Taxation Changes for Your Residential Property
If you or your family trust plan to purchase, sell or transfer a residential property on or after 1 October 2015 then you need to be aware of the new “Bright Line Test” for the taxation of residential property transactions.
In brief, gains from the sale of residential property purchased after 1 October 2015 (except for the main home of the seller) and where the property has been held for less than two years will be taxable. The gain is simply the difference between the purchase price and the sale price, after taking into account legal fees, real estate fees and capital improvements. The capital gain is treated as ordinary income and taxed at the seller’s marginal rate.
As is already the case, gains made on the sale of a property held for more than two years will be subject to income tax if the property was acquired with the “intention” of on-selling it for gain.
Sellers will not be taxed on gains if the property is their main home (this exemption does not apply if the seller is an “offshore person”, is acting as a trustee or has used this exemption at least twice in the preceding two years). A few other very limited taxation exemptions to the “Bright Line Test” apply.
The seller decides if the property is the main home but knowingly providing false or misleading tax information is an offence and can result in a fine, if convicted, of up to $25,000 for a first offence or $50,000 for a repeat offence.
Tax information will be captured by way of a signed “tax statement” at the time of registration when a property is bought, sold or transferred. The general rule is that property buyers/sellers must provide their IRD number and other details (unless a reporting exemption applies). Additional requirements apply to “offshore persons”. This information is passed on to Inland Revenue.
Some practical implications of these taxation changes are:
• Increased compliance in terms of cost and time;
• A number of passive trusts without an IRD number will now need one – obtaining an IRD number takes time;
• Increased likelihood for late settlements and default interest;
• Nominations can no longer be last minute due to tax information requirements.
This update is only a high level summary of the taxation changes for residential property transactions. We would encourage you to talk to us if you have any queries regarding the implications for your own personal situation. Our Commercial and Property Team would be happy to assist.
Delys Brough is a Solicitor in our Commercial and Property Team. She can be contacted on firstname.lastname@example.org or (03) 379 4660
Health and Safety at Work
The Health and Safety Reform Bill has been passed by Parliament and it will come into effect on 4 April 2016. The new law will be called the Health and Safety at Work Act and will be accompanied by a series of regulations to support the new Act. When the Bill was first drafted there were serious concerns about its impact on business, particularly small businesses and farms. In order to strike the right balance, the Transport and Industrial Relations Committee made some significant improvements to the new law, yet there are still fundamental changes which will impact you and your business.
The new law is intended to take a risk-based approach to health and safety by focussing on what a business needs to do, what is reasonably practicable for it to do, and what is in its control.
Stronger worker participation underlines the expectation in the Act that everyone in the workplace is responsible for workplace health and safety, and that workers are more empowered to intervene when they see an unsafe situation. The Act does this through the introduction of a "Person Conducting a Business or Undertaking" (a PCBU) who will have a primary duty to ensure the health and safety of workers, as well as any others who are affected by its work. The PBCU must identify, minimise and eliminate risks and hazards in their workplace. High risk workplaces will be subject to the strictest health and safety requirements.
The new law also proposes substantially heavier penalties for those found to be in breach of the Act. The processes that you and your business put in place now are therefore important steps to take in order to ensure that you are not caught out by these new changes.
Please contact one of our employment specialists for further information or if you wish to discuss how the new law may affect you or your business.
As most of those with a Trust will be aware, gift duty was abolished in October 2011. This means that a gifting program can now be completed in "one hit". There are issues that you must consider before gifting in one hit such as whether there are any issues with creditors, and the ability to show solvency at the time the asset is moved and gifted into the trust. In addition, the Court of Appeal has recently confirmed a Ministry of Social Development (MSD) challenge to existing gifting programmes which have been completed at the rate of $27,000.00 per individual per year. The Court found that the MSD rules and regulations allow for a gift of $27,000.00 per couple, so at a rate of $13,500.00 each per year, rather than at $27,000.00 each, which has been the previous rate of gift.
The Law Commission is recommending some changes to the Trustee Act 1956. This proposed new law will set out the core characteristics of trusts and the duties of trustees. The Law Commission has also set out to rectify the use of a trust to keep a former partner from their share of assets made during the relationship. It recommends that the Court be able to have the power to transfer the trust assets to compensate the disadvantaged party. The Law Commission has also recommended that a trust be able to exist for 150 years rather than the current 80 years.
Please contact one of our trust teams for further information or if you wish to discuss how these proposals may affect you.