Proof of intention when buying or selling property

The sale and purchase of residential property is an area of focus for IRD investigators because of the ongoing investment in the Property Compliance Programme.

A Taxation Review Authority (TRA) case heard in May 2017, serves as a timely reminder for all property owners to remain aware of the tax implications that can arise from residential property sales. The case involved the purchase and eventual sale of a family home by a son who had previously been involved with other property investments.

Taxpayer’s intention subjective
A key criterion for determining the tax status of a property transaction rests on whether the property was purchased with the purpose or intention of resale. The intention of the taxpayer is determined subjectively at the date the property is acquired.

There are instances where taxpayers have tried to satisfy this subjective test by embellishing their future intentions to support a more desirable tax outcome. Hence, it is common to place some weight on any documentation that might also refer to a taxpayer’s plans for a property.

Banker’s note proves damaging
In this case, a substantial amount of weight was placed on a diary note recorded by the taxpayer’s bank officer accompanying the loan approval request for the property. The note recorded that the taxpayer had committed to the purchase of the property because his parents were no longer financially able to complete renovations themselves, and that he would sell the property once the renovations were completed, to release funds needed for his other property developments.

Due to the diary note and the taxpayer’s history of buying and selling property, the IRD sought to tax the sale of the property. However, the taxpayer argued that the file note was not a true account of his intentions. He told the TRA that the bank officer was a close friend of his, a friendship that had been built over years of loan applications and property investments. This had resulted in the bank officer recording a note not of a conversation, but of a mistaken assumption about the taxpayer’s intention to resell his parent’s home.

The taxpayer asserted his true intention was to assist his parents while they were experiencing a period of financial difficulty, safeguarding the family home for the long-term. The form of the bank officer’s note further aided this alternate set of facts – it did not refer to a specific conversation, but was written as part of the loan approval request, containing information determined relevant by the bank officer.

Disputes process stressful
The process for a case to reach the TRA is lengthy and involves a significant number of steps for both IRD and the taxpayer, so IRD often only reach this point if they consider themselves to have a high chance of success. It must have come as considerable relief to the taxpayer when the TRA ruled in his favour, concluding that the evidence showed he did not purchase the property with the intention of resale.

The lesson here is that if a property is not being purchased with a purpose or intention of resale, it could be a good idea to state that on the record through the acquisition process, rather than simply relying on that being implicit.

Please note the above case excludes the impact of the bright-line test for residential land, which came into effect on 1 October 2015.

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