We help individuals and businesses understand relevant laws and regulations that apply to their specific situation so they make better informed decisions.
Tax Planning & Advice
The importance of tax planning to businesses cannot be overstated. Getting the right advice will, invariably, deliver thousands of dollars in savings over the long term.
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Very often, tax planning is about choosing the best structure for your business; moving to a different structure if the needs of your business change, managing income and cash flow and planning in advance of any sale or purchase. It is a continual process. Every transaction has tax consequences but, with a little planning and the right advice, those consequences are manageable. Tax planning, especially if done early, is a long term and valuable investment in your business.
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What sets Cleary Hoare apart from our larger competitors is that we live and breathe tax - it is our passion. We are a private business ourselves and have an intimate knowledge of the challenges, needs and priorities of our clients. We do not just identify problems; we provide practical solutions. Our determination to find real, workable solutions for our clients has positioned us as leaders and innovators in the tax planning sphere.
Our Tax services include
One of the certainties in business is change. Change to legislation and policy of revenue and regulatory bodies impacts directly on our clients.
We believe that there is no other area of law more dynamic or fast-changing than tax. Keeping abreast of changes to legislation and policy and regulatory bodies is an important part of how we provide value to our clients. Not only do we ensure our advice is up to date with the most recent changes, we also look to the future and consider what changes are likely to happen. We take an active role in the development of tax law by advocating for the interests of our clients in the development of legislation and policies which may affect them.
Structuring business sales and purchases
Business structures and restructures
Taxation planning for business and investment income
Structuring commercial transactions
Capital Gains Tax
Superannuation advice for SMSF's
Retirement benefit planning
Stamp Duty
Joint Ventures
Tax Litigation
As a premier taxation and capital protection law firm for private businesses, we fully address our clients' needs with considerable tax litigation expertise. Our specialist litigation lawyers have decades of experience in litigating taxation issues. They know how to correct the power imbalance imposed by regulatory bodies.
ATO objectives
Responding to ATO 'Access to Information'
State revenue disputes including Payroll Tax, Land Tax and Stump Duty
Requesting 'Freedom of Information' (FOI) documentation to resolve ATO or OSR disputes
Judicial review applications
Administrative Appeals Tribunal (AAT) proceedings
Federal Court and High Court proceedings
Taxation offences
Joint Ventures
Capital & Asset Protection
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In an increasingly litigious environment, many of our clients are concerned about asset protection. Typically they want to ensure that:
Their assets are protected from each from their creditors, bankruptcy or divorce
Their personal and business assets are protected for future generations
The assets they pass onto their children are protected from creditors, bankruptcy or divorce of their children
Capital protection is one of three key areas in law that we specialise in. To us, Capital Protection means ensuring that the wealth which clients accumulate is being generated in a flexible environment, secure against misadventure or litigation; and structured so that wealth and control will pass to the right people in the next generation.
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Capital Protection starts with advice on structuring and the use of key criteria to ensure clients are operating or accumulating wealth in the correct structure. Where analysis of a client shows that assets are not protected, we can deliver strategies to protect those assets from risk.
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Capital protection also incorporates growth of the client, whether that be by way of capital raising, structuring the business for introduction of new participants, governance, shareholder, unit holder or partnership agreements; or preparing a business for sale, whatever the type of business.
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When considering Asset Protection, a simple but valid principle to live by is the old saying, "Don't have all your eggs in one basket". We always recommend that clients should quarantine separate types of assets in separate entities.
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It is often the case however that assets are accumulated by clients either in unsuitable structures or in personal names which exposes those assets to risk. Once those assets are acquired; the cost to take a traditional approach and transfer those assets to something else can become too costly due to Capital Gains Tax or stamp duty liabilities.
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One of the highest levels of asset protection that can be provided to a client is to own assets in a fully Discretionary Trust. This is because the courts have long recognised that a beneficiary of a purely Discretionary Trust does not have a defined or contingent interest in any of the Discretionary Trust's assets, even though that beneficiary may control the Trust. Therefore, if a beneficiary is attacked by creditors, becomes bankrupt or is divorced, in most circumstances the Trust assets will not be at risk. It is for this reason we often use Discretionary Trusts when undertaking asset protection work for clients.
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We have further enhanced the asset protection values of a Discretionary Trust by developing the Bloodline® Trust. At the request of a number of cane farmers, our involvement in the rural sector saw the development of the Bloodline® Trust that would deliver robust protection of their land and assets when it passed to the next generation. The Cleary Hoare Bloodline® Trust has helped hundreds of families and businesses protect their assets in a tax effective manner.
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It is a full Discretionary Trust
The rules of the Bloodline® Trust categorically provide that the capital (assets) of the Trust can never go outside the bloodline during the life of the Trust
It allows income to be spread amongst in-laws (eg children-in-law, grandchildren-in-law) but the rules very strictly provide that capital must stay within the bloodline
If the transfer of assets to a Discretionary Trust becomes too costly due to Capital Gains Tax or stamp duty liabilities, other strategies can be adopted which will achieve a comprehensive level of asset protection but without any tax cost.
Business Succession Planning
Effective succession planning is extremely important to your business. Getting it wrong will carry a high cost for you personally and the value of your business.
We believe succession planning should be broken down into four very important elements:
Developing a strategy to ensure that any untimely exit of a key person does not destabilise the business for the ongoing owners
Creating systems, and locking in key contracts, to reinforce true value of the business
Developing a plan on the best possible exit strategy for you to realise the value of your business
Ensuring that you gain access to all available Capital Gains Tax concessions (up to $4 million tax free can be accessed)
Unfortunately, we have seen too many private business owners suffer unnecessary and significant losses due to ineffective succession planning. Businesses can become paralysed by the unplanned and unexpected exit of a partner. Substantial tax benefits upon the sale of a business are missed due to poor structuring. Retirement plans are shattered due to much lower that expected business valuations or lack of potential exit strategies. ​ Here are some critical questions associated with succession planning to ask yourself, or even better, discuss them with your business partner and compare notes: ​ How much do you believe your business would be worth if you were to sell it? How do you expect to realise the value of the business? Do you have a potential buyer in mind? If you were to sell the business today, what access would you have to every available Capital Gains Tax Concession? Is the business totally reliant on the personal skills of you and/or your business partner for its profits? Without you, is there actually a business to sell? If you were required to buy out your co-owner's share, which financial resource would you use? Does your current life and key person insurance policy/s cover the debts of the business? If you passed away suddenly, what role would your spouse and/or family want to play in the continuing operation of the business? Do you have a legally binding agreement in place with your co-owners that guarantees the fair and equitable treatment of your spouse and/or family, regardless of which options they choose? If your business partner passed away suddenly, would you want to work with the inheriting relatives of your co-owner? At what age do you wish to retire and how do you wish to retire?
It does not matter what stage your business is at – Succession Planning is a process that develops with the business. True Succession Planning requires an individualised solution, to ensure your specific needs can be met. The key is to have a plan in place before an accident happens or a situation arises. In many cases, significant value is lost due to the lack of planning for the unexpected.
Recommended solutions
Buy/Sell agreements to ensure value is preserved for your family
Business structures or restructures to ensure all Capital Gains Tax Concessions are available
Equalising your estate value amongst your beneficiaries
Effective structuring and funding of employees to purchase the business
Separating company owned assets without Capital Gains Tax for the benefit of separate children
Splitting Trust assets into separate Trusts without Capital Gains Tax for the benefit of separate children
Our specialist litigation lawyers also assist with a variety of general commercial disputes including
Partnership, shareholder and director disputes
Australian Consumer Law disputes, such as misleading and deceptive conduct, unconscionable conduct, etc
Secured and unsecured debt recovery including bankruptcy and insolvency
Business ownership disputes
Building and construction disputes
We regularly deal with a broad range of contractual dispute and enforcement matters including
Business contracts and commercial agreements
Mortgages, securities, guarantees and other financial instruments
Joint venture and development arrangements
BLOODLINE TRUST
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A Bloodline Trust is a legal entity that holds and manages assets for the benefit of one or more members of a family bloodline. The trust is usually established by a family member who wants to ensure that their wealth is protected and passed down to future generations in their family.
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Commercial & Tax Litigation
We have extensive experience in both litigation and dispute resolution and advises business clients on contentious matters throughout Australia.
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We understand that in order to offer value, you require:
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A fast and timely analysis of your position
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Your commercial objectives identified
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All dispute resolution options tabled in order to avoid lengthy and expensive litigation if possible
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Robust solutions implemented cost effectively to achieve your commercial objectives
If a dispute arises in your business, Cleary Hoare's litigation lawyers can help in choosing the best avenue to protect your interests which may be through litigation or an alternative means of resolution such as negotiation, mediation or arbitration. All of our lawyers, including the litigation lawyers, take a proactive approach, to deliver advice which is timely, practical, and cost effective.
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We appreciate that commercial disputes can quickly turn into protracted and costly litigation. Business owners are often best served by resolving a dispute and then getting on with the business of being in business. Accordingly, Cleary Hoare's approach is to quickly come to grips with whether litigation or a more subtle or nuanced approach is the best means of resolving a commercial dispute.
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Our litigation lawyers have the skill and sensitivity to assist you with resolving commercial disputes in order to proceed from discord to accord. Should commercial litigation become necessary, we will advocate forcefully and effectively to protect your interests.
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Effective Estate Planning
Quarantining your personal assets from business and other risks
Separating valuable business assets from business risks
Preparing a Will that will protect assets from mishaps after you die, such as the divorce of one of your children
Preparing an Enduring Power of Attorney so that your estate can be managed effectively if you lose capacity
Getting the right advice from Estate Planning specialists
Integrating your Estate Planning initiatives with your financial and business development plans
Why consider Estate Planning?
An effective Estate Plan results from getting the right advice and acting on it. Consider the following:
Over 46% of marriages in Australia are expected to end in divorce (almost 50,000 divorces were granted in Australia last year)
Only 50% of eligible people make a Will
Over 20,000 people are declared bankrupt in Australia every year
Family members and dependants (including de facto spouses) can and do dispute the "fairness" of a Will under the Succession Acts in each State
These facts can result in family disputes, loss of assets to others outside of the family and high legal costs.
Indigenous Enterprise Development
You only need to google "Indigenous joint venture" or open the business section of a newspaper to know that joint ventures between Indigenous groups or businesses and "non‑Indigenous" businesses are a hot topic.
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Despite the volatility in the mining and resources market, mining and contracting businesses are still investing billions of dollars in regional and remote areas. Competition for contracts is fierce. Operating as a joint venture with a Traditional Owner Group can give your business the edge it needs to win, and keep winning, contracts; and an opportunity to build quality, long-term business relationships. Indigenous groups can also provide access to land, reputational endorsement, credibility and business support.
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Benefits also flow to the Traditional Owners, allowing them to generate income, reduce dependence on mining royalties and develop business experience and capabilities. With the right relationship, and the right advice, an Indigenous joint venture can deliver great benefits to the parties involved.
What gives an Indigenous joint venture "the edge" over other contractors?
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All major mining and contacting companies and, increasingly, those seeking government contracts, have come to realise that, in order to deliver sustainable financial returns to their shareholders, they must play a part in creating economic, environmental and social stability in the regions in which they operate. Most, if not all, have developed policies that cover investment in Indigenous enterprise. Whilst the details of each policy differ, they each contain a preference for contractors with substantial Indigenous involvement or ownership.
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What is a Joint Venture?
A joint venture is a relationship between parties where they share the product or output of an enterprise. A joint venture should be distinguished from a partnership, where the partners share profits and are jointly and severally liable for the debts of the partnership. A properly structured joint venture will not impose joint and several liability on the joint venture parties. ​ There are two main types of joint venture: an unincorporated joint venture, where the rights and obligations of the parties are set out in a Joint Venture Agreement and an incorporated joint venture, which generally takes the form of a company in which the participants hold shares, and which is governed by a Shareholders Agreement. In either case, the document governing the joint venture sets the rules and responsibilities of the parties and each party's entitlements. ​ Are Joint Ventures only useful for mining contractors? ​ No. Joint Ventures have an incredibly wide and varied application. We have assisted with the establishment of many successful joint venture arrangements in the areas of tourism, facilities maintenance, small construction projects and service delivery. In these cases, some are focused on financial returns and others deliver broader involvement in training, business referral and endorsement.
There is no single process for developing a Joint Venture, but the following is a general roadmap:
Identify a Joint Venture opportunity
Select a co-venturer
Enter into a Memorandum of Understanding
Undertake due diligence
Choose Joint Venture and execute agreements
Begin implementation/operations; and
Measure performance and results for parties regularly
Indigenous Business & Investment Structures
We are experts in taxation and capital protection for private businesses. We combine the use of structures such as Trusts, Partnerships, Joint Ventures and Companies with strategic commercial legal advice. We are not Native Title lawyers, and we do not want to be Native Title lawyers. In our experience, the needs of Indigenous groups with respect to their business and investment structures, are very similar to the needs of our other SME clients.
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We use our market leading understanding of business structures, tax law and asset protection will assist Indigenous groups to achieve their objectives, while maximising asset protection, tax effectiveness, operational flexibility and good governance. We also offer Indigenous groups our Corporate Counsel service as part of the joint venture implementation and operations phases.
Our services include
Establishing flexile and tax efficient "Benefit Management Structures
Commercial and Charitable Trusts
Corporate Counsel Service
Joint Ventures
Governance Agreements
Commercial Contracts
Taxation advice
Litigation