Proposed Changes to the Research & Development Rules

30 July 2015

The tax bill which is currently before Parliament includes some important changes to the tax rules which apply to research & development.

The most significant proposal will enable the "cash out" of research & development tax losses.  Problem areas which have been identified in the current rules include:

  1. The current tax rules effectively delay the ability of a loss-making business to use its deductions, because the losses need to be carried forward.  However, this can create a cashflow problem for some companies in an on-going tax loss position, and this issue can be a significant one for companies undertaking research & development.
  2. If the research & development ultimately turns out to be unsuccessful, any losses which are carried forward can only be utilised if there is a subsequent profitable business.  This could be a further deterrent to investment in marginal research & development projects.

The proposed changes in the tax bill focus on start-up companies which are engaging in intensive research & development,  and  the  access  to  their  losses  will  be  brought  forward  provided  they  meet  certain criteria.

The proposed changes will allow the companies to "cash out" tax losses which arise from research & development expenditure.

The key points are as follows:

  1. Start-up companies will be able to claim up to 28 percent (the current company tax rate) of their tax losses from  research & development expenditure in any given year.
  2. There are a number of eligibility requirements.  The main requirements are that the company must be a loss­making company resident in NZ, with a sufficient proportion of expenditure on research & development.  Listed companies are excluded, as are qualifying companies and look-through companies.
  3. The amount that can be cashed out will be the smallest of the following amounts:
  • The cap which applies to the relevant year - $500,000 for the 201 5-16 year, increasing by $300,000 over the next five years to $2 million.
  • The company's net loss for the year.
  • The company's total research & development expenditure for the year
  • 1.5 times the company's labour costs for research & development for the year.

The definition of research & development expenditure that will apply for the cash-out rule will be more restricted than the definition which applies to the current income tax deduction provisions for research & development.  Expenditure on certain activities and some types of expenditure are excluded.

Because the cash-out will be administered through  the tax system,  it will  be  delivered  in  the form  of  a tax credit  for the year  in which  the  loss arose.  In other words, it will not be possible to cash out a loss in a later year.

Losses which are cashed-out are extinguished. A cashed-out loss is effectively like an interest-free loan from the Government.   It is intended  to provide  a temporary cash-flow  timing benefit, and  if  the business  makes an  untaxed return on its research  & development,  it will  be  required  to  repay  some or all of the amounts  cashed out.

In particular, the proposed legislation specifies that cashed-out payments should be repaid (and corresponding losses reinstated) if any of the following events takes place:

  1. The company disposes of or transfers research & development assets (i.e. intangible property, core technology, intellectual property, or know- how)
  2. The company fails to meet an eligibility requirement
  3. The company migrates
  4. The company is liquidated
  5. The company amalgamates with another company
  6. More than 90 percent of the company has been sold since the company first cashed-out research & development tax losses.

New deductions would reinstate corresponding losses, which would then be available to offset future income.  The proposed rules will apply to income years beginning on or after 1 April 2015.

Other proposals in the current tax bill are primarily targeted at "black hole" research and development (R&D) expenditure.  This is where business expenditure is not immediately deductible for income tax purposes, but also never becomes part of the cost of a depreciable asset for income tax purposes.  This means that the expenditure may never be deductible.

If you would like to find out more about the above proposed changes to the research & development tax rules, please contact your BDO adviser.