Tax and the law of unintended consequences – how perfectly rational decisions over appointment of a trustee or helping children purchase a house can have some very severe and unintended tax consequences.

Tax and the law of unintended consequences – how perfectly rational decisions over appointment of a trustee or helping children purchase a house can have some very severe and unintended tax consequences.

  • Similarly how the abatement of working for families makes it harder for low-income earners to break out of poverty.


About 10 years ago, myself and a group of other tax agents were on our way to a meeting with the then Minister of Revenue Peter Dunne. On the way someone mentioned whether we ought to raise the question of the law of unintended consequences in relation to a tax issue. Another replied that he’d never heard of such a thing law. So, we decided we shouldn’t say anything about that particular point.

We get into the meeting with Minister Dunne. And lo and behold in the course of our discussion, he brings up the law of unintended consequences, at which point we had to pause the meeting and explain to the Minister why we’d all cracked up.

(Incidentally, during that meeting, we raised a matter I discussed last week, the inequitable taxation of ACC lump sums. That was an issue which was supposed to be looked at by officials, and 10 years on, I guess they’re still looking).

The international impacts

I recalled this because last week I also talked about the Greensill decision in Australia, and the implications for trustees of New Zealand trusts.  And on Monday, I got a new enquiry from a client where the impact of Greensill could come into play and it’s a classic example of the law of unintended consequences.

A mother had decided that she wanted all three of her children to be trustees of the family trust, and this change was made for good reasons in managing a family dynamic. Problem is, one of those children lives in Australia.  As I mentioned last week under Australian tax law, if any trustee of a trust is tax resident in Australia, the trust is deemed resident in Australia. That means the Greensill decision may apply, which basically says capital gains even if realised offshore and even if distributed to a non-resident, are subject to Australian tax at the top rate of 47%.

The implications are therefore potentially quite serious for this trust. Looking into it in more detail, the trust is deemed resident from the first day a trustee is a tax resident of Australia. The trustees will have to prepare and file Australian tax returns reporting the trust’s income as calculated for Australian tax purposes.

Now, in many cases, the trusts will distribute income to beneficiaries and from an Australian perspective, if non-Australian sourced income is distributed to a non-resident, it’s not an issue. It’s just that in the law there is a technical inconsistency, which means that the Australian resident trustees are liable for Australian tax on non-Australian sourced capital gains distributed to non-residents.

This is the impact of the Greensill decision which to recap involved a capital gain of A$58 million and was held to be taxable at 47%. What’s more, with Australian trusts, the rate for retained income is 47%, and this is further complicated by rules about which beneficiaries have what is termed “present entitlement” as at the date of balance date. So overall, this is potentially quite a serious issue if substantial capital gains been raised.

Now the logical response, you’d think is, “Aha, let’s get the trustee to resign” and once the trustee resigns, that ends the connection with Australia.  A logical move, except the Australian tax legislation has thought of that point. And what happens then is there’s a deemed disposal of the trust’s assets on the date of the resignation of the trustee (This is a feature of some jurisdictions with a capital gains tax).  In other words the Australian Tax Office, believes in Blondie’s maxim, “One way or another we’re going to get you”.

We are currently working through all these issues. This is a textbook case of whenever there’s a family trust and there is family overseas if you want one of the family to become a trustee, you have to put a big pause on that and get tax advice, particularly in relation to Australian residents.

I’ve seen some trustees who are living in the UK pop up on trusts. This is not quite as potentially catastrophic but it’s still problematic. There’s this dichotomy between New Zealand’s tax treatment, which based around the settlor and many other jurisdictions, which is based around the residence of the trustee. So, to repeat the key point, if you have any trustees that are tax resident overseas, you need to get tax advice.

Helping your children

Moving on, the second instance of unintended consequences this week involves family members such as parents, grandparents or trusts trying to help children or beneficiaries purchase property, the bank of Mum and Dad as it’s sometimes called. This has become incredibly more relevant as a by-product of the horrendous escalation in housing prices.

The issue that has to be watched out for is when the parents or whichever other entity is involved, a trust, for example, actually takes a direct ownership interest in the property to be acquired. At that point, whoever it is, is probably setting themselves up for some issues further down the track in relation to the bright-line test.

And these of course have been magnified by the fact that the bright-line test as of 27th March this year now runs for 10 years. These issues were probably manageable when the two-year bright-line test was initially introduced back in October 2015 but have now been considerably magnified with the extension of the bright-line test period to 10 years.

What is emerging in some cases is that families might say, right, well, “We’ll take a 25% interest in the property. And then as the equity and your income rises you can pay us back and gradually take over our interest”. So ultimately, the children or beneficiaries will own 100% of the property. The problem is the reduction in those minority interests in the property represent a disposal for income tax purposes and for the purposes of the bright-line test.

For example, let’s say parents co-owned a house with a child and the ownership structure was initially 50:50 between them, but change it to 75:25. In that case, there’s been change in the title in the ownership interest, and therefore there’s been a disposal by the parents of a 25% interest to their child. Therefore, this disposal would be subject to bright-line test. There would be no exemptions here because they’re not living in it and it’s not their main residence. Just bear in mind that even if that property was the main residence of the child, the parents having the interest would still have made a disposal for bright-line purposes.

There’s also a potential kicker for such a transaction if the property is sold or gifted below its market value within the bright-line period, the transaction is treated as having happened at market value. So, for example, if the market value of the property had increased from $500,000 to $1 million, then the parents reducing their interest would be taxed on whatever their share of that $1 million was, rather than what actual cash they might have received. So potentially there could be some very sticky tax bills arising.

Arguably, one potential way round this might be that the parents lend the money to the child and not take a direct ownership interest, but you know, horses for courses, individual circumstances will come into play.

So, you just have to be very careful and proceed with great care if you are taking a financial interest in your child’s property to help them on the ladder. Otherwise, it could be another example of unintended tax consequences.

Lessening inequality

And the third unintended consequences that we might see in tax relates to the recent announcements from the government about changes to working for families.

What the Government has done has announced increases to the amount payable. The family tax credit is going to be increased by $5 per child. And on average, families will be $20 a week better off. But, and there’s always a ‘but’ in this, what the Government has given with one hand it has quietly decided to take on the other by raising the abatement rate to 27%.

Now abatement is what happens when a family’s annual income exceeds $42,700 then working for families credits start to be abated. And what this means is that people on average incomes actually have the highest effective marginal tax rates in the country.

For example, a family earning $48,000, the point at which the tax rate moves from 17.5% to 30%, their effective marginal tax rate, once you add in the impact of abatement is 57%. In other words, for every dollar of extra income they earn, they will lose 30% in tax and 27% of their working for families tax credits

For family’s with income just over $70,000, the marginal tax rate rise to 60%. And if you’ve got a student loan, that’s another 12% on top of that. A person earning just above $48,000 with a student loan could be facing an effective marginal tax rate of 69%. This is the unintended consequences of the abatement rates. The theory is conceptually sound, but the problem is it traps people on low income and makes it very hard for them to break out of the need to receive social assistance.

This is one of these things that is consistently glossed over by politicians and has been one of those sneaky little tax increases that that previous finance minister Bill English did. Grant Robertson is just the latest to increase the abatement rate and so quietly claw back some of the assistance. The unintended consequence is that the step up makes it harder to get out of poverty.

There is meant to be a review of working for families going on at the moment, but that’s been paused. As we know, the Welfare Expert Advisory Group recommended significant increases in benefits and that report is now nearly over two years old.

To summarise this week’s lesson, tax is full of unintended consequences. Therefore, always proceed with caution if you’re making significant changes, such as appointing a trustee or wanting to co-invest with your children on a property purchase.

Well, that’s it for this week. I’m Terry Baucher and you can find this podcast on my website, or wherever you get your podcasts. Thank you for listening, and please send me your feedback and tell your friends and clients. Until next week, party week, have a great week and go the Black Caps.


We focus on trusts, in particular the new reporting requirements for trusts and a concerning court decision from Australia.

We focus on trusts, in particular the new reporting requirements for trusts and a concerning court decision from Australia.

  • We focus on trusts, in particular the new reporting requirements for trusts and a concerning court decision from Australia.
  • We also review a harsh but not unexpected decision from the Taxation Review Authority regarding the taxation of arrears of weekly ACC compensation.


This week we focus on trusts, in particular new reporting requirements for trusts which have caused a stir together with a concerning court decision from Australia. Elsewhere, there is a harsh but not unexpected decision from the Taxation Review Authority regarding the taxation of arrears of weekly ACC compensation.

Last month, Inland Revenue released two papers relating to trusts, firstly, an issues paper on the reporting requirements for domestic trusts where disclosure is required under the Tax Administration Act 1994, and secondly, a detailed operational statement setting out the reporting requirements for domestic trusts.

Now, these prompted an article by Auckland barrister Anthony Grant, who specialises in trusts and estates. He was quite concerned about the papers and why this information was being gathered.  His article concluded;

The information can be wanted only because the IRD and the present government want to tax people who lend money to trusts at less than market rates, people who get benefits from trusts, people who provide services to trust assets and people who have powers in relation to trusts, as they have never been taxed before.

That’s quite a quite a closing statement.

The source of the two Inland Revenue papers is legislation enacted when the Government increased the individual tax rate to 39%. The Government did not also increase the trustee tax rate, even though Inland Revenue recommendation was that it should, based on bitter experience of what happened between 2000 and 2010 when such a differential existed previously.

Instead, the Government made very clear statements that it would be watching the situation carefully, and if it did see what it regarded as unacceptable tax avoidance happening, it would move to increase the trust tax rate. In the meantime, it introduced a whole new set of disclosure rules to enable Inland Revenue to have a clear look at what transactions are going on involving trusts.

Now, this was a radical departure of from previous practise. One of the weaknesses of tax administration in New Zealand, in my view, is that we don’t get to see a lot of detailed or very segmented tax statistics. If you go elsewhere in the world, tax authorities can produce very voluminous data relating to which sectors and persons are paying tax. Inland Revenue doesn’t produce those sorts of data, although if you ask for it under the Official Information Act, you should be able to obtain much of what you’re after.

That lack of tax data being made public reflects the moves made in the 1990s to ease tax administration under which most people were no longer required to file tax returns and the information to be included in most tax returns is quite limited.

The new legislation requires quite substantial amounts of information to be provided. It includes details of all settlements on a trust, which includes all transfers of value along with details identifying the entities or individuals making those settlements. Transfers of value include all things monetary and non-monetary and the provision of services below market value.  Details of all distributions, whether taxable or not, are required and including again, monetary or non-monetary together with details identifying recipients. There’s a general question wanting information about details of who has the power to appoint or dismiss a trustee, add or remove a beneficiary or amend a trusted name and finally a catch all or any other information the Commissioner of Inland Revenue wishes.

This represents a large increase in compliance for trusts. It should be said that it also reflects to some extent the impact of the new Trusts Act. Trustees can now expect to have more reporting requirements because beneficiaries now have rights of access to information about the trusts.

Trustees who may previously have been a little casual, to put it mildly, about record keeping will now need to sharpen their game. Not just for tax purposes, but basically to comply with the new Trusts Act. We don’t actually know how many trusts there are in New Zealand, the best estimates are somewhere between 500 and 600,000, and it’s one of those stats where per capita New Zealand is right up there.

The Government reporting requirements come into effect with those tax returns that have to be filed for the current year ending 31 March 2022. However, the legislation contains a provision that if Inland Revenue reviews a return and finds something of concern, it can request the same information for the previous eight income years, which means the first year could be for the year ended 31st March 2015.

As noted, the legislation represents a substantial increase in compliance costs. You should also look at it in the context of the controversial high wealth individual research project, which is going on at the moment. Both these initiatives address an area where arguably New Zealand taxpayers have not been providing a lot of information, and hence the Government and Inland Revenue are in the dark as to exactly the extent of wealth in the country.

And by the way, this is a worldwide trend. Although New Zealand managed to come through the global financial crisis very well, which has enabled us to manage the COVID 19 response pretty well, for the rest of the world the double whammy of the Global Financial Crisis and now the pandemic means that governments are under enormous fiscal pressure. There’s a growing trend to request further information in relation to the wealthy and wealth taxes are being discussed elsewhere around the world. So this is actually part of a global trend here.

But that’s not to undermine the importance of the issues raised here. These represent significant compliance costs, and they are quite concerning for trustees and beneficiaries about what were apparently quite legal transactions, such as advances to beneficiaries. Details of loan advances to beneficiaries are now required together with distribution of what we call term trustee income, which is tax paid income. This is going to be particularly relevant going forward because trustee income is exempt income for a New Zealand tax resident. Therefore, for someone who’s taxed at the 39% top rate, a distribution of trustee income is a way to essentially get tax free capital distributions from a trust. And this is what one of the areas these new provisions are looking to target.

The level of detail asked in relation to beneficiaries and what is expected of trustees is incredibly high. The new rules are expected to affect about 180,000 trusts, although there’s a sort of a de minimis position for trusts which don’t have annual income exceeding $30,000 and the total value of the assets is less than $2 million. That still leaves a substantial number of trusts will required to prepare quite detailed information for submission.

For example, all interest and non-interest-bearing loans from persons associated with the trust that is the settlors, trustees and beneficiaries. Then if trust property such as a house is enjoyed by a beneficiary for less than market value, the sum is to be recorded as a drawing in favour of the beneficiary. This one in particular is going to cause a bit of a stir as it’s quite a bold step. For many trusts, properties held by the trustees are essentially let rent free to the beneficiary on the basis that the beneficiary meets the upkeep, such as rates, maintenance etc, and the interest payments relating to any mortgage over the property.

Now we see a deemed income provision in relation to assets provided by a company, but there’s no such provision for trust purposes. These particular requirements are one reason why Antony Grant sounded the alarm. It would essentially impose a deemed rental or an imputed rental on property.  This is something which has been considered by several tax working groups, but not implemented by the Government.

Another matter which is going to be a headache for trustees and initially probably may not be entirely accurate, is the requirement to break down the equity of the trust between the corpus, which is the sum of all settlements that have been made on the trust less the distribution of corpus made to beneficiaries and trust capital, which is the sum of all taxable and non-taxable income retained and gains and losses made by the trust.

There’s also to be an equity item in relation to drawings, which effectively mean the total amount of assets of value withdrawn from the trust by beneficiaries during the year, and then beneficiary current accounts are to be shown. Some of these well-managed trusts will already be doing so, but the extension across the board to most trusts is going to cause increased compliance costs as I’ve said. The implications of what happens when the Inland Revenue digests all this information we’ll have to wait and see.

Now, the officials’ issue paper is open for submissions until 15th November, and submissions on the operational statement are open until 30th November. So you might want to have a quick look at these papers and then consider making submissions.

Moving on, trusts with overseas trustees, beneficiaries or settlors can cause quite a lot of confusion. It’s something I’m seeing increasingly, particularly in relation to Australia, where the latest estimate is that maybe between four and five hundred thousand Kiwis live at the moment. And one of the issues that happens is that the trust taxation law differs from country to country. But (and I see this quite a bit in relation to various jurisdictions) people mistakenly assume that the rules are similar and don’t pay attention to the fine detail.

Now, in relation to trusts and people moving to Australia, it’s been well known for some time that if there’s any trustee resident in Australia, then the trust is deemed to be resident in Australia and therefore subject to Australian tax rules.  And so steps are taken to ensure that no trustees move there or resign their trusteeships before doing so. But that doesn’t always happen, and a case has just popped up in Australia, which although it involved a UK tax resident person it would have implications for New Zealanders.

Now, typically, distributions through a discretionary trust of current year income or capital gains are generally considered to retain those characteristics in the hands of the beneficiary. What that means for New Zealanders resident in Australian who qualify for the temporary resident’s tax exemption is if they get a distribution of foreign sourced income, that is income from outside Australia, it’s generally exempt from Australian tax. But a new decision from Australia, Greensill, makes it clear that this treatment doesn’t necessarily apply to capital gains.

Now, in this case, what happened was the trust realised A$58 million on a capital gain from the sale of a UK management company. The gains were distributed to a beneficiary living in the UK and therefore non-resident for tax purposes in Australia. The shares that were disposed of did not represent taxable Australian property for capital gains purposes.

Ordinarily, a capital gain on non-taxable Australian property made by non-residents is disregarded for Australian tax purposes. But the full Federal Court of Australia ruled that in this case, because it was distributed to a non-resident beneficiary of a discretionary trust, there was no exemption available because of the way that the legislation was drafted in relation to how trusts deal with capital gains. Therefore, the Australian trustee was required to pay income tax on behalf of the non-resident beneficiary in respect of that $58 million capital gain.

And this is where we could have problems in New Zealand. For example, a New Zealand domestic trust with three trustees, two of whom are in New Zealand, and one is in Australia. The trust is deemed an Australian tax resident and if the trust tries to distribute the capital gain, such as the realisation of the sale of a property in New Zealand then following the Greensill decision, Australian capital gains tax is payable, and it would be at 45%. So this is a major decision.

People therefore need to be very careful to be check as to the status of the trustees and settlors of the trust. Basically, what you want to try and do is minimise any link between an Australian resident and a New Zealand trust. Otherwise, you’d be looking at a substantial capital gains bill.

What wasn’t apparently argued in court was the question of whether double tax relief would be available under the double tax agreement between Australia and the UK.  This is unusual because I would have thought it would have been an issue that could have been applied in the Greensill decision, but apparently it wasn’t argued.

So we may have to wait either for another tax case or for perhaps the Australian Tax Office to decide that the Greensill decision is not really what they want and change the law. I think we might be waiting a long time for that.

Now moving on from trusts, the Taxation Review Authority (TRA) has confirmed that a taxpayer who received arrears of weekly compensation from Accident Compensation Corporation relating to an injury three years earlier was correctly taxed in the year in which she received payments. This is something that pops up quite regularly and I’ve discussed it previously.

In this case, the person was injured, made a claim for weekly compensation, and for three years there was a back and forth arguing about it. And eventually ACC paid a significant lump sum of arrears total of just over $180,000.  This payment was subject to pay as you earn as income in the year of receipt.  The taxpayer quite reasonably objected on the basis that her regular level of earnings was always quite low. Therefore, the tax that would have been payable if she had received the payments when she was entitled to do so would have been lower.

However, the law makes no adjustment for this, and it was taxed as a lump sum at higher rates.  She took her case to the to the TRA, which kicked it out on the basis the legislation provides no scope for relief. Now, this is a not uncommon problem. In fact, I wrote to ACC and asked, just how often does this happen, where arrears of ACC are paid in a subsequent income year?

And the data I got back in April said that in the year ended 30 June 2020, there were 14 166 such payments. And in each of the years ended 30 June 2017, 2018 and 2019 there were at least 1100 such cases. The average payment was around between $42,000 and $49,000 with the median pay-out around $21,000. But some very large payments were made. There’s one in the year ended 31 June 2020 of over $1.1 million.

So this is quite a significant issue which I think is something that should be amended by legislation. It seems unfair for someone who’s been injured or entitled to relief but doesn’t get it when it should happen and then has to take action to get their entitlements with more added stresses. Finally, when a person does get paid, Inland Revenue comes in and takes a big cut of it. And by the way, this is going to be a bigger problem now that we have a 39% tax rate. So, I’ve made a submission to Parliament’s Finance and Expenditure Committee on this, requesting the issue be looked at and the legislation changed.

Speaking of submissions, a reminder that submissions to the Finance and Expenditure Committee regarding the Government’s interest limitation proposals close next Tuesday, 9th November. So you’ve got until then to make submissions on that. I expect there will be quite a few submissions on the new rules. But as part of those submissions, you can actually draw the committee’s attention to other matters, which is what I am doing in relation to the ACC matter.

Well, that’s it for this week. I’m Terry Baucher and can find this podcast on my website or wherever you get your podcasts.  Thank you for listening and please send me your feedback and tell your friends and clients. Until next week kia pai te wiki, have a great week!

Inland Revenue has released five COVID-19 related variation determinations including ones covering look-through companies, bad debt write-offs and tax pooling

  • Inland Revenue has released five COVID-19 related variation determinations including ones covering look-through companies, bad debt write-offs and tax pooling
  • The tax problem of appointing an Australian resident executor
  • A temporary increase to the write-off threshold for tax to pay


This week, a roundup of several useful COVID-19 related variation Determinations released by Inland Revenue, a reminder to be careful about who you choose to be an executor of your will, and a temporary increase in the write off threshold for tax to pay for PAYE earners.

As part of the response to the COVID-19 pandemic, a specific discretion was introduced into the Tax Administration Act to make clear Inland Revenue’s ability to issue variations to requirements under the various Inland Revenue Acts. Basically, the conclusion was that Inland Revenue needed more discretion to be able to extend the filing date, due dates for tax returns and various other filing requirements.

This was part of one of the first earliest pieces of legislation enacted in April. Following that, Inland Revenue has now used this discretion to issue five Variation, Determinations, setting out the requirements for when it would apply its discretion in certain situations.

The first one deals with a variation to extend the time to file a look-through company election. Now normally, that must be done by the start of the relevant income tax year i.e. 31st March.   This variation now extends the deadline to June 30th  2020, which is a welcome little addition.

Look-through companies are tricky elections at times. I’ve been involved in several cases where elections have gone missing or somehow weren’t filed at the right time. And that ends up with a lot of finger pointing everywhere. So under the added stress of a COVID-19 pandemic, this added flexibility from Inland Revenue is good to see.

Another variation varies the time to make an election, to spread back forestry income, and a third extends the time to make an application to change the GST taxable period. For example, you might want to switch to filing monthly GST returns from previously filing six-monthly or bi-monthly GST returns.

But the next two variations are probably of most relevance in these interesting times. The first one is variation COV 20/04, which extends the time for writing off bad debts. Now, basically under Section DBI 31 of the Income Tax Act, a debt must be written off as bad in that income year. So normally for the year ended 31st March 2020, if you’ve got a bad debt, you must have written it off by 31st March 2020. What this determination does is extend that write off period to 30th June. It’s a useful concession, although as always, there’s a couple of caveats here.

Firstly, that the person did not write the debt off by 31st March 2020 because of the COVID-19 impact.  In other words, the disruption to their processes meant they weren’t able to process bad debt write offs as they would normally have done so. And the second one is one I think is going to cause a few headaches, because it gets down to significant interpretation.  In writing off the debt, the person can only take into account information that was relevant as at the end of the 2020 income year. I’m not sure exactly what was meant by “relevant” here? You might be aware that a business was struggling but hadn’t decided to take action. Would that count? We don’t know. I suspect this is one of those caveats that’s been put in more as a protection. But we could see in a few years a significant tax case on the issue.

And the final variation, which is going to be helpful, is one that extends the time for using tax pooling transfers. Now, regular listeners will recall that I had a podcast session with Chris Cunniffe of Tax Management New Zealand late last year. Using tax pooling companies like TMNZ extends the time through which you can make payments of provisional and terminal tax, yet be deemed to have made the payment on time. So they’re a very useful mechanism for managing cash flow and minimising the impact of use of money interest.

Now, what this determination does is it extends the time for which a person can put in place a contract with a tax pooling company in order to meet the tax due for the 2019 tax year. And that time would normally have expired by now. But this variation gives an extension until July 21st 2020.

The caveat in this instance is that between January 2020 and July 2020, the business must have experienced, or for June and July 2020, be expected to experience a significant decline in actual predicted revenue. As a result, they were either unable to satisfy their existing contract for 2019 tax or they weren’t able to set up/enter into a tax pooling arrangement with a tax pooling company.

The “significant decline” in actual revenue has got to be at least 30% and must be COVID-19 related.  So that last criteria is a little bit vague because it doesn’t address a position where the company was struggling to make the payment before COVID-19 turned up anyway.

The variation gives an extra month until July 21st to put a contract in place to make a tax pooling payment. And the advantages of using tax pooling are saving use of money interest and late payment penalties because the tax is deemed to have been paid when it was due. And the rate of use of money interest charged by tax pooling companies is lower than that charged by Inland Revenue.

Instalment arrangements and use of money interest

The rate of use of money interest popped up in a story on Thursday.  It talked about the arrangements Inland Revenue is putting in place with taxpayers who have been struggling to meet their liabilities. And some of the taxpayers putting arrangements in place have also experienced the impact of use of money interest and late payment penalties.

Interestingly, Inland Revenue is waiving much of these interest and penalties if the delay is down to COVID-19. But again, as a caveat, only if it’s down to COVID-19.  I think at some stage we may find is a hardening in the approach of Inland Revenue here.

Now Inland Revenue has lowered its use of money interest rate to 7% but it’s significantly higher than the 0.25% Official Cash Rate. I suggested in the article that it was well past the time late payment penalties were abolished.  These apply in addition to use of money interest and add another 1% immediately, then a further 4% if it’s not paid within seven days, and then continue at a further 1% per month thereafter. There’s no evidence late payment penalties encourage any prompter payment when compared to other jurisdictions that don’t have them.

Currently about 87% of taxes are paid on time under the current regime.  There’s little evidence late payment penalties make any discernable difference to prompter payment.  They just cause resentment and a 7% use of money interest rate is a very substantial deterrent in these low interest times.  We’ll see when things settle down a bit if there’s finally some movement made in this area.

Beware your choice of executor

Moving on, one thing about tax that keeps me busy is the accidental tax impacts of sometimes quite apparently innocuous decisions. And one such example that I’ve come across recently is appointing an executor who is resident in Australia.

This seems fairly straightforward. You may have a parent here in New Zealand with three children, one of whom lives in Australia and the other two here. Under the will the parent appoints all three as executors. This is not an uncommon scenario.

Problem is that the Australians view a trust as being tax resident in Australia if any trustee is resident in Australia.  And as I discovered recently, this also applies to personal representatives or executors of the states. You have a deceased estate of a person who died here in New Zealand. All the assets are here in New Zealand. But in the scenario I outlined earlier, one of the children who is an executor lives in Australia.  This is currently sufficient for the Australians to consider the estate to be an Australian estate and therefore taxable. How exactly that is enforced is not clear, but this position is a very real risk.

So, here’s a reminder for people who may be considering wills in these uncertain times. Just be sure to cover off the tax consequences if it so happens you have someone such as a child you want to either appoint as an executor or make a beneficiary, who is living overseas.

Increase in tax write-off threshold

And finally, back to a COVID-19 related matter. The Government has temporarily increased the write off limit for unpaid tax for people on PAYE from $50 to $200. Right now, Inland Revenue is going through approximately two million people who are on PAYE and doing the automatic calculation of their liabilities for the year ended 31 March 2020.

The general rule was if they owed $50 or less, it would be written off. But above that amount, they’d have to pay. And what’s happened is they’ve decided as an interim measure to help people through this pandemic is to immediately increase the $50 threshold to $200. It only will apply for the year ended 31 March 2020.

This is only available for individuals whose year-end tax liability is calculated automatically.  If you are required to file a tax return, because, for example, you’ve got a rental property, you’re not covered by this change.

And by the way, just on the automatic calculation there’s an interesting thing to note here that any amount of tax to pay for someone who is paid fortnightly and had twenty seven fortnightly pay periods during the year ended 31 March 2020 is automatically written off. (The same applies to anyone paid weekly who had 53 pay periods in the year, or someone paid four weekly who had 14 pay periods).

Well, that’s it for this week. Thank you for listening I’m Terry Baucher, and you can find this podcast on or wherever you get your podcasts. Please send me your feedback and tell your friends and clients. And until next time, Kia Kaha stay strong.

Shareholder advances under Inland Revenue scrutiny – are you paying FBT on these advances?

  • Shareholder advances under Inland Revenue scrutiny – are you paying FBT on these advances?
  • More about using cheques to pay tax
  • Australian tax complications when purchasing property


This week, Inland Revenue gets curious about loans to shareholders. More about how you can pay your tax and the cost of investing in Australian property just went up.

Listeners will recall one of my previous guests was Andrea Black, who at the time was the independent advisor to the Tax Working Group. Andrea has moved on and is now the policy director and economist at the New Zealand Council of Trade Unions taking over from Bill Rosenberg, a fellow Tax Working Group member.

Andrea has just published a Top Five piece on tax and paid employment.

And one of the top five items caught my eye, because it picks up some other things that I’ve been seeing, has to do with advances from companies to shareholders.

Now, the interesting thing that’s emerged from the Tax Working Group is what happened after 2010 when the tax company rate was cut from 30% to 28% and at the same time the top personal tax rate went down from 38% to 33%.  Since then amount of loans advances from companies to shareholders has exploded, and there is an eye-catching graph in a Tax Working Group paper which shows the value of shareholder current account advances.

And they’ve gone from just under $10 billion in back in 2010 to nearly $26 billion by 2016. So, what’s happening here? Well, it appears that this could be a way of people trying to avoid paying the top 33% tax rate because company profits are tax paid at 28% and then the taxpayer then receives an imputed dividend and then tops up the 5% differential, assuming they’re taxed at the top rate.

But what happens if instead the money is advanced as an interest free loan or a loan to a shareholder? Now, there are rules around this, and interest free loans are subject to a prescribed interest rate. This has been cut to 5.26% with effect from 1st of October 2019. If you’re not charging interest, you are required to charge this prescribed interest rate of 5.26% on any overdrawn shareholder current account.

Now that is a longstanding rule, but in my experience, it’s not always observed, and I even had an interesting case at the start of an Inland Revenue review. The company did have an overdrawn current account for some shareholders.  We advised Inland Revenue as you are supposed to saying “Look, oops our bad. This is an overdrawn current account and we haven’t been charging interest. Here’s the amount of interest we should have been charged”.

What was interesting about this case was it involved a fairly sizable company which had independent advisors, who ought to have known this. More curiously, the Inland Revenue investigator didn’t seem to be aware that that this could have been a problem. Perhaps this is why these current account debits have been gradually growing without too much observation from Inland Revenue.

So, the issue which arises here is have those companies being charging interest and if so, have they charged interest at the correct rate? Otherwise, there’s probably a load of FBT going to be payable. And why exactly are they doing this? If there is a constant pattern of substitution of, say, a salary or dividends with drawings made through the current account, Inland Revenue could follow the lead it took in the Penny-Hooper case. You may remember that case from nearly ten years ago.  Inland Revenue may say, “Well, this actually constitutes tax avoidance and we’re going to treat these drawings as additional salary or remuneration”.

So, it remains to be seen what’s going to happen in this case. This is another head’s up. If you’re a company and you’re advancing money to your shareholders and you’re not charging the prescribed interest rate of 5.26% then you potentially have a problem on your hands.

And what I think we can also say with some confidence is that matters highlighted by the Tax Working Group as requiring work will be picked up by Inland Revenue as part of their work programme.  The data mining capabilities of the Inland Revenue are now greatly enhanced, so I would anticipate seeing a lot more “Please explain” letters coming from Inland Revenue investigators.

Following on from last week’s item about the fact that Inland Revenue is withdrawing the general application ability to pay tax by cheques from 1st of March, earlier this week I went to a meeting between tax agents and Inland Revenue staff. And this point got raised with several agents saying, “Well, we’ve got elderly clients who either have no access to online banking or don’t know how to use it. They’re not happy about it. And we’re not happy about this”. Two things emerged from this discussion. Firstly, the Inland Revenue staff acknowledged this was something that was a potential problem. But they also pointed out that in fact, in certain circumstances, Inland Revenue will allow cheques to continue to be used to meet tax payments. Coincidentally, also this week, a new Statement of Practice SPS 20/01 was released by Inland Revenue which explains when it considers tax payments to be made on time.

The SPS discusses what the alternatives for people who used to pay by cheque, and can and are concerned they may no longer do so. And it gives a couple of examples about the options.  One involves John who lives in a remote rural area and lives off the grid. He does not have any access to the internet nor a reliable phone service and is hours away from any banks. So, in this case, Inland Revenue would agree that his circumstances are exceptional, and he may continue to pay his tax by cheque after 1st March 2020.

The alternative example is another elderly person, Mary who is aged 75. She doesn’t have access to the Internet either. She has no Westpac branch. (You can actually rock up to a Westpac branch and pay your tax in cash or by using a debit card). Mary does have an EFTPOS card and the Inland Revenue here say:

So, there are instances that you can still continue to pay by cheque, but it’s very much a case by case basis.

I stand by what I said last week. I think that this is blanket policy which should not be allowed. I would say in that example they give about Mary, elderly people like that would be very, very cautious about talking over the phone to someone about paying tax. Particularly since Inland Revenue is sending out frequent reminder warnings about the phishing and phone scams going on.

So, I think you’ve got this dichotomy between Inland Revenue wanting to minimise its own administrative costs and not actually addressing the real concerns of people who are concerned about using online and phone banking.

The second point came out of the discussion was also pretty interesting, was that Inland Revenue had also said that in future, when either setting up or updating your bank account details, it would require a direct debit.

Now, that caused quite a stir amongst the tax agents. And let’s just say there was a full and frank exchange of views on the matter, which also coincided with us being advised that, in fact, that particular advice was going to be withdrawn. Clearly, quite a lot of people have said, “Wait a minute, what’s this?” because cancelling the direct debit with Inland Revenue is not that easy.  The takeaway here is you do not have to set up a direct debit with Inland Revenue unless you really want to. Therefore, proceed with caution.

And finally, and this is a long running issue for me, a warning how the tax consequences of investing in Australia are often overlooked. There is a lack of awareness that, first of all, Australian capital gains tax will apply to property. But secondly, there’s also all the other hidden charges involved in investing in Australian property, such as Stamp Duty –  or as they call it in New South Wales – Transfer Duty.

What caught my eye this week is that the state of Victoria, has announced it will withdraw its grace period for exempting foreign purchaser additional stamp duty on residential property.

This would apply to discretionary trusts that have foreign beneficiaries, for example, a New Zealand trust with, say, three beneficiaries here and one in Australia.  This will now become regarded as a foreign trust for surcharge tax purposes unless the trust deed is amended to expressly exclude the foreign persons, that is the New Zealand residents as potential beneficiaries of the trust.

The change may mean that there will be a surcharge payable on the purchase by a New Zealand trust of residential property in Victoria.  New South Wales has similar rules. In fact, there is a Surcharge Purchasers Duty of 8% for residential land purchases by foreign persons, which would include a foreign trust. New South Wales also has a land tax and it imposes a 2% surcharge for residential land purchases by foreign persons.

So, this is very much a case of if you’re investing in Australia, be aware there are great tax complications. I always tell my clients, “Don’t let the tax tail wag the investment dog”, but you really have to be sure if you are investing in Australian property that the returns justify the additional tax consequences that you’re going to incur.

And on that bombshell, that’s it for The Week in Tax. I’m Terry Baucher and you can find this podcast on my website or wherever you get your podcasts. Please send me your feedback and tell your friends and clients. Until next time have a great week. Ka kite āno.