‘But I’m a director of a land-owning company!’

Let’s talk about tax.

Or more particularly let’s talk about tax; interest deductions and private expenditure in companies.

Your correspondent has returned from her ‘retirement cruise’; is recovering from jetlag and has returned to what passes for work these days. That will dear readers include a return to twice weekly posting. As a change from some of the more political posts I thought I’d return to a technical issue for a bit of light relief.

Earlier this year while I was still inside I went to a dinner party in a provincial city. At the party was a delightful gentleman I had met previously and was more than pleased to see again. The feeling appeared to be mutual and our conversation broadly went like this:

DG – Now Andrea tell me – which is better? To pay my mortgage or to pay my tax?

Me – cough, splutter, mumble – well the thing is it isn’t a choice as tax is a legal obligation.

DG- oh don’t be silly of course I know that. What I mean is it better to have a mortgage on my house get the tax deductions and then have money to invest in shares and things for capital gains or have no mortgage not get the tax deductions but have more disposable income?

Me – Ah what makes you think you get a tax deduction for the mortgage on your house?

DG- This is the country  – we get tax deductions for all sorts of things and besides I’m the director of a land owning company!

Me – Is that wine over there?



Now dear readers I am sure after Zen and the art of tax compliance  you all know that to get tax deductions the expenditure has to be:

  1. Connected to the earning of income or in the ordinary course of a business and
  2. not private or domestic expenditure.

So therefore if DG owns his house in his own name – or in a family trust – as neither 1) or 2) is met there is no deduction for interest expenditure.

There is the possibility that if the money were borrowed on his house and used to buy shares THAT WERE DIVIDEND PAYING then the interest would be deductible. But if the money is borrowed to construct the house for him to live in – nuh.

The complication though is the comment about being a director of a land owning company. The rules above do not apply to a company and interest deductions. From about 2000 or so the rule broadly became:

  1. Are you a company resident in New Zealand?
  2. Have you incurred an interest expense?

If yes to both, then ‘would you like interest deductions with that?’

The private and domestic test still applies to such expenditure but I have always struggled to align any concept of private and domestic to a company.

So at first pass – yep – if DG holds his house in a company – in your correspondent’s view – he will get an interest deduction.

And yeah the Mixed Use Asset rules won’t apply here because ironically it isn’t a mixed use asset – it is wholly private and domestic.

But – not so fast – the music hasn’t stopped.

While there are special rules for companies and interest deductions there are also special (dividend) rules for transactions involving companies and shareholders aka ‘are policy makers really that dumb?’

These dividend rules say where ever there has been a transfer of value from a company to a shareholder  there is a taxable dividend to the shareholder to the extent of the value transfer. 

Ok again in English.

If a company gives a shareholder stuff – goods or services – that is a taxable dividend for the shareholder. Here the company has given the shareholder use of a house – so the shareholder DG – gets a taxable dividend.

And by ‘taxable dividend’ yes this means you need to put that value on your tax return and pay tax on it. And yes I know you didn’t get any actual cash but that doesn’t matter. You know how when you tick the box for dividend reinvestment on your publicly listed shares  – you know how the dividend is still taxable even though you didn’t get any actual cash. Consider this as the same.

So what is the value that DG has received from the ‘land owning’ company? He has received the benefit of living in that house. And what do people usually pay for the benefit of living in a house they don’t own?  You’re onto it – rent.

DG is then up for tax on the value of the rent not paid to the company as a dividend. And once more with feeling –  it doesn’t matter that no cash has been paid from the company to the shareholder. 

 So the benefit DG received – use of the house without paying rent – is taxable to DG.

Now if DG has a tax rate of 33% – as the company tax rate is 28% – there will be a net 5% tax paid on the ‘imputed’ or deemed rent. That is he pays tax at 33% on the deemed rent and the company gets a deduction at 28% on the interest expense. In other words a gift to the people of New Zealand and how tax planning can go wrong. And if he didn’t know this was the case until my former colleagues come along – it will be 33% tax plus interest at about 8% plus a penalty of between 10% and 100%.

Awesome. Can only hope he didn’t also pay an agent for this wizard advice.

If his tax rate though is lower than the company rate this is where it could get really interesting. Technically even with DG putting the value of rent on his tax return there will still be a net tax deduction that ostensibly can be offset against other income.  

In this case though the structure – or ‘arrangement’ as my former colleagues may start to call it – is really putting pressure on the whole ‘companies can’t have private expenditure’ thing. And from here we move into a complete world of pain – or ‘good case’ depending on which side you are on this – known as tax avoidance. Now the entire interest deduction is at risk with tax avoidance penalties of between 50% and 100%. Fun huh.

And don’t even think of paying rent to your company and making it a look through company so you get the deductions directly against your other income. The department was very clear with look through companies  – the prequel – that this was tax avoidance too.

So DG I am not sure there really is any ‘country immunity’ for interest on your personal mortgage. Pay it but step away from the tax system. There be dragons.

Namaste

Advertisements
%d bloggers like this: