27 July 2016

Tax: Trustpower v. Inland Revenue

Preparatory work for major infrastructure projects is not tax deductible the Supreme Court decided when ruling against Trustpower’s claim to deduct $6.56 million spent obtaining resource consents for proposed generation projects.  These are capital costs.  Only general overhead business costs unrelated to any particular project are immediately deductible.
Trustpower has to pay some $15 million for a decade of tax arrears after losing a tax dispute over the costs of obtaining land use consents, water permits and water discharge permits for four potential South Island generation projects.  Tax legislation treats resource consents as capital assets: intangible property.  Trustpower said resource consents are not capital assets until such time as the taxpayer is “committed” to a specified project.  The Supreme Court said a commitment test is too subjective.  It is under the taxpayer’s control: board minutes and board papers can fudge the date of final commitment.  By deferring any “commitment” a taxpayer could claim prior feasibility studies and set-up costs are deductible expenses.
Trustpower said there is a problem of wasted costs where resource consents are obtained but a particular project does not go ahead.  The Supreme Court pointed out these consents can be sold on.  Trustpower did field inquiries about selling consents and technical data for two proposed wind farms: Kaiwera Downs and Mahinerangi.
Tax legislation in 2007 has allowed some wasted capital expenditure to be written off for tax purposes.  These rules were not in effect for the tax years Trustpower disputed.
Trustpower v. Inland Revenue – Supreme Court (27.07.16)

16.115