Inland Revenue have released the September 2019 Tax Information Bulletin (TIB), which clarifies this.

For the purposes of this blog post, we are going to assume that the LTC or an individual only holds residential rental property i.e. no commercial, they are not a trader or an associated person or a developer etc, they don't have an Airbnb-style short-stay accommodation house in the picture.

Can losses from an LTC with residential rental property be offset against income from rentals owned by a partnership or in your personal name?
It depends on whether

1. the LTC decides to apply the ring-fencing rules on a portfolio basis or on a property-by-property basis.
2. the shareholders have any other residential rentals with income/loss to offset against this

However, the answer is essentially, "Yes", if:

1. you have decided to use a portfolio basis for the LTC (that is spread the losses and profits out between the various properties owned by the LTC) 
2. you have at least one residential rental property held in your own name or in a standard partnership i.e. we are not commenting on "limited partnerships" here

So the result is, you can have a negatively-geared LTC, and given the above points, the losses can flow through to you as a shareholder. You can then offset this against profits from a personally-owned rental (either solely owned or in a partnership). The situation also works in reverse ie there are profits in the LTC and losses in the personal/partnership rental.

Note that you can't offset any losses against income from other sources e.g. wages, like you used to in the good old days. That is what the concept of "ring-fencing of losses" means. The losses are "ring-fenced" so that they only apply to residential rental property.

Some interesting points

• If an LTC applies the rules on a property-by-property basis, the shareholders have to also take that approach in their returns. If it applies the rules on a portfolio basis, ditto.
• This is not the case for partners in partnerships. If a partnership has filed a partnership return applying the rules on a particular basis, the partners do not necessarily need to apply the rules on that same basis. So a partnership now gives much more flexibility than the LTC in this one respect.

​
Do restructure strategies such as selling your old family home to an LTC still work?
We have previously recommended this, in blog posts such as this one.  The answer is that yes, the rules are unchanged, and this still effectively meets IRD requirements for interest deductibility and remains a good strategy. 

However, just be aware that any losses are ring-fenced, as described above. For more info, the IRD Sept 2019 TIB is below

As always, situations vary, so please contact us for advice on your specific situation. Call 099730706 or email us here

Capital Gains Tax (if it happens): what will be the effects on rental properties? What strategies could be employed to minimise tax effects? Here is a high-level overview:

Everything except your grandma. 

No, not quite. All land except family home, shares, business assets and intangible property.  Seems that cars, boats, jewellry, fine art, collectibles and other household durable items would also be excluded.

At present, it would be at the tax rate of who/whatever owns the asset i.e. if a person, and they are earning $70k/year, then 33c/$.  However, the common view is that this will be watered down to something more like the Australian rate, which is a flat 15c/$. 

That being said, the proposal is to extend the lowest tax threshold of 10.5c/$ from $14k/ year to $20k/year, which is $420/year extra. Break out the party poppers.

Note also, that the proposal includes allowing depreciation on buildings once again. The more things change the more they stay the same!  It would also allow deductions for seismic strengthening, something more likely to help commercial property investors.

It isn't going to be backdated, but seems that businesses will have up to five years to work out what the market value of the assets as at April 2021 was.

You'll pay CGT on your worldwide assets if you* are tax resident in NZ, e.g., sell a rental property in Australia: CGT will be calculated in NZ. One would imagine however, that where there is a Double Tax Agreement (DTA), then that country has primary taxing rights, and NZ would recognise the CGT paid on that asset sale.

We asked MortgageLab to give us their unique perspective as mortgage advisors. You'll enjoy reading some useful insights and tips from Rupert Gough here.

Forsyth Barr make the following observations:

• Lower income groups will likely benefit from the proposed changes, but the effect is likely to be undesirable for middle to upper income groups.
• It seems that there will be more reluctance on the part of business owners to take risks/invest, as the rewards in terms of capital gains will now be taxed. 
• Environmental taxes will be another cost for businesses, and therefore the average Joe who buys from businesses.
• The agricultural sector will likely be particularly hard hit by environmental taxes... which may also drive up the price of food and dairy.

For more insights and advice on your portfolio, go to 
http://www.forsythbarr.co.nz/contact-us/form/register 

* By "you" we mean the entity that owns the asset
+ Note that if you use part of your family home for Airbnb or want to claim home office costs or if the home is bigger than 4500 m2, then CGT would apply. See this link for more info.

​Reference to comments by Mortgage Lab and Forsyth Barr is done with kind permission of each party. This does not constitute an endorsement of Epsomtax.com Limited. All rights belong to their respective owners.

Ring fencing of property losses is here to stay. What will be the impact, and what strategies should you employ? How will it affect you? Will you still get a tax refund? Here is the latest summary from IRD and our discussion below.

So, from next financial year (19-20), it is much harder to get losses from your rental onto your personal tax return. And therefore, goodbye tax refund for some; less refund for others. Rents will likely rise as investors can't get a tax refund to the same degree. Some investors will opt to sell. Others will be able to grow their portfolio.

* IRD state in the draft bill: "... we suggest that the ring-fencing rules generally apply on a portfolio basis, so a person with multiple properties would calculate their overall profit or loss across their whole residential portfolio... we are recommending that taxpayers who wish to elect to apply the rules on a property-by-property basis be able to do so. We... do not consider that ring-fenced losses should generally be fully released on a taxable sale of residential property, meaning the losses (if not exhausted from offsetting the income derived on sale) would be able to be used to offset other income.  However, for those properties which have had the rules applied to them on a property-by-property basis on the taxpayer’s election, we recommend that the losses become fully unfenced if they are taxed upon sale.  This would also be the case where the rules applied on a portfolio basis and all of the properties in a portfolio were sold and taxed.  This would most commonly be the case for land that was taxable under the bright-line test because it was sold within five years of acquisition."

So, what does that mean?

• If you elect to apply the new rules on a property-by-property basis (losses are not offset against income from other property in your portfolio, but rather are confined to that property), then when you sell the property you can use the losses against any taxable profit on that property AND against any other income you have. This is what IRD means by "fully unfenced."
• If you want to use the portfolio approach (loss from one property can be offset against income from another), then when you sell a property and there is tax to pay, you can't use any accumulated losses to reduce this tax
• But, if you use the portfolio approach, and you sell the entire portfolio, and there is taxable income, and you have some accumulated losses, then those losses will be fully unfenced i.e. you can use them to reduce tax payable.

Basically, the TWG wants to extend taxes on capital gains to things other than property. But, they are also looking at reintroducing building depreciation, so it is not all bad for property investors.  

TAX ON CAPITAL INCOME
A capital gains tax (CGT) regime for property and share traders/developers etc already exists in New Zealand, so this is nothing new. The TWG recommendation is to extend this to catch gains on assets that are not already taxed:

• Land and property (other than the family home)
• Intangible property, including goodwill
• All other assets held by a business or for income producing purposes that are not already taxed on sale (such as plant and equipment)
• Shares in companies and other equity interests

The Final Report arrives in February 2019.
​​

Some key points:

• Sir Michael Cullen has indicated that any new CGT would not be retrospective, so this is a huge relief for existing investors. 
  
• Losses arising from the sale of an asset would be carried forward, and subject to ring-fencing e.g. you sell a rental property, and make a loss: this loss can only be used against another rental property.
• No changes to company tax rates or GST.
• Won't be introduced until 2021/22

For more information, please contact either Guy Johnson or Paul O'Driscoll or via the details below.

Content posted by kind permission of Forsyth Barr. This does not represent endorsement of EpsomTax.com Limited or its related companies by Forsyth Barr. All rights and trademarks belong to their owners

We are sometimes asked: what does "tax-deductible" really mean? Does it mean that I get all my money back?  Well...

No.

When an item is ​tax deductible that means that the cost is able to be deducted from taxable income or the amount of tax to be paid.

All purchases are either 100% tax-deductible, partially tax-deductible or not tax-deductible. A 100% tax deductible item does not mean you get 100% of the money spent back. It means that you can claim 100% of the cost against your taxable income. A 50% tax deductible item e.g. phone, means you can claim half the cost against your income.

So, let's say that you want to put new carpets in your rental property. The cost comes to $4000. This would be 100% tax-deductible. You can claim all of that cost against the rental income the property is earning.

But let's then say that you are at the supermarket, and you forgot your personal credit card. So you pay for your groceries from your rental property account.  This would not be tax-deductible.

If you have further questions, please place a comment here or contact us.

Hard to say. Now the cat is out of the bag, it might be hard to put it back in.  It is, however, worth noting that attempts have been made to control the property market by brute force before, and they ultimately resulted in a change of government. In the early 1980's, the then Prime Minister, Mr Robert Muldoon, introduced a rent and interest rate freeze in an attempt to control property market growth. The result was that no one could get finance, and so no one could sell either.  Eventually, this regime was repealed.

There has been some very strong push-back by influential companies and bodies, which is to be expected. So, we wait and see.  

Meanwhile, let's talk about possible strategies:

1. Bring forward any repairs or maintenance. It is our view that you should attempt to do these during the current financial year (2018-19). You can then be sure that you can actually claim any losses against your income (if using a LTC, sole trader or partnership to own your rentals).
2. Think about restructuring mortgages as they come up for renewal. Suddenly, paying some principal on that rental mortgage isn't such a bad idea.
3. Think about restructuring full stop i.e., your trust owns a rental which makes a loss, but your LTC owns a rental which makes a profit. The loss from the trust still likely can't offset the profit from the LTC, even under the new "portfolio approach" rules. So a restructure is worth considering. Be careful though, because if done purely for tax reasons, then this would likely be viewed as tax avoidance by IRD.  Any tax benefits must be incidental to the restructure.
4. Start thinking about other types of investments that you can bring into your portfolio, e.g. a mixed-use asset, a commercial building or a share in one, an Airbnb-style house etc

Until where know where things are going to land, these are only ideas to consider at this stage - although point 1 is probably a bit of a no-brainer.

IRD have proposed that any entity which is not "residential land rich" won't be subject to the ring-fencing rules. 

Please explain?! Well, this is a bit tricky.  An entity is which is not "residential land rich" is any entity wherein 50% of more of its assets are not rental residential property. For example, an entity e.g. LTC buys a residential rental, and also buys a commercial property and the value of the rental is less than the value of the commercial property (as measured by open market value of the assets at year end). The shareholders would need to borrow the money and inject the capital into the company. The shareholders could then claim a deduction for the interest in their personal tax returns, and thus offset any profits coming from the company. And if the interest cost is greater than the profits, then that would be a loss to record on their personal tax returns.  

However, this would really only work if starting from scratch, and in our view, there are better ways to do it than this method.

You have a mixed-use asset if, during the tax year, it's used for both private use and income-earning use, and it's also unused for 62 days or more.

The rules apply to any:

• property, regardless of cost price or current value, and
• boat or aircraft which had a cost or market value of $50,000 or more when you bought it, and
• additional item or accessory relating to the asset, eg a quad bike stored at a holiday home.

See here for more info.

So in other words, a mixed-use asset means you have to use it a bit yourself, e.g. a holiday home that you mostly rent out, but that you stay in a bit during the year.

There are various rules (outlined in the above link) which limit what you can claim from these kind of assets, and you have to be careful if you think your gross annual income will be more than 60k (GST registration; that's another issue - especially when it comes to sale time), but it bears thinking about.

By no means. We are recommending a wait-and-see approach at this stage. But start thinking ...

You might find our earlier article on this subject useful as well.

Shock! Horror! IRD have released a proposal to ring-fence rental property losses. What does that mean for you?

At present if you own a rental property (sole trader, partnership, LTC) and it makes a loss, then you can offset that loss against your personal income or the income of the shareholder/s (in the case of an LTC). This means you pay less tax or get a tax refund. In IRD speak, that is

"Currently investors (particularly highly-geared investors) have part of the cost of servicing their mortgages subsidised by the reduced tax on their other income sources."
​
Thousands and thousands of Mums and Dads across New Zealand have become landlords in this way, and the tax refunds help pay for the mortgage.

From 2019-20 onwards (or possibly phased in), losses won't be passed on to the owners, so no more personal tax refunds. Instead, ring-fenced residential rental* or other losses from one year could be offset against:

• residential rental income from future years (from any property); and
• taxable income on the sale of any residential land.

IRD make this comment:
It is suggested that the loss ring-fencing rules should apply on a portfolio basis. That would mean that investors would be able to offset losses from one rental property against rental income from other properties – calculating their overall profit or loss across their portfolio.

So, our initial thoughts are that investors with negatively-geared property need to look at

• paying down debt to make the property cashflow neutral
• buying cash-flow positive property to get income into the portfolio to offset the losses
• re-budgeting to account for the fact that there may not be any tax refunds
• consider restructuring - although you need to be careful that this is not done purely for tax purposes, as this could be considered tax avoidance by IRD.

Goto this page

​Officials invite submissions on the suggested changes and points raised in this issues paper. Send your submission to policy.webmaster@ird.govt.nz with “Ring-fencing rental losses” in the subject line.

Ring-fencing rental losses
C/- Deputy Commissioner, Policy and Strategy
Inland Revenue Department
PO Box 2198
Wellington 6140

The closing date for submissions is 11 May 2018, so if you want to say something, you'd best be quick about it!

Check out Part 2 here

* If your house is a Mixed Use Asset, ie you use it as a holiday home that you rent out to others, then the rules wouldn't apply to you. They also don't apply to your "main home" ie where you live, or if you are buying and selling houses for profit e.g. a trader.

Is selling your home taxable?, Or in other words, do you have to pay tax when selling your home?

Buying and selling your private or family home typically is not taxable. However some are looking to purchase a family home with the intention of reselling it in time, and a few earn their income this way – buying and selling.

If you have established a pattern of purchasing and then selling your “family home,” this could be considered as property speculation or dealing for tax purposes.

So, how do you know whether you are considered a property speculator, dealer or investor?  Click here for the IRD definition

Things to consider in answering the above question:

• what was your intention when you bought the property?
• what pattern have you established in terms of property transactions?
• are you (and if so, how) associated with a developer, builder or property dealer?
• will the Bright-line Test* apply?
• will you be affected by rezoning?

​How do you know if selling your home will be taxable?  Think carefully about the answers to these five questions.

“Ok, so I just have to hold onto a property for a really long time and then I’m not considered a dealer?”  No.  The amount of time you hold the property is immaterial.  It’s your intention at the time of acquisition.If you bought a property with the intention of reselling it, then any capital gain that you make on the sale taxable.

“Right-o.  So, is there some sort of level?  That is, my first couple of properties are tax-free and then I pay tax after that?”   Ahhh… no.  Again, it’s intention, patterns and associations – not numbers of properties sold.

“Great.  It looks like I will have to pay tax then.  How do I figure that out?”  The IRD have a great resource here – or you can contact us.

* For a definition/more info please see this article at the IRD Tax Policy website

Why is a chattels valuation necessary?
Typical valuations assign a valuation to chattels of $10-15,000. However, they often miss many depreciable items, such as driveways, fences, decks, paths, hot water cylinder, letterbox, garage door motor etc. 

When you obtain a chattels-specific valuation, typically the value of the chattels for a new home is $45-50,000+ and for one built in the 1980’s $25-30,000. Even if your chattels valuation comes out at only $30,000 then the value for the tax refund will be around $10,000. The higher the chattels value, the more depreciation can be claimed, which means less tax to pay or larger tax refunds. 

Are there any exceptions?
The only exception to the chattels valuation, is if it was a rental already owned by you or another entity you controlled, and you had already filed a tax return for that property at least once. In that case, we can’t “re-value” the chattels. 

​What will it cost and who does this?
We know of only one firm: ValuIt. Visit their website www.valuit.co.nz or call 0508 482 583 to book a valuation. Please note, we receive no financial incentive or otherwise for recommending them. However, we encourage you to do this without delay, as they are very busy and it can often be 2-3 weeks before someone can get to see your property.

Further reading
Depreciation: Simple Overview (video)
6 Minutes on Depreciation (video)
Depreciation Clawback and Your Rental Property
Depreciation of Chattels in Your Rental Investment Property
​Valuation of Chattels - Why Necessary

You've established that there are good economic reasons for changing the shareholding in your LTC that owns rental residential property. You and your life partner are the shareholders. What things do you need to consider so that you don't get hit with a nasty (and unexpected) tax bill?

Let's say that the company owes the shareholders $150,000. This is tracked in the Shareholders Current Account, and is a liability (debt) of the LTC.

Bob has 99 shares, and Mary has 1. Bob will sell/transfer 49 of his shares to Mary so that they each have 50 shares.  Let’s say at the moment, Bob and Mary are owed $75,000 each by the company.  

The LTC has made losses so is technically “insolvent”. The ramification of this is that as 49% of the shares are transferred there is a deemed disposal of 49% of the both advances being a total of $73,500  at a market value of zero (due to the company being insolvent).

Under special tax rules the $73,500 is initially deemed to be income of the LTC to be taxed to the owners in proportion to their shareholding (Bob $72,765 and Mary $235).  Under recently-amended income tax rules, this income will not be taxed to the extent it is in proportion to shareholding. In this example Bob has debt of 50% for a shareholding of 99% and Mary has debt of 50% for a shareholding of 1%. Under the new rules he will be taxed on 49% of the debt being $73,500 and Mary will not have taxable income.

In this scenario, the de minimis* threshold of $50,000 would be exceeded when Bob transfers his shares (as the deemed income is $73,500). This same issue arises when either the LTC status is revoked or the company is wound up.
 
Going forward, ideally all LTC shareholder debt should be in proportion to shareholding. Between family members this can be achieved by way of an assignment of debt as that is another way of presenting what is happening. Then going forward debt should be transferred along with shareholding so the debt stays in proportion.

Is the cost of any of the LTC’s depreciable assets more than $200,000 each?  If so, you then need to ask: Is the value of the accumulated depreciation on assets per shareholder more than $50,000 (the "de minimis" threshold)?  If so, then there could be tax implications.

Please contact us for advice. You may also want to read this related blog article "Are Tax Benefits a Good Reason to Make Changes?"

* "de minimis" is a Latin expression meaning about minimal things, normally in the locutions de minimis non curat praetor ("The praetor does not concern himself with trifles") or de minimis non curat lex ("The law does not concern itself with trifles") a legal doctrine by which a court refuses to consider trifling matters.