New International Tax Legislation

 

Under FATCA (Foreign Account Tax Compliance Act), adopted by New Zealand in 2014, the United States aims to detect and prevent tax evasion by US citizens and tax residents on their worldwide income from financial assets owned by an offshore entity, which they control e.g. a family trust or company settled/incorporated in New Zealand.

Additionally, from 1 July 2017, New Zealand endorsed the OECD’s standard Automatic Exchange of Financial Information in Tax matters (AEOI), which incorporates the Common Reporting Standard (CRS),a global version of FATCA. New Zealand is 1 of 101 OECD nations to have signed a multi-lateral agreement to combat offshore tax evasion on a global scale. All citizens of these countries are subject to the same level of tax scrutiny in New Zealand and the other member or participating countries, as are Americans under FATCA.

All entities (family trusts, companies and partnerships, but not individuals) have to comply with this legislation. Al professionals, such as ourselves, accountants, investment fund managers/advisors etc. needs to advise their “entity” clients of their obligations under this complex and far-reaching legislation.

Is your trust/company/partnership (“entity”) a Financial Institution under FATCA or CRS?

It is important to know whether or not your entity (trust, company, partnership) is either a Foreign Financial Institution (FFI) under FATCA or a Financial Institution (FI) under CRS, both or neither. If your entity is a FFI then it needs to register on the United States’ Internal Revenue Services (IRS) site. If your entity is a FI under CRS then when the IRD site is up and running next year, your entity will have to disclose to IRD all financial information and personal details for those trustees and beneficiaries who are residing overseas in one of the 100 other participating jurisdictions combating offshore tax evasion.

We are in the process of corresponding with all of our trust clients and providing them with a form to assist the trustees decide whether or not their trust has to register on the US site and ultimately, report to our IRD under CRS. If you are a trust client of ours, and you have not yet received this form, please contact us urgently.

Can this legislation be ignored?

Unfortunately, registration on the IRS site under FATCA is compulsory even if your trust is not “controlled” by any US tax resident or citizen, provided:

(a) It has some financial assets (shares, bonds, term deposits) managed by an investment advisor/fund manager OR an FFI, such as one of our corporate trustees is one of the trustees of your trust AND

(b) More than 50% of the trust’s gross income for the proceeding calendar year comes from financial assets (excluding rental from property).

Unfortunately, (b) above will be satisfied even if the only income-producing asset of the trust is a bank account which earns minimal interest. However, if the trust or other entity earns the majority of its income from residential rentals, it will not satisfy (b) above.
Once registered, no further personal information disclosure is needed, if there is no such “control” by a US tax resident or citizen. By contrast, registration on the IRD site under CRS is required only if your entity is “controlled” by anyone who resides overseas (but not the US).

What if my entity is not a FFI or FI?

If your entity is neither a FFI or FI then it will, by default, be a NFFE (Not a Foreign Financial Entity) or a NFE (Not a Financial Entity). As such, your entity will not have registration requirements, but may have reporting obligations to other FFI’s/FI’s such as a bank with which your entity has funds or an investment house/advisor with whom your entity has a share portfolio. Such institutions are in the process of sending, and will continue to send, to their customers/clients Self-Certification forms similar to those we are sending to our client trusts. If the completion of these forms conclude that your entity is a passive NFFE/NFE then it must, on request, disclose details of US and other overseas controlling persons to the entity’s bank or investment advisor etc., which report to IRD. If however, less than 50% of your entity’s gross income for the past calendar year is from passive income (including rental from property) then it will be deemed an active NFFE and will have no reporting obligations, even if it is “controlled” by a US or other overseas resident person.

These are complex matters, but compliance is mandatory with not unsubstantial fines able to be imposed on those who breach their obligations under this legislation.
Should you have any query regarding these matters and how they may affect your trust, company or partnership, then please consult with us because to ignore this legislation is clearly, not an option.

 

This article is not a substitute for legal advice and you should talk to a lawyer about your specific situation. Should you need any assistance, please contact Pat Rotherham at Parry Field Lawyers (348-8480) patrotherham@parryfield.com

The new Government in New Zealand has announced changes to the foreign investment system.  This will restrict non-resident foreigners from purchasing houses in New Zealand by changing the definition of “sensitive” to include such housing.  At present other land is defined as sensitive under the Overseas Investment Act (OIA).  That includes for example land that is bordering reserves and parks or on the foreshore of lakes or rivers or which is farming land (among others).  For an overview on the overseas investment process click here and for information about key issues when immigrating to New Zealand click here.

New Zealand house prices have been increasing in the last few years and the intention behind the rule changes is to prevent foreign speculation on house prices.  Ultimately, the Government is hoping to stop their growth which has been resulting in New Zealanders not being able to afford to purchase a home, particularly in Auckland where the average house price is very high.

David Parker the new Trade Minister said the following in a recent interview: “We’ve got to fix land. We think it’s absolutely abhorrent that New Zealand government would lose the right to control who buys homes in New Zealand from overseas. And we’re working up mechanisms on that.”

While the purpose is clear the exact mechanics and timing is not.  Some have raised concerns that such a ban could be difficult in the context of different free trade agreements in place or due to be signed like the Trans Pacific Partnership (TPP).  However, the intention is certainly clear and it is highly likely that there will be change soon.

We will provide updates when the precise changes are known but wanted to get this briefing note out in the meantime.  We have acted for foreign buyers who are looking to purchase assets in New Zealand and can help you if you have any questions about the process.

We have also prepared a detailed guide called “Doing Business in New Zealand” which has an overview about the New Zealand business environment.  We are happy to email that out to those who would find it of help.

 

This article is not a substitute for legal advice and you should talk to a lawyer about your specific situation. Should you need any assistance or would like to request a copy of the “Doing Business in New Zealand” guide, please contact Kris Morrison at Parry Field Lawyers (348-8480) krismorrison@parryfield.com

What happens if…?

What happens if I have a car accident?

What happens if I get a letter from someone holding me responsible for damage to their property?

What happens if I turn on my computer, and I’m greeted by a hacker’s message, instructing me to pay bitcoin ransom in order to access my files?

 

The resilience of a business is often defined by the risk management systems that are in place. The risks that a business will need to manage fall, broadly speaking into three categories – Physical Assets, Liabilities, and increasingly, Cyber. Every business has some form of risk that will fall into these three categories.

Physical Assets – every business has them – a phone or a laptop, machinery or stock, premises or a vehicle. What does it mean for your business if these assets are taken out of the picture? Most businesses depend on some form of physical assets, and any loss or damage to these assets can interrupt the operation of the business, costing money. It’s worth thinking about if you can afford to replace your assets quickly, and how much is any down time going to cost your business?

Liability – you don’t actually have to do something wrong for liability risks to affect your business – an allegation is enough. All it can take is for a letter or an email, holding you responsible for damage to another persons’ property, and this will cost your business money – simply by defending your business from the allegation.

Cyber – We are becoming increasingly dependent on technology to conduct business, and with this comes risk from when the technology is disrupted – from ransom-ware attacks, to duplicate invoices with a new account number, to breaches of the Privacy Act – the implications of a cyber attack can be far reaching for a business. How long can you continue to trade if you can’t get into your system or backup files?

 

All businesses benefit from having a risk management plan which utilizes four potential strategies to manage risk:

  • Avoid risk – Change plans to eliminate the problem
  • Control/Mitigate risk; – Reduce the probability and/or impact through a proactive approach
  • Accept risk – Take the chance of negative impact or budget for contingency
  • Transfer risk – Outsource risk by way insurance

 

The role of an insurance broker is to provide advice on identifying business risk and recommending cost effective solutions to manage them. He or she can then advise you what risks  should be insured, and then if you agree, canvass the insurance market to obtain the best insurance solution that is tailored to fit the needs of your business, at a competitive price.

It’s finding out your business’ individual risk appetite that makes a good insurance broker a valuable asset to your professional services team.

If you don’t know the answer to the question: “What happens if…” then you should consider seeking advice before something goes wrong.

 

Chelsea is passionate about the growth and development of the emerging Social Enterprise sector. Born and raised in Christchurch, she wants to support the businesses that are doing good for our communities. Our mission at Crombie Lockwood is to position your business to financially survive any insurable event. Chelsea would welcome any opportunity to assist you to position your business to become more resilient to the risks associated with doing business, and consequently support you to achieve your purpose.

 

Chelsea Smith

Insurance Broker

Crombie Lockwood

(03) 339 5268

Chelsea.smith@crombielockwood.co.nz

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