Trusts and the new tax statement rules for land transactions

From 1 October 2015, all parties to transactions which include a transfer of land or an interest in land have to complete a “tax statement” as part of the registration process.

We summarise how the new rules apply to trusts.

New requirements in brief

The tax statement is a one page form setting out whether the property is intended to be the party’s main home, that party’s citizenship, tax residence and IRD number, and any foreign-equivalent IRD numbers.

The two key points are that in order to transfer land or an interest in land, including to update the land information register following a change of trustee:

• all trusts need an IRD number, and
• in the case of a trust that is an “offshore person” (see below), the trust also needs an active bank account.

These new requirements are contained in the Land Transfer Amendment Act 2015 and the Tax Administration Amendment Act 2015, both of which were enacted on 22 September 2015. They are a precursor to the proposed “bright-line rule” which will see income tax collected on gains made on properties sold within two years of acquisition, subject to certain exemptions. The rules should also be viewed in the context of increased information-sharing generally between governments.

Who completes the tax statement?

A tax statement must be completed by each party to a transfer of land. Where there are multiple transferees or transferors, such as trustees of a trust, each individual must complete and sign a tax statement.

When completing a tax statement, the trustees of the trust must complete the tax statement in that capacity, meaning that they are to provide the trust’s IRD number, rather than their individual IRD numbers. If the trust does not have an IRD number, the trustees must apply for and obtain one before they can register the land transaction.

Be aware that obtaining an IRD number for a trust can take between eight and ten business days.

Once a trust has obtained an IRD number, other tax obligations, such as filing income tax returns may apply. An exemption from the obligation to file an income tax return is proposed for non-active trusts, but it has not yet been enacted and therefore cannot be relied on.

In cases where a nominee is a party to a transaction on behalf of an undisclosed principal, it is the principal that will have to complete a tax statement – undermining the anonymity that was previously permissible.

Although there is an exemption from the requirement to provide an IRD number where a transaction relates to the party’s main home, this exemption does not apply where the party is a trust.

Offshore persons

The additional requirement to have a bank account applies to “offshore persons”. Note that it can take up to three business days to open a bank account in New Zealand once all the required information is made available to the bank.

For the purposes of these rules, for an individual, an “offshore person” is an individual who:

• is a New Zealand citizen who is outside New Zealand and who has not entered New Zealand for three years
• is a New Zealand resident holding a residence class visa who is outside New Zealand and who has not entered New Zealand for 12 months, or
• is not a New Zealand citizen and does not hold a residence class visa.

A trust is an offshore person (or can become one) for the purposes of these rules if 25% or more of any of the trustees, appointors or ultimate beneficiaries meet the above criteria.

Confidentiality

Information provided in a tax statement will not be made publicly available.

Non-compliance

Failure to comply with the requirements will mean that the land transfer cannot be registered. Further, filing a false tax statement is an offence under the Tax Administration Act 1994.