08 March 2018

Tax: Inland Revenue v. Lin

Patty Lin, whose family interests control Te Kuiti-based Universal Beef Packers, is liable for $869,000 back taxes attributed to her under the controlled foreign companies regime.  The Court of Appeal disallowed a credit for tax relief granted by Chinese authorities to encourage investment.
Ms Lin is a New Zealand tax resident.  She emigrated from Taiwan in late 2001.  Inland Revenue challenged her tax assessments for the years 2005-2009.  She then had an interest in five companies resident in China.  Income derived from four of these companies was attributed to Ms Lin for New Zealand tax purposes under the controlled foreign companies (CFC) tax regime, as it then applied.  The CFC regime was amended in 2009.  The CFC rules are intended to prevent New Zealand tax residents deferring or avoiding tax by accumulating income in off-shore companies.
New Zealand has some forty double tax agreements with other countries.  They ensure income is taxed only once.  The China double tax agreement was signed in 1986.
Inland Revenue said there was $1.796 million tax payable by Ms Lin for income derived from the four Chinese companies.  A credit was allowed for tax actually paid in China by these companies.  Ms Lin argued she was entitled to a further credit for $588,100 tax ‘spared’ by Chinese tax authorities.  These were tax concessions allowed Chinese companies under Chinese domestic law.
The Court of Appeal said each double tax agreement must be interpreted according to its own particular terms.  The key wording in the China agreement is to allow a credit for ‘Chinese tax paid’.  Tax ‘spared’ is not tax ‘paid’, the Court of Appeal ruled.
Inland Revenue v. Lin - Court of Appeal (8.03.18)

18.049