Corporate structure options
Four main avenues are open to overseas entities wishing to set up a business in New Zealand.
They are to:
• Register a branch
• Form a subsidiary company
• Merge with or take over an existing New Zealand company, or
• Enter a limited partnership.
Taxation
New Zealand has a broad-based tax system consisting principally of:
• Income tax and fringe benefit tax
•Resident and non-resident withholding tax (RWT and NRWT)
• Goods and services tax (GST)
• Accident Compensation levies
• Import tariffs and miscellaneous excise duties, and
• Local authority rates on property. (Tripp, 2011)
Stamp duty, gift duty and death duties are not payable in New Zealand. Tax advice provided by lawyers enjoys legal privilege, that is, it does not have to be disclosed to the authorities in most circumstances.
Income Tax (Residency and rates of tax)
For individuals and companies defined as “resident” in New Zealand, income tax is imposed on worldwide income. Non-resident individuals and companies, on the other hand, are taxed only on income derived from New Zealand, and their tax liability may be reduced by the provisions of an applicable double tax agreement. Individuals are regarded as resident in New Zealand for income tax purposes if they have a permanent place of abode in New Zealand or are present in New Zealand for more than 183 days within a 12-month period.
A company is regarded as resident in New Zealand if:
• It is incorporated in New Zealand
• It has its head office in New Zealand
• It has its centre of management in New Zealand or control in New Zealand.
Companies (both resident and non-resident) are taxed at 28%. Individuals (both resident and non-resident) are taxed incrementally at between 10.5% and 33%. As noted above, non-residents are taxed only on their New Zealand-sourced income.
For individuals, assessable income includes (among other items) salary and wages, bonuses, other employment benefits or remuneration, partnership income and investment income. For salary and wage earners, tax is deducted at source through the Pay As You Earn (PAYE) system. Non-cash benefits provided to employees are subject to fringe benefit tax which is payable by the employer.
(Tripp, 2011)
Goods and Services Tax (GST)
GST is a consumption tax charged at 15% on the supply of most goods and services in New Zealand. GST-registered taxpayers must charge GST on the goods and services they supply and can obtain a credit for any GST they pay in the course of their business. In this way, the burden of GST is passed along a chain of registered suppliers until it reaches the final consumer.
(Tripp, 2011)
Those making supplies in New Zealand are required to register for GST if they carry on a taxable activity (which is similar in concept to a business, but wider in scope) through which they will make taxable supplies of more than NZ$60,000 per year.
A person carrying on a taxable activity (whether in New Zealand or outside New Zealand) can voluntarily register for GST even if they are under this threshold. Certain supplies of goods and services can be either exempt from GST or zero-rated (e.g. the supply of financial services, services performed as an employee, some services supplied to non-residents and residential rental accommodation).
(Tripp, 2011)
Accident Compensation Levies
New Zealand operates a no-fault accident compensation scheme whereby persons suffering from accidental injuries need not prove fault before receiving compensation. The scheme provides for some financial assistance for medical expenses, loss of earnings, and compensation for dependants in the case of death. All compensation is paid by the Accident Compensation Corporation (ACC), which is funded by:
• Levies paid by all employers, self-employed persons and private domestic workers for work-related accidents. The levy for the self-employed and private domestic workers is set by regulation, whereas the levy for employers is determined by the industry risk class applying to the employer, and may be adjusted up or down depending on the individual employer’s safety management practices
• Levies paid by self-employed persons, private domestic workers and employees for non-work related accidents
• A residual claims levy paid by employers, private domestic workers and the self-employed to cover claims outstanding prior to the introduction of the Accident Insurance Act 1998, and
• Funds set aside by Parliament to fund compensation for injuries to non-earners.
(Tripp, 2011)
Another option is the ACC’s accredited employer programme under which employers can elect to pay no levy, or a reduced levy, in return for funding all or a share of any compensation entitlements incurred at their workplace. To be accepted for the programme, the employer must satisfy a number of criteria, including a minimum level of safety expertise and financial solvency.
Consumer protection
The principal pieces of consumer protection legislation are the Fair Trading Act 1986 and the Consumer Guarantees Act 1993.
The Fair Trading Act
The Fair Trading Act applies to anyone involved in trade. It prohibits (generally whether the activity is intentional or not):
• Engaging in conduct which is likely to mislead or deceive
• Engaging in conduct that is liable to mislead as to the nature, manufacturing process, characteristics, suitability for purpose, or quantity of goods
• Engaging in conduct that is liable to mislead as to the nature, characteristics, suitability for purpose, or quantity of services
• Engaging in misleading conduct in relation to employment that is or may be offered to a person
• Making false or misleading representations in respect of goods or services.
(Tripp, 2011)
The Fair Trading Act also deals with consumer information, falsely applying trademarks, using coercion in connection with supply, offering prizes without providing them as offered, bait advertising, pyramid selling schemes, consumer information standards, product and service safety standards, product recall and the sale of unsafe goods. The Act is enforced by the Commerce Commission and gives consumers direct rights of action. Anyone providing goods or services needs to be aware of the Act.
The Consumer Guarantees Act
• Provides consumers with certain basic warranties in relation to goods and services
• Sets out certain guarantees that relate to the quality, suitability and other aspects of goods and services
• Gives consumers remedies against suppliers where goods or services fail to comply with one or more of those guarantees.
The Act does not apply to dealings with business customers and commercial contracts usually contain a specific acknowledgment of this effect. It applies only to persons buying goods or services for the purposes of household or domestic use.
(Tripp, 2011)
Resource Management Act
The Resource Management Act 1991 (RMA) is New Zealand’s principal statute relating to the use of land, water, minerals, the coast, air and physical resources. The Act aims to promote “sustainable management of physical and natural resources”. The Act also seeks to maintain and enhance New Zealand’s “clean, green” image. The RMA has major implications for industrial projects and property developments. A new development may require a number of consents under the Act before it can go ahead.
Controls on development are administered by locally elected Government authorities and are expressed through a range of publicly notified plans. These include regional plans, regional coastal plans and district plans. Plans set out rules for activities in various locations or “zones”. Parties seeking consent to proceed with a development must follow the procedures set out in the relevant plan, and this may involve public participation through the public notification of the consent application.
Privately owned land may be designated in the district plan as being required by the Government for a public work, which may result in the land being acquired by the Government (compulsorily if necessary). The current market value of the land would be paid as compensation.
(Tripp, 2011)
Building Works
The Building Act 2004 is designed to regulate and control building work and the use of buildings. Every new building and most substantial alterations or additions to existing buildings will require a building consent. Multiple-use approvals are available for group home builders who build homes throughout New Zealand using the same or similar plans.
On completion of works, a code compliance certificate will be issued, provided compliance with the building consent has been satisfied. Allied to the Building Act is the Building Code. This sets criteria to ensure buildings are safe, sanitary, have adequate means of escape and, in the case of public buildings, have access and facilities for disabled persons. Existing buildings, which are being altered, may require upgrading in the course of the alterations in order to comply with these criteria as nearly as is reasonably practicable. Buildings considered earthquake prone may also be required to be upgraded.
The Act imposes restrictions upon occupation of a building where public areas of that building are subject to building works for which a code compliance certificate has not yet been issued.
(Tripp, 2011)
Labour and employment (Employment Relations Act 2000)
The Employment Relations Act is the principal statute governing employment in New Zealand. It aims to promote good faith in the employment relationship and the right of workers to bargain collectively.
Agreements must be in writing, and may be individual (between an individual employee and the employer) or collective (between one or more unions and one or more employer). As of 1 July 2011, employers must hold a signed copy of employment agreements.
Union membership is not compulsory but all collective agreements must be negotiated and concluded by a union.
(Tripp, 2011)
Good faith
The parties to an employment relationship must not do anything, either directly or indirectly, to mislead or deceive each other. They must be “active and constructive,” as well as “responsive and communicative” in their dealings.
The Act also requires parties to bargain in good faith. Employers and employees/unions must, at a minimum, come to the bargaining table, listen and respond to what the other party puts forward. Parties bargaining for a collective agreement must conclude the collective contracts unless there are “genuine reasons” not to.
Further, employers proposing to take an action that may have an “adverse effect” on their employees must (subject to genuine although strict confidentiality exceptions) provide information about the decision and consult with their employees in good faith before the decision is made.
(Tripp, 2011)
Reference:
Chapman Tripp. (2011).DOING BUSINESS IN NZ: Regulations affecting business. Retrieved from: http://www.chapmantripp.com/publications/Pages/DOING-BUSINESS-IN-NZ-Regulations-affecting-business.aspx