Personal Liability for Corporate Fault Reform Act 2012 (Cth):The Bill’s accompanying speech and media release said that it was …According to Mr B Ripoll, Parliamentary Secretary to the Treasurer, the…
e.g. building industryproduct liability, e.g. carsprofessional negligence, e.g. auditingin the course of their workwithin your workplacewhen making a product or delivering a service
By an employee against you or a customerTo a third party, or ex-employeeAs a result of a fire, storm, flood or accident
Cut funding or the cost increased (GFC)Adversely impacts your business (e.g. a ban on live cattle exports, tort reform, changes to the tax system)By you or your business partnerDeath, disability, trauma, breakdown
Period of cover - Run-off insurance for directors liabilityExclusions - Part IVA advice, civil penalties, etcProduct liability Professional negligenceDirectors insuranceCartageEquipmentWorkcoverRisk cover (income and expense)
excluded from participating in certain activities, e.g. state licenses, etc, and effectively remain responsible for the pre-bankruptcy for the period of your bankruptcy, e.g. 5+ years.If you are a director of a company that has gone into liquidation:your personal responsibility is likely to be lessthe hurdles for people to jump over to make you personally responsible will be higher
Create a legal separation between where you hold assets and where you carry on business activitiesIP, licensing entity, services entityCreate a legal separation between:where you hold your business assets; andwhere you hold your investment assets
Separate discrete business activities into separate entities – so if one fails, the others surviveSeparate distinct risk levels into distinct entities
Consider using a separate contracting company for larger projects – SPVs
Do not enter into a JV with your main trading business.Set up a separate entity and put in what you are willing to contribute.Otherwise, when your business partner sues you, you will have everything to loose
Will have right of subrogation after guarantee enforced
Small business concessionsNo stamp duty relief
In other words, don’t look like you have wealth worth attackingBut maybe that is not how you want to live
Bullet Proof Your Business - SME Asset Protection
BULLET-PROOF YOURBUSINESSAndrew AndreyevIt’s a lot easierto loseassets, than it isto accumulatethem.
What we will cover What is „asset protection‟? What are the risks? The three strategies How to set up your companiesand trusts What happens if it all fails?
What we won‟t cover Asset protection is: a state of mind; and a longer-term way ofthinking There are no quick fixesAsk for first-handtestimonials of success.
What is asset protection? Keeping and protecting whatyou have In the context of ourbusinesses: The „investment‟ which the„equity‟ in our businessesrepresents; and The threat from our businessagainst our non-businesswealth.
The science of „risk management‟ Identifying, eliminating, lowering and managing risks What could go wrong? Is it likely to go wrong? What would be the impact? How can I avoid it going wrong? If I can‟t avoid it, how can I lower thechances of it occurring? If I can‟t stop it occurring, how can Imanage the outcomes?.
Some history „Modern‟ asset protectionstarted in the 1970s The Crusades and theMiddle Ages „use‟ A natural human instinct.
Is it moral? Is it fair to take positivesteps to protect whatyou have? Is there a limit to whatyou should be able todo? Is it a „moral‟ argument?Risk-taking v. irresponsibility
Irresponsibility“Not meeting your obligations to creditors”“Not paying your fair share of tax”“Endangering your employees”“Polluting the environment”“Limited liability is „unprofessional‟”There needs to be an incentive to take care.
You have financial andmoral responsibilities forothers, and if there are noadverse consequences foryou (because your assetsare protected), then youwould act irresponsibly.
Risk taking – is it worth it? We need to encouragerisk-taking The best way to do this isto give you the right tolimit what you are goingto risk when you go intobusiness Also applies to other socialactivities (charities, clubs..)Most businesspeopleare very responsible.
Company directors arecurrently subject to around 700different laws at federal, stateand territory levels that imposepersonal liability for theircompanys actions
Federal Labor agrees...…„an important deregulation initiative aimed atencouraging wealth and job creation in Australia byremoving unnecessary compliance burdens fromcompany directors and corporate officers, whereappropriate‟ would be helpful„Federal Labor Government is acting to cut red tape andremove criminal liability provisions that are inconsistentwith principles of good corporate governance andcriminal justice‟
COAG agrees… Miscellaneous Acts Amendment(Directors Liability) Bill 2012(NSW) Directors Liability(MiscellaneousAmendments) Bill 2012 (Tas) Directors Liability ReformAmendment Bill 2012 (Qld)
Should the „phoenix‟ rise? The „contrived‟ phoenix The „genuine‟ phoenix In Australia we generallydo not make thedistinction Once a „failure‟, always a„failure‟ – and probably acrook…
Types of „threats‟ Operational threats risks from the core operationsof your business Internal threats threats from within yourbusiness External threats threats from things outsideyour business.
Operational threats Under-quoting (cost overruns) Making a defective product Giving someone the wronganswer Injuring an employee Injuring a customer/client Harming the environment.
Internal threats Fraud or theft Disclosure of IP, CI or KH Allowing an employee to beharassed Loss of significant resources(eg equipment and keypeople) or operationalcapacity.
External threats Loss of debt funding Arguing with your businesspartner Accusation of mismanagementby shareholders A change in the regulatoryregime or law Separation or divorce Physical or mental breakdown.
Are the risks real? “Office Christmas partycomment costs$A2.56million” “Court gives former businesspartners the right to pursue$14 million claim againstDFO founders” “Rich pickings top $5m”:PwC v Christina Rich
The fundamentals WAKE UP! Operational asset protection Minimise the risks NEGOTIATE Contractual asset protection Share the risks QUARANTINE Structural asset protection Quarantine the risksMost people start withstructural asset protectionstrategies. However, werecommend that you startat the other end – WakeUp!
Take some responsibility These strategies limit andmanage the level of risk towhich your assets areexposed through the actionsthat you take within yourbusiness Most people do not have„legal problems‟. They havesimply failed to avoid anavoidable problem in the firstplace.
The risk areas The obvious: A product liability claim A workplace injury An environmental issue The more common: A cash-flow crisis causedby pilfering The loss of a keyemployee who does notfeel needed or mentoredappropriately A disgruntled businesspartner who does notthink you are pullingyour weightBusinesses get into troublewhen the owners andmanagers getcomfortable, get lazy, ordrop the day-to-daymanagement ball.
The most positive action you cantake to protect your assets –and particularly the assetswithin your business – is torefocus on your businessoperations.Take back responsibility!
Where things go wrong… Are you getting the financial information youneed to run your business? What are the key things about your business? How much does it cost to open your doors? Who are your biggest customers? Who are your most important suppliers? Who are your key employees? What is your MIS like? Start with a „blood test‟ How healthy is your cash-flow? How long does it take to collect your debtors?.
…where things go wrong… Does anyone have their fingers in your till? Do you have systems in place to detect variances? Who has authority to operate your accounts? Next look at your stock levels and controlsystem Is someone pinching your stock? Do you have too much stock? Is the stock too old?.
…where things go wrong… Employees: Do you have Job Specifications in place? Are they trained appropriately? Are they employed properly – terms, leave, etc? Are they paid appropriately – awards, conditions? Are they safe at work – OH&S? Bigger picture issues Are they the correct ones? Are you exposed to a key employee leaving? Do you need to sack anyone? Is there a sense of negativity in your business?.
…where things go wrong… A business does not last long without customers Are you communicating with them? Are you working for the right ones? Are they asking too much of you? Are you delivering on time and within budget? Do you have terms in place, and are they paying? Equipment How old (café upgrade)? How safe (for customers and employees)? How efficient (computers, software)?.
…where things go wrong… Identify your IP assets Customer lists Product specifications Financial information Marketing materials Precedents/templates Is you IP protected? Is anyone else using it? Are employees walkingout the door with it? Are they registered? Business partners: Are they pulling theirweight? Are you pulling yourweight? Are expectations clear?.
…where things go wrong… Do you have the right team ofadvisers and mentors? Are you doing enough marketing? How is your health? Physical MentalStrive for operational excellence.
Practical steps Wake Up Review the key areas ofoperational risk with yourmanagers/employees Make up a Risk Register Apply risk managementtechniques.
Share the load These strategies relate tomanaging risk by sharingresponsibility for the risk withother parties – who are in abetter position to managethose risks Over the longer-term, operational excellence isnot enough.
Terms of Trade Choose the terms on which you do business withother people Key issues: ACCA compliance Limitation of liability and warranties Passing of title/risk and insurance PPSA compliance and retention of title Guarantees.
Employment contracts Share the load with youremployees Protect yourcustomers, IP, phonenumbers Include a reasonablerestraint Use Job Descriptions You cant „performancemanage‟ without them.
General insurance Insurance is cheap – because it smoothscash-flow, and cash is king Read the fine print, or „pay‟ your brokerto do it for you: What is covered? Who is covered? When is it covered? What are the exclusions? The legal consequence ofunderinsurance Get a good insurance broker Ask them for advice Maintain an „Insurance Register‟.
External threats.. Constitutions and Shareholder Agreements Buy-Sell and Exit Agreements Joint venture terms with other businesses Binding Financial Agreements.
Practical steps Agree terms with all customers Agree terms with all suppliers Have written agreements with all employees Agree terms with all business/JV partners Maintain a „Contracts Register‟ Get a good lawyer on retainer Maintain an „Insurance Register‟ Retain a general insurance broker Get a written insurance review Maintain a „Guarantee Register‟.
Keeping things separate Structural asset protection: Creating a boundary betweenyour wealth and the business riskyou are exposed to while buildingyour wealth These strategies seek to managerisk by: quarantining risks; and keeping wealth out of harm‟s way The „Armageddon defence‟ – notthe primary defence.
Getting it right the first time It is important to make the correct structure choicesfrom the outset There are a number of impediments to arestructure, including: Tax restructure costs (or impediments); and The „relation back‟ rules under insolvency andbankruptcy laws The real benefits are in the details.
What is your motivation? Any strategy that has „asset protection‟ as itsprimary goal will be at risk of failure due to thetests within the insolvency and bankruptcy rules Any strategy that has „tax effectiveness‟ as itsprimary goal will be at risk of failure under PartIVA and other more specific anti-avoidance rules So what is a legitimate motivation? Real Change.
The building blocks You Other people A company A trust A combination of the above
Avoid trading in your own name Personally responsible for allbusiness outcomes The „Man of straw‟ strategyworks, but personalbankruptcy is worse thancompany insolvency But if you make a habit ofbeing associated with insolventcompanies, then you will beginto be excluded from otheractivities personally.
Avoid partnerships Your partners have your authority to get you intotrouble You may not know what you are liable for Avoid inadvertently entering into a partnership Do not agree to share profit with others Do not ask other people to do things for you.
An effective business vehicle Separate legal identity Limited liability for shareholders Separation of ownership andmanagement Structured managementprinciples and accountabilities Structured relationship betweenco-owners Perpetual succession.
Companies A company will quarantinethe risks within the businessfrom you personally, andfrom your other investmentassets Cheap life-time insurance Will not protect you frompersonal attack
Business liabilityShareholder limitationappliesNo protectionof business assets
Who will be a shareholder? A shareholder is only responsible for the amountthey agree to subscribe (avoid partly-paid) Shares in a company represent the value of theunderlying assets Accordingly, the shares should be held by someonewho is not likely to be subject to attack It may be an individual, or it may be a trust.
Who will be a director? Limit the number of people whoare directors and choose withcare Limit the opportunity forsomeone to be a „shadowdirector‟ Give „vetos‟ to the shareholderswhich can protect their interestwithout having to be a director.
Practical steps Use companies to carry on businesses Limit the number of directors Hold the wealth in shares in a protected place.
The state-of-play (Chief) Justice French on arampage Richstar, Cummins, Spry „Benefit‟ and „Control‟ (direct andindirect) Non-exhaustive, special power.., butstill not „property‟ More care needed when the trustis set up and administered Still effective, and still popular.
Who should be the trustee? Needs to be linked to acompany to carry on a business At-risk individuals should notbe personal trustees Trustees should not becontrolled by the appointorand at risk-beneficiary Directors of trustee should notbe controlled by the appointorand at risk-beneficiary.
Who should be the appointor? Ideally not just one person Build in „succession‟ and thereforehold the power with a „fiduciaryobligation‟ towards a family
Who should be the beneficiary? Not the person who is atrustee/appointor The children of the client Consider excluding the client
Contributions of wealth Need to be careful how wealthis put into a trust Division 4A of Bankruptcy Act.
What does it all mean? Back to the „Old-school‟ Role for professional trustees/directors/ appointors who hold theseroles as a fiduciary on behalf of afamily line.
Practical steps Use trusts to hold wealth Use trusts in conjunction with companiesto carry on businesses Set them up correctly, and avoidcreating an „alter ego‟ Keep trust deeds and constitutions up todate.
Separate „risk levels‟Holding EntityServicesAsset EntityEquipmentHireBusinessAssetsEmployees
Separate contracting entityHolding EntitySPV Entity(large contract)Asset Entity Business EntityContract
Joint VenturesHolding EntityJV ActivityAsset EntityGeneralBusinessBusinessAssetsEmployeesBusinessPartnersLess than 100%
Other principles Keep your structure clean andup to date. Liquidate defunctcompanies (transfer loans etc.to holding company) Keep you employees awayfrom your business andinvestment assets Setting up your companies andtrusts with defence in mind.
Use security Swap equity for debt Borrow through riskentities and use assetentities to provideguarantee security Give security over yourrisk entities first Document secured loansbetween your entities Use holding companiesas „treasury‟ vehicles.
Holding EntityBusiness EntityBusinessAssetsThird party debt2nd security infavour ofHolding Entity1st security infavour of BankProvidesguaranteeLoan
PPSA and „use‟ of assetsHolding EntityAsset Entity Business EntityBusinessAssetsBusinessAssets‘Lease’ of assetsOwnership
Dealing with your bank There is not a lot you can do Keep assets in separatepots, so that you can choosehow much to expose to bankobligations Watch out for standard „crosscollateralisation‟ clauses Have your home mortgage witha different bank to yourbusiness overdraft.
Separate asset poolsHolding EntityAsset Entity Business EntityOLD BusinessAssetsNEW BusinessAssets1st security infavour of BankLoan
What equity? Move „assets‟ to a new entity Move „equity‟ to a new entity Making distributions Creating liabilities Creating obligations Impediments Stamp duty/CGT Insolvency laws Bankruptcy laws.
Business EntityBusinessPremisesAsset Entity(Super Fund)Premises to SMSF• Access SBCs• Pay stamp dutyLease-back atmarket rents
Taking equity off the tableRegular distributionsto Holding EntityRe-investment of debtin Asset EntitySecurity in favourof Holding Entity
Taking equity off the tableHolding EntityAsset Entity Business EntityOLD BusinessAssetsNEW BusinessAssetsRegular distributionsto Holding EntityRe-investment inAsset EntityUse of asset byBusiness Entity
Forward and back in time Long-term consequences 3, 5 or 8 years Directorships, licences, finance… They can go back in time and recoupassets from: your creditors your spouse your trusts your super.
Up to 6 MonthsPreference (s.122)6 monthsClaw-backsApplication for„Sequestration Order‟„Commencementof Bankruptcy‟Act ofBankruptcyDate CreditorsPetition presentedUndervalued Transactions(s.120(1)) 5 yearsTransfer to defeat creditors (s.121)No time limitUndervalued Transactions(s.120(3)) 4 years – related entity and solventUndervalued Transactions(s.120(3)) 2 years – solvent
Tightening of the screws on trusts When? If you have made contributions andbenefit (Div 4A) If you have control and can benefit(Richstar) What to do: Structure appropriately Always pay full market value Document solvency at time of transfer New acquisitions are safer At-risk person pay ‘other’ expenses
Use super Statutory protection for lumpsums and life policies Post-2006 contributions with„main purpose‟ to defeatcreditors Pattern of contributions
How to benefit from privacy Do not: open your mouth drive a flash car live in a nice house There are ways that you can keepthings private: Limit what you make public Use nominees and trusts Hold assets outside Australia Adopt a „document retention‟ policy
The benefits of „offshore‟ Better privacy Harder to enforce judgements More flexible structures Professional and experienced trusteecompanies Few tax benefits (without imprisonment) Higher costs „Non-jurisdictional‟ assets.
What if it all goes wrong? Communicate Don‟t take it personally Don‟t trade while insolvent Pay tax/SGC first Keep your powder dry for next timeBest time to implement assetprotection is when it is not needed.If you think it is or may be neededshortly, then it is probably too late.
How we can help Help review your business foroperational, contractual andstructural weaknesses Review and update: your contracts your structures Help you maintain your Registers Defend you if you come underattack.