(a) Imputation system
The dividend imputation system allows companies to pass on the benefit of income tax paid at company level as credits attached to dividends distributed to shareholders. (“Dividend” is widely defined and includes most benefits provided by a company to a shareholder or any associate of a shareholder.)
Imputation credits can be used by New Zealand resident shareholders to offset their income tax liabilities (including the liability for the dividend paid). Credits attached to dividends paid to one company by another can be used to offset the recipient company’s tax liability and credited to that company’s imputation credit account for subsequent distribution to the recipient company’s shareholders.
Non-resident withholding tax (NRWT) on dividends paid to a non-resident shareholder by a resident company is zero-rated to the extent that the dividend is fully imputed, and the non-resident shareholder has:
- a 10% or more direct voting interest in the resident company; or
- less than a 10% direct voting interest in the resident company and the DTA-limited New Zealand tax rate on the dividend is less than 15%.
Non-resident shareholders with a less than 10% interest in the resident company receiving an imputed dividend may receive a supplementary dividend under the foreign investor tax credit (FITC) regime, providing effective relief from NRWT on the dividend. In relation to non-imputed dividends paid to non-resident shareholders (eg dividends sourced from a capital profit of the New Zealand resident company), NRWT may in some cases apply. However, most of New Zealand’s DTAs will limit the rate of NRWT to 15% (the domestic law rate for non-imputed dividends being 30%) and, in some cases, to 5% or 0%.
(b) Inter-company dividends
Most inter-company dividends are taxable. However, those paid between New Zealand resident members of a wholly-owned group are generally exempt. Also, those received by a New Zealand company from a foreign company are generally exempt.
(c) Branch taxation
New Zealand branch operations are liable to income tax on branch profits at the rate of 28%, unless New Zealand has a DTA with the jurisdiction in which the head office is located, and the New Zealand branch is not a “permanent establishment” for the purposes of that agreement, which would be unlikely. Branches are taxed on their net income, after allowable deductions. Any loss or expenditure deducted must be directly attributable to the branch operations. Income tax paid by branches is a final tax. No withholding tax is payable on subsequent repatriation of the tax-paid profit overseas. Any tax-free capital gains realised by the branch can be repatriated overseas without any New Zealand tax cost. NRWT is imposed on the payment of royalties (broadly defined under the New Zealand legislation), and NRWT or an approved issuer levy on payment of interest, by a branch operation to non-residents.
(d) Thin capitalisation
The thin capitalisation rules apply to any non-resident company or to a New Zealand resident company if it is controlled by a single non-resident (or group of associated non-residents) by a group of non-residents “acting together”.
Under the rules, a company will be denied a deduction for interest to the extent that its New Zealand group’s ratio of debt to assets exceeds 60% and 110% of its world-wide group debt to assets ratio.
As part of New Zealand’s response to the OECD’s base erosion and profit-shifting (BEPS) project, the thin capitalisation rules:
- require an entity to measure its assets net of its “non-debt liabilities”, when deferring its debt percentage;
- include a limited exemption from thin capitalisation for investors in public infrastructure projects which have little risk of BEPS activity; and
- include an anti-avoidance rule that applies when a taxpayer substantially repays a loan just before the end of the year to circumvent the rules.
(Note that the thin capitalisation rules also apply to non-resident individuals, other non-resident entities and New Zealand trusts controlled by non-residents, which entities may be entitled to interest deductions in relation to New Zealand investments).
A similar set of thin capitalisation rules applies to inhibit excessive gearing of New Zealand resident entities relative to the gearing of their Controlled Foreign Companies (CFCs).
(e) Transfer pricing
New Zealand has a comprehensive transfer pricing regime dealing with cross-border transactions between associated parties. The objective of the transfer pricing regime is to prevent New Zealand tax-paying entities reducing their New Zealand tax burden by inflating deductions or reducing income through non-arm’s length transactions with non-resident associates.
In addition, as a further BEPS measure, New Zealand’s transfer regime include rules that:
- enable Inland Revenue to disregard legal form if it does not align with the actual economic substance of the transaction; and
- allow transactions to be restructured or disregarded if such arrangements would not be entered into by third parties operating at arm’s length.
In addition, a “restricted transfer pricing” rule determines the allowable interest rate on inbound related party debt. Under this rule, a New Zealand borrower that is determined to be at a “high risk of BEPS” will have its credit rating used for transfer pricing purposes restricted to a maximum of two notches below its worldwide group’s credit rating. The rule also requires any loan features not typically found in third-party debt to be disregarded in calculating the allowable interest rate on related party debt. The rule generally only applies when the New Zealand taxpayer has related party borrowings over NZ$10 million.
(f) Taxation of offshore subsidiaries
The CFC and foreign investment fund (FIF) regimes govern the taxation of investments by New Zealand residents in foreign companies.
New Zealand’s “branch equivalent” CFC regime applies where five or fewer New Zealand residents (with associated parties’ interests combined) directly or indirectly control more than 50% of a foreign company, or if a single New Zealand resident controls 40% or more of such a company and no non-resident (who is not associated with the New Zealand resident) controls the same or a greater percentage.
New Zealand has an “active”/”passive” income distinction in its CFC rules. Only “passive” income of CFCs (such as certain interest and dividends, royalties, and some rent) is attributed to New Zealand resident CFC shareholders. The CFC rules are complex, with a number of exemptions and qualifications. In particular, no attribution of “passive” CFC income is required provided the CFC’s gross “passive” income is less than 5% of its total gross income. Further, there is a general exemption from the CFC regime for CFCs that are resident and subject to tax in Australia.
Under the FIF regime, income tax is imposed under various attribution and deemed rate of return methods on non-CFC foreign company interests held by New Zealand residents. The FIF rules in respect of (non-portfolio) interests of 10% or more in overseas companies incorporate an “active”/”passive” distinction and an Australian exemption as in the CFC rules. In addition, interests in some Australian listed companies and other Australian entities are exempted – these include companies that are listed on an approved index under the Australian Stock Exchange market rules or one of the Listed Investment Company indices (the approved index list comprises ASX All Ords, ASX 200, ASX Listed Investment Companies, ASX 50). Inland Revenue provides a list for the relevant tax year to assist investors in determining whether or not an Australian company satisfies the exemption criteria.
FIF interests held by individuals and family trusts costing less, in aggregate, than NZ$50,000 are also generally exempt. Foreign superannuation interests are generally subject to a stand-alone regime under which tax is levied on a proportion of amounts withdrawn, determined by reference to the length of time the holder has been a New Zealand tax resident.