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Technical tax area Ngā tūmomo whakataunga me ngā aratohu

Limit on refunds and allocations of tax

Sections MD 2(4) of the Income Tax Act 1994 and the Income Tax Act 2004

The imputation rules have been amended to extend the circumstances when tax overpaid before a breach in shareholder continuity can be refunded. The amendment corrects an anomaly in the previous rules.

Background

Generally, overpaid company tax cannot be refunded if a refund would result in a debit balance to the company's imputation credit account (ICA).

Under section ME 5(1)(i), a breach of shareholder continuity in a company results in a debit arising to the ICA at the time of the breach. Although a "discontinuity" debit can effectively be ignored for the purposes of effecting the refund, there is a condition that the debit must arise after "the date of payment of the first instalment of provisional tax" for the year to which the overpayment applied.

Where a company does not pay provisional tax - for example, because its income tax liability is satisfied instead by resident withholding tax deducted from interest - there is no "date of payment of the first instalment of provisional tax". Therefore no adjustment can be made to the ICA balance under current law in relation to the overpayment that arose before a breach in continuity.

The anomaly has only recently been identified, although it has existed since the imputation rules were introduced. Inland Revenue is aware of only one case affected by it.

Key features

Section MD 2(4) of the 1994 and 2004 Income Tax Acts, which effectively allows an imputation account debit that arises on a breach of shareholder continuity to be ignored for the purpose of calculating a tax refund, has been amended to ensure that it operates correctly, whether the overpayment of tax was made before or after the first instalment of provisional tax.

Application date

The amendment applies from the 2000-2001 year. This date is arbitrary. It was chosen because it will ensure that the correct tax treatment is applied to the only case identified so far as affected by the anomaly.