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Part 1: Project tasks

Scenario

Anna and Cooper have decided to start their own marketing business and have come to you to seek advice on the common business structures in Australia.  You are employed by Bluebottle Tax Agent and Business Advisers.  Anna and Cooper are currently employed in the family business, a large marketing firm for around 10 years (Creativity).  They want to leave the family business to start their own firm.  They have some funds put aside to meet the set-up costs for the business.  They expect their business will earn around $200,000 in the first year of operation as Cooper expects to rapidly expand his client base.  Anna and Cooper both own their own homes and have other assets.  They are concerned about their tax liability as the business earnings increase and they do not want their personal assets to be available to satisfy debts of the business.  They want to minimise cost involved in setting up the new structure.  Anna and Cooper have asked you to recommend a business structure that might best suit their needs.

To complete this part of the assessment, you will be required to complete research to allow you to answer the short answer questions below.

Task 1 Research and analyse business structures

Before advising Anna and Cooper you are required to research different business structures (Sole trader, Partnership and Trust) and legal entities (Company), interpret your research to analyse the impact of legal issues including the ease of establishment, size, risk and complexity in running.

Required:

(a)Research areas of risk and analyse how legal issues impact on different types of business structures used in Australia including a Sole Trader, Partnership, Company and Trust.  Your research should relate to the following aspects and should be recorded in Columns 1 – 5 in the Table below. 

(b)Evaluate the relevance of your analysis to the client’s circumstances.  Include your evaluation in Column 6 of the Table below.

(c)Based on your evaluation, formulate the recommendation you will give to the clients based on their circumstances and the relevant law.  Include your recommendation in Column 7 of the Table below.

(d)Save and store your Table in electronic form on a USB Flash Drive with the following file name:  your_name_Part1_Task1_Table (example – John_Smith_Part1_Task1_Table. Take a screen shot of your saved file using the filename and include the screen shot in the text box below.

Task 2 Prepare a business report

Based on your recommended business structure in Task 1 above, prepare a short business report to demonstrate the plan for the new marketing business strategies to Anna and Cooper (the clients).

You will use the report to discuss your research and recommendation with your supervisor, to seek advice and guidance (Part 1 Task 3) and to have a discussion with your clients explaining your strategy (Part 1 Task 4). When participating in this communication ensure you follow the Code of Professional Conduct from the Tax Practitioner’s Board. Refer to Appendix 2 for links to relevant legislation, regulations and codes of practice.

Required:

Your report must:

•Comply with organisational policies and procedures (refer to Appendix 1) and regulatory requirements for providing advice to clients.

•Include the following:

•The purpose of the engagement – what the clients have asked for advice about

•An outline of the clients’ circumstances and the legal aspects of the four business structures you have researched

•Include your table of research prepared in Part 1 Task 1

•A summary of your evaluation of the clients’ circumstances in relation to the legal aspects of the business structures and risk in the operation of business; and

•Advice in the form of a recommendation about which business structure would best suit their circumstances.

When commencing a business venture, it is necessary to consider the most appropriate type of business structure to put in place. Different business structures have different benefits and disadvantages.

Anna and Cooper should setup the Discretionary Trusts for business purposes to distribute income and capital gains to beneficiaries in whatever way they desire. There is no fixed entitlement for each and every beneficiary.

The advantages of a trust structure include:

•Flexibility in how income is distributed

•Tax planning flexibility, including income splitting

•Asset protection

•Beneficiaries are generally not liable for the debts of a trust

•Beneficiaries of a trust pay tax on the income they receive from the trust at their own marginal tax rates

•A trust is more private than a company

The disadvantages include:

•A trust is a complex legal structure, which is expensive to set up and run

•There are considerable legal and compliance requirements

•There can be inflexibility, as powers are restricted by the trust deed and the law

•It can be difficult to make changes to the structure once it is set up
 
A trust might be an appropriate structure for Anna and Cooper. That is because a trust can be beneficial in protecting assets and minimising taxation obligations. Trusts are also a common structure choice for family businesses because various family members can be made beneficiaries of the trust that is operating the business.
 
As I said, the discretionary trust is an important vehicle to help protect family assets from creditors and enable income and capital to be spread among members of a family in order to reduce the family group’s tax bill.
 
The strategy to setup Discretionary Trust includes the following steps:

1. SetUp Legal Trustee – Pty Ltd

The trustee is the legal entity responsible for administering the trust in accordance with the terms of the trust deed. The trustee may must be private company specifically setup to act as trustee.

It is generally recommended that a company act as trustee of a discretionary trust in order to minimise the risk of personal liability (which is greater for individual trustees than for directors of a corporate trustee).
 
If you want to use a corporate trustee you register a new company first and then create the trust deed. This company is a standard PTY LTD company and you do not typically register an ABN for this new company.

2. Draft trust deed.

Prepare a customised discretionary trust deed

3. Settle trust

The trust deed must be signed by the settlor, who must give the initial settlement sum, usually $10 to the trustee. The settlement sum can be paid by cash or cheque. The settlor is usually someone unrelated to the beneficiaries of the trust, such as an accountant, lawyer or close family friend. For tax reasons, the settlor should not be a beneficiary of the trust. The settlor usually has no further involvement with the trust after the initial settlement.

4. Trustee(s) sign trust deed

The trustee(s) must hold a meeting accepting its/their appointment as trustee(s) of the trust and agreeing to be bound by the terms of the trust deed. All of this must be on the minutes of meeting.

5.Stamping.

Duty may be payable on the trust deed. Stamp duty is a state based tax and so applies differently in different states or territories of Australia. 
Stamping can be arranged either directly through the relevant revenue authority in your state or territory or by a lawyer, accountant or other service provider that offers stamping facilities. In New South Wales, stamp duty of $500 is payable in respect of each new trust within three months of the trust being established in accordance with the provisions of the Duties Act 1997 (NSW), which is administered by the NSW Office of State Revenue. If duty is not paid within three months, then interest is payable until such time as the duty is paid.

6. Apply for ABN and TFN

Once the trust has been established an application for an Australian business number (ABN) and tax file number (TFN) should be made for the trust. An application for both an ABN and TFN (GST and PAYG are options) can be made online through the Australian Business Register or with the assistance of an accountant.

7. Open bank account

Once the trust has been established and the trust deed stamped (if stamping is necessary) then a bank account should be opened for the trust in the name of the trustee as trustee for the trust.

Once a bank account has been opened the first deposit in the account should be the settlement sum (i.e. $10, see above). The settlement sum should be deposited before any other deposits are made or any other transactions are entered into by the trust.

8. Trust is operational

The trust is now operational and is able to accept contributions (i.e. further settlement sums) and, subject to the terms of the trust deed, borrow money and make investments.
 
To successfully start a new marketing business, Anna and Copper should follow the following steps:

1.Choose a business, product, or service to promote

2.Invest in your marketing and business education

3.Get a website/sales funnel system

4.Get an email autoresponder

5.Define your ideal customer and target market

6.Create a lead magnet

7.Write a follow-up email series

8.Set up social media accounts

9.Use content marketing to drive traffic to your website

10.Prepare Engagement Letter and respect the process 

11.Scale-up with paid advertising
 
Engagement letters are an important tool that smart practices use to grow their business while mitigating. Engagement letters define the business contract between a professional firm and its clients. It outlines the fee structure, responsibilities and obligations of the firm and the client. Without it, each party can be in legal limbo. Engagement letters also help lay a solid foundation for a working relationship between a practice and their clients. They ensure transparency and demonstrate professionalism from the get-go.

The Engagement letter must include:

1.Billing practices (including your terms for late payment)

2.Alternative dispute resolution

3.Withdrawal provisions

4.Limitations of liability

5.Intellectual property, ownership of data and data protection

6.Confidentiality agreement

7.Privacy policy

Part 2: Research, recommend and update

Scenario

Anna and Cooper have returned to see you again and have asked for your advice. You have asked them background information before you can provide any advice.

Anna and Cooper left their jobs at Creativity after a family argument and started their own firm on 5 January, 2019 following your previous advice to them.  Anna had been working in the office of Creativity for last 10 years from the age of 14, where most recently she held a senior management position. Her brother Cooper had also been working with the business in the marketing division for 8 years since leaving school and was the head of the division.

After your business structure recommendation, Anna and Cooper decided to incorporate a company to run their marketing business, Master Marketers Pty. Ltd. Anna and Cooper are directors and members of the newly formed company. They located suitable business premises and signed a lease agreement with Rain & Stars Pty Ltd, stating that lease would commence upon renovations that were expected to be completed by mid‐February 2019. On 1 February 2019 Rain & Stars Pty Ltd advised Anna and Cooper in writing that they did not intend to complete the renovations as the economy was not what they had expected at this time.  Anna and Cooper are very upset and distressed, as they will not be able to open their new business as expected.

Anna left her mobile phone in the local coffee shop later that afternoon. She immediately posted signs offering a reward of $250 for anyone who returned her phone undamaged. Cosmos, the local café cleaner found the phone later that night in the course of his employment. He had not seen the poster for the reward of the phone. Cosmos returned the phone to Anna and claimed the reward.

Finally finding new business premises to lease, Anna and Cooper opened their new business on 1 May 2019 (10 weeks later than expected) as Master Marketer Pty. Ltd. They immediately commenced an intensive marketing campaign to try and boost their client base as the unexpected delay in opening had really hurt them financially. As part of their marketing campaign they engaged in print media, radio, television, social media and letter writing campaigns, including writing to all businesses (including some of Creativity’s clients) in the area. As a result of the intensive marketing campaign the business client base grew rapidly including several of Creativity’s top clients. Their newspaper advertisements stated:

“*FREE social media marketing for all new clients until 30 June, 2019. Conditions apply.”

The conditions attached to the offer were not displayed on the same page as the advertisement and provided that a $300 design fee related to any social media marketing.

When they started working in the family business, they both signed employment contracts which contained the following term:

“The employee agrees that upon ending their employment with Creativity, they shall not for a period of 5 years after his/her termination engage in any employment involved in any managerial or marketing capacity with any company, anywhere in Australia that may compete in the same industry as Creativity. The employee also agrees that upon termination of their employment they will not seek to solicit any of Creativity’s customers or other staff members”.

Anna and Cooper have also just received a letter of demand for rent from Rain & Stars, demanding payment of rent from 15 February 2019.  You are to advise Anna and Cooper if they are required to continue with this lease, on account that the renovations were not completed and they were advised that Rain & Stars had no intention of completing them.

Anna and Cooper have asked for your advice. You have explained to them that you need to research some areas to make sure there are no changes to existing law/new laws and you will provide them with up to date and accurate advice.

Required:

Complete the following five tasks, ensuring you research relevant laws with reference to cases where applicable.

This task requires you to review the client’s circumstances and the relevant consumer and contract law, apply the law to the client’s circumstances and advise the client

Task 1

(a) Identify information to guide research

Using the information in the scenario above, identify issues relevant to contract and consumer law, collate and process this new information to guide your research to gather further information to provide advice to the clients. (100 – 150 words)

1)Not intend to complete the renovations

Rain & Stars Pty Ltd provided guarantees about completing renovation of lease premises. Real Estate guaranteed that renovation provided within a reasonable time, which was not happened. If a good or service fails to meet a guarantee, Anna and Cooper have rights against the Real Estate Agency to chase up compensation for loss and take action to recover damages from the Rain & Stars for any reasonably foreseeable loss of damage. Master Marketer Pty. Ltd may also seek compensation from the Agency for any consequential or associated loss or damage resulting from failure to meet the consumer guarantees.

2)Cosmos returned the phone to Anna and claimed the reward.

The phone does not belong neither to shop nor to Cosmos. Cosmos took the phone to find and return the property to its rightful owner and claimed compensation according to the contractual offer.

(b) Collect and collate client’s available information for analysis.

Collect any additional information you would need from your client to identify the client’s circumstances and to inform your research of their circumstances.  Record that additional information here and combine it with relevant information extracted from the client scenario.

Re: letter of Demand

Anna and Cooper need to provide the copy of letter of demand from Rain & Stars to prepare a respond to avoid court proceedings being commenced against them. We should consider the accuracy of the claims made against Anna and Copper;
get legal advice from a lawyer, request documents confirming why they are unable to complete renovation according to the agreement, respond to the letter as appropriate, which may be through a ‘without prejudice’ letter seeking a commercial settlement.

One of the options here would be to negotiate the fee, because you Rain & Stars did not provide a quality service and didn't do what you were supposed to do.

Rain & Stars said that they would complete renovation by mid of February but later on refused to do it. Because of that Master Marketer Pty. Ltd experienced many problems to start a new business and suffered the loss. That fact may be used as remedy either to reduce the fee or wind it up complete.

Re: Terms and Conditions

Clear presentation is very important. But it’s not necessarily to display them. However, its better to include them into advertisement with a clear statement to the effect that they will be considered the binding terms unless the client raises an objection.

Task 2 Plan and manage tasks and conduct research and develop solutions

(a) In Task 1(a) you identified legal issues relevant to contract and consumer law that related to your client’s circumstances. Task 2 requires you to develop a plan to manage your review of legal sources relevant to those issues and conduct that review.

Create a plan itemising the tasks you will need to complete in order to manage your review.  Include in your plan the legal sources you will access that relate to the issues you have identified and explain how this plan might contribute to achieving your broader goal of providing advice to your clients.
 
(b) Research information and analyse relevant legal sources that relate to the client’s circumstances and detail the aspects of contract and consumer laws that relate to the client’s circumstances.  (600- 800 words).  In your answer include details of the legal sources you used to conduct the review and the date the sources were accessed.  If an internet source is included, name of the source (e.g. website title) and the URL should be included.

1)Not intend to complete the renovations by by mid‐February 2019

The ACL and the ASIC Act define 'consumer contract' as a contract for the supply of goods or services, or the sale or grant of an interest in land, to an individual for personal, domestic or household use or consumption.
 

Businesses that supply services guarantee that those services will be:

Provided with due care and skill

Fit for any specified purpose (express or implied)

Provided within a reasonable time (when no time is set).

Also, the contract can provide for what will happen if the tenant does not make a timely current repair. For example, to establish that in this case the landlord has the right to carry out ongoing repairs on his own and demand compensation from the violator for expenses. As a sanction, you can establish a penalty for late repairs and the right of the injured party to unilaterally terminate the contract. Also, some landlords practice the inclusion in their contracts of conditions for reimbursement by the former tenant of the cost of outstanding maintenance.

2)Find the property belongs to someone else.

If you find property that someone has obviously lost, take it to your local police station.
 
If you find goods or money, you can’t keep them. In fact, police can charge you for keeping goods or money you’ve found that you don’t hand in.
 
If you tell the police that you’ve found something of value, they may later return the goods to you if they can’t find the owner.
Also, all property found in the premises belongs to the owners of these premises.

3)Newspaper advertisement – terms and conditions.

Here, firstly the terms of simple contact do not need to be recorded in written document, and so express terms may be found in any of the communications involved as part of negotiating the final contract. Secondly, such advertisement as FREE social media marketing for all new clients until 30 June, 2019. Conditions apply.” maybe classified like the statement or advertising puff with no legal effect. Simple or mere representations are pre-contractual and do not form part of contract, although, if false or misleading, action may be taken on that basis.

Puffery is a term used to describe wildly exaggerated, fanciful or vague claims about a good or service that no one could possibly treat seriously or find misleading. These statements are not considered misleading or deceptive under the ACL.

4)Employment contracts

An employment contract will often include a restraint of trade clause to protect the employer’s interests after an employee leaves their business. These clauses are most commonly found in the contracts of senior and professional employees, and also in business sale agreements.

The main types of restraint of trade clauses are:

Non-compete clauses that prevent a person from competing with their former employer for a certain time period. This could prevent them from starting their own business, or working for a competing business.

Non-solicitation clauses that prevent a person from soliciting their former employer’s clients for a certain time period.

Non-recruitment clauses that prevent a person from recruiting their former employer’s employees for a certain time period.
Confidentiality clauses that prevent a person from using their former employer’s confidential information.

To be enforceable, a restraint of trade clause must be reasonable. This means that an employer must be able to prove that they have a legitimate interest in imposing a restraint, and that the restraint is no wider than reasonably necessary. Restraints must be limited be time period geographical location, according to the employer’s particular need to restrain conduct. Usually, time periods of restraints will be limited to three to twelve months, but recent case law indicates that the courts are open to enforcing longer time periods in particular circumstances.

In the case of Anna and Copper employment contract restraint looks reasonable to protect a new business, however the period of 5 years looks long, and geographical zone – Australia, unreasonably extensive. Thus, such conditions may be challenged in the court. 

Task 3 Develop solutions and recommend changes

Based on your review in Task 2, what solutions would you recommend to your clients to address their legal issues?  What recommendations would you make to your clients about the issues that have arisen relevant to contact and consumer law?  Summarise the outcomes of the recommended changes below. (600-700 words).

Task 4 Advise clients about risks and their management

Write a letter to Anna and Cooper explaining the areas of risk to their organisation that arise from their circumstances and how these can be managed.  (600 – 800 words).

Required:

Your advice must be based upon your review and consolidation of all relevant information and must apply relevant legal principles and legislation.  

In addition, your letter must:

(a)Comply with organisational policies and procedures (refer to Appendix 1) and regulatory requirements for providing advice to clients; and

(b)Include the following: 

•A summary of client circumstances and the legal issues raised;

•An analysis of each issue and the risk to business operations with reference to legal principles and relevant legislation;

•Presentation of advice to the client on solutions to the legal issues after a review of all research and relevant information; and

•Recommendations as to changes to business operations to address risks raised by the legal issues.
 

Task 5 Maintain and update legal knowledge

(a) Identify two ways you can maintain and update your legal knowledge for your legal role in this scenario. (50 – 100 words)
 
(b)Review the organisational procedures regarding adviser currency and develop a plan or strategy that complies with the procedure for managing gaps in and updating your personal knowledge in legal aspects of contract and consumer law.  Include in your plan how frequently you will update your legal knowledge to maintain currency (daily, weekly, monthly or yearly). You can record your plan in the table below.  Your plan can include a variety of activities such as accessing and reviewing material on websites, reading of articles, attending seminars and discussions with colleagues/industry professionals. (200 – 300 words)

(c) Implement the strategy you developed in (b) above. In response to this question you will need to provide evidence that that you have implemented at least three items recorded  in your strategy and how the activities have updated your knowledge in the legal aspects of contract and consumer law and how this updated knowledge will be applied in your daily work.   You can record this in the following table.  If you are updating your knowledge from a website please include the URL and the date you accessed the website. (200 – 300 words)

(d) Access the Australian Competition and Consumer website at www.accc.gov.au
Locate the “Media” tab on the homepage of the website and access the Media releases issued by the ACCC.  Choose ONE media release involving both contract and consumer law recently issued by the ACCC and summarise the content below. Include the URL and the date you accessed this website in your response.  (200 – 300 words)
 
(e) Write a short reflection about how the information you have summarised in (d) above has updated your knowledge of consumer law and how this knowledge could be applied in your daily work. (100 – 200 words) 

(f) Access the “Subscriptions” system on the ACCC website at accc.gov.au.  Sign up for a newsletter in one of the categories relating to consumer and competition law.   Once your request for subscription is submitted, take a screen-shot of the message “Subscription Confirmed” and paste it below.

(g) How will receiving regular media updates in the area of consumer law you have chosen allow you to update your knowledge in contract or consumer law? (100 – 200 words)
 
(h)In the course of maintaining your legal knowledge of consumer law, you become aware that the Consumer Regulator has issued regulatory guidance about the use of some terms commonly used in advertising services and the cost of providing the service. The Regulator has stated that a business must when advertising services at a discount rate to consumers, ensure that the full price cost of the service and the monetary amount of any discount is fully disclosed in the advertisement.  If any conditions are attached to the discount, these conditions must be prominently displayed in the advertisement.  A business that does not comply with these requirements will be regarded as having not complied with Australian Consumer Law and be subject to action taken by the Consumer Regulator.

Review this change to regulatory approach by the Consumer Regulator and consider the effect on Anna and Cooper’s circumstances and the advice you provided to them in Part 2 Task 4.  Write a letter to Anna and Cooper advising them of this change that will apply to advertising the services of their business.

Required:

You letter should:

(a)Comply with organisational policies and procedures (see Appendix 1) and regulatory requirements for providing advice to clients and;

(b)Include the following:

•A review of the advice you gave to Anna and Cooper based on their circumstances regarding advertising practises;

•An explanation of the change to regulatory practice and how that change should be applied in their business operations.

FNSTPB503 Apply Legal Principles In Contract And Consumer Law

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