Deborah Russell: Preliminary thoughts on the Government’s new tax

Written By: - Date published: 9:15 am, May 18th, 2015 - 48 comments
Categories: capital gains, Economy, tax - Tags:

The National Party has announced a new tax on the sale of properties. It will apply to all residential rental properties bought after 1 October 2015. If you buy a residential rental property on or after 1 October, and then you sell it again within two years of purchase, you will be taxed on the difference between the sale price and the purchase price.

A caveat: the full details of the proposals are not available yet, so this analysis is based on the fact sheet issued by Inland Revenue’s Policy and Strategy Division, rather than on any more detailed discussion paper or draft legislation.

First up, is this actually a Capital Gains Tax? Yes, and no. As I’ve discussed before, New Zealand already sort of has, and sort of doesn’t have, a Capital Gains Tax. Our existing tax laws already provide for persons who buy something with the intention of resale, or persons who are in the business of buying and selling something, to be taxed on any gains they make.

This proposed new law doesn’t change those rules. All is does is say that if you sell a property within two years of purchasing it, then you will have to pay tax on the gain on sale, if any.

But some properties will be caught in the tax net when previously they would have escaped it. Previously, IRD had to prove that there was an intention of resale before any gains on sale were subject to taxation, and many investors / speculators would have been able to argue that they had bought the property as a capital asset. That would have meant that any gains on sale were not subject to tax. Now IRD simply has to apply the two year rule. So many more property sales will be subject to taxation. To my mind, that makes this a new tax, or at the least, a significantly expanded tax, and it taxes some capital transactions that previously weren’t taxed.

You can make a reasonable case for this not being a capital gains tax, and not being a new tax. Nevertheless, it’s a significant shift in the way that we tax, or don’t tax, property transactions.

What we don’t know yet is whether losses on sale will be deductable. It would be extraordinary if they were. Most CGT regimes around the world don’t allow the deduction of capital losses, or at best, only allow those losses to be offset against future capital gains. This detail should be clarified when draft tax legislation is released, and in subsequent discussion. Per the IRD fact sheet, a discussion paper will be released in July, and legislation will be introduced in August this year.

So what difference will it make? Very little in terms of tax revenue. I imagine that most property speculators will simply elect to hold onto their properties for at least 731 days, thereby avoiding paying tax on their capital gains. The real effect will be to slow down the property market in Auckland, and elsewhere. It will knock the top edge off the market, winding it back just a little bit. Together with the Reserve Bank’s new rules about the deposits that Auckland property buyers must have, the heat may be taken out of the property market. There will still be pressure due to inwards migration, but frantic speculation in property should calm down.

So why use a tax measure at all, if it’s not going to raise any revenue? And heaven knows that the government must be looking for every possible tax dollar it can find.

It’s a preventative measure, not a revenue raiser. Back when we had a gift duty in New Zealand, there was never very much gift duty raised. Instead, the threat of gift duty meant that people didn’t try to avoid income tax by gifting away assets that earned income. So they couldn’t engage in all sorts of elaborate tax schemes, or if they did choose to do so, there was a price to pay. Most people elected not to engage in the elaborate schemes, and so very little gift duty was ever collected. It was a very effective tax measure.

Likewise, this measure should be very effective in shutting short term speculation down. I suspect that once the two years is up, plenty of properties will end up on the market, but very few properties will be sold under the two year mark, and so very little tax revenue will be collected.

There will be some losers from this new, or expanded, tax. Most property speculators will be able to arrange their affairs so that they are not caught by the two year rule. If you have to move towns for work, and you turn your family home into a rental property, you won’t be caught; there will be an exemption for houses that have been the family home. If your marriage goes belly up, and you have to sell your joint investment property, there’s an exemption for you too. This is more-or-less consistent with other tax law; we try not to tax people on the vagaries of fate.

However, some people who own residential rental properties might get caught out. For example, imagine a small business owner who runs into cashflow difficulties, and so is forced to sell a residential rental property. Or think about someone who has bought a house that they intend to live in, but in the meantime has rented it out, and then loses her or his job and is forced into selling the property.

I suspect that the only people who will get caught by this law will be those who have run into some misfortune. Getting taxed on the sale of your investment property seems to be a harsh consequence, especially when we don’t tax other capital gains.

The big question is whether the two year rule will work. That’s going to depend a little on how investors and / or speculators have structured their finances. A clever investor / speculator will have structured their affairs so that they pay as little tax as possible. Perhaps they will be happy to wear some tax in order to get the cash from a short term gain.

What this tax is not, is a comprehensive capital gains tax. If an investor sits tight for at least two years, then whatever capital gains she or he makes will be completely tax free. The Minister of Revenue has argued that:

They will still be subject to tax under existing rules if they buy a property with the intention of selling the property for gain – even if they do so outside the two-year “bright line” period.

Right, sure, whatever, but at that stage, IRD will have to prove that there was an intention of resale. That has always been hard to demonstrate, and it will be even harder now that government has reified two years as the magical dividing line. Holding onto a property for longer than two years could well be taken to indicate a serious intent to invest for the long time. Those untaxed capital gains will remain, untaxed. And that on-going inequity in the tax system has yet to be addressed.

Repeated from Left Side Story.

48 comments on “Deborah Russell: Preliminary thoughts on the Government’s new tax ”

  1. r0b 1

    Thank you, that’s by far the best briefing I have read on the issue.

    • aerobubble 1.1

      A tax on capital gain is not what we understand to be a cgt. Erh.
      yes, for sure, its not comprehensive, since its more comprehensive than the mind reading of the previous rule.

      Its a u turn, that will lower the supply of homes more, force in investers to open bank accounts and wait two years only to be taxed anyway as they never stepped on the property or even into the country.

      Yeah you guessed it, for the hardered investor it’ll matte diddly squat.

  2. Charles 2

    As above, it’s a very good briefing on the situation, thanks.

    “However, some people who own residential rental properties might get caught out. For example, imagine a small business owner who runs into cashflow difficulties, and so is forced to sell a residential rental property. Or think about someone who has bought a house that they intend to live in, but in the meantime has rented it out, and then loses her or his job and is forced into selling the property.

    I suspect that the only people who will get caught by this law will be those who have run into some misfortune.”

    I dunno if “forced” and “misfortune” are the correct words for these arguments, though, since there are alternative options in both cases to avoid the tax and “misfortune”. But it may just be my outlook. I find it hard to sympathise with a perspective that is more/less, “…I shouldn’t be slowed down by anything on my rightful climb up the ladder…” because such a mindset creates the kind of “bubbles” that cause wider damage.

    • Liberal Realist 2.1

      ” dunno if “forced” and “misfortune” are the correct words for these arguments, though, since there are alternative options in both cases to avoid the tax and “misfortune”.”

      +1. When you invest in anything there is always a risk. Golden rule, don’t invest in anything you’re not prepared to lose. Investing in anything carries risk. Investing into an obviously overheated speculation driven property market poses significant risk but staggering returns (Auck, present). It can’t and won’t last forever.

      State intervention is always a risk in any market, especially a distorted one. Sure, this one is marginal at best but that’s not to say that there won’t be another down the track (Late 2017 perhaps?).

      Can’t miss out, price spiral upward forever type thinking or is it just greed?

  3. Sable 3

    I fail to see how this will make much difference personally. It might take a little of the heat out of the market but it will be minor at best.

  4. saveNZ 4

    My thoughts are:

    At least something is being done. They should bring it in immediately so that in the next 5 months the Auckland market will not go crazy with speculators buying before the new rules come in, in October.

    Secondly it should be longer, like 5 years before you can resell the property. Also how much is the tax?

    I don’t think it will make a huge difference but can slow it down a little.

    The main issue in Auckland is migration.

    The Australian system of making migrants build new should be bought in, for a short time to try to redirect the revenue and allow more locals to buy the existing stock.

    However the RMA would need to be strengthened as at present the Auckland council is consenting everything with no effects mitigated and essentially in 5 years some very serious problems will start to show up (like with leaky buildings and the amenity issues with AK CBD) and and it will directly related to the incompetent way the council and environment court are putting through their consents now.

    The district planning rules are regularly being violated and in extreme ways in Auckland. The only public scrutiny has been a few cases like the Ports of Auckland and the Kauri trees, but the same issue are widespread and any person can get anything through and the council officers have massive control the environment court rulings.

    We may have more houses, but what about the quality of the houses, the affordability of the houses, the impacts of poorly planned businesses, and the quality of life from those decisions.

    For example with the Ports of Auckland, we might have more cars and bananas on our reclaimed ports of Auckland wharves which apparently bring in more money to Ports of Auckland, but then no one wants to live and work and invest in Auckland because some resource consent officers can just start reclaiming the harbour in front of your development. No noise controls, no visual controls, actually nothing there to protect your amenity. Let alone the issue of getting the stealing the harbour for nothing.

    Or some shanty apartment block pops up next to some upmarket block.

    Everyone is gridlocked trying to drive in, because the housing development or commercial development never planed any public transport in the consent.

    I say this, because in the Crosby Textor discourse, the Nats have blamed the RMA for housing issue, but the reality is the opposite. The stupid RMA decisions now, are going to be a huge cost in the future in many different ways and in ways that can not be easily rectified.

    Once a building is there, it is there for 50 plus years and existing rights can be revoked. Once Ports of Auckland steal the harbour it is gone. The Kauri trees and bush will not be there anymore once cut down. The Bunnings, oil refinery or what have you will all have an effect and also set precedent for more to come.

    NZ will no longer be clean and green and socially and environmentally responsible.

    The other main housing problem is the high prices and monopolies in the building and infrastructure in NZ. In a country where we make many of the raw materials in building it is alarming how much higher the costs are here per square meter.

    I can’t see anything being done about all these problems in the new measures.

    • Tracey 4.1

      “At least something is being done.”

      Actually I think you are wrong cos I think we are supposed to think something is being done but nothing much is being done at all. And why would it when the PM doesn’t consider there is a problem. He sees the problem down the line not now.

  5. RedLogix 5

    Excellent briefing.

    And your conclusion is broadly correct. This is nothing new, it’s not technically a CGT although it will have the effect of one.

    And while it may take some of the steam out of the Auckland market – I’m doubt it will make housing any more affordable for working New Zealanders at all.

    And it will be a problematic tax to administer… all without addressing the fundamental lack of horizontal equity the current regime suffers from.

    In many ways we would be better off just having a uniform 15% CGT applied to all asset classes (including the family home) – eliminating all the loopholes and associated bullshit.

  6. Bearded Git 6

    Excellent Deborah, that all makes sense.

    The new tax rule does give Labour the option (as a policy) of toughening/refining the rule by making the sell-by period 3 or 4 years, while reminding the electorate that this is National’s tax rule that they are refining. Such a move would give it far more teeth.

    And the fact remains that Key/English have long held that changes to the tax system were not needed because there was no problem with the Auckland housing market, so this is a highly embarrassing u-turn by National.

    • dukeofurl 6.1

      real estate agents were the most notorius users of the buy quick and sell again quick.

      They would use their position with the owner to but it themselves at a cheaper price, they are not supposed to do this but its easily got around using a work colleagues name or mother name etc.
      They re-market the property very quickly as a gain of $15,000 to $25,000 is easily achieved.- Tax free.

      • RedLogix 6.1.1

        Absolutely rife. Caught an agent out doing this on a property I bought two years ago.

        Took the matter to his manager – who more or less admitted it happened all the time and there was little she could do about it.

        • Lanthanide 6.1.1.1

          I can’t see a 33% tax really stopping the practice. It’ll mean some marginal cases maybe aren’t worth the effort, but $10k in the pocket (instead of $15k) for not much risk / work is still attractive.

          If the agents are already brazenly doing it, then they may be already be abiding by the IRD’s “intentions” rule anyway, in which case this won’t change anything.

          • Craig H 6.1.1.1.1

            Bingo – for this tax to be effective, there has to be a profit. If there’s a profit, they will likely still do it, because money talks, and just accept less money in the pocket.

  7. Sirenia 7

    Will it stop people putting all their property assets into family trusts, and so having a low tax rate on their income? Or encourage it?

    • Herodotus 7.1

      Unless there is a exemption clause or I am unaware of something already in the law, transferring to a trust would count as a sale. As the property will have a change of ownership which should have to be transferred at the current market price and recorded at LINZ. But there could be a wee surge or work for lawyers as some try to beat the October deadline. BUT I maybe wrong

      • The Gormless Fool formerly known as Oleolebiscuitbarrell 7.1.1

        There is bugger-all tax saving by putting property into a trust. First, you need your property to be income-producing. Then, you need a non-minor beneficiary whose marginal rate of income tax is less than the trustee rate of 33%.

  8. mpledger 8

    It’s easy enough to get around is the sale isn’t ultra desperate. If someone needs to sell a rental property they kick the tenants out (which doesn’t take long if the owner wants to live in it), (pretend to) move in, call it their family home (even if the rest of their family lives elsewhere – they just have to pretend they’ve separated) and then sell.

    Unfortunately, to make it more dodge-proof the family home should count.

    • Lanthanide 8.1

      Yeah, maybe that’s possible on paper.

      But in practice, the IRD already asks about your ‘intentions’ with the property. Whereas before it was (apparently) possible to lie to them and construct a convincing facade, I think it will be much more difficult now if they ask those same questions AND you’re doing all of these slightly odd things before the 2 year deadline is reached.

      Purely because of this new rule, they’ll be able to crack down harder on these sorts of rorts (but as Deborah Russell suggests, this may now mean that if you go 2+ years it’ll be easier to get away with things).

    • Tracey 8.2

      That doesn’t sound “easy enough”, it actually sounds like hard work…

      • mpledger 8.2.1

        I’ve heard of one instance where a landlord kicked out tenants because he said he wanted to live in a property, once they were gone he put the property on the market. When I’ve told this story to other people they have heard of it happening to others as well.

        You don’t have to do a whole lot more to get around this new CGT.

  9. Lanthanide 9

    Make it 5 years instead of 2 and it has some real teeth.

    • Tracey 9.1

      Was thinking that if they were serious they would have made it 5 years. They are not serious about anything other than looking like they are doing something. So decided on 2.

  10. Tom Gould 10

    Hard to say it, but John Key and Bill English deserve credit for swallowing their pride and bringing in their own capital gains tax on residential property. It might not be perfect, but new taxes seldom are. So take a bow, boys. No doubt, future governments will continue to refine their CGT as time goes on, as normally happens with taxes.

    • AmaKiwi 10.1

      When personal income tax was first introduced in the USA (approx. 1905) the top rate was less than 5%. At times the top rate has been as high as 80% or more.

      That’s called “refining” a tax.

      Thank you National for bringing in the tax that cost Labour/Greens so much support in the past 2 elections.

    • Wayne 10.2

      Tom,

      It is not really a capital gains tax as such. It is essentially a “black and white test” for determining whether a person has bought a property with the purpose of resale.

      Such transactions are already taxable as income taxed at the appropriate income tax rate, but the challenge has been to determine whether the property was purchased for that purpose. A two year rule removes the requirement to prove the purpose. Of course it is also an incentive to hold for more than 2 years.

      If the period had been longer, say 5 to 10 years then it probably could be classed a limited form of CGT. In that case a tax rate lower than the income tax rate would be justifiable, say 15% as in Australia.

      • vto 10.2.1

        Not only does it determine the intention for those sales of two years or less, it also by default (despite protest to the contrary) determines the intention of those sales of greater than two years…..

        now add up the gains and losses around this and you will see that this law is actually an advantage to the property people which will result in less tax overall as people bunch their intentions according to the two year law

  11. Phil 11

    https://www.qv.co.nz/n/news-details/phoenix-78?blogId=65

    The last chart shows some interesting results, but only has up to 2012 data. If the composition of the Auckland market is broadly the same today (and it’s certainly easier to make a case for more speculation, as opposed to less) then there is a big pool of potential targets that will be within scope of this tax. Certainly a lot more than just “those who have run into some misfortune”.

  12. AmaKiwi 12

    I have Left of center friends who voted for Helen but turned their back on Labour the second Goff proposed a capital gains tax back in 2011.

    Now National will have to wear the CGT and their broken promise.

    The next Left government will make some “minor adjustments” to National’s CGT tax. “Minor” like GST going from 10% to 15% and my rates doubling in 5 years.

    This was a strategic blunder by National. I couldn’t be happier!

  13. mickysavage 13

    We are truly approaching the end of days. Over at Kiwiblog DPF has praised Deborah’s post and I have let the Kiwiblog link through!

  14. Brillo 14

    If the Labour Party does not give this intelligent and capable woman a much higher list place, they need their bumps felt.

    She’s what we need in Parliament (and no, we are not related!).

    • cricklewood 14.1

      Agreed, It’s refreshing to read such a concise and easy to understand analysis.
      I can’t help but feel that if some of the more Senior Labour MP’s had Deborah’s communication skills the proposed CGT wouldn’t have been much better understood and received by the voting public.

      • Colonial Rawshark 14.1.1

        By all means, Labour certainly needs more policy specialists, technocrats, intellectuals and academics as MPs.

        • Saarbo 14.1.1.1

          Lol. I got up to

          First up, is this actually a Capital Gains Tax? Yes, and no.

          before ZZZzzzzzzzzzzzzz zzzzzzzzzzzzzz zzzzzzzz zzz…Im an ex beancounter…now allergic to tax.
          Deborah would probably make a great advisor on Tax to Labour, not so sure a politician tho…IMHO.

          • Colonial Rawshark 14.1.1.1.1

            I mean, yeah. Have we really forgotten the difference between a policy analyst and a politician? Do we really think that technocrats and PhDs and academics and policy specialists are what Labour needs more of in caucus – because the performance problems within the Labour caucus over the last 3 elections is that there have simply not been enough technocrats, PhDs, academics and policy specialists in amongst them? I shake my head in wonder. Labour faces a massive cultural gulf between itself and the electorate. 8 months after the last election and I see no signs of that gulf being understood, let alone bridged.

  15. DH 15

    There’s a telling comment from Key which reveals National’s real intentions;

    http://www.stuff.co.nz/business/money/68621964/no-housing-crisis-in-auckland-john-key

    This bit at the end…

    “Instead he described the changes as an “intentions tax” which he hoped would contribute to a more “gradual price rise” of housing in the future”

    That couldn’t be any clearer, he fully intends for Auckland house prices to continue rising.

    • Colonial Rawshark 15.1

      Huh? Neither Labour nor National nor the Greens nor any other party have proposed that Auckland house prices should be locked down at current levels.

    • Lanthanide 15.2

      “That couldn’t be any clearer, he fully intends for Auckland house prices to continue rising.”

      Considering that inflation is targeted at 1-3%, if house prices did not rise at all, they would be decreasing in real value.

      • Colonial Rawshark 15.2.1

        Well, the reversion to mean will happen some time, whether it is two years from now or twenty years from now…and then yes, there will be a tonne of “value” (mistaken as that term is) that is lost.

  16. Stuart Munro 16

    This tax will make a great base from which to extend to a full CGT – at its simplest you only need to extend the two year period.

  17. Richard McGrath 17

    A good read, thank you Deborah. Nice to read something on this blog without obvious left-wing political spin.

    • red-blooded 17.1

      Does this site pretend to be anything other than left in its political values? There are sites that pretend to be neutral (think Kiwiblog), but The Standard has always been perfectly open about being a left wing blogsite and discussion space.

      A great summary; thanks Deborah. Having said that, I also really enjoyed hearing Guyon Espiner having JK on about this issues this morning, with our esteemed leader twisting and turning and not quite succeeding in arguing that:
      a) this tax on capital gains isn’t a CGT, and
      b) he still thinks there’s no real problem with the Auckland housing market.

      You did a much better job with the a) part of this discussion than he did, Deborah.

  18. Clemgeopin 18

    Deborah Russel has written so well about this tax which in my opinion is primarily a Clayton’s tax which will have very little desired effect. The CGT be easily avoided by the property speculating wealthy sharks, while inadvertently causing hardship and heart ache to many ordinary honest people everywhere, including people living in the provinces away from the Auckland housing mayhem.

    Incidentally, I enjoyed reading another article by her on her website regarding the despicable Pony-tail shenanigan indulged in by Key. Here is the link if you would like to read that too:
    http://deborahfrussell.net/2015/04/29/mr-collins-mr-key-and-refusing-to-hear-no/

    • vaughan little 18.1

      slowing down resales to two years is the moneyshot. it breaks the ground that labour/greens can build on down the track, so i’m hopeful for it.

      also, you only get taxed on the capital gain, so it’s not like the tax is gonna be materially hurting people who have to sell up for changes in personal circumstances.

    • mac1 18.2

      That article on refusing to hear “No!”, like the post above, was a well argued and readable article. Thanks.

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