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Terry Baucher points out that recent IRD moves on overseas Super reinforce the incentive to invest in property ahead of superannuation

Terry Baucher points out that recent IRD moves on overseas Super reinforce the incentive to invest in property ahead of superannuation
Even if you do follow the law, your choices will give highly unequal results

By Terry Baucher*

Retirement savings and its tax treatment popped up in the news recently when the Financial Services Council suggested changing the tax rates on KiwiSaver and superannuation schemes.  

The proposals are aimed at boosting investment returns and levelling the playing field with property. 

Long-time readers of this column will know of the complex tax rules around foreign superannuation schemes.

The mind-numbing complexity also produces some highly unequal results both between different foreign superannuation schemes and in comparison to residential property as the following examples illustrate.   

Alan, Bev and Charlie met at university. After university, Alan went to the UK where he met his wife, Jane. Alan and Jane returned in March 2007 with their two pre-school children.

While working in the UK Alan and Jane contributed about $80,000 between them to UK superannuation schemes. These schemes are now worth $200,000. Alan and Jane were aware that it was possible to transfer their schemes to New Zealand but postponed doing so hoping for a more favourable exchange rate.

They have now heard about the proposed changes to the taxation of foreign superannuation schemes from 1 April 2014 and are looking to transfer their funds before they take effect. 

Bev went to Australia for several years before returning in January 2006. Australia has a compulsory superannuation savings scheme and Bev’s accumulated savings are currently worth $200,000. Bev now wants to transfer her Australian superannuation savings to New Zealand. 

Charlie remained in New Zealand where he started investing in residential rental property. He now has three properties and he recently sold one, realising a capital gain of $200,000. Charlie and his partner Francesca have used the funds released to buy a larger home for them and their three children. 

The amounts involved for each of the friends are the same, but as you will see, the tax treatment varies considerably.

Alan and Jane’s UK superannuation schemes represent a “foreign investment fund” or FIF, which means that they should have included FIF income in their tax returns for the years ended 31st March 2012 and 2013 at least.

Alan and Jane assumed they didn’t need to, since they weren’t receiving any income from the funds. They therefore risk being charged interest and penalties for non-disclosure if investigated by the Inland Revenue.

If their superannuation schemes are transferred before 31st March 2014, Alan and Jane could accept the “concessional” basis proposed by the IRD and be taxed on 15% of the amount transferred ($200,000).  The taxable portion ($15,000 each) would be included in Alan and Jane’s respective tax return for the year ended 31st March 2014 with the tax due and payable on 7th February 2015.  

The alternative would be for Alan and Jane to work through the current rules which applied in previous years and then make a voluntary disclosure to the Inland Revenue in respect of any undeclared income.  Quite apart from the complexity and cost involved this may result in interest and penalties being payable. 

But note that the IRD’s 15% concessional basis is applied to the full amount transferred not the $120,000 of accumulated gains. No account is taken of the $80,000 contributions Alan and Jane made to their schemes. The IRD’s concessional basis is more in the nature of a capital transfer tax rather than a tax on gains. 

Unlike Alan and Jane, Bev was not required to include in her tax return FIF income in respect of her Australian superannuation schemes. This is because in 2006 Australian superannuation schemes were specifically exempted from the FIF regime. The exemption was introduced in part because of widespread non-compliance and was back-dated to the start of the FIF regime rules in the 1993-94 tax year.

Furthermore, if Bev transfers her Australian superannuation schemes into a KiwiSaver scheme then from 1 July this year that transfer is now specifically exempt from tax.

By contrast, not only are Alan and Jane required to disclose FIF income on their UK superannuation schemes, they will also be taxed when they transfer their schemes.  This tax charge arises regardless of whether the funds are transferred to a KiwiSaver scheme or to a Qualifying Registered Overseas Pension Scheme. 

The end result is that despite a practically, identical position to Bev, Alan and Jane face a tax charge on the transfer of their UK superannuation schemes.  This is despite a significant portion representing accumulated capital gains and not being able to access the funds transferred until retirement.

Meantime, Charlie should not be taxed on the $200,000 gain he realised from the sale of an investment property as he doesn’t appear to have acquired the property with a purpose or intention of sale. A similar position probably applies to his remaining investment properties. 

Sadly, the proposed changes to the taxation foreign superannuation schemes, although far more comprehensible, do nothing to address the present inequality.

Arguably, they make it worse and also run the risk of widespread non-compliance as holders of foreign superannuation schemes decide not to repatriate funds to New Zealand.

It is small wonder that this disparity of treatment acts as a powerful incentive to invest in property ahead of superannuation.

In my next article I’ll look at why I believe New Zealand should introduce a capital gains tax and how the Inland Revenue’s Property Compliance Programme is shaking up investors in several South Auckland suburbs.  


*Terry Baucher is an Auckland-based tax specialist and head of Baucher Consulting. You can contact him here » 

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"Meantime, Charlie should not be taxed on the $200,000 gain he realised from the sale of an investment property as he doesn’t appear to have acquired the property with a purpose or intention of sale. A similar position probably applies to his remaining investment properties."  
If it is an investment property, how can it be argued that he did not by it with the intention to sell? As the return from an investment property is primarily in it's capital gain, then selling it is surely a primary component in the investment. Rental incomes are eaten away by the costs of the property, such as rates, insurance and maintenance. Thus the return would be less than optimal without a sale being planned. Realising the gain in capital value by borrowing against it is also potentially a way for tax to be imposed too isn't it?

Thanks for your comment Charlie, you make some good points.  I'll talk about this issue in my next column which will be in a couple of weeks time.  (The IRD any my clients have been keeping me busy).

Don't know much about superannuation schemes overseas. Presumably the first example had put $80,000 of tax payed money into their scheme to make the $120,000 (whereas in some countries it goes in tax free and taxed when removed). 
To get the 200K property profit in the same 6 years the property couple would have needed to put a lot more that 80K in. They'd have needed to spend $800K in a central suburb to get $1M now so if they put in $80K they'd be paying out 6 years at 7% on $720K plus expenses = 55K a year or so a year offset against maybe $35K a year rent so they actually put in 20K a year over 6 years = another $120K so in fact payed $200K to earn their $200K.
In reality the property purchasers are way behind financially surely? 

Big trend at the moment in Australia is to opt for "Self Managed Super Fund" where one can take over their super fund from superannuation fund companies.  And what most do with their super fund?  Buy properties in Australia and NZ.

Well I wouldnt pay a manager myself....good ppl can opt out.

Why overcomplicate things Terry. Simplify your proposed CGT into a land tax on unimproved value - this is where most of the capital gain occurs in real estate. Impossible to avoid, easy to collect - could be collected with rates, good historical pedigree, and probably as fair if not fairer than any other "solution".
Of course a large host of vested interests would not yield to this idea, short of a revolution.

I think a CGT is all but here myself and justified.  Labour and Greens will, no votes lost really, PIs wont be voting for its just time.

You're probably right - but it won't reduce house prices. I'll sell my house for X+CGT rather than just X (exactly as happens in Sydney). It's just like how vegies used to cost X*1.125 and now cost X*1.15. X doesn't change if it's a neccessity.

You are ignoring the ability or wish to pay.
So if you want to sell and no one wants to pay that15% more what are you going to do?
Though it wont apply to your own home, which suggests a line of evasion some PIs will take.

I agree if there's a surplus of supply - but not if there's shortage. For the most extreme examples look at Delhi or Bombay where rents and prices are many many times higher than Auckland's - and incomes are a fraction.

Looking back over this article you give three scenarios, the property one at least being impossible, and then state that taxation isn't fair because of the results of some made up unrealistic scenarios. 

Thanks Bob for your comments.  My article doesn't make it clear (I pruned it quite a bit) is that Charlie has been investing in residential property investment longer than you calculate. Alan and Jane returned to New Zealand in March 2007 but Charlie had been investing in residential property well before that date.  In that context a $200,000 gain is perfectly achievable and I've seen it done on a $300,000 property over 9 years. 
In any case my primary point was to illustrate the different treatment for foreign superannuation schemes and property. 

Thanks for that. The problem is it's supposed to be three equal scenarios proving a point. However now you're saying they aren't equal scenarios at all - the property people have been investing over a longer term and the gain is based on a particular example that is neither typical or neccessarily easily repeated.
It sort of then becomes a completely meaningless arguement. Tax on someone who invested in property 20 years ago versus someone who's payed into a super fund for 2 years versus someone who made 10's of millions tax free in a share float of a 6 year old company versus...not sure what that proves?

He's just trying to show the problem.
Hence why a CGT should be on all profits, eg capital gains on shares as wall as all property.

What problem? There may or may not be one - argueing there is by comparing apples with pears doesn't prove anything.  

Thanks for all the interesting comments, keep them coming!  I'll be interested to hear your thoughts on the different treatment of Bev's Australian superannuation schemes compared with Alan and Jane's UK schemes. 

If we accept that the Ozzie compulsory super scheme is pretty good ( $A 1.4 trillion , and rising ) , why didn't we just copy theirs ...
... start at 3 % , and incrementally raise it , until we reach parity with them ...
Our two countries are in a CER agreement . Identical super would've made alot of cents .

I know a few professioanls who are moving over for the better money and the better pension.
So really, yes the Q is why not.