A Week in Review
Employment & Investment Income Bill back from FEC…
The Taxation (Annual Rates for 2017-18, Employment & Investment Income, and Remedial Matters) Bill has been reported back from the Finance and Expenditure Committee.
Along with a recently included SOP to increase the bight-line test from two years to five years, the Bill will introduce a number of changes with respect to improving Inland Revenue’s information collection mechanisms, as well as amending the rules that presently apply to taxing benefits received under employee share schemes.
More specifically, the Bill will:
- Introduce payday basis reporting for PAYE and, with some exceptions, a requirement to electronically file the information. The present PAYE due dates would not change however. For those employers who report on schedular payments and employee share scheme benefits, reporting would be twice monthly. Employers who continue to paper file due to being below the electronic filing threshold, would have 10 working days to file and an option of twice-monthly reporting, deeming the 15th and last day of each month as paydays.
- Lower the threshold for the payroll subsidy to target smaller employers for 2019, with a full repeal in 2020.
- Introduce monthly reporting for payers of dividends and Maori authority distributions and as a consequence, remove the present requirement to provide company dividend statements to shareholders and Maori authority distribution statements to recipients. Other forms of income, including interest, PIE income and royalties would also be caught by the new monthly reporting rules.
- Amend the present taxing point under employee share schemes, introducing a defined term, “Share Scheme Taxing Date”, which will defer the taxing of benefits essentially to a date where there is no longer a material risk that beneficial ownership may change or that there may be a change in the terms of the shares affecting the value of the shares. The focus of the change is to ensure benefits received by an employee under a share purchase scheme are taxed identical to those employees who receive cash remuneration instead. Current arrangements where the employer transfers the shares to a trust (taxing the benefit at the time of transfer) for a restrictive period while the employee attains certain milestones, upon which legal ownership of the shares is transferred to them (banking any uplift in share value during the restrictive period as a tax free gain), will have a completely different tax outcome under the new rules.
The Bill is expected to be passed and have received royal assent before 31st March 2018.
Australian Limited Partnership rulings…
Being issued for a third time, Public Rulings BR Pub 18/01 to BR Pub 18/05 provide commentary on the ability of NZ tax resident investors in Australian Limited Partnerships, to claim foreign tax credits in respect of Australian income tax and dividend withholding tax paid by the partnership.
A key requirement of the rulings, is that the Australian Limited Partnership qualifies as a corporate limited partnership for Australian tax purposes. This status results in the Australian Limited Partnership being taxed as a company in Australia, while still being seen as a partnership from a NZ tax perspective, with the associated flow through tax treatment.
For those of you who have clients operating a business in Australia, the present structuring flavour of the month (provided all eligibility criteria can be satisfied) is to use a NZ look-through company (LTC). The benefit of the LTC structure is limiting the ultimate (gross income into shareholder’s hands) cross-border effective tax rate to 33%, as opposed to a rather draconian 51.43% rate when the more vanilla parent/subsidiary type structure is used.
While the LTC can work well where the ultimate shareholders are all NZ tax residents, it may not work as well where Australian investors are also to be involved or the 5 or fewer counted owner’s restrictions will be breached. Under these scenarios, use of an Australian Limited Partnership of the character referenced above, can achieve the same result as an LTC for the NZ investors, potentially limiting the effective tax rate from doing business in another taxing jurisdiction to 33%.
BR Pub 18/01 provides that Australian income tax paid on Australian sourced income by the Australian Limited Partnership, is claimable by the NZ resident partner against the NZ income tax payable by the NZ resident partner on their share of the partnership income. Naturally any credit claimed must be in proportion to the investor’s share of income from the partnership.
As you will appreciate, taxation under NZ’s LTC and limited partnership regimes operate on an attribution basis as opposed to a distribution basis. In other words, each income year, the profit or loss of the entity is attributed to the various owners based on their respective ownership shares in the entity. Whenever a subsequent distribution of the previously attributed profit is made to the owner, it is not subject to further taxation in NZ.
Potential tax seepage can arise in your client’s structure however, where an Australian Limited Partnership makes a distribution of retained profits to the limited partners. This is due to its treatment as a company for Australian income tax purposes, and consequently the distribution being seen to be a dividend, potentially subject to a dividend withholding tax deduction at the time of payment. Since from a NZ tax perspective the distribution will not be subject to income tax in the limited partner’s hands, BR Pub 18/02 denies a credit for any dividend withholding tax deducted. As it is likely however that the Australian Limited Partnership will be distributing tax paid reserves, the deemed dividend should be fully franked, and consequently not exposed to any dividend withholding tax deductions.
The remaining three rulings deal with unit trust distributions and franked dividends received by the Australian Limited Partnership, and a scenario where the entity is the “Head Company” of a consolidated group.
The rulings will apply for the period commencing on the first day of the 2017/18 income year, and ending on the last day of the 2021/22 income year.
Richard Ashby BBus, CA, CPA
PARTNER
Ph: +64 9 365 5532
Fx: +64 9 309 5260
Mb: +64 21 823 464