Trust law changes: New Zealand. What are they, and how will they affect you and your trust?

The main changes are:

• Trustees will now have some mandatory duties to fulfill
• Trustees must disclose certain information to all the beneficiaries - no more opacity!
• Trustees are being given more flexible powers
• It should become cheaper to setup and run a trust
•  You might be able to remove and appoint a trustee and not have to get the courts involved
• Trust lifespan will be up to 125 years
• Some beneficiaries could become settlors!

Here is the jargon: Section 67 of the Taxation (Annual Rates for 2019-20, GST Offshore Supplier Registration, and Remedial Matters) Act 2019 enacts an amendment to section HC 27 of the Income Tax Act 2007.

That amendment provides that when a beneficiary of a trust is owed an amount by the trust, the beneficiary does not become a settlor of the trust if –

• a. the trustee pays to the beneficiary in the income year interest on the amount owing at a rate equal to or greater than the prescribed rate of interest:
• b. the amount owing at the end of the income year is not more than $25,000.

This amendment comes into force on 1 April 2020, and does not have retrospective effect.

How do you know if one of your beneficiaries is owed more than $25,000 by the trust? The trust will need a balance sheet, at the very least, to track this.

What should you do if this is the case?

1. Pay out the beneficiary (check with your lawyer first), or
2. Pay interest to the beneficiary for the use of their money, as described above

​Yikes! So, some big changes coming. For a more detailed summary, please visit this page at Weston Ward & Lascelles Lawyers.^

* See a link to our blog articles on this subject here
^ This link does not constitute an endorsement of EpsomTax.com Limited by Weston Ward & Lascelles. Please contact them or your own lawyer for more information on what this means for your trust. EpsomTax.com Limited cannot provide legal advice; for accounting and taxation advice, please contact us.

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.

IRD is till working out the tax treatment of cryptocurrency. But it has made up its mind on some things. You can read all about it here. The main points so far are:

• For tax purposes, cryptocurrency is property, not currency. This means foreign currency gain or loss provisions do not apply.
• Cryptocurrency received as payment for goods or services is business income, which is taxable. This is seen as a barter transaction and you’ll need to calculate the value of the cryptocurrency in NZD at the time it’s received.
• Cryptocurrency is considered property for income tax purposes. So that means that the proceeds you make from selling it are very probably taxable.

NZ Police in association with City of London Police have just released a warning. See below for the PDF.

Apparently, fraudulent websites alleging to offer cryptocurrency investments are dishonestly using the image of Martin Lewis, the founder and editor for moneysavingexpert.com, as an endorsement for their companies. However, Martin doesn't do adverts.  See his blog post for more info here. These sites are also falsely stating that Dragons Den back their schemes.

Our advice:

1. Don't assume it is authentic just because it looks good
2. Don't rush into any investment, including cryptocurrency
3. Consult a financial advisor

More info is available at NetSafe, especially re scams. And, just for the record, we don't claim any endorsement by Martin Lewis, his website, NZ Police, City of London Police or NetSafe. Any copyrights belong to their legal owners. We are merely making you aware of what is going on out there.  Keep safe!

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.

Here are the main steps involved, and an approx. % showing how far through we are at each point. The chart starts at the bottom, and the top is 100%, tax returns filed and assessed by IRD!

Here is a detailed description of each part of the process

1. First, we email you a link to the online tax questionnaire. We ask you to complete this within 7 days of receipt.
2. We send you an invoice via Xero.com for 50% of the job. (Some small jobs are billed 100% up-front).
3. We'll then send you a copy of your completed questionnaire, along with a checklist and further instructions
4. You then either email your info to mytaxinfo@epsomtax.com or send it via courier (let us know and we'll send you a bag to return to us. You just call the courier on their toll free number, and they collect it from wherever you tell them to).  Once we receive your info, we then scan it and courier it back to you after the tax returns are filed.
5. ​By now, it's the first of the month, you've sent us all of your info, and we then copy this to secure online storage.
6. We start coding your info up to trial balance stage; the second 50% invoice is issued, usually a 14-day account.
7. Financial statements are compiled.
8. A checker reviews the draft financial statements and any adjustments made. 
9. Drafts are then sent to you for review (see how to understand your financial statements), adjustments made, and then we send you the final version of the financial statements. 
10. Next, tax returns are queued to be filed online with Inland Revenue and checked again by the filing and checking team.
11. We send you a copy of these returns for your records and for you to sign and return back to us.
12. IRD processes the returns.
13. About a month later, we process the donation tax credit forms.

​

As a rough guide, from the date of invoice issuance to you having the draft financial statements in your hands, we aim for 6 weeks, subject to this disclaimer: these timeframes are indicative only and at peak times of the year e.g. May-October, it will often take longer (like 8-9 weeks)

Before Processing Starts

• 2-3 weeks before - tax questionnaires sent out via email
• 1 week before - 1st invoice sent out via email

Processing Month
We'll advise you in February or March via email when this is.

• 1st of the month - all data should be provided by you by this date; processing starts
• 3-4 weeks later - work completed to draft stage; second invoice issued
• 7 working days later - 2nd invoice paid, draft financial statements sent to you for review
• 7 working days later - changes made as required, confirmation received from you to file with IRD
• 1-2 weeks later - tax returns filed
• 1-12 weeks later - IRD processes returns.

We trust this helps take some of the mystery out of the process. Please contact us with any questions!

Other FAQs you might have:
RENTAL PROPERTY: WHAT RECORDS DO YOU NEED TO KEEP?
USING ACCOUNTANCYONLINE.CO.NZ/MY TAX QUESTIONNAIRE
HOW DO I DOWNLOAD TRANSACTIONS FROM MY BANK'S ONLINE INTERNET BANKING?
WHAT IS XERO.COM?
COMMON QUESTIONS ABOUT YOUR TAX RETURNS
COMMON QUESTIONS ABOUT YOUR FINANCIAL STATEMENTS

According to Wikipedia*, "phishing is the attempt to obtain sensitive information such as usernames, passwords, and credit card details (and money), often for malicious reasons, by disguising as a trustworthy entity in an electronic communication.[1][2]"

Quite often they look like a legitimate email from IRD (about a tax refund, or warning of tax owing), or an email from a provider like Office365 or Apple. More info here at netsafe.org.nz*. 

There are often several clues; please see the copy of example emails below.

• IRD will never email you to tell your account has been hacked, that you owe tax, that you are due a tax refund, that the Police are after you, blah blah blah. 
• Phishing emails often have spelling mistakes or unusual grammar (although not always)
• The email address is not one that matches the organisation, or it is close but not quite right e.g. it is from ird.co.nz instead of ird.govt.nz; e.g. we received a message supposedly from Microsoft, but the email address was messagealert@ another organisation

Here is one phishing email we received recently. It looks rather convincing, but there are a couple of clues in the email that it is not from a legitimate source

1. Grammatical error in the opening line: "receive" instead of "received"
2. Email address is odd
3. We were not expecting anyone to send a confidential document, so this is out of character
4. Unusual grammar in the body: "secured document" instead of "secure document"
5. Odd closing line: "We hope to continue serving you"

Here is another example of a phishing email.  Note again the clues that it is not "legit":

• email address is not from Apple
• email shows it is sent "on behalf of" someone else
• grammatical errors e.g. "problems with your account Apple", "if you ignored this email", "disabled the next 48 hours.. .", space between account and the exclamation mark
• incorrect use of capitals e.g. "Officially Permanently"

• Be cautious about emails asking you to update or verify your details online
• Be cautious of emails saying you’ve won prizes from competitions that you don’t remember entering
• Be cautious of emails that try to get you to act quickly by threatening you with legal action or loss of an account
• Ignore any emails asking you to provide personal information like passwords, or banking information
• Remember legitimate organisations like banks will never ask you to send them your password
• Only open email attachments when you’re expecting them, even if you know who the sender is
• If you’re unsure if an email is from a legitimate organisation, you can contact them to ask. If you do contact them, make sure you go through their official contact channels – don’t use the phone numbers, websites or email addresses included in the email

See more tips on this page at netsafe.org.nz

What should I do if I need help or advice?
You can contact Netsafe:

• Email queries@netsafe.org.nz
• Call them toll free on 0508 NETSAFE (0508 638 723)
• Online report form at netsafe.org.nz/report

Their helpline is open from 8am – 8pm Monday to Friday and 9am – 5pm on weekends.

* We have quoted information from Wikipedia (licence terms) and Netsafe (licence terms). Use of this information does not constitute an endorsement of EpsomTax.com by either organisation. This information is not provided for commercial purposes, but strictly in an attempt to help promote community awareness of fraud and how to prevent it and protect yourself.