EMAIL NEWSLETTER
AUGUST 2013
Welcome
again to the McLean
and Co. Newsletter
in which we discuss current taxation and business matters. We trust
you find it informative.
We
are happy to accept new clients. We would be happy to assist colleagues
and acquaintances as new clients.
INDEX
-
IRD Scam Emails
-
Mixed Use Assets
-
Mixed Use Holiday Homes
-
Buying at Mortgagee Sale- Things to Be Aware of
IRD SCAM
EMAILS
It
is noticeable that a few IRD scam emails and also faxes have been doing the
rounds lately. These can be quite deceptive as they feature the IRD logo,
and sometimes say you have a refund available, or ask you to complete
disclosure forms. Be aware!!! IRD do not communicate
with taxpayers in this fashion. These are deliberate attempts to use
the IRD logo and brand to steal confidential and personal information, and
any information given can result in a business or individuals suffering
identity and date theft and possible financial loss. If you receive
such emails or faxes destroy them immediately. You can also email phishing@ird.govt.nz
to report them to IRD.
MIXED USE
ASSETS
The Tax Bill containing
the new Mixed Use Assets Expenditure rules (“the MUA rules”) received Royal
Assent on 17 July 2013 with retrospective effect (1 April 2013 for most).
These rules significantly change the way expenditure is apportioned on so called
mixed use assets. A Mixed Use Asset is one that is - used to derive
income, used privately, and not actively used for a significant portion of the
income year. Taxpayers can no longer claim the period an asset is
"available for use" but not actually used as relating to income
generation resulting in full tax deductibility of costs during that period.
The focus is now squarely on actual use or active use with periods of non-use
ignored for the purposes of determining tax deductibility of expenditure.
MIXED USE HOLIDAY HOMES
From the beginning of the 2013–14 tax year owners of
“mixed-use” holiday homes will have to work out their income tax obligations differently.
You have a mixed-use holiday home if, during the taxyear, your property is used both for “private use” and“income-earning use”, and it’s also unoccupied for 62
days or more.
What is “private use”?
Private use of your property means:
-
use by you or your family, even if rent is paid.
-
use by non-associated people if you earn rent at less
than 80% of market rates.
What is “income-earning use”?
Income-earning use of your property means use by a
non-associated person from which you earn rent at 80%or more of market rates.
Visits for repair work
If you stay in your property to repair damage caused by
tenants during “income-earning” days, your stay is also counted among your “income-earning” days.
Exemptions
If your income from income-earning use is less than
$4,000 for the year, you can opt to keep the holiday home outside the tax system.
That means your rental activitydoesn’t need to be included in your income tax return.
You don’t return any of your income and you can’t claim
any of your expenses for the holiday home. You can also
choose for your rental activity to remain outside the tax
system if:aes for holiday homes
The above exemptions don’t apply to holiday homes
owned by companies.
What income is taxable?
You must pay income tax on rent earned from income earning
use. Any rent from private use is exempt from income tax.
What
Expenses are deductible?
Expenses from mixed-use holiday homes fall into threecategories:
1. Fully deductible. You
can claim 100% of any expense which relates solely to the income-earninguse of the holiday home.
Examples: Costs of advertising for tenants, costs of
repairing damage caused by tenants.
2. Not deductible. You
can’t claim any expenses
relating to the private use of the holiday home. Example: Costs of a boat and quad bike stored in a
locked garage and unavailable to the non-associated
people renting the holiday home.
3. Apportioned. If
an expense relates to both income earning
use and private use, you need to apportion it using this formula:
Apportionment formula:
Expense ×
income earning days divided
by (income earning days +
private use days)
Examples: mortgage interest, rates, insurance, repairs
for general wear and tear.
Carry forward of losses
If you make a loss from your mixed-use holiday home,
and your gross income from income-earning use is less
than 2% of the rateable value of the property, you can’t
claim the loss in the current year. You’ll have to carry forward the loss to offset against income from your
holiday home in a future tax year.
Record keeping
You kneed to keep records so you can work out your income
tax obligations at the end of the tax year. Your records should show: private-use days, income-earning days, the
expenses you paid, and the name of each tenant together
with their relationship to you and the rent they paid.
Example of calculations required for a
mixed-use holiday home
Peter owns a holiday home in Waihi. During the 2013–14
tax year, the home was used by Peter and his family
(42 days) and members of the public (80 days). For the
rest of the year (243 days), the home was unoccupied.
Peter’s uncle wanted to help out with costs, so he paid
rent of $3,150. Rental income from members of the
public came to $12,000.
Expenses were:
Advertising for tenants $,500,
General repairs and maintenance $,750,
Repairing window (broken by
member of the public) $,150,
Cleaning septic tank $,400,
Insurance (home and contents) $,800,
Lawn-mowing contractor $,250,
Fishing licences (for the family) $,250,
Rates $1,500, Mortgage interest $,800,
Total expenses for the year $5,400
The calculations
Peter’s property is a mixed-use holiday home because it
was used for private use and income-earning use and it
was unoccupied for 62 days or more.
His gross rental income is $12,000.
The
$3,150 received from his uncle is exempt from income tax.
Expenses for the home fall into all three categories.
Advertising for tenants $,500,
Repairing window (broken by
member of the public) $,150,
total $650
Fishing licences (for the family)
$,250,
General repairs and maintenance $,750,
Cleaning septic tank $,400,
Insurance (home and contents) $,800,
Lawn-mowing contractor $,250,
Rates $1,500, Mortgage interest $,800-
total $4500
Peter applies the apportionment formula to the
apportioned expenses:
Expense ×
income-earning daysdivided
by (income earning days plus private use days)
= $4,500 × 80/
80 + 42
= $2,950.82
This means Peter’s expense claim totals $3,600.82
(the fully deductible expenses of $650.00 plus the
apportioned expenses of $2,950.82).
His taxable income from his property is:
Gross income $ 12,000.00
less Expenses $ 3,600.82 Taxable income $ 8,399.18
Examples of Private Use/ Income Earning
Use
In terms of meeting the statutory test, if the holiday house has mixed uses,
the ability to deduct expenditure comes down to a case-by-case assessment that
weighs all the evidence. Objective evidence is required that the holiday house
is genuinely available for rent and that there is a real prospect of occupancy
and rental income being earned. This needs to be considered separately in
relation to each year (that is, just because a holiday house has been genuinely
available for rent and sufficiently marketed and/or actually rented in one
income year, does not mean a deduction will be automatically allowed in
subsequent income years).
Example 1
A holiday house in the Coromandel has earned significant rental income after
active marketing at competitive rates in newspapers and on internet sites for
almost all of the year. However, the owner's family uses the holiday house for
two weeks over the Christmas/New Year period. Even though, in this case, the
holiday house may not be actually rented out for every day of the remaining 50
weeks, provided it is available for rent during those 50 weeks, it is generally
possible to deduct expenses for that period (ie, for 50 weeks out of the full
year). Any expenses that are variable in nature (ie incurred when the property
is occupied) should be spread on an appropriate basis.
Example 2
A holiday house in Mount Maunganui is used by its owner and her friends and
family for most of the year. However, the holiday house is rented out to a third
party for two weeks over the Christmas/New Year period for $3,000. In this case,
the owner may deduct expenses (eg, interest charges, depreciation costs,
insurance, and rates) for the proportion of the year that the holiday house was
actually rented out (ie, for two weeks out of 52 weeks). Any expenses that are
variable in nature (ie incurred when the property is occupied) should be spread
on an appropriate basis.
Example 3
A holiday house in Queenstown is available to be rented for eight weeks a
year when it is not being used by the owner. For four of those weeks it is
rented to members of the public for its market rental of $600 per week. For the
remaining four weeks it is rented out to a family friend. The friend is charged
"mates rates" of $350 per week. In this case, IRD would
accept the owner deducting expenses (eg, interest charges, depreciation costs,
insurance, and rates) for the proportion of the year that the holiday house was
rented to the friend (ie, for four weeks out of 52 weeks) up to a maximum of
$1400 (the amount of rent received). Full deductibility would be allowed for the
remaining four weeks that the property is rented out.
Example 4
A holiday house in Papamoa is used by the owner for most of the year.
A
market rental for the property would be approximately $450 per week. The holiday
house is made available for use by a family friend for three weeks during
summer. The friend is not charged for staying at the property, but chooses to
make a contribution of $200 to the owner towards the cost of power, water, etc
for the three weeks. In this case, the amount received is not income of the
owner and, consequently, does not need to be returned to IIRD (nor
would any tax return need to be filed - unless the owner otherwise had to file
one). Similarly, no deductions are available to the owner.
BUYING AT MORTGAGEE SALE- THINGS TO
BE AWARE OF
You have choices when you buy, including buying property which is
a mortgagee sale. What is the difference between a mortgagee sale and
a nomal sale of property? What are the things to look out for if you buy
at mortgagee sale? As the sale is being undertaken by the owner's bank or
finance company there are some potential issues that mean you need to take
more care than you would in a normal property transaction.
A lender owes certain duties to the home owner when exercising its
power of sale. There is a general duty to obtain the best price reasonably
obtainable at the time of the sale. This includes advertising the property
correctly and undertaking adequate marketing. However, although this duty
of care is owed to the owner, the protections available to a buyer in a
mortgagee sale are more limited.
When buying a property in a mortgagee sale, you should check whether
the agreement for sale and purchase is conditional on the mortgagor
failing to repay his or her debt by a certain date. Even in an
"unconditional" agreement for sale and purchase, there may be a
clause allowing the mortgagee to cancel the agreement if the mortgagor
discharges the debt, or brings a legal action to stop the sale from going
ahead. This means in some cases you will not be certain that the sale will
go ahead until the actual settlement date.
It is also important to check who the agreement for sale and purchase
is with. From the time the lender gains the right to exercise its power of
sale, the owner is not able to sell the property without the lender's
consent. It is therefore unwise to enter into an agreement for sale and
purchase with an owner without checking that the bank has consented.
An agreement for sale and purchase in a mortgagee sale is usually
different from the standard contract in other
property deals. The lender will require removal of some of the more common
contractual provisions. As the lender wishes to dispose of the property as soon as possible, it
may be unwilling to negotiate the terms of the agreement, or allow the
purchaser to make it conditional. It may be difficult to make the
agreement subject to finance or a builder's report, which means that you
need to arrange finance and be satisfied as to the condition of the
property before entering into the agreement.
Another potential pitfall is that a lender's agreement for sale and
purchase will not usually guarantee vacant possession. You should find out
whether the mortgagor is still occupying the property, or whether there
are existing tenants. If this is the case, it may become your
responsibility to make the previous occupiers vacate the property after
settlement.
Furthermore, there is usually no vendor's guarantee for the condition
of the property, including compliance with the building code. If you are able to inspect the property before the sale, it will not
necessarily be in the same condition on the settlement date. The owner has the right to remove any chattels that would usually be
included in a sale and purchase agreement.
You as the purchaser must bear the risks for any defects or damage to
the property, so it may be a good idea to adjust your offer to take this
into account.
You should also insure the property as soon as the agreement for sale
and purchase is signed, so that you are not out of pocket in the event of
damage to the property.
Given the numerous potential issues associated with buying a property
at a mortgagee sale, it is important to do your homework before signing an
agreement for sale and purchase. Find out as much as you can about the property, read the agreement
carefully, and discuss the proposed purchase with your solicitor.
The information provided in this email newsletter is for
informational purposes only. McLean and Co. accept no
responsibility for the opinions and information expressed in the
information provided and it is provided "as is" without
warranty of any kind. The user assumes the entire risk
as to the accuracy and use of this document. Readers are
asked to seek professional advice pertaining to their own
circumstances. The McLean and Co. email newsletter may
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