Taxation (Annual Rates for 2016-17, Closely Held Companies, and Remedial Matters) Bill

As we know, we are debating tax legislation here, and I think it is common practice—and the Minister in the chair, Judith Collins, will know this because she was a practising tax lawyer—that there has to be a very good reason to implement tax legislation retrospectively. If I have a look at this, there is one clause in here, clause 306(2), that comes into force—wait for it—on 1 October 1986. That is astounding.

💬 Kris Faafoi: What were you doing in ’86?

Well, I was not born—well, OK, I was. OK, I might have been at university. “For an asset affected by [subsection (3) or (3B)], if a transfer of ownership of the asset would be a financial service, the subsection deems the person to make a supply of the asset by a transfer of ownership.” I am wondering why we are debating something in 2017 that actually relates to something in 1986. So the two questions I have around that are: first of all, if it really is important, why was this not done any time between the Lange, the Bolger, the Shipley, the Clark, the Key—there was all this opportunity to do it. Why was it not done beforehand?

The second question is: if it has actually sat on the books as something different for 30 years, what impact is it going to have? Is this sort of an academic exercise where a very smart boffin at the IRD has said: “Ah, look, I’ve found something in the tax Act. I can get this changed.” I mean, is there a competition in the IRD that whoever can amend the piece of legislation that goes back furthest wins a prize? Whoever has done that has done a fantastic job. The year 1986 was a long, long time ago. I do not even think Peter Dunne was in the House then. Maybe he was.

💬 Hon Ruth Dyson: Yes, he was.

Oh, that is right. But there are a number of clauses in this bill that are retrospective. Often, of course, there are good reasons for retrospective legislation, and most of them are about closing down loopholes. The concern I always have about retrospective tax legislation is that often people have made decisions based on the law that they have before them, and they often say: “If I had known that the Government was going to change the law, then I would not have made that decision.”

I am not saying that relates to the 1986 legislation, but if you have a look at pages 16 and 17 there are a whole lot of sections here that come into force in 2006—you know, 10 years ago, 11 years ago, 12 years ago; all through 2009, 2010, 2011, 2012, 2013, 2014. And some actually come into play on 1 April 2017. Well! And the interesting stuff about 1 April 2017 is that obviously that is not the day it receives the Royal assent; it is the first day of the financial tax year. I understand that—I get that—but I suppose the concern that I do have is there is so much retrospectivity here. It would be good to know—and I have no doubt the Minister knows this. I mean, I do not even know whether the Minister was practising in 1986, but there is a whole lot of stuff here—

💬 Hon Judith Collins: 1981, thank you.

In 1981? Well, in fact this might be a case where the Minister looked through the legislation and said “Ah, that was a loophole when I was practising. I’ve always wanted the opportunity to close that down.” But it would be good to know whether in fact a lot of this retrospective legislation is actually about closing down loopholes that have been exploited by tax lawyers and tax accountants, or whether in fact what they are is the IRD, as it often does—I do not mean to disparage the IRD; I think it does an absolutely fantastic job, and I have only ever had wonderful experiences of them in front of the Finance and Expenditure. I ask whether this is just part of the continuous review that it does of tax legislation, where it finds something where the wording has changed due to the implementation or the ascension of another bill into law, and that means that another piece of legislation has to be changed, and it is not about closing down loopholes; it is actually just about maintaining and enhancing the integrity of the tax system, which we know is fundamental to tax law.

So if there are loopholes, that is fantastic. I doubt the Minister can answer this, but is it in fact about “OK, when we close this down, we’re going to save the taxpayer $25 million.”? Or is it again just about maintaining and enhancing the integrity of the system? If that is the case, then that is fantastic. But, again, I just reiterate the point that there are some pieces of retrospective legislation that do go back a long way. We will all admit that retrospective tax legislation is not an ideal way to make law. Thank you very much.

Clause 1 agreed to.

The question was put that the amendments set out on Supplementary Order Paper 261 in the name of the Hon Judith Collins to clause 2 be agreed to.

Ron Mark’s amendment set out on Supplementary Order Paper 260 is out of order as being contingent on an amendment already negatived.

Clause 2 as amended agreed to.

Bill to be reported with amendment presently.