Taxation of forestry
NZFFA Information leaflet No. 15 (2018).
There are 3351 pages in the Income Tax Act 2007 and it keeps on getting longer. Because it treats farmers differently from foresters it pays to know why, and where, and what that means. Happily it’s not too hard to pick out the highlights so if you are growing trees for timber, here’s a summary. I don’t claim it’s all relevant or sufficient or true, but I hope it’s useful. The idea is to give you enough information to ask the right questions of some professional you are paying for an answer. It’s sometimes surprising – and distressing – to find you know more than they do.
The Act is available online and if you are keen, for download, on http://www.legislation.govt.nz/act/public/2007/0097/latest/DLM1512301.html
The first thing to understand is the language they use. It’s important to know how IRD thinks about you as an investor, and why you need to define yourself for tax purposes. For IRD, a ‘forester’ always grows timber while a ‘farmer’ grows trees. ‘Timber’ is live, harvestable wood while ‘trees’ though equally big and green, are non-harvestable.
With this as a guide you should make sense of the points below, which are given in a rough alphabetical order. References to parts of the Act are shown in square brackets [so].
- Carbon credits: If you are growing either timber or trees and earn NZ Units from post-1989 forests under the Emissions Trading Scheme, they are not taxable on issue or surrender, but create taxable income on sale [CB 36].
If you were issued NZ Units for pre-1990 forests, they are effectively capital and not taxable on issue, surrender or sale, [CB 36 and CX 51B].
If you buy and hold stocks of NZ Units for trading then you must value them each year [ED 1], deduct the value at the start of the year from the value at the end of the year, and pay tax on the difference as if it were cash income [DB 49].
- Fencing: this is fully deductible if you are a farmer [DO 1] but depreciable at 10% of the diminishing value (DV) if you are a forester [Schedule 20 and DP 3]. One would think the fence around a forest to keep animals out would get the same wear and tear as a fence around a paddock but IRD thinks not.
- Harvesting and marketing: these are part of administration costs and fully deductible for foresters [DP 1] and farmers. You must declare any income you earn from harvesting and marketing as part of your normal taxable activity. Timber harvested and used in the forest or on the farm does not generate taxable income.
- Income: Anyone who harvests timber and sells it, or sells standing timber or a cutting right, is liable for income tax on the proceeds. If the timber is sold for less than its market value the Commissioner of Inland Revenue is entitled to assign a market value for tax purposes.
- Inventory (stock-taking): part of administration costs and fully deductible for foresters [DP 1].
- Land clearing: this is fully deductible if you are a farmer [DP 1] but depreciable at 5% DV if you are a forester [Schedule 20]. Of course land cleared for farming might later be subject to a Forestry Right.
- Land preparation: this is a capital cost for famers or foresters, depreciable at 5% DV [Schedule 20].
- Management, fertiliser, weed and pest control: these costs are fully deductible if you are a farmer managing trees for erosion control, shelter or water quality [DO 2]; and deductible up to $7,500 a year if you are managing for timber [DO 3]. For a forester all management is fully deductible [DP 1].
- Plant and machinery purchase: this is a capital cost depreciable according to the nature of the equipment. To find current depreciation rates and methods go to http://www.ird.govt.nz/calculators/tool-name/tools-d/calculator-depreciation-rate-finder.html
- Planting: planting and planting stock is fully deductible if you are a farmer planting for erosion control, shelter or water quality [DO 2]; and deductible up to $7,500 a year if you are a farmer planting for timber (roughly equivalent to planting around 8 ha a year) [DO 3]. For a forester all planting is fully deductible [DP 1]. Note several Regional Councils offer subsidies for erosion control planting, which do not affect deductibility.
- Repairs and maintenance: this is fully deductible for farmers and foresters [DG 7 and DP 1].
- Selling standing timber: Income from the sale of standing timber is taxable [CB 24]. In a sale of land with standing timber, the part of the sale income that’s attributable to the timber is taxable [CB 25]. The buyer of the standing timber can’t claim the purchase as an expense against other income, but must carry it forward until the timber is harvested or resold [DP 11 and EA 2]. This anomaly is because IRD has chosen to make standing timber a ‘revenue account property’ like land for subdivision. It’s not a big deal if the harvest is imminent, but can be a problem if the harvest is decades away. The provision does not apply where an owner grants a forestry right to himself or herself under the Forestry Rights Registration Act 1983.
- Selling standing trees: The Tax Administration Act 1994 outranks the Income Tax Act and presumes all trees are timber unless proven otherwise. Trees for shelter, erosion control or carbon are treated as timber, and taxable on their sale as standing trees [CB 25]. Farmers who sell land with such trees should have them valued for tax, or obtain a certificate [Tax Administration Act Section 44 C] proving they are incidental, horticultural or ornamental. “A certificate as to whether trees are planted mainly for the purposes of timber provides conclusive evidence if it is given by a properly authorised officer of the relevant regional council; or a properly authorised officer of the Ministry for Primary Industries; or any other person suitably qualified.” This is enlarged on below.
- Spreading of income: Both farmers and foresters can spread income from the sale of timber forward for up to 5 years, using an interest bearing income equalisation account held at IRD [EH 1 to EH 36]. Interest is paid at 3% pa with daily rests [EH 6]. You only pay tax on the amount of income withdrawn from the account in any year. A forester may also spread income backwards for three years [EI 1, with the rules set out in EW]. It looks as if a forester can use both methods at once, allowing a spread of up to 8 years.
- Tracks, roads, culverts and bridges:
For farmers these are capital costs depreciable at 5% DV [Schedule 20].
For foresters these are fully deductible costs if the assets are used for less than 12 months [DP 1]; but capital expenditure if they are designed for a longer life, depreciable at 20% DV if they are partially or not metalled, and 5% DV if they are sealed or metalled [Schedule 20].
These two additional comments by Jeff Morrison and Joanne Ziegler of Russell McVeagh appeared in the August 2000 issue of the New Zealand Tree Grower.
- Compensation payments: A compensation payment, for example insurance proceeds for the damage or loss of timber, is deemed assessable income. However the taxpayer is entitled to a deduction for an amount equal to the cost of the timber that was lost (i.e. its value as standing timber before the damage occurred – H Moore comment).
- Deductions for partnership investors: To be able to claim deductions for forestry operations a taxpayer must ‘carry on a forestry business’ in New Zealand. This raises the issue of whether passive investors in a forestry partnership can be said to be carrying on a forestry business. Following a couple of high level decisions in the courts, the following factors should be taken into account to meet the standards required of a partnership agreement:
- there should be a requirement that funds provided by the investor should be used for the forestry activities;
- the investor should have a right to direct employment of forest advisers;
- the investor should receive regular management reports;
- the investor should have a right to be physically involved in the forestry activities, by way of site visits, inspections and discussions;
- the investor should have entitlement to the tree crop and not just the proceeds.
The combination of some or all of these factors is necessary to ensure that the investor can be shown to be carrying on business operations, and not merely making an investment in the forestry activity.
Of course the Income Tax Act has a lot more but the rest is generally less relevant to forestry. If you are interested in navigating it, use the references in square brackets as a guide. You’ll also find it has a search function that highlights all occurrences of your search term, making it easier to find your way. The big hurdle is in following up cross references to other sections in the Act and when you get there, understanding what they mean. The really big hurdle is checking to see if what you have is actually all there is, because somewhere, another section or another Act (like the Tax Administration Act) using different language might impact on what you’re trying to do. I suggest that’s when you call in the experts.
The points above seem to have two interesting implications. First, it is clear that anyone growing trees on steep land for carbon and erosion control should be aware of tax if they are thinking of selling. The tax risk could be minimised with a certificate from the Regional Council confirming that harvesting is out of the question; or a certificate from a ‘suitably qualified person’ arguing the harvest costs would outweigh the returns. Of course costs change and the buyer will have his own objectives, but that’s not the seller’s responsibility.
Second, it seems to me that because of the identified tax differences, a landowner might improve his position by being a farmer on one part of his land and a forester on the other. This could be achieved by the farmer entering into a Forestry Right with himself as a new tax entity, to run that part of the land where it was smart to grow ‘timber’; while he kept the rest of the farm to run stock and grow ‘trees’.
10 May 2018.