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The Week in Tax: Donald Rumsfeld’s reminder about the financial arrangements rules, an update on the interest limitation proposals, and is it time for a Fair Economic Return for property?

The Week in Tax: Donald Rumsfeld’s reminder about the financial arrangements rules, an update on the interest limitation proposals, and is it time for a Fair Economic Return for property?

The former US Secretary of Defense Donald Rumsfeld died recently.  In the run up to the Iraq war he mused that there were things that we didn't know we didn't know.  I was reminded of Rumsfeld's quote yesterday when a new client approached me in something of a panic. 

Their accounting system was picking up on unrealised foreign exchange movements, but they weren't aware of the relevant tax for treatment.  It was something of a shock to them when I ran through the provisions of the financial arrangements rules probably the biggest ‘didn't know that we didn't know’ in the New Zealand tax system.

To recap because there's not much on the Inland Revenue website about these rules, a financial arrangement is broadly defined as an arrangement where a person receives money in consideration for money to be provided in the future.  Bonds and mortgages are two of the main types of financial arrangements caught. But the regime also applies to term deposits because there is a promise to apply pay interest at a later date. The regime also covers foreign exchange accounts such as those held by my client

Unfortunately, the rules have proved particularly troublesome for holders of overseas mortgages for example people who may have migrated here from overseas but rent out their previous property in Australia, the UK, or the US over which they have a foreign mortgage. Although they are reporting the rental income as they should, they get caught by the foreign exchange movements on the mortgages

The most extreme example I ever encountered was for one client who had a $300,000 positive movement in one year resulting in income and tax payable which subsequently reversed entirely in the following year. They still had to pay the tax in the first place, a very frustrating result for all concerned.

So these financial arrangements rules are nightmare for the unwary as it’s an incredibly comprehensive part of the act but it is not at all well known.

Fortunately, by and large most people are not subject to the rules because they are within the exemption for what we call a ‘cash basis holder’. But that exemption itself has a couple of traps in it and this is what unfortunately has caught my client.

Generally speaking, you can be a cash basis holder and you don't have to calculate income on an unrealised basis if either the absolute value of all your income and expenditure in a foreign arrangement for an income year is $100,000 or less.

Remember that's adding income and expenditure together; the rules do not operate on a net basis. When calculating these limits that still needs to be kept in mind as it's one of the other traps that people fall into. For example, if you had $500,000 on term deposit and you had a $500,000 mortgage overseas so although your net financial position is nil, for the purposes of the financial arrangement you have $1,000,000 of financial arrangements so you're outside the cash basis holder exemption.

By the way, the $1,000,000 limit applies if on every day in a particular income year the absolute value of each of each of the persons financial arrangements added together has a total value of $1,000,000 or less.

Now as I said most people should be able to be within those limits.  The problem is there's another clause which trips people up which they need to be aware of.  This is where if the difference between the income which would be calculated on an unrealised basis (what we call accrual income) and income calculated on the cash basis, that is what you've actually received or realised, exceeds $40,000 at any time then you cannot be a cash basis person.  What this means is that sudden movements in exchange rates can pull people into the financial arrangements regime the classic example here being what happened following the Brexit referendum vote.

The financial arrangements rules are very much a trap for the unwary. How well it's enforced of course is another matter because these are fairly arcane provisions and I'm not entirely sure Inland Revenue has all the resources to keep on top of what's happening in this space.

Of course, it might help if Inland Revenue and the Government reviewed these thresholds and adjusted them more frequently. The $1,000,000 exemption threshold has not been adjusted since 1999. Quite frankly the financial arrangements regime should not really be pulling in small businesses into its net simply because of an out-of-date threshold.

This is one of the practical matters around the operation of the Income Tax Act which seems to be get left lying around until someone somewhere in Inland Revenue realises, we haven't actually done anything in this space for 22 years.  Anyway, the lesson is to be wary of financial arrangements regime it applies much more widely than people realise and can trigger unexpected tax consequences.

Bypassing the proper review process

Speaking of unexpected and unintended tax consequences, submissions closed on 12th July for the Government's discussion document on its interest limitation proposals. It’s fair to say that the proposals have generated a fair bit of controversy. I understand Inland Revenue's received several hundred submissions so far and very unsurprisingly the majority are opposed to the proposals.

Some of these submissions are now available to the public and so it's interesting to look at what other submitters have said.  Chartered Accountants Australia and NZ have produced a massive and extremely comprehensive submission which runs to 108 pages. Now remember the discussion document itself was 143 pages so when the commentary on a document that size itself runs to 108 pages we're talking about a great deal of complexity.  We're almost certainly heading into a lot of unintended consequences as CAANZ’s submission points out.

This is echoed by its fellow accounting body CPA Australia. It points out that the measures were a surprise and did not go through the normal Generic Tax Policy Process and it foresees considerable confusion and remediation for the rules as a consequence.

CAANZ was also unhappy about the fact that the proposals did not go through the Generic Tax Policy Process (GTPP).  This is meant to work out in advance of an implementation date what the issues are and get the legislation to a point where everyone is mostly satisfied with what's being introduced.  That didn't happen here and is one of the reasons a lot of tax consultants, larger accounting firms and accounting bodies are unhappy about the proposals.


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It's interesting looking back that where there's been departures from the GTPP these have commonly happened around taxation of property.   

There were several unheralded moves by the previous National led Government outside the GTPP.  In the 2010 Budget for example depreciation on residential and commercial buildings was withdrawn without any forward consultation.  Likewise, the same budget put an end to the loss attributing qualifying company regime partly in response to what was perceived to be issues around tax avoidance.   But the depreciation changes and withdrawal of the LA QC regimes were also responses to the tax treatment of residential investment property being perceived to be too generous.  Then in 2015 the first iteration of the bright-line test was introduced again outside without prior consultation through the GTPP.  

I too agree with CAANZ and CPA Australia that there will be unintended consequences as a result of these changes but it's also interesting to note that the taxation of property has been a headache for governments for some time to the extent they felt compelled to take action outside the normal policy process.

Patching another unreviewed policy

One of the things that hasn't been done and probably should be is a comprehensive look at property taxation legislation.  We haven't had a review of the original bright-line test legislation and its consequences. These reviews are quite normal under the GTPP.  But now we're putting patches on that legislation and extending its period to 10 years. Meanwhile it's clear there's confusion about whether a property sale is subject to bright-line test or other taxing provisions within the Income Tax Act. 

It's against that backdrop Professor Susan St. John and I decided to move forward the idea of what we called a Fair Economic Return.  This is building on an idea that was first mooted by the McLeod Tax review in 2001. It suggested applying a deemed rate of return to property as an alternative taxation basis.  No-one is particularly sold on a capital gains tax but there was a recognition even 20 years ago that the tax treatment of property was favourable and causing distortions in the tax system. Those distortions have become magnified over the past 20 years resulting in measures such as we've just described attempting to address these issues.

With that in mind Professor St. John and I have produced a working paper suggesting a Fair Economic Return. We haven't formalized a rate that should apply but the working paper has examples of how it would operate whether rate was 1, 2, or 3%.

This rate would be applied to the net equity of all property held by a person.

To get around the definitional issues of what is the main home, we have suggested there should be an exemption available to each person. In our initial working paper, we've suggested that exemption could be $1,000,000.

Here's an example of how it would work for a couple living in Auckland whose only property asset is their house worth $3 million with a $500,000 mortgage.  The net equity in the property is therefore $2.5 million. Applying each person's exemption $1,000,000, this leaves $500,000 subject to the Fair Economic Return at a rate of let's say 1%.  This results in income of $2,500 for each person.

This is the idea Susan and I have put out there and we've been talking this week on radio about it. It’s obviously going to generate a fair bit of feedback not all of it favourable but that's not unsurprising. 

The view we've reached is it's time to try a different approach because patches to the existing tax system such as interest limitation rules, extension of bright-line tests but incorporating exemptions for new builds etc, do not work, these are just patches, it's time for a comprehensive and different approach to the whole issue of property taxation.

We're updating the paper to absorb commentary and we're always happy to take comments on that.

In the meantime, that's it for me for this week. Well, that's it for today. 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 week ka kite āno!


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17 Comments

Thanks Terry, excellent as always.

Certainly interesting that the first issue raised in that document from CA ANZ is that these rules are likely to result in a tax on the family home that homeowners won't be aware of until the IRD comes knocking years later with a tax bill for hundreds of thousands of dollars + penalties and interest. Seems this would apply in the event of a natural disaster where the settlement + rebuild takes more than 12 months for example.

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"Fair Economic Return" reminds me of TOPs envy tax policies. Steal from those who've worked all their lives to live comfortably in their old age & leave something for their children. The Govt then pay it as a UBI to people who can't be bothered getting out of bed.

When will these people ever acknowledge that house price increases are simply reflecting supply/demand & price inflation isn't unearned income, its exactly the same home as before revalued by the medium of exchange. The way to make housing more affordable is obviously to change the supply &/or the demand, not forever fudge facing up to this by enacting socialist theft.

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Well said KKNZ. Terry's argument that a homeowner should be taxed on a theoretical "fair economic return" is yet another twist to punish people who have tried to be prudent. People who work in the tax sphere appear to struggle with the difference between a 'theoretical value' and a 'realised return'. The first is of course just a paper value that is meaningless for most intents and purposes, although it may form the beginning point of negotiations toward the process of attaining the second - a realised return, which will of course be logically taxable. I suggest their efforts would be better focused towards identifying all the ways a change in value may be translated into 'realised income', which could then be identified as being taxable? As it is this perspective of "fair economic return" continues to look like an extreme socialist perspective of envy, in being the view that "you look like you're too wealthy so we will tax you into poverty to fix it!"

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What about valuation changes because of betterment or worsenment as a result of a government decision/spending eg a favourable re-zoning of land, better public transport, being in an outstanding natural landscape ....

Then there is the well documented socially corrosive effects of wealth inequality to correct.

Fair economic return looks like one way addressing these.

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kiwikidsnz,

Ok. But there is still a problem in that in NZ, the tax system is skewed towards taxing income but not capital. I don't think you can say that either the UK or Australia are socialist states, but they both have capital taxes that we lack. In the UK, I regularly dealt with clients on both fronts and while they might not have been too happy about it, they accepted these taxes as a necessary part of the system.
NZ governments whether of the Right or Left need more income(tax) to do all the stuff people want; infrastructure, the health service, education, social services, etc.
This FER will never see the light of day, so where do you get the money from? I think some form of land tax would work.

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Maybe the government could take a more active approach in managing the tax system it has first? Why should the electorate trust those overseeing the tax system when changes to it are sudden and knee-jerk, while things like adjusting PAYE brackets for inflation are totally off the table for discussion?

I think a total redrawing of the social contract is in order before any such proposal is entertained. The government has long abused its ability to simply raise revenue as it suits and there are major agency issues with both requiring inflation through the RBNZ and refusing to adjust tax rates to account for it more than once in a blue moon.

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Instead of forever implementing new additional taxes/levy's etc because that's the only way the current politicians can think to increase their share of the pie & Govt's need to stop wasting the money they already collect & their kneejerking responses whenever there's another vocal 'special case"claiming "disadvantage". Recent examples include the revelation that for years MSD have been simply writing off $1M/Q in overpaid benefits rather than reclaim taxpayers money, 10000 extra public servants since Labour came into power 2017 (what on earth do they all do ?), the majority of people ignoring paying their MIQ bill (instead of the Govt demanding a credit card up front before allocating a space as any hotel would require).

When I worked in multinationals for decades, any operating cost budget came alongside a detailed annual cost savings program that would ensure incremental savings exceeded cost increases & maintained ongoing business competitiveness. The COVID debt now means that the next generation is going to have to pay for todays pie; this is unfair, they will no doubt have their own problems to deal with.

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I don't think you understand that a sovereign currency issuing government always has money to do what it wants/needs to do - the constraint than is inflation, not financial.

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Take care of yourselves because the pension isn't enough, and we will need the extra tax revenue in the future to pay for those who didn't take care of themselves.

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Bold of you to assume that people working today will even be able to get a pension.

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If I owned a $2million house and an investment property with a net worth of $3million and this tax came into effect, I would mortgage enough to escape the threshold and put the cash into an active KiwiSaver or some other investment. Your joint paper has the hypothetical case of a couple with a $2.5million home paying a 1% levy. Let’s make that a single person, say an elderly widow. Now the levy is the 3% you postulate. That tax now becomes $45,000 a year. There are many elderly folk in Auckland’s better suburbs in such a situation, who have seen their property’s value increase largely because of government policy and inflation, rather than individual greed. Also, there’s the matter of geographic equity. A 200sq m house in Auckland or Wellington will have a much higher value than one of similar size and quality than one in Invercargill, which would escape this tax altogether. I don’t think Mr Baucher and Ms St John’s proposal is a sound or fair one.

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But it's right there in the name!

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Yes, anyone can put forward somewhat implausible what-ifs.

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Whats fair about the "Fair Economic Return" - bugger all is my opinion! To buy a house involves (usually) saving for a deposit, paying a mortgage, insurance, rates and maintenance. Most folks also upgrade/renovate if they stay in the same place for any length of time. All of these activities cost the homeowner and when accurately tallied up could potentially come to more than the actual market value of the home. Charging a "Fair Economic Return' using the basic calculation in the piece above ignores all these costs (which are likely already funded by tax paid income) except any outstanding mortgage (why is this?), which unfairly distorts what the return would be calculated on. The government also decrees that there must be inflation, so some of the increase in housing market values is mandated, yet you propose taxing us on it. It's plainly nonsense from a fairness perspective and is purely an envy tax.

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Clearly you didn't bother to read the proposal, with its threshold before any fair economic return is proposed.

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Arrgh the old envy tax argument. I've worked hard all my life blah blah .....

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Nothing says "stop defaulting to property as an investment" than "we're going to tax you as if your residence is an investment property".

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