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Site Archives Avoidance and tax planning

Relying on Inland Revenue

Inland Revenue has released a draft statement for public consultation setting out the Commissioner’s view of the current law in relation to the status of different types of advice (other than binding rulings) that the Commissioner gives and the implications of reliance on it.

Situations where the Commissioner will take the view that advice he has previously given is incorrect include when:

  • a court decision clarifies the law and shows that the earlier advice is incorrect;
  • the Commissioner discovers an error in the earlier advice; or
  • the Commissioner reconsiders earlier advice and changes his view.

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It’s happening everywhere ..

An EY global survey, highlighted in a recent article in the Sydney Morning Herald indicates that increases in audit activity are part of a broader global trend.   The paper writes:

An annual survey by the global accounting firm Ernst & Young found tax authorities are becoming more aggressive and forcing companies and governments into more clashes over tax laws,  The survey, based on interviews with 541 senior tax and finance executives, concludes that the world has entered a period of elevated risk for tax controversy.  Findings were that audits are more frequent and aggressive, making them more costly to defend or litigate.  Tax assessments and penalties have now entered the realm of billions of dollars.  Companies [also] face unprecedented scrutiny and reporting of their tax affairs by advocacy groups and the media. Read more

David Tua v Inland Revenue – now this will be an interesting fight…

One of the great unknowns when you enter the boxing ring is how hard your opponent will be able to hit you. In recent times, the Inland Revenue has just delivered a couple of powerful punches to the face of David Tua, claiming he owes a whopping $2.2 million in unpaid taxes. Read more

In an increasingly complex tax world, how do you stay out of trouble?

Tax headlines recently have reflected lengthy tax disputes, many which have been lost by the taxpayer. Inland Revenue has increased its focus on tax audits and this can leave many companies feeling nervous about their practices. Are you next? Read more

Tax Avoidance – it all comes down to statutory interpretation

In recent times, we have seen several tax cases being lost by Taxpayers. Analysing the judgments, I believe we have seen a fundamental move when dealing with tax avoidance – a move back towards statutory interpretation. The Newton and Elmiger cases are the policy basis for our anti-avoidance rule as they focus on statutory interpretation and I believe the courts are showing a move back to this ordinary approach (as can be seen in the Banks cases).

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Penny and Hooper

The appeal in Penny and Hooper has been decided in favour of the Commissioner in a 2:1 majority decision of the Court of Appeal released on 4 June 2010.

In the first instance the decision could be considered to have been rendered largely nugatory for the time being given the recent reduction of the top marginal rate to that of the trustee rate. However, with the new company rate now significantly below these rates, the matter of below market salaries will likely be a live issue for some time.

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Case Z24 – Troubling trends in tax avoidance jurisprudence

In Case Z24 the taxpayer had transferred an avocado orchard and her private practice as an anaesthetist to a family company.  In the 2003 and 2004 years she provided her services to the family company for a nil or low salary.   The Commissioner had argued that the rent paid by the family company to the family trust for the lease of the orchard was inflated and the salary paid to the taxpayer for her services was too low.  Judge Barber was unimpressed by the Commisioner’s arguments as to the inflated rent but held that the payment of an artificially low salary was tax avoidance. 

Two elements of this case are troubling:  there was no reference to Penny & Hooper anywhere in the case, notwithstanding the High Court decision was delivered over a year ago; and there is no explanation of how the tax consequences of combining a loss-making business (the orchard) with a profitable business (the private practice) achieved a result that was manifestly outside the contemplation of Parliament.  If it is accepted, which it appears to have been, that in aggregate there was little in the way of distributable profit from both businesses, then what principle of tax law would compel the owner to pay themselves a salary?

BNZ Tax avoidance decision

The BNZ has confirmed that it has filed a notice to appeal the High Court’s decision in BNZ Investments Limited v C of IR. The High Court had ruled that the bank’s use of six structured finance transactions between 1998 and 2005 was tax avoidance – see James Coleman’s posting below.

BNZ Final Judgment

On 15 July 2009 Wild J issued his final decision in the long running BNZ structured finance litigation. The decision is BNZ Investments Ltd v C of IR (unrep, HC Wellington, CIV 2004-485-1059; CIV 2005-485-1045; CIV 2006-485-1028; CIV 2006-485-2084; CIV 2008-485-1056, 15 July 2009).

This is the second High Court decision concerning the application of the general anti avoidance provision since the Supreme Court decision in Ben Nevis Forestry Ventures Limited v CIR [2008] NZSC 115 (Ben Nevis).

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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...
  • Quinn: Hi. I would like some clarification regarding the valuation of the investments component of the owners basis...
  • QROPS Pensions: Interesting piece of writing, you always write the most useful content & TalkTax is no exception...
  • Davo: Jo, quite likely is that the transition to an LTC was not done in time and the company became a normal company...

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