Stewart & Co Blog

We are now approaching the one-year anniversary of when New Zealand went into lockdown for the first time due to Covid-19.  This brought in a raft of measures by the Government to help businesses stay afloat during the uncertainty and to try to bring some stability to our economy.  With the vaccine role out underway there is a light at the end of the tunnel however the Government has kept in place measures to help businesses should they still be impacted by Covid-19 and we detail some of these below:

 

Short-Term Absence Payments

From 9 February 2021 the Government has introduced a short-term absence payment for when employees are absent from work due to waiting on a Covid-19 test result, when the employee cannot work from home.  This also applies to the parent or caregiver of a dependant who is staying home while waiting for a Covid-19 test result and the dependant needs support to do so safely, or a household member or secondary contact of a close contact of a person with Covid-19, and they have been advised to stay home while waiting for the close contacts test results. 

The payment is a one-off amount of $350 per eligible employee per 30 day period, unless a health officer or doctor tells the worker to get another test.  You have up to 8 weeks to apply for the payment after their absence from work, however the test must have been carried out on or after 9 February 2021.  Your employees do not need to have exhausted their sick or annual leave entitlements to be eligible for the payment and the payment must be used to cover the employee's wages, however if it is more than the employee would normally receive for their time of absence, it can be used to pay other staff. 

If you are self-employed or a shareholder employee you are also eligible for this payment. 

Applications can be made online but before you do so, you need to discuss the application with your employee and get their consent. 

For more information see the Work & Income website (https://www.workandincome.govt.nz/covid-19/short-term-absence-payment/index.html)

 

Self-Isolation Payments

For employees who are told by a health officer to go into self-isolation and cannot work from home, the Covid-19 leave support scheme is available.  This includes employees who are sick with Covid-19 and have been told to self-isolate, are a close contact or the parent/caregiver of a close contact of someone who has Covid-19 and have been told to self-isolate, or other instances where a medical professional has instructed the person to self-isolate due to Covid-19 risk. 

The payment is $585.80 for full time employees and $350 for part-time employees and this covers a two week period.  If they employee needs to continue to self-isolate, you can reapply in the last week for a further 2 week payment.

If your employee returns to work within the two week timeframe covered by the payment, you can use the remainder of the subsidy to pay other employees, such as other employees self-isolating due to Covid-19 or those who are being paid less than their usual rate due to Covid-19.  If you do not have other employees or they are already being paid their normal wages, then you need to repay the remaining amount.

Self-employed and shareholder employees are also entitled to this payment. 

If employees are self-isolating while they await their test results, then the Short-Term Absence Payment should be applied for instead. 

For more information see the Work & Income website (https://www.workandincome.govt.nz/covid-19/leave-support-scheme/index.html)

 

Small Business Cash Flow Loan Scheme

Applications for the loan have been extended to 31 December 2023.  The Small Business Cash Flow Loan Scheme provides a loan of up to $100,000 to businesses who employee 50 or fewer full-time employees, including sole-traders and self-employed businesses.

The loan is made up of an initial $10,000 plus $1,800 per equivalent full-time employee.  It is interest free if paid back within the first 2 years.  If it is not paid back within the first two years then an interest rate of 3% p.a. applies for a maximum term of 5 years.  Additionally, no repayments are required in the first two years.

To be eligible you must show a drop in turnover of at least 30% due to Covid-19 measured over a 14 day period in the last 6 months.

Previously the loan was only for use to cover the day to day running expenses of the business however this has now been broadened to include the buying of equipment. 

Applications can be made through the IRD's MyIR by going to the "I want to" section and selecting "Apply for small business loan". 

 

While the above information is correct at the time of writing the situation is constantly evolving.  If you would like further information on any of the above or what other options are available for support during Covid-19, please do not hesitate to be in touch with our office. 

 

A Trust should be administered in a way that is consistent with its terms and objectives and avoids unnecessary costs and complexity.   Now is the time to review your Family Trust, make any amendments necessary and be prepare for the changes on 30 January 2020 when the new Trusts Act 2019 comes into effect.  Trust Deeds were written to reflect what was considered appropriate at the time that they were created, however that may no longer be the case.  The following areas are the most likely to need consideration:

Purpose of the Trust

• Is the trust still fit for purpose?
• Would it be appropriate to wind up the Trust?
• Remember, there may be tax and legal implications of winding up the Trust.  Please seek appropriate advice.

Documentation

• As Trustee do you have access to all the relevant Trust documents and are these up to date?

 

Trustees

• With the increased obligations and responsibilities imposed by the Act, are your current Trustees willing to continue on or should they retire and do new Trustees need to be appointed. 

 

Beneficiaries

• Who will the Trustees need to make disclosures to?
• How wide are the beneficiary classes?
• Do the number of beneficiaries need to be changed?
• The Act provides that if there is a wide class of final beneficiaries and no clarity is provided as to how assets are to be divided on wind up, these are to be equally distributed. 

 

Priority of Beneficiaries

• Has the priority of beneficiaries in terms of distributions been set out.  The Act specifies that the Trustees must act impartially, and this can give rise to issues where the settlors intended that certain beneficiaries would be given distributions before other beneficiaries.  For example, the settlor may also be a beneficiary and expect that they will receive preferential distributions over their children during their lifetime.  This may have been set out in a memorandum of wishes but should be reviewed and consideration given to whether this should now be inserted into the Trust Deed.   

Prudent Investment

• Are the Trusts assets held in a diversified fashion or are all the investments in one or two places?  There is a default duty that the Trustees should invest prudently however, this can be overruled by the trust deed by adding a clause that the assets can be held in a non-diversified manner. 

 

Conflict of Interest

• Are Trustees of the Trust also Beneficiaries.  If so, there is a default duty that the Trustees cannot exercise their power for their own benefit.  Ensure that your Trust Deed allows for decisions which will effect the Trustee as Beneficiary can be made safely.   This can be by way of a clause being added to expressly allow a Trustee to act in their own benefit as beneficiary or by allowing the other Trustees to make decisions to benefit that Trustee as beneficiary. 

From 30 January 2021 new rules around the management and administration of trusts will come into effect.  Historically many trusts were set up to hold assets such as the family home and have required minimal effort from the Trustees in their management.  The new Act will require a much more active role from Trustees with regards to disclosure of information, holding of records and the introduction of Mandatory Duties.  Trustees may therefore like to take this opportunity to review their Trust and whether it is still the most appropriate option. 

 

Beneficiary Information

Under the new Act, there are two categories for trust information:

• Basic Trust Information; and
• Trust Information

Trustees are expected to give Basic Trust Information about the Trust to all beneficiaries (or their representative).  This information includes:

• The existence of the Trust and that they are a beneficiary
• The names and details of the Trustees, and any changes to the Trustees when these occur; and
• The beneficiaries right to request a copy of the Trust Deed and Trust Information. 

Trust Information, which can be requested by the beneficiaries, includes the terms of the Trust, the administration of the Trust or the Trust property and information that is reasonably necessary for the beneficiary to have to enable enforcement of the terms of the Trust and the Trustees duties.  But this information does not include the reasons for Trustees decisions. 

The information above which beneficiaries or their representative can request includes details of the Trust's assets, along with information on what distributions and loans the Trust has made and to whom. 

The increased level of disclosure may be of concern to some settlors, especially if they have not previously disclosed to beneficiaries, such as their children or grand-children, that they are a beneficiary of the trust, or if the Trust has a wide class of beneficiaries including multiple generations and their spouses.  In some cases we have seen trust deed which include reference to "any relative" which is very far reaching. 

Before giving out Trust Information to beneficiaries, the Trustees should consider a number of factors which are set out in the Act.  Some of the factors to consider include:

• The nature of the interest in the trust of the beneficiary
• Commercial or personal confidentiality
• The intentions and expectations of the settlor at the time of setting up the Trust
• The effect of giving the information to the beneficiary, this includes the impact on the family relationship and the relationship with other beneficiaries
• If the trust has a large number of beneficiaries, whether it is impractical to give all beneficiaries information

 

Trust Records

Trustees are also expected to retain copies of core Trust records.  These can be paper or electronic copies and include the following:

• The Trust Deed and any other documents which contain the terms of the Trust
• Amendments and variations to the Trust Deed or Trust
• Documents for the appointment, removal and discharge of Trustees
• Records of the Trust property which identify the Trust assets, liabilities, income, and expenses which are appropriate to the value and complexity of the trust property
• Any record of Trustee decisions
• Any written contracts entered into
• Accounting records and financial statements
• Memorandum of wishes from the settlor
• Any other documents necessary for the administration of the trust
• Any documents referred to above that were kept by a previous Trustee and passed onto the current Trustee

Each Trustee must keep copies of the Trust Deed and variations and have access to all the other trust records. 

 

Mandatory Duties

The Trust Act 2019 sets out a number of Mandatory and Default Duties for Trustees.  The Mandatory Duties are as follows:

• Know the terms of the trust
• Act in accordance with the terms of the Trust
• Act honestly and in good faith
• Act for the benefit of the beneficiaries; and
• Exercise Trustee powers for a proper purpose

 

The following default duties must be performed unless they are modified or excluded in the Trust Deed (or by way of a subsequent variation of the Trust Deed):

• Exercising reasonable care and skill in administering the trust
• Investing prudently
• Not exercising their power for their own benefit
• Act impartially between beneficiaries
• Not profit from the Trusteeship of the Trust
• Act unanimously with the other Trustees
• Regularly and actively consider the exercise of Trustee powers
• Not bind or commit trustees to the future exercise or non-exercise of discretion
• Avoid conflicts of interest between beneficiaries and trustees
• Not take reward for being a trustee

If you would like to discuss these changes and the impact they will have on your Trust, please do not hesitate to be in touch.