Limited Partnerships Bill, Taxation (Limited Partnerships) Bill

Hon LIANNE DALZIEL (Minister of Commerce) Link to this

I move, That the Limited Partnerships Bill and the Taxation (Limited Partnerships) Bill be now read a third time. The Limited Partnerships Bill repeals the special partnership provisions of the Partnership Act 1908 and establishes a modern limited partnership regime in New Zealand, with the objectives of facilitating the development of the venture capital industry in New Zealand and encouraging foreign venture capital investment in New Zealand. The Taxation (Limited Partnerships) Bill provides for the taxation treatment of limited partnerships. In particular, it provides that limited partnerships will have flow-through taxation status, which I shall discuss further as I move through these third readings. It also clarifies and simplifies the tax rules applying to partnerships more generally.

Attracting venture capital investment plays an important role in facilitating the Government’s economic transformation objectives, particularly in relation to growing internationally competitive firms. More specifically, venture capital investment plays an important role in helping new businesses to grow. It also can play a valuable role in encouraging new product research and helping firms to access new contacts and managerial and technical expertise.

Limited partnerships are a preferred structure for investing in venture capital internationally. However, international investors expect limited partnerships to have certain key features. Those include limited liability status for limited partners and separate legal personality and flow-through taxation status for the limited partnership. The existing special partnership regime that we have here in New Zealand lacks some of those key features and has consequently not been able to be effectively utilised by the venture capital industry in New Zealand. In place of the existing special partnership regime, these bills provide a limited partnership structure with regulatory features and taxation treatment that will encourage venture capital investment in New Zealand and which have the key features needed in order to be both recognised and accepted by international investors.

The limited partnership structure established by the Limited Partnerships Bill provides for two classes of partners. The first class of partners is the general partners, who are jointly and severally liable with the limited partnership for the debts and liabilities of the limited partnership, provided, of course, that the limited partnership is unable to satisfy those debts or liabilities. The second class of partners is limited partners, who are not liable for the debts and liabilities of the limited partnership so long as they do not take part in the management of the limited partnership. Both general and limited partners may make capital contributions to the limited partnership. Limited partners need to know what activities they can be involved in while not taking part in the management of the limited partnership, so that they can be clear that they are not potentially exposing themselves to liability. Accordingly the bill provides for “safe harbours” that have been based on international best practice, and which are those activities that a limited partner may take part in without being deemed to have participated in the management of the limited partnership.

Another important feature of the limited partnership structure established by the bill is that it will have separate legal personality. Separate legal personality is, of course, important in that it provides more assurance that a limited partnership will be recognised as such in other jurisdictions and, of course, it minimises the risk that a limited partnership may be treated as a general partnership in some other jurisdictions.

The limited partnership model is intended to be flexible and to allow limited partnerships to structure their affairs in the way that it best suits them. At the same time the bill contains provisions to ensure the good governance of limited partnerships and the protection of creditors. Under the bill limited partnerships are formed on registration. A register of limited partnerships will be maintained by the Registrar of Companies. The registration process is modelled upon that applying to companies, although there are some minor technical differences—for example, in the information that must be supplied on registration. Limited partnerships are also required to provide the registrar with an annual return each year.

The register of limited partnerships will be a public register, except in one respect: the details of limited partners held on the register are to be kept confidential, under the bill. Limited partnership details are not available on a public register in a number of other jurisdictions, particularly in North America. Keeping the details of limited partners confidential certainly does address the risk that some international venture capital investors could choose to bypass New Zealand as an investment destination in favour of another jurisdiction where this information was not available on a public register.

The bill also requires overseas constituted limited partnerships to register if they are carrying on business in New Zealand. The register of overseas limited partnerships established by the bill will provide clarity and certainty to third parties about the nature of the entity that they are dealing with, and should facilitate the ability of creditors or other third parties to bring proceedings against overseas limited partnerships that are carrying on business here.

The bill provides that limited partnerships may be liquidated or deregistered through broadly the same process that applies to companies, and they may use the new voluntary administration process for companies as well.

The taxation treatment of limited partnerships is a key issue in ensuring that they attract investment, and I would like to take this opportunity just briefly to discuss the contents of the Taxation (Limited Partnerships) Bill. This bill provides for flow-through taxation treatment for limited partnerships, which is a particularly vital issue in ensuring that the legislation fulfils its objectives around encouraging venture capital investment in New Zealand. In addition to flow-through taxation treatment, the bill also establishes the tax rules that will apply to limited partnerships and clarifies and simplifies the tax rules applying to general partnerships.

At the Committee stage changes were made to both bills by way of Supplementary Order Paper. The most significant change was to the commencement date of the Limited Partnerships Bill. This was changed to a date specified by Order in Council. The Limited Partnerships Bill cannot be brought into force until regulations are made setting out fees and forms relating to registration and those regulations are gazetted for 28 days. It is anticipated that the Limited Partnerships Bill will be brought into force on or about 1 May this year. The other changes to the Limited Partnerships Bill and Taxation (Limited Partnerships) Bill were of a minor and technical nature and largely designed to clarify or correct small issues in each bill.

I would like to take the opportunity to commend the Commerce Committee for its work in fine-tuning these bills, and also to thank all those who made submissions on the bills. I would also like to commend the officials from the Ministry of Economic Development and from the Inland Revenue Department who worked very hard on this legislation.

These bills are an important contribution to the Labour-led Government’s economic development agenda. They provide a limited partnership structure with the regulatory and taxation features needed in order to be recognised by international investors, and to meet the needs of the New Zealand venture capital industry. By increasing venture capital investment they will facilitate the growth of New Zealand businesses and encourage innovation, entrepreneurialism, and new product development. The Taxation (Limited Partnerships) Bill will also make the taxation law applying to partnerships simpler and easier to comply with.

On that note I commend both the Limited Partnerships Bill and the Taxation (Limited Partnerships) Bill to the House.

LINDSAY TISCH (National—Piako) Link to this

The Limited Partnerships Bill and the Taxation (Limited Partnerships) Bill are of a technical nature. I was fortunate enough to be able to sit on the select committee where we heard the submissions that came forward on this legislation, and very comprehensive submissions they were. I was also able to speak in the first and second readings of this legislation. National has supported this legislation right through and will continue to do so.

The Minister made some interesting points that we subscribe to as well. The legislation frees up the market and allows for investment to give confidence in the market, and I focus my debate primarily on the New Zealand Venture Investment Fund, which was established in 2002 as an investment vehicle but at an arm’s length from political interference or political involvement. It is an arrangement that is allowing co-investors with the private sector, and that is something National supports.

It was reported to the select committee that in 2004 the total investment value in New Zealand equity and venture capital investments was $158 million. This is a very small percentage; in fact it is only 0.11 percent of our GDP. So New Zealand is lagging very much behind our other competitors in other countries who have been able to attract investment—venture capital—and we are well behind the OECD countries. In fact, we need a 5 percent increase in funds just to compete with Ireland, the United Kingdom, and Singapore. So there is a lot of work to be done in that area, and this legislation helps and facilitates that sort of investment.

Also back in 2004, the fund surveyed 15 offshore investment funds representing in excess of $50 billion. They said they would consider investing in New Zealand if we had a world-class investment structure in the form of a limited partnership and flow-through taxation regime. Well, that is exactly what these two bills provide; they facilitate that, and that is very good news because it may now allow us to attract that important investment.

A number of other issues were canvassed during the course of the debate and I will mention just some of them; the Minister mentioned many. They were issues primarily that the select committee was able to consider and make some changes to. The extent of safe harbours was one, and the activities that a limited partner can be involved in without contravening the no-management rule was a significant improvement in the safe harbours position. The trigger point for when someone becomes a limited partner and can avail himself or herself of the protection of limited partner status was another. There was the extent of power in an insolvency to claw back distributions made to limited partners—the current test applies if the limited partner knew that the limited partnership would not satisfy the solvency test after the distribution, and applies for 3 years.

Written partnership agreements are compulsory for limited partnerships, and there is continued confidentiality of names and investments of limited partners, including where that information is contained in annual returns and the pass-through of all losses to investments. The question that probably needs to be asked—and it came up during the Committee stage—was whether these bills are really just a catch-up or whether we have learnt from overseas practice, and, in particular, whether we have learnt from the experiences of our competitors for venture capital; namely, Australia and the UK.

With those points, I say that National has been supporting this legislation right through, we are happy to support it now for its third readings, and we believe that it moves in the right direction to allow overseas investment through capital funds.

Hon PAUL SWAIN (Labour—Rimutaka) Link to this

That was actually quite a helpful contribution from Lindsay Tisch in looking at the purpose of this legislation—it cut right to the chase. As the member says, it is an attempt to encourage the development of venture capital funds in New Zealand, which are important, obviously, for businesses particularly in the start-up phase. It is also important to bring us into line with rules that are set internationally, so that we become a more attractive haven.

The member mentioned the New Zealand Venture Investment Fund. I did not hear the bit where he said a good Labour-led Government introduced this—

KATRINA SHANKS (National) Link to this

It is my pleasure this afternoon to talk to the Limited Partnerships Bill and the Taxation (Limited Partnerships) Bill. This legislation is a new form of vehicle intended to encourage investment in New Zealand. It has the following key features: limited partners’ liability will be limited to the amount of their contribution to the partnership, it establishes safe harbours that allow limited partnerships to participate in the management of the investment partnership without tainting their limited liability status, and it makes a limited partnership a separate legal entity. This legislation also introduces new tax rules for limited partnerships and updates the tax rules for general partnerships. The legislation is a vehicle that encourages venture capital in New Zealand. Venture capital plays a critical role in driving individual company growth and innovation, and this will bring substantial benefits to New Zealand’s national economic performance over a period of time.

We have at this moment in New Zealand a capital market that is small and undeveloped by international comparisons. I understand that the reported total investment value for New Zealand’s private equity and venture capital investment in 2004 was only $150 million. This represents 0.11 percent of GDP. If members look at the OECD tables they will see that we lag behind key players at the top of the tables such as—as my colleague Lindsay Tisch pointed out—the United Kingdom, the United States, Israel, Sweden, Singapore, and many more. Overseas the reality is that investors in private equity and venture capital funds are typically long-term investors such as pension funds and other institutional investors. The standard investment vehicle used by those investors to invest in funds is the limited partnership vehicle.

The old provisions in Part 2 of the Partnership Act 1908 provided a much more restricted basis for special partnerships, but this legislation goes much further and it has been much needed in this area. In this legislation those who seek to invest are commonly referred to as limited partners. They have not only limited liability but also limited control over the management of the funds in the organisation. They invest significant amounts in private equity and venture capital funds for a long-term horizon—typically 10 years or more. The investment activities of the private equity and venture capital funds are undertaken by fund managers who are referred to as the general partners or partner.

A very significant barrier to the growth of the New Zealand venture capital industry has occurred because of the lack of investment from international and domestic institutional investors. The industry needs to attract these investors in order to develop in both scale and maturity. The lack of an investment vehicle that is easily recognised by institutional investors has been identified as one of the constraints of investment in New Zealand for our growth and our economic development.

The Commerce Committee has made a large number of changes to the original bill. One of the most interesting changes is that in the Partnership Act 1908, where there was a constraint on banking or insurance activities being undertaken by special partnerships, the officials actually sought to maintain the separation. The committee has not accepted that position, and I think that in the result the officials yielded on this point because the select committee was satisfied that the generic regulation that applies to banking and insurance sectors today provides sufficient safeguards against the governance risks that may arise when a limited partnership operates as such a business.

The one point to consider is whether this simply catches up with overseas practice or whether it learns from experience and positions New Zealand more favourably than our close competitors for venture capital. For example, I refer to a management buy-out and investment option available to limited partnerships. A limited partnership is required to make a specified portion of investment in New Zealand. Is investment permitted in listed and unlisted companies? Do these issues separate us from other countries so that we will be more attractive to invest in for venture capital?

As this legislation is implemented I think we will need to consider things and monitor certain issues, such as the extent of our “safe harbours”, or activities a limited partner can be involved in without contravening the no-management rule. These are to be contained in regulations, which need to be developed well in advance of the enactment of this legislation. We need to monitor the trigger point for when someone becomes a limited partner and can avail himself or herself of the protection of limited partner status.

The draft legislation places the obligation on the general partner to get it right. In relation to the extent of the power in an insolvency to claw back distributions made to limited partners, the current test applies if the limited partner knew that the limited partnership would not satisfy the solvency test after the distribution, and applies for a 3-year period. Written partnership agreements are compulsory for limited partnerships, but there is no test as to the quality of their agreement. There is continued confidentiality of names and investments of limited partners, including where that information is contained in annual returns.

Lastly, I think we need to monitor the passing through of all losses to investors. At the moment this would be limited to the capital contributed to the relevant investor. I look forward to seeing the progress of these issues. National supports this legislation.

TE URUROA FLAVELL (Māori Party—Waiariki) Link to this

Tēnā koe, Mr Assistant Speaker. Kia ora tātou i tēnei ahiahi. One of the common catchphrases in this place is that a week is a very long time in politics. So it is, from our perspective, with the two bills associated with limited partnerships. Last week New Zealanders awoke to the news that Dr Cullen had introduced urgent legislation overnight to constrain overseas investments and investment applications in connection with a select group of strategically important assets. As the sun sets tonight, the Government is pushing forward legislation that actually flings the doors wide open to investment structures for overseas venture capital. So we would suggest that it is no wonder the polls are dipping a little bit. It might be a case of the right hand not necessarily knowing what the left hand is doing.

That aside, these two bills—the Limited Partnerships Bill and the Taxation (Limited Partnerships) Bill—establish a new regulatory and tax regime for limited partnerships. Limited partnerships are the internationally preferred investment structures to attract foreign venture capital. Venture capital investment in Aotearoa is currently small, as I understand it, with the key sectors receiving investment being telecommunications, software development, biotechnology, and other high-tech developments.

As it stands, most Māori businesses are too small to even get a look in. But, perhaps more to the point, the issues of ownership and accountability are the main issues of those in Māori business. As Richard Jones, the Chief Executive of Poutama Māori Business Trust concluded in Tū Mai magazine back in 2006: “They will want to have a stake in the business as well as some control, even to the point of running it, so investment of this nature is not for the faint-hearted.”

This is the central hub of our concern as the Māori Party. We wonder exactly what interest foreign venture capitalists will have in Māori economic development. I am told that Te Ratonga Ture, the Māori Legal Service, advised the Commerce Committee that foreign capital investment will come at a price of shared equity and a measure of control. Te Ratonga Ture considered that foreign capital investment would also bring forward the possibility of moving the centre of control overseas. This is something we take very seriously. The new limited partnership business structure will open New Zealand up to foreign investment holus-bolus without, we presume from its absence in the legislation, any consideration for the Treaty partner to be able to monitor, to assess, to support, or, indeed, to oppose such investment.

We, the Māori Party, believe that it is critical that before agreeing to allow any foreign investor access into Aotearoa there needs to be extensive consideration of the conditions that will come with any such partnership. It is our belief that there are always ways to access funding without compromising what is important. The key point is not the limits of the funding but more the limits of our imagination in terms of considering possible funding partnerships and negotiating the right terms and conditions.

As an example of the type of innovative thinking we need, we have only to look in my electorate at the Tuarōpaki Trust, north of Taupō. The trust includes a $30 million geothermal power-generation plant, 30 acres of temperature-controlled export tomato and paprika crops, and satellite wireless communication. In their case the capital was raised through a non-recourse bank loan—the first of its kind. What it means in effect is that the bank has a claim over the project but not over the land. The Māori Land Court authorised the trust to form a single-purpose company, also known as a single-purpose vehicle, and the company was therefore able to apply for the loan. If it can work once, it can work again and again and again.

Another key factor in our analysis of these two bills is the suggestion from the select committee that confidentiality clauses should be incorporated into the legislation. The Commerce Committee recommended the deletion of clause 99 of the Limited Partnerships Bill and a replacement clause stipulating that the registrar must treat limited partner information as confidential. But in a really curious twist, what the select committee recommended next was even more secretive than the privacy constraints, because the select committee also recommended that the Official Information Act should not apply to limited partner information.

Submissions received by the committee put forward an alternative view. Lawyer Christopher Littlewood pointed out the inconsistency in the application of one law for limited companies and another law for limited partnerships. He maintained that public registers should be public and that there is no rational argument to justify hiding information such as contract details or the nature of the partnership. We of the Māori Party agree with Mr Littlewood’s logic that the public has a fundamental right to know whom they are dealing with and to verify that information by consulting with the register.

For another even more relevant opinion on the issues relating to privacy we were interested in the advice of the Office of the Ombudsmen, which put forward the view that the privacy of individuals can be addressed through the routine application of the Official Information Act. As such, the Ombudsmen believed there is no need to exclude application of the Official Information Act from this legislation.

Four short words sum up what has lifted most successful individuals above the crowd: a little bit more. Those individuals do all that is expected of them and a little bit more. These two limited partnerships bills reinforce for the business leaders that investment and supportive initiatives may need a little bit more—creative courage to search for the required funding from alternative sources. There is no reason to fear that the only finance available will be that with an overseas address tag—a tag that brings with it the downstream problems associated with majority-share ownership.

Large-scale foreign venture capitalists aim to buy in, make money, and get out, regardless of the consequences. When we look at some of the development scenarios being considered, we see that we have to start being concerned about these consequences. Biological materials from bio-prospecting activity on the foreshore and seabed, or geothermal developments are just some of the areas in which growth may bring with it additional risks and cost. Capital is often traded for some form of ownership control and relocation requirements. The question remaining for the Māori Party is precisely around this issue of control. How safe is any guarantee that we can retain ownership and control over our resources and over our development?

We have been thinking of the leadership and inspiration provided by organisations such as the Poutama Māori Business Trust, the Tuarōpaki Trust, and other Māori businesses that deliver beyond all expectations. Their managers and their boards went a little bit further in taking the risks necessary to be successful. We learn from their example, and the Māori Party believes that we must also give a little bit more in terms of responding to the model of leadership we see evident in Te Ao Māori. We know that Māori economic development, Māori businesses, can prosper without having to sell their souls. We know that confidence for business leaders will demand high standards of professionalism but also of open and brave accountability. We do not think hiding details away under confidentiality clauses, excluding potential investors from the reach of the Official Information Act, or throwing caution to the wind and opening up our domestic markets to foreign venture capitalists will work to support the long-term aspirations and best interests of tangata whenua.

Without a doubt, many Māori businesses need access to seeding capital to take them from concept through the start-up phase to a point where they are viable, long-term prospects. If that capital were more accessible, perhaps more Māori businesses would be in a position to negotiate with foreign venture capitalists. But what would remain of the fundamental questions of this time—the ownership and protection of customary resources and of whenua, of the traditional knowledge of forests, underground steam, minerals, water, and organisms on the foreshore and seabed? Those are resources that the Crown attempts to claim as its own, brokering deals for development that take ownership and profits elsewhere.

This bill comes before things that need to be in place or that are in place. We need settlement of the Wai 262 indigenous fauna and flora claim. We need the repeal of the Foreshore and Seabed Act, and we need fair and just settlements of Treaty claims. When these issues are resolved, the Māori Party can return to the question of limited partnerships. Until then, we will not be supporting this legislation.

JUDY TURNER (Deputy Leader—United Future) Link to this

I rise on behalf of United Future and, in particular, on behalf of the Hon Peter Dunne to speak to the third readings of the Limited Partnerships Bill and the Taxation (Limited Partnerships) Bill. This legislation introduces new tax rules for limited partnerships and updates the tax rules for general partnerships. The changes are designed to support the new regulatory rules for limited partnerships to make it easier for New Zealand firms to attract international investment capital.

Under the proposed rules limited partnerships will be taxed in the same way as general partnerships, with partners being taxed individually in proportion to their personal share of the partnership income. Limited partners will be subject to new tax-loss limitation rules to ensure that the losses they claim reflect the level of their economic loss. Limited partners will be able to offset only the tax losses to which they have exposure, which will help prevent limited partnerships being used as tax shelters.

The legislation also introduces a new comprehensive definition of “partnership” into the Income Tax Act and clarifies which forms of co-ownership are covered by partnership rules. The new tax definition of partnership is based on that contained in the Partnership Act and covers partnerships defined under that Act, as well. New Zealand resident partners of foreign general partnerships in certain foreign limited partnerships are part of that definition, as are joint ventures whose members choose to be treated as a partnership for tax purposes, and, also, co-owners of property, though not companies or trusts, if the all co-owners choose to be treated as a partnership for tax purposes.

The bill clarifies the appointment of income, expenses, and other items to partners for tax purposes. The new rules will ensure that income, expenses, tax credits, rebates, gains, and losses flow through to the individual partners, and those items will generally be allocated to partners in proportion to each partner’s share in the partnership income. The rules will allow deductions for expenditure incurred through the original partnership to be claimed by new partners, subject to them meeting the other tests of deductibility in income tax law.

The proposed rules make a number of useful changes that should reduce compliance costs for partners and increase certainty. These include not automatically treating a partnership as having dissolved when there is a change in partners, and ensuring that individuals leaving a partnership do not have to make tax adjustments when the tax effect is not significant.

In addition to these measures, the committee has recommended some extremely useful changes to the legislation to make it easier to comply with the rules. These changes include things like making the tax rules clearer when a partnership dissolves, ensuring the rule that treats transactions between partners or partnerships as being at market value will apply only when the transaction was entered into to avoid tax, clarifying that a partner’s share in the partnership income can be different from his or her share in the partnership’s assets, and, lastly, relaxing some of the restrictions on limited partners’ losses for amounts that are guaranteed by limited partners.

In the bill as introduced, a partnership was treated as having dissolved when there was a 50 percent or more change in the partnership’s ownership within 12 months. This was designed to prevent large asset transfers giving rise to significant deferral of tax liabilities. Submitters expressed concern that a deemed dissolution with an ownership change of 50 percent within 12 months was not appropriate, as the operation of the rule was not sufficiently clear. As a result, the committee recommended that a final dissolution for tax purposes should occur when the partnership dissolves by agreement of the partners, court order, or some other way, and when the partnership’s business ceases.

In the bill as introduced, most transactions between partners or partnerships would have been treated as being at market value for tax purposes. This requirement was designed to protect the tax base and ensure that assets could not be transferred in and out of a partnership under and overvalued for tax benefits. Submissions were made for this rule to be removed, and it was argued that the rule was a departure from existing law and practice and that it can be difficult to determine market value in many cases. The committee agreed that this rule should not affect situations where non-market transactions between partners or partnerships occurred legitimately. Applying the rule in these circumstances could result in high compliance costs, and the committee therefore recommended replacing this rule with a specific anti-avoidance rule that essentially deems a transaction to have occurred at market value if the transaction was entered into to avoid tax.

The committee recommended that the drafting should clarify that one partner’s proportionate entitlement to income from the partnership can be different to his or her share in the partnership’s assets. For example, in professional services firms, such as accounting or law firms, it is common for each partner’s rights to the profit of that partnership to fluctuate from year to year based on individual performance, but each partner’s share of the partnership’s assets remains the same. The drafting changes recommended by the committee clarify that this situation is within the policy intent of the new rules.

To prevent limited partners from claiming excessive losses the legislation restricts limited partners’ losses to amounts that limited partners actually have at risk. For the purposes of calculating the amount of loss that a limited partner is entitled to, in the bill as introduced amounts of guarantees were recognised only to the extent of that partner’s share in the partnership. The select committee recommended recognising in a wider range of situations amounts that are guaranteed by limited partners. The full amounts of the debt that has been guaranteed will now be recognised, subject to certain restrictions such as where other limited partners have also guaranteed the debt. United Future commends all those who have contributed to this bill, and we support its third reading.