01 June 2017

Tax: Inland Revenue v. Fugle

Inland Revenue failed to recover tax on $2.6 million for the 2005 tax year credited to company director Leslie Fugle’s current account after he paid $90,000 to get his roading company out of receivership.
The Court of Appeal was told Mr Fugle drew down $2.2 million dollars over three tax years 2005-2007 from a company he controlled while declaring no taxable income and paying no tax.  Inland Revenue claimed unsuccessfully the tax accrual rules meant $2.6 million was taxable income in 2005, the year this amount was credited to his current account.  The accrual rules have since been changed.
The court was told Mr Fugle was a director of Chas Pilcher (1986) Ltd when it went into receivership in 1989 owing Bank of New Zealand $2.6 million.  He had guaranteed the BNZ debt.  Pilcher was a roading company overextended with a contract to dredge the Clutha river downstream from Clyde dam.  Mr Fulger did a deal.  On payment of $90,000, BNZ assigned its $2.6 million debt to Mr Fulger and released his company from receivership.  It was nearly ten years later before Pilcher, now renamed as Bathos Properties Ltd, began trading again.  With an April 2004 accounting entry, the $2.6 million BNZ debt, now owned by Mr Fugle, was credited to his company current account.  At law, Bathos Properties was committed to making payment to Mr Fugle on demand.  Inland Revenue said this was taxable income in the 2005 year.  Taxable income arises under tax accrual rules when a financial arrangement “matures”.  Buying the bank debt was a financial arrangement.  Crediting Mr Fugle’s current account was not a “maturity”, the Court of Appeal ruled.  He did not have access to any cash immediately following the credit.  Bathos Properties had no means to pay at that time.          
Inland Revenue v. Fugle – Court of Appeal (1.06.17)

17.062