"No extra new taxes until after the 2020 election." That was the promise made in September 2017 by the then newly appointed leader of the opposition.
This week the Labour led government
The government has couched the new legislation in the context of targeting global companies like Amazon, saying, "if they want to do business here they must follow the rules like everyone else". The reality is they have been following the rules. It's the government that's changing the rules.
- The rules will apply on a portfolio basis, meaning that investors owning more than one rental would be able to offset deductions for one residential property against income from other properties – essentially calculating their overall profit or loss across their portfolio. However, taxpayers will also be able to elect to apply the rules on a property-by property basis.
- The losses can be carried forward and offset against future rental income or taxable capital gains. If there are no future profits then the benefit of the tax losses would be lost.
- The rules apply to residential investment property. They do not apply to farmland or land used predominantly as business premises.
- The ring fencing of losses on rental properties is expected to cost landlords approx $150m a year.
Essentially a presumption is being made that property speculators are not caught by either the bright-line test (buying and selling within five years) or the intention test, which doesn’t have a time limit and is assessed by the IRD on a case by case basis.
It is also being presumed that if an investor makes a loss on a residential property then it is very likely that they intend to resell to recover all of the losses from the sale and make a capital gain. While this will be true in some cases, there are many reasons why an investor incurs a loss from a rental activity. Quite often it is because of damage to property, unpaid rent, or vacancies. To prevent that loss being offset against other income is, in these circumstances, grossly unfair.
The ring fencing policy will mostly affect first time investors. Typically they have high debt, and they are most vulnerable to losses during those early years of ownership. They usually make up the loss from their day-job. As they repay debt and if rents rise, they will get to a position of being cash flow positive and start paying income tax on their annual rental income.
Established property investors are unlikely to be affected. They will continue to use the equity in their portfolio to fully finance a new loss-making rental investment, which they could then offset against the income from their other properties, to reduce their taxable income.
Given all residential property investors who sell within five years are caught by the bright-line test, there would be very few investors with resale intentions who are not already caught by the regulations. In any case, should the sale be outside of the bright-line time limit, the IRD has the power to tax any gains, if they decide resale was the intention.
Given the data-collection powers of the IRD, they will know if tax losses have been claimed prior to a rental property being sold. If the losses have arisen from high gearing, they could reasonably apply the intention test. In other words, the government already has all of the tools it needs to capture gains from the sale of property - it does not need to add yet another layer of complexity and compliance cost.
This is bad tax policy driven by political motives. Not surprisingly residential property investors are already selling up and giving the government the one finger salute by investing their capital into tax free investments - like a bigger and better family home.
Frank Newman, an investment analyst and former councillor on the Whangarei District Council, writes a weekly article for Property Plus.