My guest this week is Andrew Paynter, a policy advisor at Inland Revenue and co-winner with Matthew Seddon of this year’s Tax Policy Charitable Trust Scholarship. The Tax Policy Charitable Trust was established by founder Ian Kuperus to encourage future tax policy leaders and support leading tax policy thinking in Aotearoa.
Andrew Paynter’s proposal is to increase the rate of GST to 17.5% and introduce a GST refund tax credit for low-and middle-income individuals.
I should make it clear here that everything in Andrew Paynter’s proposal and what is in this podcast represents his views and not those of Inland Revenue. Kia ora Andrew Paynter, congratulations on your win and welcome to the podcast. Thank you for joining us.
Andrew Paynter Thank you. That’s very kind. And yes, it’s great to be here and I’m really excited to have a chat with you.
TB Me too, it is a very interesting proposal. And so how do you land on choosing this? There is a pretty free rein in choosing topics for the scholarship. But what drew you to this particular proposal? .
The background
Andrew Paynter Yes, sure. For me, something I’ve been interested in ever since I’ve worked in the tax space is the New Zealand Crown’s long term fiscal position. And we know from the New Zealand Treasury’s most recent long-term insights briefingHe Tirohanga Mokopuna 2021 that as we look into the future, the Crown is going to be spending at quite a higher rate than it is getting revenue.
And for me, I think that puts New Zealand in quite a weak position to manage its daily societal needs. But also to manage future disasters, pandemics and economic shocks. And we know that these things are going to happen more often and probably at a greater severity than they have in the past. So that was sort of my starting point. I guess that was the thing I was interested in, and I wanted to try and develop some form of solution to that.
TB Yes, I mean, this is something long-time listeners to the podcast keep hearing me banging on about Treasury’s statement on the long term fiscal position. I also note in its briefing to the new Finance Minister, Treasury says there is a structural deficit of 2.4% of GDP. So we have a fiscal gap already, according to Treasury. I mean people talk about reducing expenditure, but that will only take you so far, particularly when expenditure is going up faster than you can reduce it, to be blunt. So why did you land on GST?
Why increase GST?
Andrew Paynter I think there’s quite a few reasons that I landed on GST. I guess the two main points are about finding a revenue raiser that embodies good taxation principles.
And then the second part is trying to find a revenue raiser that I think has better impacts than other revenue raisers, particularly in relation to effectiveness and efficiency.
So, on that first point, embodying good taxation principles. It’s really important that any revenue raisers that we choose are aligned with broad-based low rate, and that’s ensuring that we maintain f broad-based low rate at an entire tax system level, and at a regime level.
Of course, when we look across the New Zealand tax system, I think we can all agree that one regime in particular stands out as being super broad-based and that’s GST. We know GST has few exemptions and exclusions, but it also has the highest value added tax revenue ratio score in the OECD by quite some margin.
TB Yes, that’s quite a stat. In fact I think only Chile raises a higher proportion of tax from GST than ourselves?
Andrew Paynter I’m not entirely sure if that’s correct, but I do know for the revenue ratio score, I think Luxembourg has the second highest score in the OECD. But we outscore Luxembourg by quite some mark. And I think we have double the OECD average in New Zealand. So, it’s quite a difference.
GST – the broad base, low rate exemplar
TB That’s taxing everything. It’s as you say, it’s the exemplar in the system of the broad-based low rate. Even if you’re you’re proposing to raise it to 17.5%, even then, that would still be below the OECD average, isn’t that right?
Andrew Paynter Yes. The OECD average rate is 19.2%, so 17.5% is still nearly 2% below the average.
TB How much would that raise? This is the thing the politicians say. OK, how much would we get if we increased it by 2.5 percentage points. What’s the potential take?
Andrew Paynter Yes, I think obviously it depends on a huge raft of dynamic factors like inflation and consumption patterns. If the rate was applied in the 2023 tax year it would have raised an additional $4 billion in revenue. So that gives like a proxy for what’s possible.
TB Wow. I mean, that’s one percentage point of GDP. So that is a significant amount. But the question is, as I said, why GST? There’s a lot of debate around capital taxation as well, wealth taxes, capital gains tax and occasionally, not so much though, estate duty/death duties/inheritance tax. In your paper, you talk about GST being a one-off taxation on the wealthy. Can you elaborate on this?
How GST represents a one-off tax on the wealthy
Andrew Paynter Two interesting parts to that really. I was again looking to this future fiscal deficit and trying to think of revenue raisers that suited that future context. And one thing that we know is underpinning part of the deficit (obviously it’s not the whole thing, but part of it) is having this ageing population. And so, is there a way to leverage revenue from an ageing population? Of course, as the population gets older, a higher percentage of the population is earning less taxable income, but they are consuming often more than the means of their income as they’re drawing down on savings. So, increasing the rate of GST becomes in a way an effective one-off taxation on all the current and future wealth that exists in New Zealand so long as that wealth is then consumed in New Zealand on taxable supplies.
TB So if the ageing population skips off to spend its money overseas that is outside the GST net. But the likelihood is, as you say, they’ll consume more and more of it in New Zealand effectively because their income has declined.
Andrew Paynter Yes.
TB This means the GST relative to what their income as a proportion of the total tax they might pay, will rise on under this measure. Yes, so interesting analysis there but we don’t have a lot of evidence.
Andrew Paynter That’s correct, yes.
TB Maybe we don’t have as much statistical evidence as we would like. The empirical evidence to talk about, the behavioural impacts of this. But GST’s not really subject to the same behavioural impacts as other taxes, because you can either spend it in New Zealand or spend it offshore. And as we said, your opportunity to do that has become limited because physically you may not be able to travel, or it becomes too expensive to travel.
Andrew Paynter Yes, that’s right. Some interesting analysis is that when you do increase GST or just a VAT or consumption tax in general you do get potential behavioural responses. You know, substitution effects, price elasticity responses, etc. But some of the academic analysis I found was that when you introduce a rate increase alongside a compensation measure, those behavioural responses are often quite muted. So you don’t actually get the same response that you would if you just did a GST rate increase by itself. And obviously, this proposal does have a compensation measure aspect to it.
What about inflation?
TB Yes, we’ll come to that in a minute. One of the other things that may come into play around a GST increase, is it’s potentially inflationary. How do you deal with that effect, how have you calculated that potential effect and how long would it last?
Andrew Paynter It’s quite interesting. I think we have some precedent in New Zealand that we can look to. For the 2010 GST rate increase, the government of the day had modelled that the inflationary response would be about 2% immediately after the introduction of the new rate. That was reflecting an immediate 2.5% price increase on all taxable suppliers, and then some form of future and lagged response on non-taxable supplies like rents, but those are a lot harder to quantify.
So, you certainly do get a significant inflationary impact, but I think that because the Reserve Bank has the discretion to look through temporary inflation shocks in the way that it sets its monetary policy, in theory it shouldn’t have very significant economic consequences. And again, I think, we can look back to 2010 and see that.
TB Yes, we want to avoid that horrible double whammy – prices have gone up and then interest rates go up, that is a real nasty spiral.
Andrew Paynter Yes, that’s right.
TB And as we mentioned before, GST is as incredibly efficient tax. Businesses were collecting it and everything fell into place very smoothly. I’ve been around long enough to remember that after the 2010 increase things fell into place pretty smoothly.
But the big downside though for GST, (and the last Tax Working Group touched on this) and the taking GST off food was a partial response, is that GST is actually a regressive tax. Particularly for the lower- and middle-income earners. And the second part of your proposal deals with that. What are you proposing there?
Ensuring equity through a targeted GST refund tax credit
Andrew Paynter As we noted before, the inflationary impacts of a GST rate increase means that businesses are passing on the full cost of the GST rate increase to final consumers.
And so that means prices are going to immediately increase relative to incomes. That’s obviously a problem. We have relatively high levels of inequality in New Zealand, so low to middle income New Zealanders don’t necessarily have the means needed to absorb that price impact.
Then on top of that, as you mentioned, GST is regressive. I know it’s argued that it’s not necessarily regressive over an entire lifetime, but I think the fact that it’s regressive, at least at a point in someone’s life, it can impact on their economic position, which can then have lifelong implications on them economically. To address that I’m proposing that a targeted GST refund tax credit should be introduced to offset that impact.
TB How would that work?
Andrew Paynter It’s a very good question. We were touching on it in a conversation we were having off-air earlier, with all social policy initiatives when you’re choosing a compensation measure or when you’re just designing that compensation measure, it’s all about trade-offs and deciding on what values and objectives you value more than others and what you’re trying to achieve.
We can discuss the design parameters for the credit in a second, and I’m sure we will. But I guess I just wanted to highlight that this is just one way to do it. It’s not necessarily the only way and it’s not necessarily the only “right” way to do it. It really depends on what you’re trying to achieve.
TB Because there’s quite a bit of interest around this sort of mechanism around the world, isn’t it? The IMF released a working paper in April just as you were writing your initial proposal. But that was completely different. And that was a refund that comes through as point-of-sale credit. You mentioned in your paper that Canada has been doing it.
Andrew Paynter Yes, that’s right.
TB So, similar to what you’re doing?
Andrew Paynter Yes. As you said, the IMF compensation measure is completely different to a tax credit like I’ve proposed. Whereas Canada’s example is a tax credit, as they call it, the GST/HST refund tax credit but the design parameters reflect the realities of the governmental and tax systems in Canada so it’s quite complicated.
Although we could look to these examples for some inspiration, I think that the parameters that we select for the New Zealand context should be rooted in the realities of our government structures, and also our transfer system and our tax system.
Resolving the problem with abatements and marginal tax rates
TB You note in the paper that transfer payments have been sliding lower relative to median incomes over time. Then what you’re driving at is that one alternative might be “let’s increase the alternative transfer payment”. But they all come with heaps of abatements as you point out.
I was reviewing Inland Revenue’s annual report before today’s podcast and a stat that jumped out at me on this point was that only 22% of people receiving Working For Families credits do not have an abatement. That threshold is $42,700, which means 78% are being abated, and that’s at 27.5%.
So, you want to avoid that because it just increases this whole problem of effective marginal rates. How do you intend to do that? You’re taking what they call a fiscal cliff approach. Is that right?
Andrew Paynter Yes. Part of the design of the credit that I’m proposing is to use a cliff face approach. As you touched on, abatement is where your entitlement, whatever that may be, is decreased by a specified percentage for each dollar you earn over whatever the threshold is.
So, when you compare that to a cliff-face approach (which is where your entitlement just ends once you hit the threshold) you don’t get the same impact on effective marginal tax rates.
You still get work incentive impacts, but those are a lot sharper and shorter. So given as you say, there’s lots of interacting abatement payments in the New Zealand context, for those reasons I’m proposing that the credit utilise the cliff face approach.
TB Yes, you’ve also said it’s to be individual, so it’s not calculated like Working for Families on a collective family unit. It’s on an individual basis because the evidence shows you wouldn’t be getting much potential abuse of the credit. Why an individual credit rather than a family credit?
Andrew Paynter It’s various factors. I think one point is again touching on that Canadian example. In Canada, I believe you can file as a family or as a couple. Whereas in New Zealand, all of our filing is individualised. The administrative realities are that unless you’re in a regime like Working for Families, you don’t necessarily have those connections within the tax system to your partner.
Individualising the credit therefore aligns with the individualised nature of New Zealand’s tax system. It means that you don’t need information from your partner in order to get the credit. Which means that you can automate it because you don’t have to have an application process that says, this person’s my partner and this is their income. On top of that I was looking at the Household Economic Survey and it really looks like consumption patterns don’t vary greatly between one person household consumption data versus two person households. Consumption is quite an individualised thing.
TB That’s encouraging, because the simpler this is, the better in my view.
Andrew Paynter 100% agree.
What’s the threshold?
TB And so, the threshold you were talking about would be about $69,000.
Andrew Paynter Yes, I’m proposing that the threshold for the payment is $69,000, which is the median income from salary and wages. Obviously, it can be quite hard to define what we mean by low to middle income. But I think choosing this middle point makes sense for this notion of low to middle income.
You have less people naturally falling in that $69,000 space comparative to other parts of the income scale. And that means that those work incentive impacts that we talked about, are affecting less people, which I think is quite important from a macroeconomic perspective when compared to other parts of the income scale where you could put the threshold.
TB Yes, we see distortions around thresholds all the time. It’s quite blatant actually. You can see spikes in your graph at $70,000 and then $48,000. Don’t know what they have to do with it other than threshold increases.
Andrew Paynter Yes. That’s right.
How frequently?
TB This credit though, it would be payable quarterly. Is that correct?
Andrew Paynter Yes, I’ve chosen a quarterly model for paying and that quarterly model is full and final and that was to balance a few factors. It was to ensure that people are actually getting the credit close to the point in which they’re incurring the increase in GST, versus if you did a year, you might incur some form of increased cost towards the start of the year and you’re waiting quite a significant amount of time to get the payment. And again, given that this is targeted at low- or middle-income individuals, that sum of money is quite important.
Also, if you had a shorter time period, such as a week, it might be a bit more administratively difficult. For example, it’s hard to know how much people are actually getting paid as if a weekly model was chosen people’s pay periods might not align with that.
Having a quarterly full and final model also means that there’s a low demand for reassessments and that’s going to be important from an administrative perspective for Inland Revenue. Also, debt situations are avoided because you’re doing a lagged income model and that means people don’t have to guess what their income is going to be.
TB I think that’s incredibly important because when you see the stats, the debt’s building up. I mentioned earlier about the abatement issues for Working for Families and you say it’s full and final. So, in the quarter a person earns below the threshold, they get that payment and then for the next three quarters, they’re well above that.
But there’s no requirements to say, for example, they’re total income for the year was $80,000. But for the first quarter, they were within that $69,000, but that’s they received a final payment then and that’s it. No going back. No “backsies” from Inland Revenue to go back and re-assess.
Andrew Paynter Yes, that’s right.
TB And because as you say, the cliff face approach takes care of that because they get cut off, but hopefully their earnings have risen enough to mitigate the impact of the inflationary increase in GST.
Andrew Paynter Yes, that’s right.
TB I’m all for keeping it as simple as possible, otherwise the system gets bogged down with a lot of resources chasing relatively small sums of money. I think there are mechanisms to deal with that, and that’s the other part in here.
You’ve set out some different things you’re basically trying to automate as much as possible within Inland Revenue’s existing processes.
Definition of income?
Andrew Paynter Yes. Again, having the credit individualised as we touched on earlier, means you don’t need partner information. I also propose that the credit is based on a definition of taxable income, not something of a broader like economic income, which agencies like the Ministry for Social Development use for benefit payments. Inland Revenue already holds taxable income information in the course of its usual tax activities.
And then because it’s individualised and you don’t need partner information, it should in theory just be this really automated process where you know, me as an individual earns salary and wages and as long as I’m under the threshold for the quarter, as long as Inland Revenue has my bank account information, I will just get the payment.
TB I like that approach. Obviously you’ve got great feedback because you’ve won. But what feedback have you received from that? Is there a potential that your proposal might be taken further? Did Nicola Willis come up and say “ “Come and have a word with me I like this.”
Andrew Paynter Obviously everyone’s been very kind and very supportive, but whatever happens with my proposal, I’ve simply just come up with the idea. I’m obviously proud of my idea and all the work I put into it, and I have simply just put the idea out into the world.
TB That’s fantastic. Any final thoughts on what’s next?
Andrew Paynter What’s next? I’m not sure. A bit of relaxing I think. I guess one thing I would just say is if there’s any younger tax professionals listening to the podcasts or want to be tax professionals, it’s a really awesome competition and it’s a great opportunity to tackle some form of issue that you’re passionate about.
You’ve got the time and the space to develop a solution that you really care about and then you get to have it tested by leaders in the tax space. And I think that’s a really cool opportunity. So I heavily encourage anyone who meets the eligibility criteria to apply.
TB I thought the standard this year was extremely high and I’m very grateful to yourself, Matthew, Matthew and Claudia for all coming on and talking about your proposals
I think that seems to be a good point to leave it here. My guest this week has been Andrew Paynter, co-winner of this year’s Tax Policy Charitable Trust Scholarship, and we’ve been talking about his proposal to increase GST and have a refundable tax credit.
Andrew, it’s been a great privilege talking to you about that. Congratulations again. Have a well-deserved rest and onwards and upwards. I’ll watch with interest.
Andrew Paynter Thanks, TB. I really appreciate it. Thank you for having me on. It’s been great.
TB Not at all. Thank you. And on that note, that’s all for this week, I’m Terry Baucher and you can find this podcast on my website www.baucher.tax or wherever you get your podcasts. Thank you for listening and please send me your feedback and tell your friends and clients. Until next time, kia pai to rā. Have a great day.
Is the current GST threshold holding back small businesses?
More evidence of Inland Revenue’s crackdown on non-compliance and new research fuels the debate about taxing capital.
Last week was Te Wiki o te Reo Māori, Māori language week, and coincidentally, one of the papers at the recent excellent New Zealand Law Society Tax Conference covered taxation and Māori business.
One of the more fascinating papers prepared for the last Tax Working Group was about considering the tax system from our Māori perspective.
It was therefore quite opportune and appropriate in Te Wiki o te Reo Māori, for the New Zealand Law Society Conference to cover the question of taxation and Māori business. As a supporting paper noted, in 2018, the Māori economy was estimated to have an asset base of nearly $70 billion, and it’s projected to reach $100 billion by 2030. So this is something we’re more likely to encounter as the Māori economy grows.
The presentation gave a fascinating background into what structures are developed as part of a settlement agreement between the Crown, and these post settlement government entities or PGSEs can be a very unusual mix of trusts, companies, limited partnerships and Māori authorities.
Māori authorities – a template for a difficult tax issue?
Māori authorities in particular, have very specific tax treatments and one of those includes the ability to distribute capital gains without liquidation. Which, as a presenter suggested, could perhaps be a model for companies as this is presently quite a difficult tax area. At present if a company has realised a gain then, unless it’s a look through company, you would have to liquidate the company in order to extract the gain without triggering an immediate some form of tax liability. As I said, it’s an interesting area of growing relevance. I think if you can get hold of the paper, do so.
Time to raise the GST threshold?
The accounting service provider Hnry released a poll which indicated that almost a third of sole traders in the country are choosing to earn below the median income to avoid passing on costs, because otherwise they would cross the GST threshold of $60,000 and have to register.
Their concern was that the 15% that they would have to apply to their pricing at that point was a cost they simply could not pass on.
This has sparked a debate about whether the threshold is presently too low. It was set at $60,000 with effect from 1st April 2009. Given that’s now 15 years ago, an increase seems logical and based on CPI for example, it should be closer to $87,000. It’s not unreasonable to consider an increase. As I’ve said in other episodes, we seem to have an inbuilt reluctance to regularly look at thresholds and increase them for inflation. That leads to all sorts of difficult issues cropping up within the tax system.
On the face of it, an increase in the GST threshold is not unreasonable. I think somewhere around the point where the income tax rate goes from 30 to 33%, which is now $78,100 would be appropriate and is also around the median income.
But maybe not?
But there is a counter argument, and a very interesting one too, in that perhaps if we want to have a broad base, we should be lowering the GST threshold. A good example for this counterargument comes from the UK, where they have a very high threshold of £85,000, about $180,000.
According to the UK Office for Budget Responsibility, approximately 44,000 UK businesses will deliberately not grow revenue to avoid registering for Value Added Tax (VAT), the UK equivalent of GST, and which has a standard rate of 20%.
An obvious answer is to raise the threshold, but the counter suggestion made by Dan Neidle of Tax Policy Associates is perhaps it should be lowered. He notes that in Europe the thresholds are much lower, around the €30,000 to €35,000 mark, which is around $50,000 to $55,000 here.
In Dan’s view the registration threshold creates a ‘fiscal cliff’ that some businesses find difficult to hurdle because you aren’t able to make a significantly big increase in your turnover to get past the effect on the customers because they cannot bear the cost. He suggests maybe a lower VAT rate might be one solution.
He also notes broader base for GST is important for competitiveness, because if there are people who are deliberately under-pricing themselves because they are not GST registered (as opposed to those who are) then there is a competitiveness issue. Dealing with that is going to be difficult.
I thought it was an interesting counter argument that Dan raised, but it still doesn’t get past the issue that a threshold that has not been adjusted for 15 years perhaps should be. On the other hand, comments from Inland Revenue indicate there is no desire to do so at this point. The Minister of Revenue, Simon Watts, has also said it’s not really on their agenda. So, these issues will still remain.
Going underground?
There’s one other question I think that does come to mind though. If people are deliberately limiting their income to below the GST threshold, how are they maintaining their lifestyles? Is there a cash economy and tax evasion going on here with jobs being done for cash, which won’t go through books. Now I’m not saying it’s true for every business below the GST threshold. But given that the median wage is above $60,000, you’ve got to wonder if there is some element of that going on. We shall see.
Inland Revenue ramping up its investigation activities
That leads us nicely on to another paper from the New Zealand Law Society Conference, which was opened by the Minister of Revenue, Simon Watts. He continues to impress as having a command of his brief and understanding the detail. This is not totally unsurprising, given that he used to be an accountant and began his career as a tax consultant.
Reform of FBT definitely appears to be on the agenda. Inland Revenue are focusing a lot on the near $13 billion of total tax debt that’s outstanding across various taxes (including Student Loans) at the moment. There’s a focus on what’s called high risk debt, particularly in the construction industry. Inland Revenue would be putting more resources into the hidden economy, and the Minister also mentioned the work of the Tax Debt Task Force, which is about 40 people within Inland Revenue, which is now collecting about $4 million per week of outstanding debt.
Interesting to hear this from the Minister and his comments about Inland Revenue’s enhanced enforcement activities was also supported by a presentation from Inland Revenue policy officials. The officials were referencing the search powers of Inland Revenue and two new drafts for consultation which have recently been released.
“Knock, knock”
One is in relation to what are called Section 17B notices, which are issued under section 17B of the Tax Administration Act 1994. These are information demands and they’re part of Inland Revenue’s information gathering powers. The more important one is a draft operational statement on Inland Revenue’s search powers.
Now Inland Revenue’s search powers are incredibly extensive. To give you an example, there’s a Court of Appeal case from 2012 – Tauber v Commissioner of Inland Revenue – where Inland Revenue raided six premises simultaneously. Officials obtained search warrants for these raids, but under Section 17 of the Tax Administration Act 1994 Inland Revenue officials don’t need to obtain a warrant to access property or documents. Documents in this case can include your smartphone.
And this is where we perhaps should be starting to pay a bit more attention, because, as the paper noted, Inland Revenue’s search activity dropped off because of the COVID pandemic. Information obtained under the Official Information Act gives an extent of how this had happened.
From these stats it’s very apparent Inland Revenue is currently amping up its investigative activities. According to the presentation, officers have “hundreds of unannounced visits planned” for liquor stores.
There are over 100 audits of property developers going on at the moment and another 50 investigations underway in relation to electronic sales suppression software.
Now, as previously noted and emphasised by the Minister, Inland Revenue has had a significant funding increase given to it over the next four years. All of this shows that we can expect to see a large amount of increased activity in investigations from Inland Revenue. And we’ll also see them taking probably a far harder line in relation to collection of tax debt.
I want to repeat what I’ve said before, and which was also brought up at the conference. If you run into difficulties with tax debt, approach Inland Revenue immediately. Don’t put your head in the sand. It’s always best to front foot it and contact Inland Revenue. If you’ve got a realistic approach to getting out of your tax debt, it will be prepared to put together a plan that enables that to happen.
High earner tax rates – New Zealand in context
The debate around the taxation of capital continues with a RNZ report involving a Victoria University study, commissioned by Tax Justice Aotearoa, which looked at how much tax someone earning five times the average New Zealand wage (that’s roughly $330,000) would pay in nine comparable nations. Those nations include Australia, Canada, the US, the United Kingdom and five European countries – Belgium, Germany, Norway, Spain and Denmark. The study found that there was a quite significant difference between the tax payable in New Zealand and that payable overseas, particularly in when considering capital gains.
Tax Justice Aotearoa are using this data as a counterargument to fears there would be mass capital flight if we introduced some form of wealth taxes. When I was interviewed on RNZ’s Morning Report about the story I agreed with the basic premise of this counterargument. That’s not to say there won’t be capital flight. There will because people’s capital is mobile and there will be people with the resources to migrate into tax havens where there are very low rates of income tax and little or no capital taxes
But not all capital is mobile. Any property they held in New Zealand would still be subject to any form of taxation because the rule around the world is that property is always taxable in the country in which it is situated even if it is owned by a non-tax resident.
A false debate premise?
I also told Morning Report that the premise of the debate seemed slightly off in that if we have a capital gains tax or form some form of taxing capital, we will therefore have capital flight, so we shouldn’t do that. In my view this is incorrect, the reason we’re having the debate about taxing capital is not because other jurisdictions have such taxes so why don’t we? This frames it as a question of equity and fairness.
The issue is the coming demographic crunch and also the more immediate crises we’re now seeing regularly of the impact of climate change. How do we have the funds to deal with an ageing population, the associated health costs with that, and the impact of climate change. Last year’s Cyclone Gabrielle and the Auckland floods were incredibly expensive events, so this debate isn’t going to go anywhere because it fundamentally revolves around the question “We have costs building up. How are we going to fund those?” And that’s a debate which will continue.
There isn’t a magic bullet here in terms of one tax is superior to all others in my mind. We just have to look at all the options and then decide how we will move forward. But I think it’s false to say, well, we can’t do anything because people’s capital will flee. That’s doesn’t say much, by the way, for the many citizens of New Zealand who built their livelihoods and have long-standing roots here, but as I said also seems to sidestep the issue as to why we’re having the debate in the first place.
And on that note, that’s all for this week. I’m Terry Baucher and you can find this podcast on my website www.baucher.tax or wherever you get your podcasts. Thank you for listening and please send me your feedback and tell your friends and clients. Until next time, kia pai to rā. Have a great day.
Should the New Zealand Superannuation Fund become tax exempt? Inland Revenue is under scrutiny for its use of social media.
A bad week for Apple and Google in the European courts.
Inland Revenue releases an intriguing consultation on GST and management services supplied to managed funds.
In the past few weeks, the question of taxing capital has reappeared on the agenda featuring across a number of news stories. It probably kicked off initially when Inland Revenue’s long term insights briefing consultation document raised the question of whether the tax base should be expanded to meet what is the anticipated growing fiscal costs of superannuation, health and climate change.
“New ways of generating revenue”
Then a couple of weeks back, the outgoing chief executive and Secretary to the Treasury, Caralee McLiesh, commented to the New Zealand Herald that New Zealand needs new ways of generating revenue and cutting expenditure. She suggested a capital gains tax and a more efficient superannuation scheme.
Labour leader Chris Hipkins has been in the news talking about the Labour Party’s internal discussions around the question of taxing capital. And then at the start of the week, Bruce Plested billionaire co-founder of Mainfreight, raised the idea of wealth tax. Understandably he caveated it with a question around whether the funds raised would be spent wisely.
But the point is, across the whole spectrum the question of taxing capital is back on the agenda. It never actually goes away to be perfectly honest. Like spring it comes around at least once every year. Anyway, it’s interesting to see this debate carried on. I think a driving factor is a growing recognition that the present tax base probably isn’t sufficient to meet the coming demands of rising superannuation, rising health costs and climate change. Sure, managing government expenditure more efficiently will help, but it will only go so far.
The Treasury has talked about a structural deficit of 2% of GDP which is $8 billion. That’s a fairly sizable sum, and with the best will in the world, cuts in government spending aren’t going to fill that gap. So, a discussion has to be had on how this gap is to be filled.
Given we will need to find extra revenue, taxation of capital is the obvious point. We should be considering whether it’s a wealth tax, land tax, capital gains tax or even restoration of estate and gift duties, which were once quite a substantial part of the New Zealand tax base. It could be a combination of all or some of those, but the debate isn’t going away.
Time to make the New Zealand Superannuation Fund tax exempt?
Moving on, and talking about the rising cost of superannuation, the New Zealand Superannuation Fund (NZSF) was established more than 20 years ago by Michael Cullen, to help smooth the cost of superannuation. It has been an enormous success. The NZSF has now grown to well over $70 billion and along the way it has been paying tax.
This is quite unusual for sovereign wealth funds because most are tax exempt. New Zealand has two other sovereign wealth funds, ACC and the Reserve Bank of New Zealand, and neither of those are taxed. They have between them another $60 billion of assets. But when the NZSF was established back in 2003, the decision was taken that it would pay tax. Part of the reason for doing so was to provide a commercial incentive so the NZSF made decisions around investments on strong commercial grounds, rather than because of a tax-exempt status.
But this has created a sort of slightly odd money-go-round. The government would contribute capital to it based on a formula, and then the NZSF would then pay part of that back in the form of tax. This is before its designated drawdown date, which is coming up towards the latter part of this decade, when it’s expected that regular withdrawals will be made to start funding superannuation.
For the period to June 2024, the Super Fund received contributions of roughly $1.6 billion overall and paid nearly $1.5 billion in tax. It is by far and away the largest single taxpayer in the country, a reflection, by the way of our Foreign Investment Fund regime rules. Finance Minister Nicola Willis is now seeking advice as to whether in fact it should become tax exempt, on the basis now that its tax bill is beginning to outgrow crown contributions.
Now that the Government has contributed $16.9 billion after accounting for $9.6 billion in tax paid since the fund was set up, the Finance Minister will be thinking whether it’s now time the Government can wind back the contribution. Ultimately, this should have the same effect as also removing its taxable status. We shall see how this develops, but it’s interesting to see the discussions in this space, which are also a by-product of the question of how do we fund superannuation?
Inland Revenue under fire
Moving on, Inland Revenue is in a little bit of hot water after it emerged that it’s giving hundreds of thousands of taxpayers’ details to social media platforms as part of its various marketing campaigns. These campaigns are intended to target taxpayers who might owe taxes.
Unpaid student loans are one particular area that that pops up here. The controversy revolves around the anonymisation tool which is used to ensure that whatever information the social media companies get, the details are minimised as far as possible to protect the privacy of the taxpayers involved.
The question has been raised as to whether that tool is sufficient.
The horns of a dilemma
There are two issues here. One is the technical question about how effective is the anonymisation tool. But the bigger question is whether Inland Revenue should be doing that. It faces a problem that if it wants to reach out to the general public – or certain sectors of the public – to remind them about their tax obligations. The best outreach method is through social media platforms. Inland Revenue is on the horns of a dilemma.
I will say this, that in my 20-30 years’ experience watching and working with Inland Revenue, it has an exemplary record around disclosure of private details. It has strong processes in place, and I cannot recall over that time a data breach scenario similar to those we’ve seen with both ACC and MSD where private data of taxpayers has been emailed to persons outside the agency.
Notwithstanding Inland Revenue’s record, the practice seems questionable because of the fact that social media sites are constantly under attack from hackers. Supplying private information to social media companies, no matter how laudable the intentions, puts that data at risk. It would be interesting to hear from the Privacy Commissioner on this.
Then there is the huge irony that these social media companies are amongst the most aggressive exponents of tax planning in in the world. For the year ended 31st December 2023 Facebook New Zealand, for example, reported taxable income of $9.1 million, but we know from its accounts that it paid over $157 million offshore to related entities. And Google’s numbers are even bigger. The extent of the advertising now going offshore has absolutely gutted local media and the implications of this loss of revenue for our media landscape are still being worked through.
Inland Revenue has to work through the dilemma as to how far it should go with providing information to social media companies. Ideally, you’d say it should not. But if you want to reach out to taxpayers about their obligations, you have to go where you might find those taxpayers. And at the moment that’s the social media companies.
Apple and Google lose bigly in Europe
Speaking of the big tech companies, over in Europe, Google and Apple had a week to forget. The European Union’s top court the Supreme Court of the European Court of Justice (the ECJ) ruled that Google must pay a €2.4 billion fine for abusing its market dominance of its shopping comparison service. This fine had been levied by the European Commission in 2017, and Google has been fighting it since then but has now lost in the ECJ, the highest court in Europe.
But that news was overshadowed by a major tax decision by the ECJ the same day, ordering Apple to pay Ireland €13 billion. That’s an eye watering $23.3 billion the equivalent of just over 12. 5% of Ireland’s total tax revenue for 2023.
What’s particularly interesting about this case is that Ireland was also a defendant alongside Apple. Ireland had been accused by the European Commission of having given Apple illegal tax advantages in the form of state support. The European Commission ruled the state support was illegal in 2016. Apple appealed and won in the lower court of the ECJ in 2020. But now the ECJ’s Supreme Court Justice has ruled that there was illegal state support which must be repaid.
A major transfer pricing decision
This is going to be a key transfer pricing case which will be analysed for many years to come because it revolves around the way profits generated by two Apple subsidiaries based in Ireland were treated for tax purposes. The ECJ ruled these arrangements were illegal because only Apple was able to benefit from them. Other companies based in Ireland could not.
This is just the latest instalment of the general crackdown that Europe is going through right now about transfer pricing and other profit shifting mechanisms led by the European Commission. The decision is an enormously important case in the transfer pricing world.
It actually leaves Ireland in a little bit of an embarrassing case because, as I said, it’s an enormous sum of money, so people will be naturally saying, well, what are we going to do with this? The Irish Treasury has warned against using this for anything other than perhaps a one-off major capital project or debt repayment.
But the Irish also appear to be quite concerned about how their low tax regime (they have a corporate tax rate of 12.5%) will be perceived by other companies who would like to invest in Ireland which has pursued a long-term policy of attracting investment. Its industrial strategy was shaped in the late 50s, but really only started to come to fruition once Ireland joined the European Economic Community in 1973.
I would be very interested to see how this massive decision plays out in other jurisdictions and what lessons are taken by transfer price practitioners.
GST and managed funds – round two?
Finally this week, Inland Revenue has been busy releasing a number of draft consultations on a range of subjects, including Commissioner of Inland Revenue’s search and information gathering powers, the income tax treatment of short stay accommodation, arrangements involving tax losses carried forward under the business continuity rules, and a big paper on the income tax company amalgamation rules.
However, the one that’s got me a little bit intrigued because of its back story is a consultation on the GST treatment of fees paid in relation to managed funds. If you recall back in August 2022, the then Labour government introduced a tax bill which included a measure which would impose GST on management services supplied to managed funds.
According to the supporting Regulatory Impact Statement that measure was to tidy up an anomaly that had been identified by a GST issues paper released by Inland Revenue In February 2020, just before COVID arrived. It was projected to bring in an estimated $225 million a year starting from 1 April 2026.
A furore erupted after the same regulatory impact statement noted that was according to modelling by the Financial Markets Authority, the impact of imposing GST on management fees would mean that the amount available for KiwiSaver investors would be reduced by an estimated $103 billion by 2070. For context, it’s worth pointing out that the KiwiSaver funds were projected to be valued at nearly $2.2 trillion. In an unprecedented move, Labour backed down and withdrew the bill within 24 hours.
Against that background, it’s interesting to see Inland Revenue’s final consultation on the same topic. And this is where I’m intrigued to know a little bit more about what’s changed. Basically, it seems that Inland Revenue is going back to a default position where manager fees are treated as exempt, but investment manager fees become subject to 15%. The proposal in 2022 was all fees become subject to GST at 15%.
An intriguing counter-factual
What intrigues me is that the 2022 Regulatory Impact Statement noted as the counterfactual that this would probably result in something like an overall increase in GST collectible of approximately $135 million per annum from 1 April 2026 onwards. That’s not an insignificant sum of money.
Although Inland Revenue’s job is to provide interpretation and guidance, my thoughts on this are if this is a sum that’s going to potentially raise $135 million dollars of tax annually, maybe that’s something that Parliament should legislate.
There is also a subsidiary issue here which is a long-standing issue in our tax system at the moment. It is surprising, given that this was a controversial point, that this issue had not reached the courts, or that no one has taken a test case.
So, although Inland Revenue is doing its job, given the sums apparently involved I think that is something that should be put into legislation and go through the Select Committee process. But for the moment though, Inland Revenue is consulting on the issue until 25th October. As always, we will bring you any news and developments as they emerge.
And on that note, that’s all for this week. I’m Terry Baucher and you can find this podcast on my website www.baucher.tax or wherever you get your podcasts. Thank you for listening and please send me your feedback and tell your friends and clients. Until next time, kia pai to rā. Have a great day.
Inland Revenue has released an interesting technical decision summary in relation to the use of look-through companies. Look-through companies replaced the former qualifying and loss attributing qualifying companies with effect from 1st April 2011. They’ve therefore been around for some time, but great care is needed when using them.
The basic precept of a look-through company is a company which elects to be a look-through company for tax purposes. The company is still a separate corporate entity for all legal purposes, but for tax purposes, it’s rather like a limited partnership. Its losses and income will flow through to its shareholders. One of the key things to be in order to qualify for the look-through company status is you have to have five or fewer look-through shareholders.
Better ask Saul?
That was one of the questions at the heart of this application in this Technical Decision Summary. The company wanting to elect to be a look-through company applied to Inland Revenue for a ruling. There was quite an involved structure with three shareholder trusts with each trust benefiting the respective settlor together with a combination of their spouses, children, children’s spouses, grandchildren and other family trusts. The company had a subsidiary which was to be liquidated following the election and there was also a charity in the mix that was receiving distributions from on of the shareholding trusts.
One of the questions put to Inland Revenue in this application was whether the company qualified to make the election. There was also a question about what would be the treatment of the capital gain that arose on the liquidation of a subsidiary. All of this is highly technical, but it does highlight one of the major concerns many of us have had with the look-through company regime in that it is rife with little pitfalls. A very sensible approach was taken here by the parties involved to apply for a private ruling which was approved.
Inland Revenue said that there are only three look-through counted owners, so the company would meet the requirement of five or fewer shareholders. Each shareholding trust could make distributions to companies so a question was if a distribution went to a beneficiary company, could that compromise the status? Inland Revenue advised no and also accepted that if a subsidiary was liquated any capital gain which arose would still be available for distribution as a capital gain later.
This is quite a unique set of circumstances, but I raised it to show the great care that’s needed in dealing with look-through companies. Because if you get the timing wrong or you get the rules wrong, the election doesn’t apply and that can have quite severe tax consequences. It pays to tread carefully when making look-through company elections.
More on contractors and withholding taxes
Last week I spoke with Matthew Seddon, one of the finalists for this year’s Tax Policy Charitable Trust’s Scholarship Prize.
Readers raised a couple of questions: firstly, what happens when New Zealand companies offshore their work; and secondly wouldn’t it be simpler to make all contractors register for GST?
It so happens there is a set of rules that would apply withholding tax to payments that are made to offshore contractors, known as non-resident contractors tax. But the key point there is that the contractor must have actually performed the services in New Zealand. So, if an IT person flies into New Zealand as part of a project because they’re carrying out the services in New Zealand, non-resident contractors tax will apply even if the person is not tax resident in New Zealand. By the way, I’m sure this happened when Inland Revenue was going through its big Business Transformation project
The non-resident contractor’s regime has been around for quite some time. It was set up during the late 70s as part of the Think Big projects when the Government realised a lot of non-residents were working in New Zealand, but we had no mechanisms for capturing some of that tax revenue. So, the non-resident contractors tax regime was established, and it works pretty well.
Where all the work is done remotely then withholding will not apply because there is no New Zealand source as the services aren’t being performed in New Zealand but overseas. Under general tax principles, the taxing point therefore is in the offshore country. Overlaying these non-resident contractor rules are double tax agreements, so it’s another area where people can trip up very easily,
As for making contractors be compulsorily GST registered, this was something Matthew and I did discuss. I think the next stage in the evolution of GST is pretty much making business to business transactions zero-rated. This would simplify administration and compliance. So thank you to the questioners, Hamish, SolarDB and Kiwis, much appreciated.
“It was twenty years ago today…”
And finally, it’s actually been 20 years this week since I started Baucher Consulting. Back then I started with a single client, and I worked from home. Now there are three of us at the moment and we have offices in Takapuna. Change is constant in tax and it’s actually one of the attractions of your career. You really don’t know what challenges you will meet in the course of the day or week. And that keeps you on your feet.
I’ve been working in tax for 40 years and even now there’s always something that turns up and makes you think “Oh, I hadn’t come across that before.” It’s a great, intellectually stimulating challenge. And you’re always having to think on your feet sometimes very, very rapidly. Such as when you’re in the middle of a meeting with Inland Revenue who suddenly fires in a question you weren’t expecting. I’ve had a few of those over the years.
“Don’t look back in anger…”
Looking back over the past 20 years it’s interesting to look back and think how much has changed and yet in some ways how little has actually changed. Back in in August 2004 the top marginal income tax rate was 39% which kicked in at $60,000. The corporate income tax rate was 33% and the trustee rate was also 33%.
As we know the corporate income tax rate is now 28% which reflects the worldwide trend we discussed recently of falling corporate income tax. rates. We’re back up to a top 39% rate, but this time on income over $180,000. And as of 1st April this year the trustee tax rate is 39% for most trusts.
In August 2004 Michael Cullen, who was also the Minister of Finance, was the Minister of Revenue. Following the 2005 General Election he was replaced by Peter Dunne, who began his second stint as Revenue Minister after a brief period in 1996. Peter Dunne actually has the distinction of being the longest serving Minister of Revenue in New Zealand History. He held the post from 2005 right through until June 2013 when he was replaced by Todd McClay. Over the past 20 years, there have been nine Ministers of Revenue, including Sir Michael and Peter Dunne.
“The Minister reads his papers”
Quite a few ministers had quite interesting tax related careers prior to becoming MPs. Judith Collins, for example, Minister of Revenue between 2016 and 2017 was a former tax partner at the law firm Simpson Grierson. Barbara Edmonds, who was briefly Minister of Revenue last year between July and November, was previously an Inland Revenue official and then later attached to the Minister of Revenue’s office. And the current Minister of Revenue, Simon Watts, started his career as a tax consultant with Deloitte.
Fortunately, I’ve got to meet many of these ministers and their officials. I remember one Inland Revenue official remarking to me “The Minister reads his papers. Not every minister does.” Now I think all the ministers I have encountered in office read their papers. I think it’s particularly true of Simon Watts, who has impressed me this year where a couple of times I’ve come across some at conferences where he’s very clearly been across the brief and the massive amount of detail involved.
Back in 2004 David Butler was halfway through his period as Commissioner of Inland Revenue. He was succeeded in 2007 by the genial Canadian Bob Russell, who lasted until 2012. His replacement was Naomi Ferguson, one of the longest serving Commissioners of Inland Revenue in recent years. Naomi oversaw the Inland Revenue’s critically important Business Transformation project which upgraded Inland Revenue’s computer system.
Business Transformation was brought in on time and under budget, although the recent Performance Improvement Review highlighted some concerns about the reliance on a single supplier. Business Transformation was just in time to cope with the COVID pandemic. As officials told me without it Inland Revenue would not have been able to handle the demands that were placed on it as a result of the pandemic.
Sir Michael Cullen – the tax reformer
Looking back over the major changes in tax, as I mentioned, Sir Michael Cullen was both Minister of Revenue and Minister of Finance when Baucher Consulting started. I think he deserves to be recognised as one of New Zealand’s most significant finance ministers in modern times. He’s probably second only to Roger Douglas in that regard.
His tax initiatives included Working for Families in 2005, but the critical ones would be the setting up of the New Zealand Superannuation Fund in 2003 and most importantly, KiwiSaver which started in 2007. KiwiSaver’s start coincided with the introduction of the portfolio investment entity or PIE tax regime and the very controversial Foreign Investment Fund (FIF) regime, which took effect from 1st April 2007. A couple of weeks back we discussed the FIF regime its impact for some migrants. All of these were significant achievements which changed the tax landscape.
Not one but two tax working groups
We’ve also had two tax working groups. The first one was the Victoria University of Wellington Tax Working Group 2009 – 2010, led by Bob Buckle of VUW. The second and much better resourced group sat between 2018 and 2019, chaired by Sir Michael Cullen. It is one of the highlights of my business career to date that I was invited to write a paper for that tax working group on whether there should be a separate tax ombudsman and a tax advocate for smaller taxpayers. My view was and remains, yes to both. In fact, it was one of the proposals that was picked up for further work by Inland Revenue’s tax policy division. But then something called COVID turned up. So those proposals are now way down the back-burner
In 2018 I also had the very good fortune to be a member of the Government’s Small Business Council. That was a great learning experience and very much a professional highlight. It also built networks which enabled me to have direct contact with Stuart Nash who was both Minister of Revenue and Minister of Small Business during the pandemic, when what became the Small Business Cashflow Scheme was being devised. Incidentally that’s an initiative I think should be picked up and expanded by the Government.
A tax switch and sneaky fiscal drag
October 2010 saw a major change to the tax system with the top income tax rate dropping from 39% to 33% as part of a tax switch with the GST rate increasing from 12.5 to 15%. That was the last time until the 31st July just gone that the tax thresholds were increased. I’ve said it before and I will keep saying it, I think it is unacceptable how successive Ministers of Finance of both parties have been allowed to get away with not regularly increasing tax thresholds.
Starting in 2010, I started writing for interest.co.nz and I’d like to take the opportunity to thank the publisher, David Chaston and managing editor Gareth Vaughan for their patience and their support through these past years. From that start I got to meet Dr Deborah Russell, who’s now the Honourable Deborah Russell MP, former associate of Minister of Revenue and our collaboration resulted in the publication in 2018 of the BWB text in 2017 Tax and Fairness, a huge personal and professional highlight.
Bright-line test and capital gains
Another significant tax milestone was on 1st October 2015 and the introduction of the bright-line test. It originally only applied to sales within two years of acquisition but during the last Labour government the period was increased to first five and then ten years. The bright-line test is significant because it recognised that having a tax provision which taxed on the basis of a person’s intention – was the property acquired for the purpose or intent of sale – was largely unenforceable.
No capital gains tax…for now
The last Labour government of course turned down the Cullen Tax Working Group’s proposed capital gains tax. However, that issue isn’t going to go away, in my view. Partly to redress that decision Labour then introduced the controversial and deeply unpopular interest limitation rules in October 2021. I could see the theory behind these rules, but I thought they were overcomplicated. Personally, if I was addressing the issue of interest deductibility, I would have gone with adapting the existing thin capitalisation regime. This has been in place since 1995 and therefore is well established.
With regards to interest limitation rules, it’s worth remembering, as I noted a couple of weeks back when talking about the OECD’s corporate tax statistics, there are over 100 interest limitation rules currently in existence around the world. So, the issue of over generous interest deductions is not one solely focused on residential property. Contrary to many of the claims made that the interest limitation rule that was a breach of business practice it’s actually quite a standard feature as the thin capitalisation rules demonstrate.
Podcasting since 2019…
Amazingly, this podcast started five years ago in 2019 with my first guest Jenée Tibshraeny then of interest.co.nz but now with the New Zealand Herald. I’d like to thank all my guests who have appeared over the years. The podcast is approaching its 250th episode. It’s something I enjoy which seems well received and it’s actually pretty handy for keeping abreast of developments.
One other professional highlight was providing data to the Finance and Expenditure Committee and Inland Revenue about the instances of over taxation of backdated ACC lump sums. Subsequent discussions with Inland Revenue led to legislative change which took effect at the start of this tax year.
A big thank you
But most of all, I’d like to thank the people who have helped me prosper over the past 20 years, starting with my wife Tina without whose endless support and patience none of this would have been possible. My colleagues here at Baucher Consulting, Judith, Eric, Darren, and Trent, my business coach Bruce Ross. David Chaston and Gareth Vaughan at interest.co.nz, my colleagues of the Accountants and Tax Agents Institute of New Zealand, where I was honoured to be on the board between 2010 and 2016. The many friends have made along the way and of course, my clients.
So, thank you all very much it’s been a fascinating 20 years. As I said change is a constant and there’s a lot more to come. I think we’re going to see big changes with the tax system as we try to fund the challenges ahead of climate change and the changing population. And as always, we will bring you those developments as they happen.
And on that note, that’s all for this week. I’m Terry Baucher and you can find this podcast on my website www.baucher.tax or wherever you get your podcasts. Thank you for listening and please send me your feedback and tell your friends and clients. Until next time, kia pai to rā. Have a great day.
It was a busy week in tax with Inland Revenue releasing guidance in relation to a couple of commonly encountered scenarios. The first is QB 24/04When is a subdivision project a taxable activity for GST purposes?
This covers the frequently discussed and very important issue of what is the GST treatment when you are subdividing land into two or more plots? The standard position about GST is that you must register if you’re carrying on a taxable activity and the value of those supplies exceeds the registration threshold of $60,000.
What’s a taxable activity?
Clearly many subdivisions will exceed that $60,000 threshold when they are sold so what represents a taxable activity? In order for a taxable activity to exist it must be carried on continuously or regularly. Therefore, it follows that for a subdivision to be continuous or regular, it usually needs to involve the sale of more than one lot. A subdivision which only involved one sale would usually be regarded as a one-off activity because it does not meet this threshold of continuous or regular.
Notwithstanding that the Inland Revenue guidance points out that some subdivisions which only led to one sale may in fact be continuous and regular. But that would only be if the level of activity involved was very high. Now, like so much of tax, it’s this comes down to the question of the facts of a particular case. Very high in this context might be something like construction and sale of a large office block, or more likely, because more often than not we’re talking about subdivisions of residential land, an apartment block.
The guidance continues the more subdivision plots are divided, the more likely it is to be deemed as being continuous or regular. Following the Newman decision way back in 1995, if a subdivision leads to the sale of four or more lots, that’s typically taken as the benchmark for determining that the continuously or regularly is happening and there is a taxable activity.
On the other hand, what happens when there are two or three lots? Then you have to consider the level of the activity relative to the number of lots being sold in order to determine whether or not this activity is continuous or regular. Therefore, you’d look at the level of development work, the time and effort involved, the level of financial investment and the level of repetition. This last point is probably most critical. If you’re repeating the process multiple times, this is more likely to fall into the continuously or regularly category. But as the guidance notes, everything is fact dependent.
On the other hand, the factors that are not so relevant are whether or not the subdivision is commercial. It doesn’t matter whether the subdivision has a “commercial” flavour or you are subdividing your own land to downsize. Anything done without an intention to sell the resulting land is not relevant. For example, if you build a house on a subdivided lot with the intention of living in it, but later change your mind and decide to sell, work done before you change your mind is not relevant.
Overall, this is useful guidance which comes with a helpful accompanying fact sheet. Keep in mind that the GST treatment is not tied to the income tax treatment. Your project might not be a GST taxable activity, but it could well be subject to the bright-line test or any of the other land taxation rules.
Another common issue – loans to shareholders
Moving on, the other topic, on which Inland Revenue has released useful guidance is a draft interpretation statement on the income tax position in relation to overdrawn shareholder loan account balances (sometimes called shareholder current accounts). Now, as anyone who works with small businesses will tell you this is actually a pretty common scenario. Despite this, the income tax position is not always as well understood as it should be.
In my experience, overdrawn shareholder current account balances typically arise in two scenarios. Firstly, where the owner or shareholder is taking out more in drawings than they’re being paid as a shareholder or employee or any other form of payment. This is a fairly common scenario.
The other instance is where the company has realised the substantial capital gain and shareholders extract the cash without waiting to consider the tax implications of doing so. Often in those situations, advisers don’t find out until maybe months afterwards. At that point it can become quite difficult to unwind the tax consequences because the numbers involved are quite substantial.
It’s therefore good to have Inland Revenue guidance and this comprehensive interpretation statement runs to 41 pages begins with the summary of the basic rules. A dividend is deemed to arise for a shareholder if they are paying little or low interest on an overdrawn shareholder loan account.
The amount of a dividend on an interest free or low interest loan typically represents the difference between a benchmark interest rate that should be charged and the amount of actual interest rate occurring on the loan. Benchmark for this purpose is Inland Revenue’s prescribed rate of interest, which since 1 October 2023 has been 8.41%.
A dividend can also arise where the loan has been advanced to an associated person of the shareholder. This can lead to some quite involved tracing of shareholdings and related calculations about percentage of shareholdings. This is necessary to determine if there is an association and whether that associated company is part of the same 100% owned group and therefore potentially eligible for the exemption on intra-group dividends. This is another area where I’ve encountered situations where this associated person issue hasn’t been picked up.
Incidentally, it’s worth noting, by the way, that although for New Zealand tax purposes, the amount of the dividend is the amount of interest that should have been charged in Australia and the UK, the amount of the dividend is deemed to be the full amount of the advance made. This might be something we might see Inland Revenue take a look at as it’s something that has occasionally come up in discussions with officials.
Loans to shareholder-employees
Were the shareholder is also an employee of the company, then the low or interest free loan is not treated as a dividend but is instead subject to fringe benefit tax. The amount of the benefit is the difference between the interest paid and the prescribed rate of interest. Something to note here is that the shareholder-employee doesn’t solely mean someone within the provisional tax regime, but it also includes shareholders who are employees and whose salary are subject to PAYE There’s a couple of useful flow charts to help people determine who might be captured by these rules.
The draft interpretation statement also notes that typically interest paid by a shareholder on an overdrawn current account is generally not deductible. This is because usually the drawings are often applied for private or domestic purposes, and so there’s no link to an income earning process. However, in some cases the money might have been withdrawn to invest in a residential property or some other income producing asset, in which case the interest would become deductible, if all the other deductibility criteria can be met.
One other key point to note is what happens if a shareholder is no longer required to repay the overdrawn balance, because the company forgives or remits the debt in some way. In this case the full amount of the loan will be deemed to arise either as a dividend or under the financial arrangements regime. In either case the shareholder will usually be taxed on the amount that’s been remitted.
The interpretation statement also covers scenarios when resident withholding tax might need to be deducted and interest therefore be reported as investment income. This would be somewhat unusual, but the interpretation statement explains when it might happen.
Overall, this is an important and useful document setting out the rules pretty clearly on a topic which as I noted is frequently encountered amongst small businesses but isn’t always as policed or managed as effectively as it should be. It’s also accompanied by a more digestible 8 page fact sheet. Consultation is open until 2nd August.
A blueprint for taxing billionaires?
One of the interesting things going on around the world in the tax policy area now is something of a trend amongst international organisations such as the International Monetary Fund (IMF), the Organisation for Economic Cooperation and Development (OECD) for releasing papers for discussion on the taxation of capital and wealth.
The latest such paper A blueprint for a coordinated minimum effective taxation standard for ultra-high-net-worth individuals was commissioned by the Brazilian G20 presidency earlier this year. The report was written by the French economist, Gabriel Zucman, a protégé of Thomas Piketty. It proposes a framework the approximately 3,000 or so billionaires in the world to pay at least 2% of their wealth in individual income tax or wealth taxes each year.
Zucman’s report notes there been a vast improvement in international tax cooperation since the mid-2010s, particularly with the Common Reporting Standard on the Automatic Exchange of Information which commenced in 2017. He also pointed to the recent agreement hammered out by the OECD for a minimum tax of 15% on large multinationals. (It’s worth noting though that agreement has yet to be fully implemented as progress has slowed recently).
Zucman correctly points to this growing international cooperation and exchange of information as laying the baseline for further international cooperation in the form of what he terms a common minimum standard, ensuring an effective taxation of ultra-high net worth individuals. According to Zucman this “would support domestic policies to bolster tax progressivity by reducing incentives for the wealthiest individuals to engage in tax avoidance and by curtailing the forces of tax competition.” This would target the tax havens where much of this wealth is sheltered.
The paper estimates that a 2% tax on those 3,000 billionaires could realise between US$200 and US$250 billion U.S. dollars in revenue annually. If it was extended to those worth more than $100 million, that could generate another US$100 to US$140 billion per annum. These tax revenues would be collected from “economic actors who are both very wealthy and undertaxed today”. Those affected might not agree with this assessment that they’re presently under taxed.
The paper is realistic enough to note that there are real challenges with the proposals, such as how to value the wealth, ensure effective taxation if some jurisdictions don’t agree to implement it, and of course compliance by taxpayers. It’s a bold proposal which has attracted a lot of attention although I’m sceptical about the potential level of revenue which could be raised. We really don’t have a very detailed understanding of the composition of the wealth and where it is held of the very wealthy. That’s an issue which would need to be addressed. And as I mentioned, there are serious issues around valuations and informed enforcement, which Zucman acknowledges.
Starting a conversation?
But for me, the most interesting thing to me about this whole proposal, it’s the latest. As I said, it’s the latest in the line of papers coming out of the likes of the G20, the OECD, the IMF, the World Bank, all of whom are basically saying that we are not taxing wealth sufficiently and we need to do something about that to address inequality. As Zucman himself puts it in the Foreword of the report
“The goal of this blueprint is to offer a basis for political discussions – to start a conversation not to end it. It is for citizens to decide through democratic deliberation and the vote how taxation should be carried out.”
In other words, he is repeating my old precept that tax is politics.
My personal view is we need to have a broader discussion around the taxation of capital. One of the points to emerge from the current debate going on over replacing the Cook Strait ferries is that the new ferries represented just 21% of the total cost of Project iReX. The other 79% represented the cost of upgrading the supporting infrastructure not just for the larger ferries but also to make it climate change and earthquake resilient for the next 100 years.
Even if we dialled back the futureproofing to, say, 50 years, we’re still talking about significant sums of investment. We’re also still left with the key point of how will we pay for the vast amount of infrastructure that we will need to upgrade to deal with the continuing impact of climate change. In my view our politicians have not yet seriously engaged with us on this issue.
Meanwhile in the UK…
And finally, this week a quick note on the UK election which is next Thursday. The likelihood is that the opposition Labour Party is heading for a massive win. One of their key tax proposals is the abolition of the remittance basis or non-dom tax regime.
But not every voter has understood exactly what that means. As Labour candidate Karl Turner recounted to the Guardian
“We met a guy who said he was going to vote Labour but wouldn’t now because he had just heard that we were taxing condoms,”
“I said, ‘condoms?’ ‘Yeah,’ he said: ‘I just heard on that [pointing to the TV] that you are taxing condoms, and I’m not having it. You’re not getting my vote.’ It was Terence [Turner’s parliamentary assistant] here who worked it out.
“‘We’re taxing non-doms, not condoms,’ I said. ‘Oh,’ he said. ‘Like the prime minister’s wife? Ah.’ He calls out: ‘Margaret: they’re taxing non-doms, not condoms.’”
And on that note, that’s all for this week, I’m Terry Baucher and you can find this podcast on my website www.baucher.tax or wherever you get your podcasts. Thank you for listening and please send me your feedback and tell your friends and clients. Until next time, kia pai to rā. Have a great day.
(Loaded to Soundcloud 30 June 2024. Appeared interest.co.nz 1 July 2024).
