Clamping down on trusts

Written By: - Date published: 10:55 pm, June 7th, 2010 - 33 comments
Categories: law, tax - Tags: ,

For a long time, I’ve struggled to understand the social value of trusts. Obviously, they’re useful for the people that have them but it seems that the value they get is nearly exclusively from preventing people making legitimate claims on their assets. Creditors, ex-partners, the government (and through it, the rest of us) end up not being able to get what they would otherwise be legally entitled to if the trust didn’t exist. They seem like artifices with little purpose beyond protecting people from having to pay their debts.

One of the most popular uses of trusts is to hide income for tax avoidance or evasion (depending on your point of view on its legitimacy). The Right’s ‘solution’ is to align the top tax rates so there is no tax advantage in putting income through a trust. Apart from being tax cuts for tax cheats and a path that virtually no other wealthy country has gone down, National hasn’t actually aligned the tax rates. The new rates will open just as large a gap between the top rate and the corporate rate as formerly existed between the top rate and the corporate rate.

As the Sunday Star Times explains, the rich can just use investment companies (owned by their trusts) to take advantage of the gap: “tax changes announced in the Budget will give the rich the 33% tax rate many have already granted themselves by using trusts to convert large swathes of their income into tax-free capital payments.”

Mucking around with tax rates isn’t a solution to the abuse of trusts and companies. The real solution has always been for the law to open its eyes to the abuse. So, I was happy to read about the IRD’s success in a recent court case against two surgeons.

Ian Penny and Gary Hooper cut “their salaries from above $650,000 and $302,000 a year to around $120,000 following the increase in the top personal tax rate to 39% on April 1, 2000.

Their families continued to derive substantial income above those figures through dividend distributions to family trusts from the companies both men established to employ themselves as top orthopaedic surgeons in Christchurch.

IRD claimed the change allowed both surgeons to exploit the difference between the 33% company tax rate and the 39% top personal tax rate, and both Penny and Hooper agreed in court that their new salaries were not commercially realistic.

Judges Tony Randerson and Grant Hammond found against the surgeons.

“I consider it is no coincidence that the restructuring of Mr Hooper’s practice occurred in 2000,” said Judge Randerson, while Judge Hammond described it as a “rather obvious, indeed blatant, strategem.”

The avoidance was “particularly marked in Mr Penny’s case where over $2 million in company profit was diverted via his family trust to himself in the form of unsecured, interest-free loans with no specified term for repayment.”

The court came up with a legally novel but pretty common sense concept of a ‘market salary’. As Justice Randerson held: “The difference here is that salaries were adopted at levels so far below ordinary commercial expectations that, in the absence of legitimate reasons for doing so, there is a strong implication of tax avoidance.”

In total, the court found the surgeons had avoided $168,000 of tax. That’s enough to pay a teacher or nurse for three years.

Thousands more very wealthy people have been ripping off working Kiwis for years. This decision will potentially result in many more similar rulings. It should stop the abuse of trusts and companies by rich people who are too greedy to pay their fair share and meet their legal obligations.

33 comments on “Clamping down on trusts ”

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  1. Draco T Bastard 1
    8 June 2010 at 12:12 am

    This is good to see. Not sure exactly what the consequences will be but I suspect that several thousand people are about to get a large tax bill back dated to when they set up their trusts.

  2. SHG 2
    8 June 2010 at 3:57 am

    Names and trusts.

    Rick Barker
    Barker Family Trust
    Upton Family Trust

    Brendon Burns
    BP and PL Burns Family Trust
    PL and BP Burns Family Trust

    Steve Chadwick
    Gonzo Family Trust

    Charles Chauvel
    Kittery Trust
    Pepperrell Trust
    Victory Trust

    Helen Clark
    Burke Trust
    FG Clark Family Trust

    Clayton Cosgrove
    Eagle Bay Family Trust
    September Trust (blind trust)

    David Cunliffe
    Bozzie Family Trust

    Kelvin Davis
    Davis Family Trust

    Parekura Horomia
    Panikau A2
    Mangatuna 3, 4, 5, 7 and 8
    Mangaheia 1B3Y and 2G1
    Tokomaru K4A and K4B1 trustee
    Tuatini Maori Township section 1 block vi lot 2
    Rosaleen Aorangi Smith Whanau Trust

    Raymond Huo
    Chesterfields Trust (family trust)

    Shane Jones
    Te Puna o Te Anaru Trust
    Castlerigg Trust

    Annette King
    King-Lind Family Trust

    Nanaia Mahuta
    Mahuta Whānau Trust

    Stuart Nash
    Nash Family Trust

    David Parker
    Karitane Trust
    Sue Wootton Family Trust
    FD Parker Children’s Trust
    Tarras Trust

    Lynne Pillay
    The Pillay Trust

    Mita Ririnui
    Ririnui-Calhoun Family Trust
    Te Aomihi Anne Ririnui-Horne Family Trust
    Riripiti Timi Waati Lands Trust
    Te Arawa Lakes Trust
    Ngati Awa Māori Trust Board
    Pukeroa Oruawhata Lands Trust

    Ross Robertson
    The Robertson Family Trust

    • ghostwhowalksnz 2.1
      8 June 2010 at 7:03 am

      The Court had found the creation of trusts was quite legitimate. And as the labour Mps arent funnelling there income through the trusts to lower their taxes in the manner of the surgeons, I dont see the point.
      Examining Keys affairs would probably find massive avoidance , at such point it would be turned around and run as a ‘labour smear’

  3. theseeker 3
    8 June 2010 at 6:23 am

    i find it a bit rich of shg pointing out labour trusts

  4. simon 4
    8 June 2010 at 6:52 am

    SHG

    the issue is not having a family trust, but rather are they being used to avoid paying tax on high incomes.

    so shg can you confirm that each of those individuals avoided paying the top tax rate on their primary income (like the surgeons) ?

    Or are you just not very bright ?

    • SHG 4.1
      8 June 2010 at 9:52 pm

      shg can you confirm that each of those individuals avoided paying the top tax rate on their primary income (like the surgeons) ?

      Nope. Why don’t we have an enquiry and requires all MPs to detail their incomes and trust arrangements? I’m sure the Labour MPs will be right behind it, right Labour MPs?

      …Labour MPs?

      …Hey, where’d everyone go?

  5. Marty G 5
    8 June 2010 at 8:01 am

    that took you a long time, SHG, for something so transparent. Far more Nat MPs have trusts. And this decision doesn’t mean that all people with trusts are ripping off the tax man.

    I think that a lot of MPs put their assets in trusts in case they’re sued like Nick Smith. Do I think that’s a good thing? Probably not.

    • D14 5.1
      8 June 2010 at 8:11 am

      AND the mps income will be taxed at source at the appropriate rate. So there is no avoidance of tax as per the case quoted.

      • Marty G 5.1.1
        8 June 2010 at 8:13 am

        yeah. I seriously doubt Parliamentary Services lets MPs be employed as contractors with the money paid to their trusts.

    • Inventory2 5.2
      8 June 2010 at 10:15 am

      Far more Nat MPs have trusts.

      That’s probably because there are far more National MP’s Marty 🙂

    • SHG 5.3
      8 June 2010 at 9:54 pm

      that took you a long time, SHG

      Please, it took me about 30 seconds. Labour hypocrisy on the issue of trusts isn’t exactly a secret.

  6. vto 6
    8 June 2010 at 8:30 am

    This ‘rort’ only came about due to the rort that was Clark and Cullens 1999 envy income tax increase.

    • Marty G 6.1
      8 June 2010 at 8:34 am

      No it didn’t. That’s like saying speeding is the fault of car companies because cars can go faster than the speed limit.

      What happened to personal responsibility.

      How come nearly every country that is wealthier than us doesn’t have aligned tax rates and they don’t seem to have this problem?

      The rort was being allowed because the law was being blind to what everyone could see was happening. Now, it’s dropped the scales from its eyes.

      • vto 6.1.1
        8 June 2010 at 8:45 am

        Yes well it will be interesting to see if this goes to the Supreme Court. After all, trusts have been around for longer even than the NZ govt. It is the govts constantly changing rules and regs which are the problem.

        There is no problem in a business being owned by a trust. This is basic. And been about forever. The problem comes I guess in seeing ‘market’ wages as half-a-million plus. ffs, that is where you should be concentrating your energies. If anything, these surgeons are doing your own bidding marty by claiming that market wages are actually around 100k.

        Then there are the medical cartels. Surely a bigger rort. Like property investors claiming they buy properties for the income and not the capital gain. ha ha.

        • Marty G 6.1.1.1
          8 June 2010 at 8:50 am

          I don’t oppose high wages for surgeons. I wish there were more surgeons, which would bring the cost to more realistic levels. It’s the bludgers with shares, the CEOs, and the management class who take too much of the wealth at the expense of working Kiwis.

          But,on point, this concept of a market wage will be very interesting. IRD will have to start making determinations on what range is an acceptable market wage for various professions.

    • mickysavage 6.2
      8 June 2010 at 9:02 am

      Don’t you love it how the right come up with simple slogans to justify their views on what can be very complex issues.

      Instead of “envy tax” what about “extra money so that the State can improve education standards and the company’s infrastructure”? I know that it does not have the same ring but it is more accurate.

      • vto 6.2.1
        8 June 2010 at 9:11 am

        Because mickeysavage, that is absolutely not how the envy tax increase came about.. The labout govt were satisfying a sector of their voting base who had just voted them in and who have / had a pathological envy / hatred / ‘just-not-fair’ attitude to the people who earned above 60k. Cullen always exemplified this. Anderton too.

        The envy tax increase was not necessary to raise ‘extra money’. Clark and Cullen knew there was ample money in the govts coffers and it was very clear at the time that these coffers would be swelling over the coming years. Income tax did not need to be raised.

        It was not about raising extra revenue it was about taking more off people earning over 60k because they were ‘rich’, in order to satisy an ugly sector their voting base. (believe it or not the left has ugly parts too you know)

        • Bright Red 6.2.1.1
          8 June 2010 at 10:02 am

          The 39% rate raised about half a billion a year. If it hadn’t existed either we would be in deeper debt now or there would have been worse public services.

        • Draco T Bastard 6.2.1.2
          8 June 2010 at 11:32 am

          No vto, it really was about raising the extra revenue which was needed to get our community functioning again. Unfortunately, we just voted in a psychopathic National government that will undo all that was being done with that extra revenue so that they and their rich mates can have more money in the bank while the rest of the country suffers.

  7. aj 7
    8 June 2010 at 9:19 am

    Envy?
    New Zealand is one of the OECD countries with the lowest tax burden on labour income. The average tax wedge (average income taxes plus employee and employer social security contributions minus cash transfers as a percentage of total labour costs) was below the OECD average for all households in 2009. The tax wedge is 18 percentage points below the OECD average for single taxpayers earning the average wage; only Mexico taxes single taxpayers with average earnings at even lower rates. Lone parents with 2 children at 67% of the average wage face a tax wedge which is even 33.4 percentage points below the OECD average; the tax wedge for these households is negative which means that the cash transfers they receive exceed the taxes they pay.

    http://www.oecd.org/document/29/0,3343,en_33873108_33873658_45147741_1_1_1_1,00.html

  8. kriswgtn 8
    8 June 2010 at 9:29 am

    I was under the impression brand Key was worth 43 Mill before he became king and now hes worth 50 Mill??

    Not bad for past 18 months if this is true-7 million diff

    If it is true I would be interested in hearing him explain how he has made 7 mill in past 18 months

    🙂 esp if he dont know what inside his blind trust

    • Bright Red 8.1
      8 June 2010 at 9:58 am

      No-one really knows what he’s worth. although he said he took big losses on his Merril Lynch shares, which is where most of his wealth was.

  9. Roger 9
    8 June 2010 at 10:01 am

    If right wing morons can call it envy tax, we should call it responsibility tax. By avoiding tax these surgeons are being irresponsible to society and themselves. They are shortchanging the health system so they have no right to complain about substandard equipment in their workplace. They are shortchanging the education system that ensures that their workmates will be properly trained so have no right to complain about muppets making mistakes. They are shortchanging the emergency services to have no right to call 111 if their place of work or residence is burgled or burnt down. There is no envy here, just a request for people to take responsibility for the functioning society that we enjoy.

  10. coolas 10
    8 June 2010 at 10:35 am

    My accountant advised on forming a family trust many years ago. My children are the beneficiaries and effectively own our family home, vehicles, and investments. I own nothing in my name.

    Income earned from my work is taxed as an individual, any surplus goes into the trust.

    The main reason for forming the trust, according to the accountant, was to have no personal wealth when the time comes for me to go into old age care, so the Govt pays the $30k+

    Last year the trust paid no tax although the income was over $50k. The ‘bean counter’ said this was because of ‘diminished value’ of investments.

    There must be many people like me whose work is unrelated to finance and rely on accountants to sort out the money. But it’s glaringly obvious that being able to employ a sharp accountant who reduces tax liability is iniquitous.

    ps. I would be happy to pay a higher rate of tax if it meant achieving a more harmonious and equitable society.

    • Alexandra 10.1
      8 June 2010 at 5:56 pm

      The ability to avoid being asset tested if you go into a resthome or hospital is one of the reasons the not so wealthy are advised to set up a trust. Given that most people dont end up in one of those institutions, I think its around 12%. Losing control of your assets is a huge price to pay for the ..just in case senario. I do wonder about the wisdom of a trust in those circumstances and think the only one who benefits is the advisor . Personally I would sooner have the freedom to make my own financial decisionsm, including what I do with my assets.

    • Descendant Of Smith 10.2
      8 June 2010 at 6:05 pm

      The establishment of trusts in this manner is simply designed to move the responsibilty for paying rest homes if you choose (or your family chooses for you) to go into rest home care from the individual to the state.

      Yet another example of the right saying that you should take care of yourself then expecting the state to do so while they keep their wealth.

      There are plenty of sad effects as a result of people being sucked into this approach however: A not so bad example.

      A freind of ours was convinced to do this by a lawyer as his wife had Alzheimers at a young age. She was never going to live until 65 – residential care is non asset tested until 65 – and didn’t. As a result he now has the family property in a trust, has few cash assets as the last few thousand he had went to establish the trust and a legal obligation to look after the interests of the benenficiaries of the trust that now include his children. He can’t simply up and sell as he could before he was deprived of his asset – nor does he have the money to dis-establish the trust even if he could get the agreement of his kids.

      He’s a few thousand dollars out for no real gain. Only happy person is his lawyer – and possibly the kids who now effecitvely have a share of dad’s home.

      Don’t necessarily expect to get the same care as a state funded rest home client either – my wife’s family experienced the move from fee paying to state funded after spending several hundred thousand in residential fees. As her money ran out she was moved from her own room to a room with other people – different funding different service. She was dead shortly thereafter.

      In Australia this was always referred to as the cockroach syndrome. Once you became state funded you got moved to the room with the cockroaches.

      If you didn’t work hard all your life so you could have decent care in your old age what the hell did you work for?

      Remember right wingers (whingers) your kids do not need your money cause all they have to do is get off their bums and work hard. You don’t need to let them inherit a cent cause they can all be self made millionaires – I mean they’ve got your genes haven’t they. You can therefore spend all your money on the best care you can get.

      And remember too the state doesn’t take your money – the private enterprise free market rest home does.

  11. prism 11
    8 June 2010 at 10:36 am

    Reality rules and it says that if we had to run the country on the revenue from the tax level of poorer people then we couldn’t have the standard of resources and infrastructure that we have.

    The tax rate for the wealthy has come down sharply in recent decades and stats show their incomes have followed a nice upward curve that is in contrast to the lower income earners. Unhappily many wealthy people are so far from the experience of living comfortably on an average salary, that they freak out into ‘miser mode’, a bit like Howard Hughes.

    If the surgeons are doing a good job, they are worth high money, it’s hard work. They are paid well, live well, and can make decisions to take their families to Hawaii for a holiday where apparently the elite go. Nice. Yet the desire to accumulate exponentially can mean they don’t want to contribute to the system that provides the place and currency for the use of their skills. Trusts are useful to guard and control assets etc. but why should the wealthy avoid tax and governments allow this (yet have huge marginal tax on every earning initiative that beneficiaries make).

    I did a Development paper which looked at Mao’s reasoning and his achievements in China. He was hard on medical people at the high end, and spent money instead bringing field medical workers to all and ubiquitous treatment units.

  12. Craig Glen Eden 12
    8 June 2010 at 11:44 am

    Envy tax what a joke I dont envy anyone, what I do dislike is bludgers, the worse type are rich bludgers. These people are takers they think its their right to have a luxury life style and the rest of society is in existence to fund them they fleece Mum and Dad investors and when it all fails they still have their homes cars and overseas holidays.
    Now I am not talking about kiwi small business people who are battling away in their own business with a few employees, I am talking about ticket clippers like Key.
    They have never built a business in their life let along worked the business, my dislike for them is not based on envy its based on the fact that what they do is morally wrong, they don’t pay their own way, they don’t help build our Nation.
    People who have their own business ,employ others deserve a medal as far as I am concerned and I dont care what money the make good on them as long as they also pay their taxes its all good.

    Rich Bludgers on the other hand make me sick

  13. ieuan 13
    8 June 2010 at 11:45 am

    It surprises me that the IRD had to even fight this in the courts, it seems that in this case that it is very clear that the setting up of the trust was simply to avoid taxes.

    Marty you would have to admit that the best way to eliminate the trust tax rout is to align the tax rates for trusts and other income.

  14. Herodotus 14
    8 June 2010 at 4:18 pm

    I agree with Gareth Morgan in this article regarding the front to increase of personnel tax to 39% and as GM states it was all about perception and not on reality. Lets just put the knife in and twist it into the workers back by the so called protectors of the workers, the nurses, police teachers that cannot use tax limiting vehicles to hide behind yet they can pay the 39% marginal tax rate and like Maori will vote for us no matter what. Hopefully Lab will have learnt their lesson Not to take their voter base for granted.
    With so much discussion about tax and the various vehicles to hide behind perhaps we will get a real discussion and action points from what has been a previously passive Labour party and the Greens.
    p.s. It good to be back !!!(Early haha) IPrent!!
    http://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=10648752

    • vto 14.1
      9 June 2010 at 8:04 am

      Completely agree heredotus. Helen Clark knew when the rate was raised to 39% that it would affect her salary and wage earner voters only. Slammed the salaried and waged she did. She knew that business people and truly rich would get around it. She knew that. Doesn’t make her a very person, on this issue, does it.

  15. vto 15
    9 June 2010 at 8:11 am

    You know Marty, there is a major flaw in this IRD case against the surgeons whose companies earned circa 500k while they paid themselves only 100k.

    Any money in excess of 100k that was used for their personal benefit by the company or trust is deemed income / dividend and becomes taxable at the personal rate not the company rate. For example, company car, cellphone, conferences (holidays of course), etc. And who paid the kids school fees? Insurances? Petrol, etc etc etc.

    Methinks there was another way the IRD could have attacked this structure. The rules were already there to ensure all personal income (whether via trust or company) was taxed at the personal rate… Unless the surgeons and their families really did live on 100k. But if they lived in Fendalton in a big mansion and drove late model euros then they would not have….
    (all provided my tax understanding is correct….)

    I see that the IRD is now going after Kruckzeiner for living on company loans rather than income. Same logic being applied by IRD.

    where will it all end?