General tax avoidance provisions can be used to hammer taxpayers not party to the tax scheme but who enjoy the benefit, the Supreme Court emphasised in its ruling on the Trinity tax schemes. Well-heeled taxpayers have had substantial tax deductions disallowed and face penalties of up to 100% of the tax benefits claimed.
What has become known as the Trinity Scheme involved a forestry development in Southland. Much of the money came from high income earners in the major cities looking to reduce their tax bills. Trinity offered an attractive tax deferral. The potential benefits are seen with the tax losses claimed by Dr Garry Muir, the tax lawyer who set up the Trinity scheme: using the scheme he claimed a loss for tax purposes of some $898,000 for the 1997 tax year and $967,000 for the 1998 tax year.
The tax benefits flowing from the Trinity scheme arose from a timing mismatch: the date a liability arose and the date payment was due.
Taxpayers signing up to the scheme became liable to pay in fifty years a premium of just over $2,050,000 per plantable hectare for the right to plant and mill a forest, but payment of this premium was artificially accelerated by having promissory notes signed. This had the legal effect of discharging the original debt due in fifty years, and replacing it with another debt.
The Court said there was no transfer of real value by substituting one form of obligation for another. The promissory notes were an artificial payment implemented for tax purposes.
Other features pointed to a lack of commercial reality to the scheme.
The premium was paid for a licence to plant out trees on land. The tax syndicate had already funded the purchase of the land, by paying over three times its cost as bare land, in return for an option to acquire ownership of the land in fifty years time at half of its then value.
On the available evidence, it was unlikely that a hectare of Douglas fir forest would be worth $2,050,000 in fifty years time. This figure appears to be the after tax amount the mature forest was expected to yield.
The tax scheme included what was described as risk management insurance, to cover the possibility that values on maturity would be less than $2,050,000 per hectare at a time when the promissory notes fell due. The insurance premium paid was also claimed by investors as a tax deduction.
This insurance was underwritten by a special, single purpose, company (CSI) based in the British Virgin Islands . Dr Muir controlled CSI. The Supreme Court said the evidence suggests CSI was not intended to be anything more than a pro forma vehicle for obtaining anticipated tax benefits. This view was reinforced by the unorthodox treatment of payments made to what was supposedly an independent stand-alone insurer. Of the $US3.6 million paid to CSI as premium income, ninety per cent found its way back by way of loans to the family trusts of Dr Muir and his then business partner, a Mr Bradbury.
The Supreme Court ruled that the claimed deductions for the licence premium and the insurance premium coupled with the use of promissory notes to alter the incidence of actual payment amounted to a tax avoidance arrangement and were void for tax purposes.
The taxpayers affected did not invest personally; they channelled their investments through “loss attributing qualifying companies” (LAQC). LAQCs are treated like accounting vehicles with tax benefits and liabilities passing through to the underlying owners.
Having ruled that the Trinity schemes were void for tax purposes, the owners of each investing LAQC faced a reassessment of their personal tax liability on the basis that they were “persons affected by” the void arrangements. This meant substantial tax losses claimed in each individual’s tax return was disallowed.
In addition, individual investors were held open to penalties calculated at 100% of the tax shortfall in each case for having adopted an “abusive tax position”. This arises when a taxpayer adopts an “unacceptable interpretation” of tax law which results in the avoidance of tax.
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