The Supreme Court has dismissed Ivan Erceg’s appeal, refusing his application for an order to disclose trust documents.
The case is the culmination of a long-standing family feud involving two trusts set up by Michael Erceg, a wealthy businessman who died 10 years ago in a helicopter accident. Ivan Erceg, the brother of the deceased, was a beneficiary of both trusts, but received nothing when the trusts were wound up in 2010. Analysts had put the value of the trusts at $1.2 billion in 2006. Read more
The deductibility of feasibility expenditure on capital projects got knocked back by the Supreme Court in its decision released today (27/07/16). The court said:
“ On a purist view of the capital/revenue distinction, any expenditure (feasibility in nature or otherwise) addressed to a capital project … is necessarily on capital account. On this approach – which has been espoused by Professor John Prebble QC and Hamish McIntosh – the feasibility expenditure in issue was necessarily not deductible.
The approach which we adopt is broadly similar to that proposed by Professor Prebble and Mr McIntosh but, for reasons which we explain, allows for some flexibility, for instance, in respect of initial stages of feasibility work … [W]e consider that some feasibility expenditure referable to proposed capital projects might sometimes be deducted. We do not, however, see such deductibility as extending to external costs incurred in respects which do, or were intended to, materially advance the capital project in question.”
A new tax bill in August will see the government adopting all of the key recommendations made in the Shewan Inquiry on foreign trusts. Expect to see these initiatives in the draft legislation:
- information on foreign trusts to be maintained in a register overseen by Inland Revenue
- foreign trusts to file an annual tax return
- disclosure of tax information and personal information about the settlors, non-resident trustees and classes of beneficiaries
- exemption on foreign source income removed if registration and disclosure obligations not met
- new registration fee ($270) and annual filing fees ($50) to apply to foreign trusts.
Increased Anti-Money Laundering (AML) requirements for lawyers and accountants are also signalled with effect from 2017.
Read the full summary of the government’s response here.
Wolters Kluwer CCH New Zealand
The Government Inquiry into Foreign Trust Disclosure Rules was released yesterday (Monday 27 June). In a nutshell, John Shewan’s report concluded that the current disclosure requirements were “light handed” and reasonably likely to be facilitating the hiding of funds or evasion of tax in some instances. Against this backdrop, governments around the world have a legitimate expectation that the New Zealand government will step in and take action to change the rules.
Residential land withholding tax (RLWT) kicks in on 1 July 2016. “Offshore RLWT persons” who sell land subject to the bright-line test may have RLWT deducted from their sale proceeds. Primarily, the vendor’s conveyancer will be responsible for deducting the tax, however, accountants may need to assist with calculating the amount payable to Inland Revenue.
The tax was introduced as a means of ensuring that offshore taxpayers who are required to pay tax under the bright-line test meet their New Zealand tax obligations. Collection of income tax from these taxpayers is more challenging then from New Zealand based taxpayers, and so deducting at source can be seen as a way around the issue. Read more
The IRD has confirmed it will not be appealing the recent Court of Appeal decision in C of IR v Diamond  NZCA 613.
This is good news for taxpayers (and their advisers) as it provides a degree of clarity and certainty to the law on residency.
The Court of Appeal decision – which was a win for the taxpayer – explicitly rejected the notion that having a rental property “available” to the overseas-based taxpayer was sufficient to amount to having a permanent place of abode in New Zealand.
The Court also concluded by saying that the fact that a taxpayer provides a home for his family in New Zealand while living overseas would not necessarily be sufficient to establish that the taxpayer had a permanent place of abode in New Zealand.
Refer to James Coleman’s blog to read the background facts to the Diamond case.
In the past, the Commissioner’s view has been that car parks provided to employees under a license agreement did not qualify for the on-premises exemption and were therefore subject to FBT. However, the question of whether or not FBT applies to a car park now focuses on whether the employer has a right over the car park which is substantially exclusive. So if the employer has a right which is in fact, or effect, substantially exclusive, then the car park will not be subject to FBT.
In a nutshell, the higher the degree of control the employer has over the car park, the more likely it is that the right is substantially exclusive.
Going back a step, there is an FBT liability when an employer provides a free car park to an employee. However, there is an exemption for fringe benefits which are provided on the employer’s premises. This is sometimes referred to as the “on premises exemption”. The “premises” of an employer includes land which owned and leased by the employer.
A recent Inland Revenue ruling (BR Pub 15/11) states that when deciding on the question of FBT, employers will have to look closely at the nature of the car parking arrangement and whether it gives the employer a right to use the car park which is in fact, or effect, substantially exclusive. So a car park which is subject to a license can now be exempt from FBT if the employer has a substantially exclusive right to use it.
Just before Christmas, the Court of Appeal released its decision in the Diamond case: Commissioner of Inland Revenue v Diamond  NZCA 613. The result – which was a win for the taxpayer – once again strikes down the Inland Revenue’s interpretation of what is meant by a “permanent place of abode”. (Refer to James Coleman’s blog for a quick précis of the background facts to Diamond).
The Court of Appeal explicitly rejected the Commissioner’s argument that having a rental property “available” to the taxpayer was sufficient to amount to having a permanent place of abode in New Zealand. The Commissioner’s argument in court aligns with the position taken by Inland Revenue in Interpretation Statement IS 14/01.
Most tax professionals will be aware of the Diamond case (Diamond v Commissioner of Inland Revenue (2014) 26 NZTC 21,093). It is the first High Court judgment on personal tax residency in New Zealand after the 1980 law change. It therefore affects all New Zealanders who move abroad.
The High Court had to rule on the question of whether a rental property owned and rented out by Mr Diamond (the taxpayer) could be considered his permanent place of abode in New Zealand. Clifford J stated that to have a permanent place of abode in New Zealand means to have a home in New Zealand with a sufficient degree of permanence. Read more
The Government announced tax measures yesterday which will target taxpayers who purchase and sell properties within a short period of time in the hopes of making a quick dollar. Although the law already taxes property acquired with the intention or purpose of disposal, the legislation is currently seen to be difficult to apply. Furthermore, even if it is clear that a person should be paying tax, it’s not always easy for the Revenue to track down foreign property speculators. To this end, the Government has also announced measures which will specifically target non-residents.