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The new tax reporting requirements for trusts in New Zealand may have unintended positive effects

type
Article
author
By Henry Brandts-Giesen, Head of Private Wealth, Dentons Kensington Swan
date
5 May 2022
read time
4 min to read
Monopoly board showing man standing on a tax square

In early 2021 I posted about the Government passing legislation under urgency just before Christmas to increase the top income tax rate applicable to individuals from 33 per cent to 39 per cent and impose new IRD reporting obligations for trusts.

Although it may not have been the policy intent, I predict that these new rules will accelerate reform to traditional wealth planning in New Zealand. Such reform, if done properly, would be a positive development.

IRD has now finalised the new reporting requirement for domestic trusts

The IRD has now finalised its Operational Statement on the new reporting requirements. In summary, from the 2021–22 income year, most New Zealand trusts must:

Non-active complying trusts with no income are exempt from these requirements and there are some concessions for other trusts with nominal income.

Some trusts are exempt from the additional disclosure requirements

The following trusts must file a tax return but are exempt from the additional disclosure requirements:

  • foreign trusts
  • charitable trusts
  • trusts that are eligible to be Maori Authorities; widely-held superannuation funds
  • exempt employee share schemes
  • debt funding special purpose vehicles and
  • trusts set up to hold electricity lines companies.
The additional disclosure requirements are extensive

The additional disclosures required for trusts are:

  • a statement of profit or loss and a statement of financial position
  • the amount and nature of all settlements made to the trust in the income year
  • the name, date of birth, jurisdiction of tax residence, and tax file number/taxpayer identification number of all settlors who have made a settlement on the trust in the income year, or settlors whose details have not previously been supplied to IRD
  • the amount and nature of all distributions made by trustees of the trust in the income year
  • the name, date of birth, jurisdiction of tax residence, and tax file number/taxpayer identification number, of all beneficiaries receiving such a distribution and
  • the name, date of birth, jurisdiction of tax residence, and tax file number/taxpayer identification number, of each person having a power of appointment under the trust deed (including the power to appoint or dismiss a trustee, add or remove a beneficiary, or amend the trust deed).
Most trusts will also have to prepare financial statements

Furthermore, most trusts will also have to prepare financial statements. While these financial statements are not filed with the IR6, they must be available if IRD requests to see them.

The specific requirements of the financial statements are set out in the Tax Administration (Financial Statements — Domestic Trusts) Order 2022. The form and content of the financial statements will depend on whether the trust qualifies as a “simplified reporting trust”.

A simplified reporting trust has less onerous reporting obligations

In response to submissions on the originally proposed rules IRD made some concessions, including a two tiered reporting regime. Consequently, a “simplified reporting trust” has less onerous reporting obligations.

A trust qualifies as a simplified reporting trust if it has:

  • assessable income of less than $100,000 in an income year
  • deductible income of less than $100,000 in an income year and
  • total assets of less than $5 million.
Financial statements must be prepared to a basic minimum standard

All trusts required to file a tax return must prepare financial statements to a minimum standard that includes:

  • a statement of financial position (showing assets and liabilities of the trust using one or more of three specified valuation methods, and state which type is used)
  • a statement of profit or loss (showing income derived and expenditure incurred)
  • using the double-entry method of recording transactions and
  • disclose the type of valuation principle adopted for shares/ownership interests, land and buildings.

In addition to the above requirements, the financial statements for trusts that are not simplified reporting trusts must:

  • be prepared applying the principles of accrual accounting
  • include a statement of accounting policies
  • disclose comparable figures for the previous income year to the extent that the trustee has that information
  • include a reconciliation between the profit or loss in the statement of profit or loss to taxable income
  • include an appropriately detailed schedule of the trust’s fixed assets and depreciable property used for tax purposes and
  • disclose details of any below market value transactions between a trustee and an associated person (aside from minor transactions incidental to the trust’s activities) including the person’s name, the nature of the association, the nature of the transaction and the amounts involved.
These new rules may accelerate changes to traditional wealth planning in New Zealand

I have previously posted and spoken about the way in which Governments are being compelled to repair sovereign balance sheets by raising tax rates and imposing new forms of tax. To inform tax policy Governments are increasingly gathering more information about taxpayers. These new rules for New Zealand trusts are just one of many examples from around the world where trusts are being targeted. I predict this scrutiny on trusts will widen and deepen and some of the purposes for which they have traditionally been used (e.g. privacy and tax planning) have been or will be defeated.

Similarly, I have for several years argued the need to rethink traditional asset planning in New Zealand because, in my view, many plans involving trusts are fundamentally flawed in both design and implementation. I predict that these new domestic trust reporting rules will accelerate reform in traditional wealth planning techniques. They will hopefully motivate some advisors to think beyond the archetypal multiple family trust structure with little or no independent governance, due process, or proper administration and a prevalence of hard wired conflicts of interest (e.g. advisors and family members acting as trustees). This Kiwi way of doing things is very peculiar in a global context and causing friction in the "The Great Wealth Transfer" from the baby boomers to the rising generations, which is already well underway.

In my view, a better way of doing things will involve simpler (but at the same time more sophisticated) arrangements with fewer trusts and alternative solutions like Family Investment Holding Companies and Family Limited Partnerships and financial and insurance products such as whole of life policies, PPLI and captive insurance. 

About the author

Henry Brandts-Giesen heads New Zealand’s Private Wealth team, advising high net worth individuals and families, family offices, athletes, entrepreneurs and captains of industry to structure their wealth.

Henry also assists trustees, multi-family offices, financial institutions, accountants and other law firms to manage fiduciary risk and regulatory compliance. He is an expert in global tax and money laundering rules such as FATCA, CRS, AEOI, and AML/CFT.