Stewart & Co Blog

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.  

As another measure to assist eligible small-to-medium businesses adversely affected by COVID-19, the Government has launched the Small Business Cashflow Loan Scheme (SBCS).

From 12 May 2020, businesses employing up to 50 full-time staff may apply to the Inland Revenue Department for loans of $10,000 plus $1,800 per employee. The loans:

• accrue interest at the rate of 3% for a maximum term of five years
• will not be liable for interest if repaid within 12 months, and
• require no repayments for two years

Inland Revenue will administer the scheme. Applications are open through myIR from 12 May 2020 to 12 June 2020. To apply, select 'Apply for a Small Business loan' in the 'I want to' section of myIR.

 

What you need to apply

To apply for the SBCS loan you need to:

• provide your New Zealand Business Number (NZBN) – obtain one, if you don't have one
• confirm that, due to COVID-19, your business is suffering a minimum 30% drop in actual or predicted revenue in the period January 2020 to June 2020
• confirm your business or organisation:

• existed before 1 April 2020
• is viable and ongoing, you have a plan to ensure it remains so, and you are keeping evidence to document this
• will use the loan to pay for core operating costs (such as rent, insurance, utilities, supplier payments, or rates)
• will not pass the loan through to the shareholders or owners, for example, by a dividend or a loan

• confirm you:

• have appropriate authority to commit your business to this loan. We can't apply for you and nor can other tax agents, bookkeepers, other representatives
• are 18 years or over and have the legal right to apply for this loan
• are aware Inland Revenue are not providing financial or other advice about the loan
• agree to the loan terms

• provide the number of your full- and part-time employees, if you have not already provided this when applying for the wage subsidy.

 

Keep in mind

If you provide false or misleading information or receive any subsidy or payment you were not entitled to, you may be subject to investigation, including for offences under the Crimes Act 1961 or the Tax Administration Act 1994.

After the initial two-year period (when repayments aren't compulsory), Inland Revenue will notify you of the regular instalment repayments required. If you miss repayments, you will be charged interest at 3% plus the use of money interest rate (currently 7%).

Under certain circumstances, Inland Revenue may consider you to have defaulted on the loan (the terms currently available set out what constitutes an 'Event of Default'). In such circumstances, the outstanding amount will become immediately due and payable, and subject to interest at 3% (if the event of default has happened after the initial two-year period) as well as use of money interest.

Keep your longer-term finance strategy in mind. For instance, if you plan to go to your bank for funding over the next three years, consider how they will view your application if you already owe up to $100,000 plus interest to the government via Inland Revenue. It may tip the balance against your funding application. If you're not in desperate need of working capital right now, your long-term relationship with your bank may be your better option.

 

Our Recommendation

Speak to us about whether the SBCS loan is right for your business and if you need support with your application.

 

Yesterdays budget focused largely on helping the country to recover from the economic impact of the Covid-19 lockdown with estimates the Governments spending will help save 140,000 jobs over the next 2 years and create more than 370,000 new jobs.  Prime Minister Jacinda Ardern acknowledged the enormity of the impact of Covid-19 on both New Zealanders and the New Zealand economy. 

"We have never sugar-coated what the future will look like, but nor will we pretend there is nothing that we can do about it. Governments have choices, just as we did when we faced Covid-19. And those choices are between sit back and hope, or sit up and act.  We have chosen to Act." – Prime Minister Jacinda Ardern

The highlights of yesterday's budget include:

• An 8 week extension to the Wage Subsidy scheme
• Support for SMEs to encourage e-commerce
• Increased spending on housing and infrastructure
• $400m to fund a domestic tourism campaign and support the tourism industry
• Trades and Apprenticeship training funding boost along with a Green Jobs initiative
• Free School lunches for 200,000 kiwi kids and help for tertiary students

 

Extension of the Wage Subsidy Scheme

$3.2 billion further has been allocated to the Covid-19 wage subsidy, bringing the total programme cost to some $14 billion.  To be eligible for the second wave of subsidies from 10 June 2020, the business needs to have experienced a 50% drop in revenue in the 30 days prior, compared to the same time last year.  Applications will be open for 12 weeks, will cover an 8 week period and, like the first wave of subsidies, will be paid in a lump sum of $585.80 per week per full-time employee. 

E-commerce Fund

A fund for small business is being set up to help them improve their e-commerce service offerings as well as grants to encourage e-commerce adoption.  Further support will also be given for business advice, the e-invoicing project, Business Connect and the Better For Business programme. 

Housing and Infrastructure

8,000 new state houses are expected to be built or purchased over the next four to five years with $5 billion further borrowings being made available to Kainga Ora to purchase the bulk of the houses. 

A further $570 million is earmarked for rent support for those on low incomes and will be managed through Kainga Ora and other community housing providers.

$56 million towards insulating some 9,000 homes through the Warmer Kiwi Homes initiative and the 67% subsidy for retrofitting insulation would be increased to 90% making it more affordable for low income households to be able to insulate their homes. 

$1.1 billion will be invested in improving transport across New Zealand.  This will include the replacement ageing of trains and ferries, including the Interislander ferries and their ports. 

$3 billion is to be spent on "Shovel Ready" infrastructure projects.  These are projects that are far enough through the planning and engineering stages that start on the projects could begin in a very short time with sufficient funding.  Approximately 2000 application have been made for this fund and Ministers are now deciding which projects are to go ahead. 

Domestic Tourism

A $400 million  Tourism Recovery Fund is to be established for the purposes of promoting New Zealand to domestic and Australian tourists as well as advisory assistance to tourism businesses to either help them stay in business, hibernate, or find other options. 

Trades Training and Green Jobs

A $1 billion package will be rolled out in the regions to create some 11,000 jobs focused on the environment such as biosecurity, pest control and DOC's "job for nature" fund.  This funding "will not only help restore our natural landscapes, native bush, waterways and coast, it will give thousands of people access to well-paid work so they can continue to provide for their families" -James Shaw, the Minister for Climate Change.

Additionally, $1.6 billion is to go into a trades and apprenticeship training package extending the "fees-free" vocational training to those out of work, not just school leavers.  This includes $334 million for further tertiary education, $320 million for free trades training and $412 million to assist employers to keep on their current apprentices. 

Free School Lunches and help for tertiary students

The Government is focused on making New Zealand one of the best places in the world to be a child and part of that is providing free school lunches to some 200,000 children.  $220 million has been pledged to this program which is also expected to create an additional 2,000 jobs. 

Tertiary students will have access to a $20 million fund for hardship grants to help them continue their studies over the coming year. 

Other Highlights

• $203 million boost to funding for family violence services
• $1 billion to go to the New Zealand Defence Force, $898 million of which is to go towards the purchase of new Hercules aircraft.
• $414.2 million for the Early Learning Sector, including funding subsidies, pay increases for educators, additional support for home-based educators and investment in playcentre sustainability
• $3.9 billion to ensure all DHBs continue to meet the needs of their populations
• $193.5 million to support farmers through the eradication of Mycoplasma Bovis
• $47.8 million to replace ageing communications capabilities for Police, Fire and Ambulance to support healthier, safer and more connected communities