain legal advice relative to your agreements.

Nautilus Law Group is able to assist you with advice on all compliance matters relative to the Australian Consumer Law. We welcome you to contact our offices on (07) 5574 3560 or email info@nautiluslaw.com.au. We thank you for considering Nautilus Law Group.

 

What happens when I fail to pay Superannuation installments for my staff?

by | May 20, 2013 | Commercial Law

Most directors are aware of the importance of compliance with PAYG withholding and superannuation guarantee charge obligations. However, what happens when the company fail to pay Superannuation installments for their staff? What are the consequences for the directors?

Since 1993 the Australian Taxation Office (ATO) has had the power to recover company liabilities through the director’s penalty regime. These new policies were aimed at ensuring that directors realise that they have a responsibility to ensure that the company meets its tax obligations. Further, if these tax obligations could not be met, directors would be compelled to immediately place the company into voluntary administration or liquidation. Directors were encouraged to comply with these obligations through the threat of personal liability for a penalty in the same amount as the outstanding tax liability.

The Commissioner of Taxation is able to commence proceedings against a director for payment of a penalty 21 days after issuing a ‘Directors Penalty Notice’. A DPN essentially gives the director notice of the outstanding liability, and provides them with time to arrange for the company to make full payment of the debt amount, enter into an installment arrangement, or place the liable company into voluntary administration or liquidation.

The ATO can make estimates of the amount of the tax liability where a company has failed to make lodgments. The Director’s Penalty Notice is then issued on the basis of this estimate.

What do the June 2012 amendments mean?

Further restrictions were put in place as a result of the amendments made to the Taxation Administration Act 1953 (Cth). Firstly, the director’s penalty regime extended to superannuation guarantee obligations in addition to PAYG withholding obligations.

Further, the changes restricted a director’s ability to evade personal liability through placing the liable company into liquidation or voluntary administration. The changes put forward in June 2012 divide tax obligations owed into two categories:

  1. Obligations that are unpaid and unreported for more than three months beyond the due date for reporting; and
  2. Obligations that are unpaid by the due date but are reported in Business Activity Statements (BAS) and Superannuation Guarantee Charge (SGC) Statements within the three month period of the due date for reporting.

In the first situation, unpaid and unreported obligations become a penalty imposed personally upon a director when the DPN is issued. However, a director cannot escape personal liability by placing the company into voluntary administration or liquidation. The only way to remove the penalty is for the director or the company to make payment of the debt in full.

In the second situation, a director can negate personal liability for unpaid but otherwise correctly reported obligations by placing the company into voluntary administration or liquidation.

These changes encourage directors to further adhere to reporting and tax obligations. The imposition of personal liability on a director that cannot be waived other than by transparent reporting in compliance with ATO requirements or full payment of the tax obligation.

What defences are available?

If a director can establish that the director was not involved in management of the company at the time the liability was incurred for the reason that the director was ill (or for some other good reason) and it would be considered unreasonable for the director to take place in the management of the company during this time, then the director can escape personal liability for the obligation.

Alternatively, a director can escape personal liability for any outstanding tax obligations if the director took all reasonable steps to:

  • Cause the company to meet its tax obligation in full;
  • Cause the company to appoint an administrator; or
  • Place the company into liquidation.
What should I do when I receive a Director’s Penalty Notice?

You should seek legal advice immediately if you receive a DPN. You must remember that you have 21 days to take action from the date of the DPN before the ATO can/may take action against you to recover the penalty amount.

Where the DPN is received where PAYG withholding or SGC obligations are unpaid and unreported within 3 months of the due date, then we can consider options such as:

  1. Making payment of the debt in full;
  2. Entering into an installment arrangement with the ATO to make payments; or
  3. Place the company into liquidation or voluntary administration.

Where the liabilities are unpaid or unreported for 3 months after the due date, then the options are restricted to:

  1. Making payment of the debt in full; or
  2. Entering into an installment arrangement with the ATO to make payments.

Nautilus Law Group can assist you to reduce your liability to the extent possible where you have received a DPN. We can liaise with your accountant and the ATO where required to attempt to reduce your personal liability for payment of the tax obligations.

If you need advice, or would like further information, we welcome you to contact our offices on (07) 5574 3560 or email info@nautiluslaw.com.au. We thank you for considering Nautilus Law Group.

This article is intended only to provide a summary and general overview of matters of interest and the law. It is not intended to be comprehensive and it does not constitute legal advice. While we take all necessary steps to ensure that the information is current or accurate, we cannot guarantee its accuracy or currency. You should always seek legal or other professional advice before relying or acting upon any of the above content or information.

Submitted by:  Katrina E. Brown BA JD ATIA TEP SSA

Life Interests – Protecting Wealth for your Children from Predators of your Partner

by | May 15, 2013 | Estate Litigation, Powers of Attorney and Estate Planning, Succession Law

Protecting Wealth for your Children from Predators of your Partner.

A successful estate plan is a coming together of a number of strategies and tools aimed to achieve your goals for the distribution of your estate, while addressing any prevalent issues, such as protection of the assets, family breakdowns and taxation consequences.

A life interest, in the context of estate planning, is a form of Testamentary Trust where the Testator grants an individual (in most cases the surviving spouse), a lifetime benefit from an asset or the income from an asset of the estate of the Testator.

The person to which the life interest is granted, also called the ‘life tenant’, is essentially granted the right to enjoy the asset for their lifetime or until such time as the life tenant stops complying with the terms of the trust. The benefit of a life interest is that when it ends, the remainder of the asset is passed down to the intended beneficiaries of the Testator. Ownership of the asset is held by the intended beneficiaries, and the life tenant is simply granted the benefit of the use of the asset for the duration of their lifetime.

A life interest is flexible in that it can be used to allow the life tenant to access income only, or may include capital and income.

How can a life interest be used as an estate planning tool?

A life interest is an estate planning tool that can be used in a number of situations, the most common of which are situations where couples are in their second or third marriages, often with children from each marriage.

In this situation, couples who have married later in life and have brought assets into a marriage may wish to ensure that they are able to pass their assets to their respective children. In these situations, assets are often kept separate, with the exception of the couple’s primary residence. A life tenancy allows an individual to ensure that their spouse is provided for, for his or her lifetime. Then, once the surviving spouse has passed away, the Testator’s share of the asset is then passed to the intended beneficiaries of the Testator (usually the biological children of the Testator).

As you can see, the life interest is a way of ensuring that the entirety of the Estate of the first spouse to pass away does not pass to the Estate of the surviving spouse. A life interest ensures that the first spouse’s share of the primary residence can still pass through their bloodline to their children, without any sacrifice of standard of living of the surviving spouse.

Another situation where a life interest can be beneficial is where a couple has amassed a sizeable Estate. If, after the passing of their spouse, the surviving spouse re-partners, a life interest will ensure that the assets of the life interest can be used to the benefit of the surviving spouse without becoming a part of the surviving spouse’s Estate – which will protect the asset upon the death of the survivor or on separation from the future partner. The asset is instead preserved for the intended beneficiaries (usually the couple’s children).

How do we grant a life interest?

As stated above, the most common asset of a life interest is the primary residence of the couple. Most couples will hold their primary residence as ‘joint tenants’. Joint tenancy is essentially a type of ownership of property where two or more owners hold the whole of the property jointly with the other owners. This means that each owner has an equal entitlement and interest in the property. The most relevant aspect of joint tenancy is that upon the passing of one joint tenant, the surviving joint tenant (or joint tenants) acquires the deceased joint tenant’s interest in the property automatically. The effect of this is that the interest that belonged to the deceased joint tenant will not form a part of his or her estate.

If you hold your primary residence as joint tenants with your spouse at the time of your passing, your primary residence will then pass to your spouse in its entirety. The whole of that property will then pass to the surviving spouse’s estate to be distributed in accordance with his or her Will, which can be undesirable in circumstances where your spouse remarries or where each spouse has children from a previous relationship.

In order to create a life interest, therefore, it is often necessary to ‘sever’ the joint tenancy and causes spouses to hold the interest in their property as ‘tenants in common’.  The difference between tenants in common and joint tenancy is that, should a tenant in common pass away, the share of the property owned by the deceased spouse passes in accordance with the provisions of the Will of the deceased tenant in common. Shares in property owned as tenants in common can be transferred independently of each other.

Tenants in common allows a spouse to create a life interest to the benefit of the surviving spouse over their share of the property, while their spouse still owns the remaining share. Then once the life tenant has died, the property passes half in accordance with the first spouse’s estate, and half in accordance with the second spouse’s estate, to their intended beneficiaries.

If you think that a life interest may be beneficial to your circumstance, or you would like some information about life interests and how they work, please do not hesitate to contact us to discuss this further. We are able to assist you to incorporate life interests into your estate planning, and we are also able to assist you with severance of your joint tenancy if required.

For all questions or further information, we welcome you to contact our offices on (07) 5574 3560 or email info@nautiluslaw.com.au. We thank you for considering Nautilus Law Group.

Submitted by:  Katrina E. Brown BA JD ATIA TEP SSA