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IRD confirms: no appeal pending on Diamond residency case

The IRD has confirmed it will not be appealing the recent Court of Appeal decision in C of IR v Diamond [2015] 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.

FBT on car parks

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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.
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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.

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Strike two! Taxpayer wins in Court of Appeal tax residency case

Just before Christmas, the Court of Appeal released its decision in the Diamond case:  Commissioner of Inland Revenue v Diamond [2015] 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.

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Tax residency: Diamond case going to Court of Appeal

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

Government acts to target property speculators

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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.
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Tax Simplification project

A new Government public consultation project on options for simplifying and modernising New Zealand’s tax administration has been launched.

The first two in a series of public consultation documents designed to modernise and simplify the tax system have been released.
The first paper, Making Tax Simpler — a Government green paper on tax administration aims to introduce New Zealand to the overall direction of the tax administration modernisation programme and seeks feedback on that direction.  Consultation on this paper closes on 29 May 2015.
The paper, Better Digital Services outlines proposals for greater use of electronic and online processes allowing faster, more accurate, more convenient interactions with Inland Revenue. Consultation on this paper closes on 15 May 2015.
To make a submission or to read the full details of proposals refer to the documents below and go to www.makingtaxsimpler.ird.govt.nz
Also see:

February tax bill – what’s in store for you?

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On 26th February, the Government introduced the long-awaited Taxation (Annual Rates for 2015-16, Research and Development and Remedial Matters) Bill. This post provides a brief overview of what tax changes are in the pipeline.
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Employee allowances – how should these be treated?

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Salary and wages are not the only payments that an employer might make to an employee. An employer might also pay an allowance or reimbursement to their employee. Examples include allowances/reimbursements for business use of a private motor vehicle and reimbursement for meals and accommodation. How should an employer treat these types of payments? Should PAYE be deducted?
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…and so the JG Russell case has finally come to an end…or has it?

Inland Revenue has won a $367m judgement against 79 year old accountant, JG Russell for an unpaid tax debt. Even though the case has been won by Inland Revenue, it is unlikely that Inland Revenue will actually recover the money. One has to then ask, was this really a case about the money, or principle? Read more

GST and Body Corporates

Minister of Revenue Todd McClay has announced the Government’s intention to amend the GST Act to confirm that Body Corporates will not be required to register for GST and file returns.  The Government’s view is that this will align Body Corporates with the rules for other residential property owners.  For more information see http://taxpolicy.ird.govt.nz/news/2014-06-06-govt-seeks-feedback-proposals-clarify-gst-treatment-bodies-corporate#statement.

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Recent comments

  • Joanne Martin: Hi Would you be able to email me to discuss a small company that is an LTC which I need some advice on...
  • Rizwana Saheed: You are on the right track that there is an exemption when employees work overtime but whether or not...
  • bryan: as a group of employees we get paid meal money if we exceed 11hrs on any day. Employer says he wants to tax...
  • linda: My mother is 94 and has dementia. With govt assisted carers she is still living in a home gifted within the...
  • Sharon: Hi Daniel, Can you please advise how owners of a profit-making LTC pay themselves? The owners used to pay...
  • Another Anne: My Dad is in care on full subsidy. I am EPOA. Are we able to gift some money to my brother in UK so...
  • Twagilayesu Isaya: I agree with the author of this article that Inland Revenue Department need to provide clear...
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