The New Zealand Tax Podcast: Terry Baucher looks back at his last 20 years in tax, after looking at the latest on look-through companies

Inland Revenue has released an interesting technical decision summary in relation to the use of look-through companies. Look-through companies replaced the former qualifying and loss attributing qualifying companies with effect from 1st April 2011. They've therefore been around for some time, but great care is needed when using them.

The basic precept of a look-through company is a company which elects to be a look-through company for tax purposes. The company is still a separate corporate entity for all legal purposes, but for tax purposes, it's rather like a limited partnership. Its losses and income will throw flow through to its shareholders. One of the key things to be in order to qualify for the look-through company status is you have to have five or fewer at look-through shareholders.

Better ask Saul?

That was one of the questions at the heart of this application in this Technical Decision Summary. The company wanting to elect to be a look-through company applied to Inland Revenue for a ruling. There was quite an involved structure with three shareholder trusts with each trust benefiting the respective settlor together with a combination of their spouses, children, children’s spouses, grandchildren and other family trusts. The company had a subsidiary which was to be liquidated following the election and there was also a charity in the mix that was receiving distributions from on of the shareholding trusts.

One of the questions put to Inland Revenue in this application was whether the company qualified to make the election. There was also a question about what would be the treatment of the capital gain that arose on the liquidation of a subsidiary. All of this is highly technical, but it does highlight one of the major concerns many of us have had with the look-through company regime in that it is rife with little pitfalls.  A very sensible approach was taken here by the parties involved to apply for a private ruling which was approved.

Inland Revenue said that there are only three look-through counted owners, so the company would meet the requirement of five or fewer shareholders. Each shareholding trust could make distributions to companies so a question was if a distribution went to a beneficiary company, could that compromise the status? Inland Revenue advised no and also accepted that if a subsidiary was liquated any capital gain which arose would still be available for distribution as a capital gain later.

This is quite a unique set of circumstances, but I raised it to show the great care that's needed in dealing with look-through companies. Because if you get the timing wrong or you get the rules wrong, the election doesn't apply and that can have quite severe tax consequences. It pays to tread carefully when making look-through company elections.

More on contractors and withholding taxes

Last week I spoke with Matthew Seddon, one of the finalists for this year’s Tax Policy Charitable Trust’s Scholarship Prize.

We discussed his proposal for expanding the withholding tax regime to contractors as a means of addressing the tax gap. 

Readers raised a couple of questions: firstly, what happens when New Zealand companies offshore their work; and secondly wouldn't it be simpler to make all contractors register for GST?

It so happens there is a set of rules that would apply withholding tax to payments that are made to offshore contractors, known as non-resident contractors tax. But the key point there is that the contractor must have actually carried performed the services in New Zealand. So, if an IT person flies into New Zealand as part of a project because they're carrying out the services in New Zealand, non-resident contractors tax will apply even if the person is not tax resident in New Zealand. By the way, I'm sure this happened when Inland Revenue was going through its big Business Transformation project

The non-resident contractor’s regime has been around for quite some time. It was set up during the late 70s as part of the Think Big projects when the Government realised a lot of non-residents were working in New Zealand, but we had no mechanisms for capturing some of that tax revenue. So, the non-resident contractors tax regime was established, and it works pretty well.

Where all the work is done remotely then withholding will not apply because  there is no New Zealand source as the services aren’t being performed in New Zealand but overseas. Under general tax principles, the taxing point therefore is in the offshore country. Overlaying these non-resident contractor rules are double tax agreements, so it's another area where people can trip up very easily,

As for making contractors compulsory GST registered this was something Matthew and I did discuss. I think the next stage in the evolution of GST is pretty much making business to business transactions zero-rated. This would simplify administration and compliance. So thank you to the questioners, Hamish, SolarDB and Kiwis, much appreciated.

“It was twenty years ago today…”

And finally, it's actually been 20 years this week since I started with Baucher Consulting. Back then I started with a single client, and I worked from home. Now there are three of us at the moment and we have offices in Takapuna. Change is constant in tax and it's actually one of the attractions of your career. You really don't know what challenges you will meet in the course of the day or  week. And that keeps you on your feet.

 I've been working in tax for 40 years now and even now there's always something that turns up and makes you think “Oh, I hadn't come across that before.”  It's a great intellectually stimulating challenge. And you're always having to think on your feet sometimes very, very rapidly. Such as when you're in the middle of a meeting with Inland Revenue who suddenly fires in a question you weren't expecting. I've had a few of those over the years.

“Don’t look back in anger…”

Looking back over the past 20 years it's interesting to look back and think how much has changed and yet in some ways how little has actually changed. Back in in August, 2004 the top marginal income tax rate was 39% which kicked in at $60,000. The corporate income tax rate was 33% and the trustee rate was also 33%.

As we know the corporate income tax rate is now 28% which reflects the worldwide trend we discussed recently of falling corporate income tax. rates. We're back up to a top 39% rate, but this time on income over $180,000. And as of 1st April this year the trustee tax rate is 39% for most trusts.

In August 2004 Michael Cullen, who was also the Minister of Finance, was the Minister of Revenue. Following the 2005 General Election he was replaced by Peter Dunne, who began his second stint as Revenue Minister after a brief period in 1996. Peter Dunne actually has the distinction of being the longest serving Minister of Revenue in New Zealand History. He held the post from 2005 right through until June 2013 when he was replaced by Todd McClay. Over the past 20 years, there have been nine Ministers of Revenue, including Sir Michael and Peter Dunne.

“The Minister reads his papers”

Quite a few ministers had quite interesting tax related careers prior to becoming MPs. Judith Collins, for example, Minister of Revenue between 2016 and 2017 was a former tax partner at the law firm Simpson Grierson. Barbara Edmonds, who was briefly Minister of Revenue last year between July and November, was previously an Inland Revenue official and then later attached to the Minister of Revenue’s office. And the current Minister of Revenue, Simon Watts, started his career as a tax consultant with Deloitte.

Fortunately, I've got to meet many of these ministers and their officials. I remember one Inland Revenue official remarking to me “The Minister reads his papers. Not every minister does.” Now I think all the ministers I have encountered in office read their papers. I think it's particularly true of Simon Watts, who has impressed me this year where a couple of times I've come across some at conferences where he's very clearly been across the brief and the massive amount of detail involved.

Back in 2004 David Butler was halfway through his period as Commissioner of Inland Revenue. He was succeeded in 2007 by the genial Canadian Bob Russell, who lasted until 2012.  His replacement was Naomi Ferguson, one of the longest serving Commissioners of Inland Revenue in recent years. Naomi oversaw the Inland Revenue’s critically important Business Transformation project which upgraded Inland Revenue’s computer system.

Business Transformation was brought in on time and under budget, although the recent Performance Improvement Review highlighted some concerns about the reliance on a single supplier. Business Transformation was just in time to cope with the COVID pandemic. As officials told me without it Inland Revenue would not have been able to handle the demands that were placed on it as a result of the pandemic.

Sir Michael Cullen – the tax reformer

Looking back over the major changes in tax,  as I mentioned, Sir Michael Cullen was both Minister of Revenue and Minister of Finance when Baucher Consulting started. I think he deserves to be recognised as one of New Zealand's most significant finance ministers in modern times. He's probably second only to Roger Douglas in that regard.

His tax initiatives included Working for Families in 2005, but the critical ones would be the setting up of the New Zealand Superannuation Fund in 2003 and most importantly, KiwiSaver which started in 2007. KiwiSaver’s start coincided with the introduction of the portfolio investment entity or PIE tax regime and the very controversial Foreign Investment Fund (FIF) regime, which took effect from 1st April 2007. A couple of weeks back we discussed the FIF regime its impact for some migrants. All of these were significant achievements which changed the tax landscape.

Not one but two tax working groups

We’ve also had two tax working groups. The first one was the Victoria University of Wellington Tax Working Group 2009- 2010, led by Bob Buckle of VUW. The second and much better resourced group sat between 2018 and 2019  chaired by Sir Michael Cullen. It is one of the highlights of my business career to date that I was invited to write a paper for that tax working group on whether there should be a separate tax ombudsman and a tax advocate for smaller taxpayers. My view was and remains, yes to both. In fact, it was one of the proposals that was picked up for further work by Inland Revenue’s tax policy division. But then something called COVID turned up. So those proposals are now way down the back-burner

In 2018 I also had the very good fortune to be a member of the Government's Small Business Council. That was a great learning experience and  very much a professional highlight. It also built networks which enabled me to have direct contact with Stuart Nash who was both Minister of Revenue and Minister of Small Business during the pandemic when what became the Small Business Cashflow Scheme was being devised. Incidentally that's an initiative I think should be picked up and expanded by the Government.

A tax switch and sneaky fiscal drag

October 2010 saw a major change to the tax system with the top income tax rate dropping from 39 to 33% as part of a tax switch with the GST rate increasing from 12.5 to 15%.  That was the last time until the 31st July just gone that  the tax thresholds were increased. I've said it before and  I will keep saying it, I think it is unacceptable how successive Ministers of Finance of both parties have been allowed to get away with not regularly increasing tax thresholds.

Starting in 2010, I started writing for interest.co.nz and I'd like to take the opportunity to thank the publisher, David Chaston and managing editor Gareth Vaughan for their patience and their support through these past years. From that start I got to meet Dr Deborah Russell, who's now the Honourable Deborah Russell MP, former associate of Minister of Revenue and our collaboration resulted in the publication in 2018 of the BWB text in 2017 Tax and Fairness, a huge personal and professional highlight.

Bright-line test and capital gains

Another significant tax milestone was on 1st October 2015 and the introduction of the bright-line test. It originally only applied to sales within two years of acquisition but during the last Labour government the period was increased to first five and then ten years. The bright-line test is significant because it recognised that having a tax provision which taxed on the basis of a person's intention, was the property acquired for the purpose or intent of sale was largely unenforceable.

No capital gains tax…for now

The last Labour government of course turned down the Cullen Tax Working Group’s proposed capital gains tax. However,  that issue isn't going to go away, in my view. Partly to redress that decision labour then introduced the controversial and deeply unpopular interest limitation rules in October 2021. I could see the theory behind these rules, but I thought they were overcomplicated.  Personally, if I was addressing the issue of interest deductibility, I would have gone with adapting the existing thin capitalisation regime. This has been in place since 1995 and therefore is well established.

With regards to interest limitation rules, it’s worth remembering, as I noted a couple of weeks back when talking about the OECD's corporate tax statistics, there are over 100 interest limitation rules currently in existence around the world. So, the issue of over generous interest deductions is not one solely focused on residential property. Contrary to many of the claims made that the interest limitation rule that was a breach of business practice it’s actually quite a standard feature as the thin capitalisation rules demonstrate.

Podcasting since 2019…

Amazingly, this podcast started five years ago in 2019 with my first guest Jenée Tibshraeny then of interest.co.nz but now with the New Zealand Herald. I'd like to thank all my guests who have appeared over the years. The podcast is approaching its 250th episode. It's something I enjoy which seems well received and it's actually pretty handy for keeping abreast of developments.

One other professional highlight was providing data to the Finance and Expenditure Committee and Inland Revenue about the instances of over taxation of backdated ACC lump sums. Subsequent discussions with Inland Revenue led to legislative change which took effect at the start of this tax year.

A big thank you

But most of all, I'd like to thank the people who have helped me prosper over the past 20 years, starting with my wife Tina without whose endless support and patience none of this would have been possible. My colleagues here at Baucher Consulting, Judith, Eric, Darren, and Trent, my business coach Bruce Ross. David Chaston and Gareth Vaughan at interest.co.nz, my colleagues of the Accountants and Tax Agents Institute of New Zealand, where I was honoured to be on the board between 2010 and 2016. The many friends have made along the way and of course, my clients.

So, thank you all very much it's been a fascinating 20 years. As I said change is a constant and there's a lot more to come. I think we're going to see big changes with the tax system as we try to fund the challenges ahead of climate change and the changing population. And as always, we will bring you those developments as they happen.

And on that note, that's all for this week. I’m Terry Baucher and you can find this podcast on my website www.baucher.tax or wherever you get your podcasts.  Thank you for listening and please send me your feedback and tell your friends and clients. Until next time, kia pai to rā. Have a great day.