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  • orig
    Freshie
    • Feb 2012
    • 8

    #1

    Help needed with tainting

    Hi
    I need your help and thoughts on this case please

    I have 2 entities
    First one is LTC entity where me and my wife are both directors owning rental properties for more than 2 years.
    Second is a GST registered entity formed April 2011 where I am the sole director, I trade properties under this entity.
    I am aware that due to tainting, I will not be able to sell any of my properties under the LTC entity without paying Tax unless I will keep it at least for 10 years.

    I lost interest in trading properties and I intend to close the GST registered entity by March 2013.

    My question is whether I can sell any of my properties under the LTC entity before the 10 years period without being tainted and without paying the extra Tax?

    I will much appreciate your help
  • halfempty
    Addicted
    • May 2008
    • 603

    #2
    My best advice is this....

    Dont take advice on tainting from people on forums.

    Comment

    • spaceman
      Banned
      • Feb 2004
      • 2817

      #3
      Since the investment properties were bought before you started trading they are not tainted..... EOS




      Cheers
      spaceman....EDIT...not only but also....there is no TEN YEAR RULE
      Last edited by spaceman; 28-07-2012, 09:07 AM.

      Comment

      • Simmo
        Opinionated
        • Dec 2009
        • 230

        #4
        Again, this is no substitute for professional advice, but as I read it:-

        You are liable for income tax whilst trading, so for any property (regardless of which entity it is held in) you sell whilst your trading entity is active, any gain is likely to be deemed taxable.

        Once you close your trading entity, trading has ceased so any gain on the sale of properties within the LTC is no longer a taxable activity. However the deciding factor is "intent", this is a very very grey area so if you do sell, you best have some supporting documentation to clarify your intent at the time of purchase.
        Last edited by Simmo; 28-07-2012, 12:47 PM.

        Comment

        • spaceman
          Banned
          • Feb 2004
          • 2817

          #5
          ^....ummmm not really all that grey at all

          Special tax rules for businesses in property-related activities


          If you have an association with people in certain property-related industries there may be a tax impact on all or some of your property transactions. even if you personally are not a property dealer, developer or builder.
          These impacts could mean the difference in the gain from the sale of a property being treated as taxable income or as a non-taxable capital gain.
          Associated person rules may make a property sale taxable when there is an association with a:
          • property dealer when the property was bought
          • property developer when the property was bought
          • builder when significant improvements started on a property.

          In addition, the associated person rules changed for land acquired on or after 6 October 2009 with the effect of widening some associations.
          For these people, even properties that weren’t bought for business purposes may be taxable if the property is sold within 10 years of:
          • the purchase or
          • completion of improvements (for builders).

          These rules may apply to any properties bought during the period of your property-related business activities, even if you sell a property after you’ve ceased those business activities.


          If he wasn't a property dealer (or associated with one) when the properties were bought...then those properties aren't tainted

          Also it matters not that you may have ceased your trading....any properties bought while trading and are tainted remain tainted even if the trading entity is shut down.

          The rules around tainting are pretty clear IMHO......the IRD web site explains all.....though to be fair they do use "may" alot....which could be a little confusing i guess.

          Cheers
          Spaceman
          Last edited by spaceman; 28-07-2012, 01:19 PM.

          Comment

          • orig
            Freshie
            • Feb 2012
            • 8

            #6
            Thanks for your reply.
            The example on the IRD website clearly state a case where residential properties under LTC were purchased after one establish himself as a property dealer.
            My case is exactly the opposite, first I was engaged in rental activity under LTC entity then engaged in trading activity.
            Also there is no clue to what will happen if my trading entity is ceased.

            Comment

            • spaceman
              Banned
              • Feb 2004
              • 2817

              #7
              ^ The IRD shows where tax is liable to be paid....is your situation mentioned ?????....no??? what does that tell us???.....tells me there is no tax to be paid.

              The properties aren't tainted.....so it doesn't matter if the trading entity continues or is axed, why would it???

              Cheers
              Spaceman

              Comment

              • Rosco
                Fanatical
                • May 2007
                • 3710

                #8
                Originally posted by spaceman View Post
                Since the investment properties were bought before you started trading they are not tainted..... EOS
                Cheers
                spaceman....EDIT...not only but also....there is no TEN YEAR RULE
                First part correct. Tainting occurs at the time of purchase. So if not a trader, or associated with one, at time of purchase, then the property isn't tainted. So if all long term holds purchased before trading commences, then these long term holds aren't tainted.

                Second part re ten year rule is wrong. If the LTC purchased another rental after trading had commenced, then just this rental is tainted. So if this rental (tainted rental) was sold within 10 years, it would be taxable.

                Ross
                Book a free chat here
                Ross Barnett - Property Accountant

                Comment

                • Rosco
                  Fanatical
                  • May 2007
                  • 3710

                  #9
                  Originally posted by Simmo View Post
                  Again, this is no substitute for professional advice, but as I read it:-

                  You are liable for income tax whilst trading, so for any property (regardless of which entity it is held in) you sell whilst your trading entity is active, any gain is likely to be deemed taxable.

                  Once you close your trading entity, trading has ceased so any gain on the sale of properties within the LTC is no longer a taxable activity. However the deciding factor is "intent", this is a very very grey area so if you do sell, you best have some supporting documentation to clarify your intent at the time of purchase.
                  This isn't correct.
                  Book a free chat here
                  Ross Barnett - Property Accountant

                  Comment

                  • Rosco
                    Fanatical
                    • May 2007
                    • 3710

                    #10
                    Originally posted by spaceman View Post
                    Also it matters not that you may have ceased your trading....any properties bought while trading and are tainted remain tainted even if the trading entity is shut down.
                    Cheers
                    Spaceman
                    Correct again. But if the properties were purchased as long term hold, then 10 year rule applies as above.

                    Ross
                    Book a free chat here
                    Ross Barnett - Property Accountant

                    Comment

                    • Rosco
                      Fanatical
                      • May 2007
                      • 3710

                      #11
                      So overall based on the facts you have listed your Long Term Holds in your LTC aren't tainted. Plus if you cease your trading entity, then you will have no entity to taint any future purchases.

                      Ross
                      Book a free chat here
                      Ross Barnett - Property Accountant

                      Comment

                      • orig
                        Freshie
                        • Feb 2012
                        • 8

                        #12
                        Thank you Ross, I really appreciate your time spent answering this
                        and thank you all as well for your thoughts.
                        Last edited by orig; 29-07-2012, 03:01 PM.

                        Comment

                        • spaceman
                          Banned
                          • Feb 2004
                          • 2817

                          #13
                          Originally posted by Rosco View Post
                          ....
                          Second part re ten year rule is wrong. If the LTC purchased another rental after trading had commenced, then just this rental is tainted. So if this rental (tainted rental) was sold within 10 years, it would be taxable.

                          Ross

                          Then it should be real easy for you to show us where in the act the "10 year rule" resides n'est-ce pas????????........though to be fair I think you're missing what I meant

                          Most people say .."if I keep a property for 10 years I can sell it tax free".......this simply isn't true....if you buy it with the intention to resell at a profit and you sell it 11 years later for a profit you will have tax to pay......or as in your example a "tainted rental" it doesn't automatically obecome untainted after 10 years.......this is what I meant by there being no ten year rule

                          Always ready to be proven wrong, if anybody is up to the challenge of quoting the 10 year rule from the act.

                          Cheers
                          Spaceman
                          Last edited by spaceman; 29-07-2012, 05:52 PM.

                          Comment

                          • Simmo
                            Opinionated
                            • Dec 2009
                            • 230

                            #14
                            Feck I'm more confused than I was before lol.

                            Can someone post a link to the actual document, as opposed to factsheets/overviews etc?

                            Comment

                            • spaceman
                              Banned
                              • Feb 2004
                              • 2817

                              #15
                              ^the act is here

                              http://www.legislation.govt.nz/act/p...LM1512301.html

                              Cheers
                              Spaceman

                              Comment

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