TaxBlog

Thanks to all our readers over the last few months.

We look forwards to seeing you all back next year.

From Chris and the TaxBlog Team.

Bookmark to:
          

I was looking at the way people come to our site the other day and hands down the most popular search at the moment was relating to the change from the Loss Attributing Qualifying Company (“LAQC”) regime to the Look Through Company (“LTC”) regime.

So I thought it best with the changes nearing that we write some more about how these changes may impact the average punter.

When I had a small accounting firm, by far the majority of our business was made up of Mum and Dad’s who have a rental property.

The most popular way of structuring their rental property (or three or four) was to use a LAQC company.

That said, one of the main proposed changes to the regime is called the loss limitation rule.

The IRD’s intention is to tax LTC’s as limited partnerships, and limited partnerships are subject to this loss limitation rule. I called this post the lurking danger, because I haven’t heard the media (or most accountants) advising their clients that at some point they may not be able to claim the losses from their LTC. The expectation is, flip the LAQC into an LTC, carry on, life is good.

Life will not be so good, when the losses run out in the LTC company however.

So what is this loss limitation rule?

Put simply, shareholders in a LTC will only be able to offset losses (against their personal income) to the extent that those losses represent their economic loss, i.e. your losses cannot exceed the amount of your investment into the company.

There are some exceptions to this however, such as where shareholders guarantee loans on behalf of the company.

There are also provisions which allow you to transition to other forms of business such as a sole trader or limited partnership without any tax cost.

All I can say is watch this space, we’ll keep you up to date.

Chris

Bookmark to:
          

Fact sheet – Changes to the qualifying company rules

The Government announced in Budget 2010 that the qualifying company rules would be amended. A new transparent form of tax treatment would be introduced to ensure that shareholders who use a company’s losses also pay tax on any company profit at their marginal tax rate.

The changes introduced today:

• change the tax treatment of loss attributing qualifying companies (LAQCs) so shareholders can no longer claim losses against their personal income. This will prevent these shareholders being able to claim losses at their higher marginal tax rate and profits at the company tax rate;
• allow existing qualifying companies (QCs) and LAQCs to continue to use the current rules without the ability to attribute losses, pending a review of the dividend rules for closely held companies;
• provide look-through income tax treatment for electing closely-held companies.
• allow QCs and LAQCs to transition into a new look-through company (LTC) vehicle or change to another business vehicle such as a partnership, without a tax cost during the period 1 April 2011 to 31 March 2013.

Look-through companies

What does “look-through” mean?

• “Look-through” effectively means that we ignore the company, which is the legal entity carrying on a business, and tax its shareholders on the company’s profits instead. It also means that shareholders can use a company’s losses against their other income, subject to the loss limitation rule.
• Look-through treatment applies for income tax purposes only. An LTC retains its corporate obligations and benefits, such as limited liability, under general company law.
• An LTC’s income, expenses, tax credits, rebates, gains and losses are passed on to its owners. These items are allocated to each person in proportion to the number of shares they have in the LTC.
• The income of an LTC is taxed and expenses are deducted as if each owner had received that income and incurred the expenses personally. Any profit is taxed at the owner’s marginal tax rate. The owner can use any losses against their other income, subject to the loss limitation rule.
• The LTC loss limitation rule is similar to that for limited partnerships. This means owners can offset tax losses only to the extent the losses reflect their economic loss. Any loss that cannot be used is carried forward and may be claimed in future years, subject to the application of the loss limitation rule in those years. There are certain rules about the use of these losses if the LTC ceases to be an LTC, or if the owner sells their shares.
• An LTC is still recognised separately from its shareholders for certain other tax purposes, including GST, PAYE, and certain administrative or other withholding tax purposes under the Income Tax Act.

What sort of company can use the LTC rules?

• The rules are designed for closely held companies which are resident in New Zealand.
• An LTC must have five or fewer “look-through counted owners”. Related shareholders may be treated as a single owner for the purposes of this test – for example, if a mother and daughter both hold shares in an LTC they are treated as “one” owner. There are special rules for determining who counts as an owner when shares are held by trustees.
• Only a natural person, trustee or another LTC may hold shares in an LTC. All the company’s shares must be of the same class and provide the same rights and obligations to each shareholder.

How does a company become an LTC?

• All owners must elect for a closely held company to become an LTC. Once a company becomes an LTC it will remain in the LTC rules unless one of the owners decides to opt out, or if it ceases to be eligible – for example, by having more than five counted owners.
• LTC election forms will be available early next year from Inland Revenue. In the interim companies can elect just by writing to Inland Revenue with details and signatures from all their shareholders, and details of the shareholding of each.
• Elections should be received before the start of the income year to which they apply. However for the next two income years (starting from 1 April 2011), existing QCs and LAQCs have a six-month extension period to decide whether to transition to the LTC rules (see “Existing QCs and LAQCs” below).

What happens when an owner sells their shares in the LTC?

• Owners of an LTC are treated as holding LTC property directly, in proportion to their shareholding. When owners sell their shares they are treated as disposing of their share of the underlying LTC property. If this includes, for example, revenue account property or recovery of depreciation, the shareholder may have to pay any tax associated with the disposal. Tax will only be due if the disposal amounts are above certain thresholds.
• If the company stops using the LTC rules or if the company ceases to exist there will be a deemed disposal and acquisition of the company’s property at market value. This may mean the shareholders have to pay tax on any income arising from the deemed disposal.

Existing QCs and LAQCs

Existing QCs and LAQCs have several options to choose from in one of the first two income years starting on or after 1 April 2011; the year they choose is called the “transitional year”. These rules apply only to companies that are already QCs or LAQCs in the 2010–11 income year.

They can continue to use the QC rules. Or if they choose to leave the QC rules, they can have a smooth transition into the LTC rules or they can choose to change their business structure into a partnership, limited partnership or a sole trade, with no tax cost.

The QC or LAQC can:

• Continue as a QC, without the ability to attribute losses. The QC rules are otherwise unchanged.
  • This will be the “default” option for all existing QCs and LAQCs.
  • An LAQC will no longer be able to attribute losses to shareholders.
  • Income will be taxed at the company level, and only dividends with imputation credits attached will be taxable to shareholders.
  • Capital gains can be distributed tax-free without winding up the company.
• Choose to be taxed as an ordinary company.
  • The QC or LAQC election must be revoked.
  • Any losses must be used by the company, not the shareholders.
  • All dividends will be taxable to shareholders, although imputation credits may be attached.
• Choose to be taxed as a look-through company (LTC).
  • Existing QCs and LAQCs have six months from the start of their transitional year to elect to become an LTC.
  • Look-through treatment will apply from the start of the transitional year.
• Transition to become a limited partnership, an ordinary partnership, or sole trade.
  • Owners of existing QCs and LAQCs have up to six months from the start of their transitional year to tell Inland Revenue that they will restructure their business into a limited partnership, an ordinary partnership, or become a sole trader.
  • The partnership or sole trade must consist of the same person(s) who owned the QC or LAQC.
  • The transition into the new business form must be completed by the end of the transitional year.

http://taxpolicy.ird.govt.nz/news/2010-12-07-budget-related-measures-added-gst-bill#factsheets

Bookmark to:
          

One of the questions that we are frequently asked is around the rules relating to GST and charities.

I have written the attached issues paper to assist charities with the complex GST rules.

http://www.taxblog.co.nz/wp-content/GST-Advice-to-Charities.pdf

Chris

Bookmark to:
          

John Key has become impaient with the red tape required to setup NZ as a financial services hub.

http://www.nzherald.co.nz/inland-revenue/news/article.cfm?o_id=89&objectid=10691438

http://www.nzherald.co.nz/taxation/news/article.cfm?c_id=335&objectid=10691944

Prime Minister John Key has slammed bureaucratic pin-pricking over the proposed New Zealand financial services hub as “absolute rubbish” and stepped in to put the project on the fast-track.

Economic Development Minister Gerry Brownlee has been ordered to produce an urgent paper covering a zero tax rating for the relevant foreign funds which Key wants incorporated in the November taxation bill and passed by April 1 next year.

Then in the Heralds editorial we find this commentary:

Just about every business could justify tax-free status on the basis of the jobs it creates. If administrative services to foreign funds has a case for tax exemption we are all ears.

Funds should locate their back office functions here for the reasons Mr Brownlee suggests: transparent, stable and neutral law, consistent regulation and taxation, a talent pool, time-zone advantages.

The Herald raises a good point here, what is the basis on which these funds will be given “zero rating”? That they create jobs?

On a similar topic I was reading the list of companies who received Government support towards their R and D costs:

http://www.nbr.co.nz/article/67m-govt-grant-london-listed-endace-134602

I think what’s important here is that these are all great ideas in principal, but exactly how many jobs are being created by giving away these R and D grants? How many jobs will be created by setting NZ up as a tax haven? There needs to be more transparency around how these decisions are arrived at and what the alternatives are.

Chris

Bookmark to:
          

The Herald has an article out today suggesting that the IRD are getting aggressive with taxpayers.

Accountants say the Inland Revenue Department is taking a new and tenacious approach to tax collecting, going direct to taxpayers and demanding payment in full regardless of the circumstances.

They say IRD’s softly-softly approach during the downturn is over and the gloves are off as it tries to maximise the tax take for the cash-strapped Government.

One tax agent is quoted as saying:

“In several cases that I’ve heard of, legal action is almost the first used debt-collection tool.

“It’s almost like the IRD has said, ‘right, the recession’s over, we have been nice to you for a while, now let’s get stuck into the debt’.

This approach surprises me as I have heard that the Department has been very reasonable in most cases since the 2008 GFC.

I would be interested in hearing from others out there and what your experience has been.

Bookmark to:
          

Given S & P recently put NZ on a credit watch negative suggestions are arising that we need to trim our budget deficits.

Several changes have been mooted this morning by John Whitehead in this NZ Herald article.

Whitehead said tax was one of a number of important policy areas. Although the company tax rate was reduced to 28 per cent in the Budget, it was not low by international standards.

The Savings Working Group was looking at a range of options for reforming capital taxation as a means of promoting savings and investment.

“And, as you are probably already aware, the Treasury has previously explored the introduction of a capital gains tax as a means of removing significant distortions from the tax system.”

Is anyone else confused? in an article about reducing the deficit he is discussing cutting the corporate tax rate.

28% represents a move in the right direction, especially as it is lower than Australia at 30%.

If we were to reduce it to 25% over the next 5 years or so then we would be able to convince Companies to move from Australia to NZ, becoming the finance hub John Key wants us to be.

Chris

Bookmark to:
          

There was an interesting article in the Herald yesterday showing that majority of people are unhappy with the tax changes.

A nationwide HorizonPoll survey of 1558 people between November 16 and 19 found 8.2 per cent felt better off because of the changes, 53.5 per cent thought they were worse off while 35.6 per cent felt their situation was unchanged.

Of lower income households, 71.5 per cent earning less than $20,000 a year felt worse off while 60 per cent of those earning between $20,000 and $30,000 felt the same.

Among households earning between $100,001 and $150,000, 39.3 per cent a year felt worse off (19.6 per cent better off) and 53.2 per cent of those in households with incomes of $200,000 plus felt worse off (24.6 per cent better off).

Of households earning $30,000 to $50,000, 5.5 per cent felt better off, 54.3 per cent worse off.

Among middle-income households earning $50,001 to $70,000 a year, 11 per cent felt better off, 45.9 per cent worse off.

A further poll on the Herald website shows that the split is more 50/50 than the Horizon Poll and at the time of writing had 12,000 votes.

I find these results surprising as the middle classes would be significantly better off under the tax realignment. How much you are better off, depends on what percentage of your income you spend of course, and an earlier survey showed most people were using their extra money to pay off debt. That being the case they would be better off after the changes.

Perhaps the poll results show a perception problem for the Government, that the increase in GST attracted more headlines than the decrease in PAYE, or perhaps the left did a good job in convincing workers that the tax cuts benefited the rich.

Personally I think the move was in the right direction, although the timing of the GST increase hits hard especially at the petrol pump where prices had only recently increased due to the carbon tax. In a recession perhaps putting a greater price on spending is the way to help realign Kiwis behavior.

Chris

Bookmark to:
          

In a landmark case released last week the Supreme Court has ruled that the IRD can hold onto GST refunds indefinitely until it determines that the refund is payable.

Given the IRD retrospectively changed the law, I think the taxpayer was always facing an uphill battle on this one.

Case  Reference: Contract Pacific Limited v Commissioner of Inland Revenue (SC114/2009) [2010] NZSC136

Summary:

Contract Pacific had filed a GST refund claim of more than $7.5 million dollars to the Commissioner of Inland Revenue.

The Commissioner sent a cheque for the claimed refund on February 5, 2001, but before it was presented to the company it was cancelled.

The Commission said it had sent the cheque by mistake, but had given the correct notice of its intention to investigate Contract Pacific’s tax return, as required by law.

Contract Pacific had claimed that when the Commissioner sent it the cheque, he was paying the due refund; a claim dismissed by the Supreme Court.

Details:

Contract Pacific is an inbound tour operator (that is, it sells holiday packages to overseas wholesalers who on-sell them). Amendments to the Goods and Services Tax Act 1985 (GST Act) in 1999 made it clear that GST was payable on these supplies with effect from May of that year. Concluding that it had unnecessarily accounted for GST between July 1993 and April 1999, Contract Pacific filed a GST return seeking a refund of the GST it had paid during that period.

Under s 46(1)(a) of the GST Act, a claimed refund must be paid within 15 working days of receipt of the return unless the Commissioner has, within that 15 working day period, either given notice of his intention to investigate the  return (under s 46(5) of the GST Act) or requested further information of the taxpayer (under s 46(4) of the GST Act).

In this case, the Commissioner gave timely notice of an intention to investigate the return under s 46(5) and some months later requested further information from Contract Pacific about its claim. In February 2001, the Commissioner by mistake sent Contract Pacific a cheque for the refund which had been claimed. This cheque was cancelled before it was presented.

A further and retrospective amendment to the GST Act provided that supplies by inbound tour operators to overseas customers had always been subject to GST but there was an exception in relation to refunds which had been paid before May 2001. Contract Pacific claimed that when the Commissioner sent the cheque to it in February 2001, he was relevantly paying the refund and, on this basis, sued the Commissioner on the cheque. In order to succeed in this claim, Contract Pacific had to establish first, that the Commissioner was obliged under ss 20(5) and 46 of the GST Act to refund GST and secondly, that the issuing of the cheque amounted to the payment of a refund. The Supreme Court judgment addresses only the first of these points.

The High Court held that as the Commissioner’s request for further information was not made within the 15 working day time limit provided for in s 46(4) it triggered an obligation to make an immediate refund. The Court of Appeal set aside that judgment and held that having given timely notice of investigation, the Commissioner was entitled to make a further request for information as part of that investigation.

This Court has unanimously dismissed Contract Pacific’s appeal from that decision. It has held that the Commissioner’s request for information did not lie outside the investigation process contemplated by s 46. More fundamentally, however, it has also concluded where either s 46(4) or (5) has been engaged, the governing subsection as to payment is s 46(1)(b) and the refund does not become payable until the point in time stipulated in s 46(1)(b) which is when the Commissioner has determined that the refund is payable.

Since the Commissioner was never of that opinion, the refund never became payable.

A full copy of the case after the jump:

http://www.taxblog.co.nz/wp-content/Contract-Pacific-Ltd-v-C-of-IR-No-2-2010-NZSC-136.pdf

Bookmark to:
          

My Brother in Law David Simpkin has written an excellent article for anyone considering being a trustee.

Being a trustee is a serious job, and can have dire consequences if you are not aware of the duties placed on trustees.

For example most new trustees do not know that they are personally liable for any debts of the trust.

We have found that people are willing to take on the role of trustee for charities without any knowledge of what they should be doing.

This paper will especially assist them in their duty as trustee:

http://www.taxblog.co.nz/wp-content/TAKING-IT-ON-TRUST-v2.pdf

In other news the Law Commission has released a discussion document relating to trusts:

http://www.lawcom.govt.nz/sites/default/files/publications/2010/11/ip19_review_of_trust_law_in_new_zealand.pdf

Bookmark to: