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There’s tax in that gold!

New Zealand Inland Revenue says in most cases the sale of gold bullion is taxable.

According to a “Questions we’ve been asked” published by Inland Revenue on 20 September, “in most cases gold purchased in bullion form will be purchased for the dominant purpose of disposal”.

That means in most cases a sale of gold bullion will be subject to income tax. If you sell it for more, that’s tax to pay. If you make a loss, that might mean less tax to pay on other income.

Inland Revenue reckons gold bullion is not known for providing benefits such as ongoing returns while it is held or voting rights etc. So, that means, generally, the dominant purpose for which gold bullion is purchased is its ultimate resale.

However, they accept there may be some cases where a taxpayer can demonstrate eventual sale of the gold was not a dominant purpose for which the gold bullion was bought.

The document gives some examples using cases from other countries. Inland Revenue explains the very limited circumstances they consider would not trigger a tax liability. For example, if the gold bullion is bought to extend and diversify a portfolio in the hope it would be a good long-term investment able to be used if the taxpayer became unable to work then tax might not apply to an eventual sale, particularly if the taxpayer can demonstrate they intend to work until a ripe old age. So it seems it probably needs to be a “just in case” or “rainy day” type of investment which is hoped never to be realised.

It is difficult to work out exactly where the line is drawn because some of the examples given by Inland Revenue seem to be somewhat at odds with one another.

You therefore need to think very carefully before assuming any gain you’ve made selling gold bullion is not subject to tax in New Zealand!

As Inland Revenue point out, the onus is on the taxpayer to prove tax does not apply. Given the taxable presumption Inland Revenue say they’ll apply in practice, you should expect resistance if you’re intending to argue your gold bullion is not taxable.

You can find the Inland Revenue document here

 

Good luck!

 

Iain

 

 

 

 

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IRD wants to hear from employers

IRD wants to know what employers think of their proposals for correcting and adjusting PAYE filings.

This recently released officials’ paper sets out the background and proposals: http://taxpolicy.ird.govt.nz/publications/2017-ip-paye-error-correction/overview

A tax bill currently before Parliament will change how employers meet their PAYE reporting and payment obligations. The entire bill is here: http://taxpolicy.ird.govt.nz/bills/51-249. Employers will be able to use their payroll software to file their PAYE information directly. The objective is to reduce paper based compliance and make it easier for those who have payroll systems that support digital filing.

The officials’ paper on correcting payroll reporting errors follows on from the changes intended in the bill and deals with how calculation, transposition and interpretation errors would be corrected and adjustments made. Depending on the nature of the error the correction may be to the original reporting period or an adjustment could be made in a later reporting period. The officials have set out a number of options under different scenarios.

Getting PAYE right all the time is extremely difficult. There are many complex variables and the officials at IRD recognise this in the approach they’ve taken. Overall the proposals appear balanced and pragmatic. However, not all options will appeal to all employers and it’s important you have your say if you are concerned about the impact on you.

The proposals include clarifying what happens when an employee is mistakenly overpaid and does not repay the employer. There is some uncertainty whether the overpayment is actually income of the employee that should be subject to PAYE. IRD intends to make it clear PAYE remains payable on overpayments of salary and wages when the employee has not refunded the overpayment. This could be a contentious. It some cases it could seem as though the tax collector is benefitting from an error by the employer and the employer is bearing an added cost of their mistake solely because the employee refuses to repay the overpayment (and may even have become uncontactable). There will be lots of scenarios to consider and I’d be surprised if there weren’t some strong submissions on this point.

If you want to make a submission you have until 15 September. Don’t be shy now!

 

Iain

 

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GST derails another property sale

Recently from the Court of Appeal, another example of how GST can derail what should have been a simple property sale.

Y & P NZ Ltd v Yang Wang & Chen Zhang [2017] NZCA 280 is a decision from the Court of Appeal about whether caveats registered by the purchasers to protect their interests should remain in place.

They had registered the caveats after the vendor refused to settle because of a dispute over GST.

Here’s what happened:

2 May 2016 – Sale agreements for four properties entered into on a “plus GST, if any” basis. The vendor was registered for GST in relation to the sale. The purchasers stated in the agreements they would not be registered for GST at settlement and did not intend to use the properties to make taxable supplies. Settlement was supposed to be 28 July 2016. That’s enough basis for the vendor to add 15% GST to the settlement price.

25 July 2016 – Vendor sends settlement statements to purchasers requiring settlement with 15% GST added.

27 July 2016 – Purchasers verbally advise the vendor their circumstances have changed, they are registered for GST and will use the properties to make taxable supplies. They ask for amended settlement statements showing GST at 0% and provide the vendor with their GST number. The vendor issues the requested amended settlement statements.

28 July 2016 – Settlement day! Or so it was supposed to be. Instead, the vendor insists that settlement take place on the basis of the original settlement statements with 15% GST added because that was what was required under the 2 May 2016 agreements.

What then followed was a series of lawyers letters, a case lodged by the purchasers requiring specific performance of the contract and the registration by the purchasers of caveats against the titles.

This should have been a simple sale but instead we have a dispute over GST holding up the transaction and ending up in court.

Why did it come to that?

The legal arguments in this case were about whether the purchasers’ caveats should remain in place, presumably while the substantive case for specific performance was unresolved. All we really know from the Court’s judgment is that the parties were arguing over whether the purchaser had provided the required written notification of its GST position to the vendor within the required time.

What intrigues me is, if the vendor really wanted to sell their properties they could have settled on the basis of 0% GST, as requested by the purchasers, without the likelihood of any additional cost to themselves. In fact, the vendor might well have saved themselves the costs involved in dealing with the dispute. Yet for some reason they refused to settle.

Let’s say they had accepted the purchasers’ verbal assurances and settled at 0% GST and it turned out the assurances were wrong and GST of 15% should have been paid. What would have happened? Under the GST legislation, in that event, the onus of paying the GST would have shifted to the purchasers who would have had to pay it directly to Inland Revenue. It’s unlikely, in my view, that Inland Revenue would have required the GST to be paid by the vendor, although it can’t be ruled out.

In any event, the vendor had the chance to minimise their risk by asking the purchaser for an amended statement in writing that they met the requirements for 0% GST to apply. That could have been done on settlement day.

Maybe there’s a lot more to this case than this reasonably short judgment from the Court of Appeal suggests. It’s hard to fathom what really was to stop the transaction settling and why it ended up in a protracted legal dispute. Settlement was supposed to be 28/7/16, this interim hearing took place on 11/5/17 and the Court’s decision is dated 3/7/17 – and it’s still not over.

Here we had, presumably, a willing vendor and willing purchasers and yet they couldn’t get the deal done because of a disagreement over whether a written notice had been given on time.

The fact is, whether 15% or 0% GST applies to a land transaction is determined by the GST Act, not by the parties to the contract and not by whatever statements the purchaser might put in the contract about their GST position. While a vendor is entitled to rely on GST statements made in the contract by the purchaser they do not have to. In my view the vendor had options to achieve settlement without exposing themselves to unacceptable GST risks if their focus were on how they could complete the transaction rather than on why it should not be completed.

Willing parties to a contract should be able to get their deals done safely without having them derailed by GST and without protracted litigation.

 

Iain

 

 

 

 

 

 

 

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Vat audits- the whole story

EY’s digitally interactive report on managing indirect tax disputes is definitely worth a read.

http://www.ey.com/indirectcontroversy

The report has a host of useful information about modern indirect tax audits, common errors and how smart businesses are managing their indirect taxes to stay clear of nasty surprises.
Iain

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