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Penny & Hooper: Fair market salary

Grant Thornton

Press release

25 August 2011

Penny & Hooper: Fair market salary

It¹s not just tax boffins who should take interest in the Supreme Court¹s recent decision in Penny & Hooper v Commissioner of Inland Revenue. The case has implications for many business owners. What has been normal commercial practice may now be tax avoidance.

The case involved two orthopaedic surgeons. Each transferred their private practice from their own name into a company, the shares of which were held by a trust. They paid themselves a salary from the company, with the balance of the company¹s profits going to their trust as dividends. As a result, the amount of business income taxed in their names (at higher personal tax rates at the time of up to 39%) was reduced, with a greater proportion taxed at the trust rate of 33%. In both cases, the surgeons still had access to the income, via the trusts.

The Supreme Court said that most of the facts didn¹t cause a problem. Delivering the Court¹s unanimous decision, Blanchard J described the structure as ³entirely lawful and unremarkable² and ³a choice the taxpayers were entitled to make.² This is good news from the Court, given serious questions were being raised about the appropriateness of what had become normal commercial structures.

However, in the Court¹s view, tax avoidance arose when the structure was coupled with fixing salaries at an ³artificially low² level, and in effect full access to the same funds they would have previously had. That had the effect of altering the incidence of tax in a way that was not contemplated by Parliament.

But who decides what constitutes a ³commercially realistic² salary? As pointed out by the surgeons¹ counsel, it is not a concept that can be found in the Income Tax Act ¬ although the Act does contain rules against salaries that are too high (dating back to when company tax rates were higher than the personal tax rates) and provisions that attribute company income to owners in specific circumstances (the ³personal attribution² rules).

The surgeons in the present case bench-marked their salaries to those earned from their hospital work. A bench-marking approach seems to be an entirely appropriate way of setting a salary. In other words, set the salary at the amount required to pay someone on an arm¹s length basis for their labour input to the business. The question was whether this was an appropriate bench-mark for a private practise.

In contrast, Inland Revenue¹s approach was that all of the profit of the business should be allocated as a salary to the owner, but with a nominal deduction to allow for a return on capital employed in the business. Such methodology is not much more than an attribution of the earnings of the business to the working proprietor.

If there is any saving grace, it is in the Supreme Court¹s recognition that there may be circumstances where a lower salary might be acceptable. Examples cited include retaining profits for capital investments, if there are current or anticipated financial difficulties. This reflects the Inland Revenue¹s stated position following the Court of Appeal decision.

The Penny & Hooper case provides another insight into the current judicial approach to tax avoidance. It is a two-stage query, asking first whether the ³black letter² of the law has been complied with. If the answer is yes, the next question is whether it has been complied with in a way that is ³within the contemplation of Parliament.² Many may wonder what Parliament is contemplating at the best of times. In a taxation context, it requires reviewing the overall scheme of the Income Tax Act to try to understand what the legislators had in mind when they enacted particular provisions.

So who should be worried by this case? The Minister of Revenue has said that ³small business owners shouldn¹t fear a witch-hunt². However, the following combination of factors indicates a higher risk of offence:

• A sole proprietor business is transferred to a new structure, such as a company.

• The profits of the business are highly dependent on the personal exertion of the proprietor.

• The working owner¹s income is restricted to a salary that is significantly lower than the profits of the business.

• There are no extenuating circumstances to justify the low salary (eg capital commitments, expected poor financial performance).

• The working owner has access to the use of funds previously at their full disposal but now routed through an intermediary structure.

It¹s not just orthopaedic surgeons that are at risk. Any professional or trades based business is potentially at risk. At less risk are businesses that depend more on the trading of goods or a high level of capital investment for their profits.

Business owners will not only have to consider how they deal with salaries in the future, they will also need to think about how they have dealt with them in the past.

In summary, the following points are key:

• The use of companies, including companies whose shares are held by a trust, continues to be a legitimate form of business structure.

• A low salary is acceptable, provided there is commercial justification. It would be prudent to document any the rationale for a low salary at the time of determining it.

• The circularity of funds (the owner¹s continued access to funds) is an important factor.

• Existing businesses that restructure are at greater risk than new businesses that adopt such structures from the beginning.

• Although a structure may have a valid foundation, how it is used (especially in respect of setting salaries) should be reviewed on an annual bases.

- ends -

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