Category Archives: Capital gains

Let’s rendez-vous in the Pacific

Let’s talk about tax (and interest deductions for capital gains).

While your correspondent is a confirmed Anglican – Episcopalian actually – I don’t consider myself a Christian anymore and haven’t taken communion for over twenty years. The same cannot be said for the rest of my extended family which is pretty hard core christian and includes three ordained priests. It used to be overrun with lawyers so priests is definitely pareto improvement.

From time to time at family gatherings when my darling christian family is discussing something theological – yes it is fun but I love them a lot – one of them will say ‘but of course it all went wrong at the Council of Nicaea’. That I think was when the Christian Church became a proper institution and started telling its followers what to do. And having seen public institutions operate at times for themselves rather than the people they are serving I am sympathetic to that view.

But for tax – in New Zealand – its Council of Nicaea was the 1986 Pacific Rendezvous case.
 

Pacific Rendezvous was – and is – a motel. They wanted to sell the business but to get a better price they decided they needed to do some capital works. They borrowed money to do that and claimed most of the interest as a tax deduction. 

They were pretty open that the building works were because they wanted to get a better price for the sale of their business. And of course we all know dear readers that the proceeds from a sale of a business that was not started with the intention of sale is tax free.

Unsurprisingly the Commissioner – who was a he at the time – was not best pleased. Deductions to earn untaxed income you cannot be serious. And so he took Pacific Rendezvous to court to overturn the deductions associated with the tax free capital bit.

But the Courts were like ‘nah totes fine’. Coz – get this – the interest was also connected with earning taxable income. You know the like really small motel fees even tho the whole gig was an ‘enhancing the business ahead of sale’ thing.

Impressive. 

And that dear readers is why I am so not a lawyer. Having to hold such stuff in my head as legit would totally make it explode.

But I digress.

Now of course Parliament or the government at the time still had the chance to overturn that case coz of course Parliament, not the courts, has the final say. Or it could have simply taxed the capital returns  – sorry now I am just being silly. 

What actually happened was some 13 years later after a fruitless interpretative tour of the provisions Bill English – when he was just a little baby MoF and long before his two stints at the leader thing – proposed and Michael Cullen enacted – that companies could have as many interest deductions as they wanted because compliance costs. You know coz otherwise ‘they’ll just use trusts’.

It was subject to the thin capitalisation rules and as the banks were to discover to their chagrin – the anti avoidance rules – but deductions to earn capital profits game on.

Now the capital profits thing was considered at the time – chapter 4 – and quite a compelling economic case was made for some form of interest restriction. But by Chapter 6 there became insurrountable practical issues that made this not possible. Those issues included:

  • The need for rules to ensure that the deduction was not separated from the capital income;
  • Difficulties with bringing in unrealised gains;
  • If done on realisation  – potential issues with retropective adjustments along period capital gain was earned;
  • Need to factor in capital losses.

And it was true that in the past Muldoon – well then must be wrong – had attempted to do something by clawing back interest deductions to the extent a capital gain was made. Imaginatively it was called ‘clawback’ and everyone hated it. And yes people did use trusts and holding companies to avoid it. Oh and soz can’t find a decent link to reference this so you will just have to trust me on this.

But you know what?  Tax policy is so much cleverer now and we group companies and treat them as one entity for losses and lots of other stuff all which could get around these issues. In fact the recent National governments in a bipartisan and a thinking only of the tax system way have enacted rules that mean interest restrictions for capital gains are no longer the insurrountable issue they apparently were in 1999. Who says John Key doesn’t have a legacy?

So working up the list. 

  • Can’t see the issue with capital losses as if that capital was lost in a closely held setting on deductible expenses it is already fully deductible. Outside that any interest limitation for capital gains would only apply to the extent there was untaxed capital income. And as we are talking about losses – not income – no interest restrictions. Simple.
  • Would only do it on realisation. Taxing unrealised stuff while technically correct is a compliance nightmare. But the new R&D rules which claw back cashed out losses when a capital gain is made – from page 24 – could totes be made to work here. Interest deductions could be allowed on a current year basis but if a capital profit is made – they are clawed back in the year of sale. If deferral was still a big deal – a use of money charge could be added in too. Personally I would give up the interest charge. Simpler and an acknowledgement of the earning of taxed income.

Coz the thing is while no one seems to be bringing in a capital gains tax anymore it is still massively anomalous that deductions are allowed for earning untaxed income just coz some incidental income was earned as well. 

Now Labour is planning to have a bit of a go in this area by going after negative gearing through ringfencing losses. Better than nothing I guess. But still kinda partial as only touches people with not enough rental income to offset the deductions. And Grant, Phil and the new Michael – even for this – you totes will need the debt stacking rules or else ‘they’ll just use trusts’ or holding companies. 

And yeah extending the brightline test to 5 years. Again better than nothing but there is still lots of scope to play the whole deductions for untaxed gains for property holdings over 5 years or – as with Pacific Rendezvous themselves – businesses.

But for any other political party with an allergy to a capital gains tax but big on the whole tax fairness thing perhaps you might want to look again at interest clawback on sale? This time thanks to the foresight and the public spirited nature of the John Key led governments – it would actually work.

Namaste

Gareth responds 

I wouldn’t normally create an entire post for a commentator. But hey it is my blog and not everyone is dedicating themselves to overhauling our country in a socially progressive way. Also I did devote an entire post to them so only seems ‘fair’  – as much as I dislike that term – to do the same for the response.

There must be a technologically prettier way to reproduce his comments – but until number one son comes home for Xmas – this is the best I can do. 

Namaste.






‘But if, baby, I’m the bottom you’re the top’

Let’s talk about tax.

Or more particularly let’s talk about the recently announced tax policy of The Oppportunities Party – TOP.  They are proposing to impose a tax on a deemed or imputed return on capital to the extent tax of that level is not paid already. Kinda like a minimum tax. With proceeds going to fund income tax reductions on labour income.


TOP is a party set up by millionaire businessman and commentator Gareth Morgan to change the political discourse in New Zealand. Your correspondent is particularly fascinated as her eighteen year old self voted for a party set up by a millionaire businessman and commentator Bob Jones who set out to change the political discourse in New Zealand. I was righty then and lefty now and both parties were set up to scratch itches on the body politick.

Bob Jones got no seats but he did get 20% of the vote. Today that would be almost the Greens and New Zealand First level of representation.

Now the New Zealand Party never really got into policy much beyond Freedom and Prosperity. TOP however is much geekier and actually plans to release policy ahead of even deciding to register. And their first released policy is one on tax. And and it seeks to tax capital more heavily and lessen the tax on labour. Woohoo. Speak to me baby.

Now New Zealand’s tax system is one designed by economists, drafted by lawyers and administered by accountants – so what could possibly go wrong. Nonetheless all three groups have their own languages and blind spots. It is a marriage that mostly works but only if all three groups keep their eye on the policy development and respect each other’s strengths.

Another perspective is that of the high level ‘strategic’ people versus the detail people. Again each have their strengths but also the ability to talk past and frustrate the snot out of each other. Working at Treasury I was surrounded by the former. To the younger members of this cohort I would always consul them to stay with the process – even when it became boring. As because detail people speak last – they speak best. And what eventuates  may not be what the high level strategic people with the higher number of hay points actually had in mind.

In tax a classic example is the Portfolio Investment Entities rules. If you look at the early high level papers it was all about taking away the tax barriers to diversified pooled investment in shares. What we ended up with was the ability to have cash PIEs, land PIEs and single equity investments. Giving us almost a nordic tax system with the taxation of savings. So somewhere the high level strategic people disengaged or conceded to technical design issues that gave some unintended and quite important consequences.

All of this came back to me when I read the TOP tax policy. Clearly designed by economists – and cleverly so – but sadly lacking in input of the other two tax disciplines. So as a tax accountant who is regularly mistaken for a lawyer I thought I’d  step up and help them out. Here goes:

General aka random irrelevant points that say more about the reviewer than the reviewee.

One. While Gareth didn’t – I enjoyed the envy tax reference. Coz does this mean taxing labour is a pity tax, or a tax on despair or a tax on barely getting ahead? I am all in favour of taxing envy. Let’s also tax greed, sloth, lust and the rest of the hell pizzas. There’s no risk of that tax distorting those human behaviours after all.

Two. For readers who have been keeping up, a regular whinge of mine is how we effectively give deductions for loss of capital when gains are not taxed. This would be overcome through the minimum tax on wealth (or assets). So under this proposal such capital losses would effectively become valueless. Rejoice.

Three. If you are going to get a bunch of extra money – instead of reducing taxes on labour income – the tax welfare interface is IMHO a much more worthy candidate for any spare money. But maybe the universal basic income is the next cab off the rank.

Specific points that might actually be helpful

One. It is true property ownership is a feature of the rich list but so is serial entrepeneurship – Graeme Hart, Diane Foreman and someone Morgan. Now a key part of entrepeneurship is loss making in the early years. There is some attempt to address this with a potental deferral of up to three years of the tax. The question I have is this long enough? Isn’t Xero still loss making? 

Now the received wisdom is that innovation is a good thing hence all the fricken R&D subsidies.  With a much less benign tax system for innovation – will this mean that some of the dosh is simply recycled back to small firms via Callaghan? And so maybe not all will go to reduce taxes on labour income? 

Two. Is it a tax based on wealth or assets? Both are mentioned in the proposal but they aren’t the same. Capital is used a lot in the proposal and depending on whether you are talking to an accountant or an economist can mean either assets or wealth. But here is why it matters. Assets is the total of all the stuff you have legal title to, wealth is the amount that no one else has claims on. And the difference between the two is usually debt but could also be trade creditors, intercompany advances or provisons or accruals. Not all of these generate tax deductions.

So if it is a tax on assets, is it fair to tax people on stuff that other have claims on? I doubt it. A bit of language tightening here would be cool.

Three. Valuation. For property and things like shares market valuations are not too hard. Businesses – however – wow. There will be what the financial accounts say but then there will be what someone is prepared to pay. Usually some multiple of  Earnings Before Interest and Tax – EBIT. And what about valuing implicit parental guarantees from non- residents. The choice then is to be completely fair between all forms of wealth and be a bit arbitrary and compliance cost heavy or not but not tax all forms of wealth evenly. Up to you.

Four. Who owns the wealth? From the vibe of the proposal I would say the intention is that the ultimate owner of the wealth pays the tax. However structurally wealth is likely to be held through many trusts, holding companies , limited partnerships and possibly in individuals own names. This is not insurmountable for design but will involve complicated grouping rules and possibly flows of notional credits to make it work. Perhaps have a look at the actual tax rules for imputation, mixed use assets or cashing out R&D losses to see if you still have the intestinal fortitude for what it will mean to make this work.

Five. Compliance costs. Now I don’t want to overplay this but comforting assurances that if you’re paying enough tax you’ll be fine means – two sets of calculations. The old rules will need to be applied which are not compliance lite and then the new rules willl need to be applied. And after addressing the issues above – they won’t be any picnic either.

But good luck. Perhaps in practice a tax solely on property might work. But after working through their policy I can’t help feeling all this is why countries just cut their losses with a realised capital gains tax.

And thanks for playing. First policy  – one on tax – still impressed.

Namaste

Trumping the tax system

Let’s (briefly) talk about tax (and Donald Trump).

Your (foreign) correspondent is very comfortably ensconced in the spare bedroom of her darling friend in Geneva. Reviewing my Facebook newsfeed  – as well as giving me the most recent memory of my son and his girlfriend looking totally adorable going to a ball last year – was someone sharing this:

It discusses that Donald Trump claimed a $915 million loss in 1995 that could then be offset against any taxable income for the next 15 years.

Now the thing dear readers is – as I discussed in ‘The apple doesn’t fall far from the tree’ that is technically totes possible in New Zealand too. Putting capital into a business – spending it on business expenses – and then losing it will give you future losses to offset against other taxable income. But unlike in the US if you sell the business – rather than the company – for a capital gain the company keeps the losses and gets a capital gain that can be distributed tax free on liquidation.

And if it is done through a Look through Company the losses and the capital gains can pass through to the individual shareholders.

Now all of this could be totes fabulous as a means of encouraging entrepeneurship and innovation or simply entrencing dynastic behaviours. Couldn’t tell you. 

Maybe Grant something for your ‘Fairness’ working group?

Namaste

The apple doesn’t fall far from the tree

Let’s talk about tax.

Or more particularly let’s talk about how New Zealand doesn’t tax capital gains.

There was a delightful expression I learnt as a junior official to describe situations which make absolutely no sense but are absolutely impossible to change – historic reasons.

So for historic reasons we

  • Drive on the left
  • Start school at 5
  • Don’t compulsorily learn our second official language
  • Build houses as one offs
  • Treat renting as a short term activity
  • Have a 3 year electoral cycle
  • Imprison Maori at a disproportionate rate to Pakeha.

And in tax we don’t (theoretically) tax capital gains. In the late 80’s the government of the day did try but that was a step too far for the populace to accept.

There is a vague intellectual basis to the distinction between taxable and non-taxable returns from capital that doesn’t apply to returns from labour which are always taxable. Class oppression anyone? 

It comes from an American case – whose name escapes me – which set out that the fruit of the tree was taxable as income while the growth in the tree –  wasn’t. Of course both the apple and the bigger tree made its owner richer. In accounting changes in the balance sheet are generally income but in tax income – something wot comes in – was only the apple and under an income tax only the apple could be taxed. Continues to amaze me that more of the Monty Pythons weren’t lawyers.

Now in yoga the tree pose is a great pose for balance, focus and clarity of thought but a practice consisting of just the tree pose would be very unbalanced.


And here’s the thing. All this apple – tree stuff is fabulous until such time as the tree says: ‘You know what? Following a strategic review of our business model we need to make efficiencies in our supply chain. Therefore we should get out of apple production and fully focus on opportunities reflected in the ‘getting bigger’ market. We are deeply offended that the Commissioner could suggest that this was in any way related to the tax settings.’

So in the face of all this completely non-tax driven strategic behaviour successive governments – all of whom would never bring in a capital gains tax  – have brought in the following:

  • Land rules for developers – returns on buying and selling land if a developer taxable
  • Financial arrangement rules – tax tree like gains on financial instruments
  • Dividend rules – distributions of capital gains to shareholders – other than on winding up – are taxed
  • Foreign portfolio share rules – tax an imputed return
  • Revenue account property – assets bought with the intention of resale (good luck on proving that Mrs Commissioner) are taxed when sold
  • Taxed distributions from non-complying trusts
  • Restraints of Trade and inducement payments are taxed
  • Lease inducement payments are taxed
  • Residential property sold within 2 years – aka the brightline test

The very major advantage to this approach is that when tree like returns are deemed to be apples, they are taxed fully at the receipient’s marginal rate. None of this  15% stuff which just reduces the incentive for the tree to get strategic rather than eliminates it.

But yeah even with all this fabulousness we still have holes in our base as a result of the residual apple-tree stuff. Aside from the whole appreciating Auckland residential property skewing intergenerational relations and exacerbating class boundries thing; sales of businesses and farms – even serial sales so long as they weren’t purchased with the intention of resale – are tree like returns and not subject to tax. 

And as an extra bit of icing, expenses incurred in building up the farm or business, so long as they met the general deductibilty tests, are not clawed back. Arguably the income from those businesses and farms are still subject to tax but only if the purchase price wasn’t heavily debt funded.

So yeah lefty friends while 15% taxation on realised capital gains wasn’t as good as full marginal rates – I see what you were doing there. Incremental improvement and all that. Half the income at marginal rates might interface better with the existing system though.

Now tax peeps yep it is also true that tree-like falls in value are also not deductible so that there is a degree of symmetry there. And that is absolutely the case when there is no control of the company. So yep the two years savings I invested in the sharemarket 85-87 and lost in October 87 was a non-deductible capital loss.

However if capital is put into a company; spent on legitimate business expenses that are tax deductible and ultimately lost; that loss can be grouped with other companies that have the same or similar (67%) shareholding. And if that company is a look through company it can be offset against the income of the shareholders.

So yeah 15% on realised gains would have been a good start. Shame no one can get elected on it.

Namaste

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