Introduction
A. TMNZ is a tax pooling intermediary. TMNZ has engaged Guardian Trust to provide custodial trustee services over the Tax Pooling Account and the bank accounts through which monies are paid for deposit to, or as a refund from, the Tax Pooling Account.
B. Client is a New Zealand taxpayer and wishes to utilise the tax pooling services provided by TMNZ with Guardian Trust as custodial trustee to make deposits into the Tax Pooling Account or purchase tax credits from the tax pool to settle a liability with the Inland Revenue. Client also refers to an agent acting on behalf of the taxpayer.
C. These terms and conditions set out the rights and responsibilities of Client and TMNZ with respect to the use of tax pool deposits.
1. INTERPRETATION
1.1 In these terms and conditions, except where the context otherwise requires:
Associate means any related entity that Client chooses to register as an Associate with TMNZ and which TMNZ accepts for registration;
Bank Accounts means the bank accounts of Guardian Trust at Westpac Banking Corporation nominated by Guardian Trust in accordance with Clause 3.4 or any bank account of Guardian Trust nominated in accordance with Clause 3.5, such bank accounts being the Sale/Purchase Bank Account, the Refund Bank Account and the Deposit Bank Account;
Business Day means a day on which banks in Wellington and Auckland are open for general banking business and all services are available;
Commencement Date means the date that Client accepts these terms and conditions;
Confirmation means an electronic confirmation from Client to Guardian Trust;
Deposit means a deposit made or to be made by or in respect of Client or its Associates to the Deposit Bank Account;
Deposit Bank Account means the bank account of Guardian Trust at Westpac Banking Corporation nominated by Guardian Trust in accordance with Clause 3.4 as the Deposit Bank Account or any bank account of Guardian Trust nominated in accordance with Clause 3.5 for payment of a Deposit;
Deposit Refund means a refund to Client of a Deposit from the Deposit Bank Account;
Dollars or $ means the lawful currency of New Zealand;
Event of Default has the meaning set out in Clause 14.1;
Flexitax means a flexible payment option for taxpayers to pay for their tax deposit purchase. Taxpayers can choose when and how much they pay provided they pay above the minimum amount of $1000. Flexitax is only available for current year tax.
Flexitax Date means the date where an agreement to purchase tax becomes a Flexitax. The date will be the next Purchase / Sale date after a minimum payment of $1000 is made.
Flexitax Rate means the interest rate Tax Management NZ charges from the Flexitax Date to the Payment Date for each Flexitax.
Inland Revenue means the Inland Revenue Department, which is a Department of State, constituted under section 5 of the Tax Administration Act 1994 and includes, for the avoidance of doubt, the Commissioner of Inland Revenue;
Inland Revenue Account means an account kept by Inland Revenue in respect of payments of income tax by taxpayers and tax pooling intermediaries;
Provisional Tax Date means the 15th or 28th of January, the 7th or 28th of May or the 28th of another month (excluding April & December) or, where this is not a Business Day, the immediately following Business Day;
Purchase means a purchase of a Tax Deposit, or any part of it, by Client from TMNZ as agreed in writing from time to time;
Purchase/Sale Date means the date on which a purchase or sale of a Tax Deposit by Client from or to TMNZ is agreed in writing by Client and TMNZ to occur;
Purchase Price means the purchase price of a Tax Deposit (or any agreed part of it) that will be an amount equal to the sum of the amount of the Tax Deposit (or any agreed part of it) and an interest amount agreed between TMNZ and Client in writing in relation to the particular Purchase of a Tax Deposit;
Refund Bank Account means the bank account of Guardian Trust at Westpac Banking Corporation nominated by Guardian Trust in accordance with Clause 3.4 as the Refund Bank Account or any bank account of Guardian Trust nominated in accordance with Clause 3.5 for payment of Tax Deposit Refunds;
Sale means a sale of a Tax Deposit, or any part of it, by Client to TMNZ as agreed in writing from time to time;
Sale Price means the sale price of a Tax Deposit (or any agreed part of it) that will be an amount equal to the sum of the amount of the Tax Deposit (or any agreed part of it) and an interest amount agreed in writing between TMNZ and Client in relation to the particular Sale of a Tax Deposit (or any agreed part of it);
Sale/Purchase Bank Account means the bank account of Guardian Trust at Westpac Banking Corporation nominated by Guardian Trust in accordance with Clause 3.4 as the Sale/Purchase Bank Account or any bank account of Guardian Trust nominated in accordance with Clause 3.5 for payment of a Sale Price or Purchase Price;
Tax Deposit or Tax Deposits means a deposit made or to be made in respect of Client or its Associates with Inland Revenue to the Tax Pooling Account in accordance with these terms and conditions including:
(a) a remittance of a Deposit from the Deposit Bank Account in accordance with Clause 5.1(a);
(b) a transfer directly by Inland Revenue of a balance of Client’s Inland Revenue Account in accordance with Clause 5.1(b);
(c) a direct transfer to the Tax Pooling Account from another tax pooling intermediary's tax pooling account in accordance with Clause 5.1(c); and
(d) an amount deposited in the Tax Pooling Account purchased by Client in accordance with Clause 7;
Tax Deposit Refund means a repayment by Inland Revenue of a Tax Deposit in the Tax Pooling Account (or any part of it requested by Client) and any Use of Money Interest to the Refund Bank Account;
Tax Pooling Account means the tax pooling trust account established and maintained by TMNZ with Inland Revenue under the name “Guardian Trust/TMNZ Tax Account” (IRD Number 84-834-238);
TPRS means the tax pool registry system maintained by Guardian Trust which records all of the Deposits, Deposit Refunds, Transfers, Purchases, Sales, Tax Deposits and Tax Deposit Refunds;
Transfer means a transfer of a Tax Deposit of Client or, if relevant, an Associate, from the Tax Pooling Account to the Inland Revenue Account of Client or, if relevant, an Associate, or to the tax pooling account of another tax pooling intermediary; and
Use of Money Interest means use of money interest under the Tax Administration Act 1994.
1.2 In these terms and conditions, unless the context otherwise requires any reference to:
an agreement also includes a contract, deed, licence, franchise, undertaking or other document (in each case, oral and written) and includes that document as modified, supplemented, novated or substituted from time to time;
the dissolution of a person also includes the winding-up, bankruptcy or liquidation of that person or any analogous procedure under the law of any jurisdiction in which that person is incorporated, domiciled, resident, carries on business or has assets;
something having a material adverse effect on a person is a reference to it having a material adverse effect:
(a) on that person's financial condition or operations or on the consolidated financial condition or operations of it and its subsidiaries; or
(b) on its ability or willingness to perform and comply with its obligations under these terms and conditions or any document relevant to the performance of these terms and conditions,
and references to material adverse change shall be construed accordingly;
a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a state and an agency of a state (in each case, whether or not having separate legal personality);
rights includes authorities, consents, discretions, remedies, powers, and causes of action;
tax includes any present and future tax, levy, impost, duty, rate, charge, fee, deduction or withholding of any nature regardless of where or by whom imposed, levied, collected, withheld or assessed and includes interest, penalties, fines, costs, charges and expenses and other amounts relating to or arising in connection with taxes;
1.3 In these terms and conditions,
(a) the singular includes the plural and vice versa;
(b) any legislation includes a modification and re-enactment of, legislation enacted in substitution for and a regulation, order-in-council and other instrument from time to time issued or made under, that legislation; and
(c) a party to these terms and conditions or another agreement includes its successors and its permitted assignees and transferees.
1.4 Headings and the table of contents are to be ignored in construing these terms and conditions.
1.5 Time shall be of the essence as regards the performance by TMNZ of their obligations under these terms and conditions.
2. TAX POOL MEMBERSHIP
2.1 Upon accepting these terms and conditions, Client and each Associate referred to in Clause 3.1(b) is a "client" of TMNZ as that term is used in section RP 19(1) of the Income Tax Act 2007, and entitled to receive transfers from the Tax Pooling Account.
2.2 These terms and conditions will replace any former terms and conditions in relation to the tax pool arrangements between the parties and will, from the Commencement Date cover any existing deposits of Client.
3. REGISTRATION PROCESS
3.1 Client will provide to TMNZ, who will provide to Guardian Trust, the following details:
(a) Client’s Inland Revenue number;
(b) the names and Inland Revenue numbers of any Associates that may receive transfers of Tax Deposits in accordance with these terms and conditions;
(c) details of the bank account of Client, into which Deposit Refunds,Tax Deposit Refunds, and proceeds of Sales are to be paid; and
3.2 Guardian Trust has agreed to register these details in the TPRS and provide written confirmation of the details in Clause 3.1 to Client. The details registered under Clause 3.1 with Guardian Trust in the TPRS will not be able to be altered other than upon receipt of a written authorised request from Client.
3.3 For the avoidance of doubt, Client may decide that any Associate may no longer receive transfers of Tax Deposits, in which case Client shall make a written request to Guardian Trust, and Guardian Trust shall deregister the details of any such Associate in the TPRS and provide written confirmation to Client and TMNZ within 10 Business Days.
3.4 Guardian Trust has agreed to provide to Client in writing details of each of the Bank Accounts. The initial Bank Accounts are-
Deposit Bank Account – Guardian Trust Tax Pool Deposit Account
03 – 0104 – 0984913 – 11, Westpac Bank, Queen St, Auckland.
Sale/Purchase Bank Account – Guardian Trust Tax Pool Purchase Account 03 – 0104 – 0984913 – 12, Westpac Bank, Queen St, Auckland.
Refund Bank Account – Guardian Trust Tax Pool Refund Account
03 – 0104 – 0984913 – 13, Westpac Bank, Queen St, Auckland.
Finance Maturity Bank Account – Guardian Trust Tax Pool Finance Account
03 – 0104 – 0984913 – 14, Westpac Bank, Queen St, Auckland.
3.5 If Guardian Trust proposes to change the bank or account details of any of the Bank Accounts, it shall provide such new details to Client in writing at least 20 Business Days before the new details shall take effect. Funds held in these Bank Accounts are held on trust for clients. Any interest arising on these Bank Accounts is payable to TMNZ. TMNZ will pay interest (at the rate applicable to prime bank deposits for the relevant period) to Client on Tax Deposit Refunds up to the date of payment and will give credit to Client for any agreed early Deposit or payment for the Purchase of a Tax Deposit.
4. TRUSTEE DUTIES
4.1 TMNZ has engaged Guardian Trust to act as trustee for the benefit of Client and, if relevant, its Associates in relation to all moneys transferred to any of the Bank Accounts by or in respect of Client and/or its Associates, all balances of Client and its Associates in the Tax Pooling Account and any Use of Money Interest applicable thereto, all Deposits held on behalf of Client and its Associates, all Tax Deposits held on behalf of Client and its Associates, all Tax Deposit Refunds to Client and its Associates, all Deposit Refunds to Client and its Associates, and all proceeds of Sales by Client and its Associates.
4.2 TMNZ and Client acknowledge that:
(a) each Deposit made by Client or its Associates to the Deposit Bank Account is for eventual deposit in the Tax Pooling Account as a Tax Deposit in accordance with Clause 5.2 and until so paid is held in trust for Client or, where relevant, its Associates;
(b) any credit balance of the Tax Pooling Account which is funded by a Tax Deposit and any Use of Money Interest applicable thereto is held in trust for Client or, where relevant, its Associates;
(c) any Tax Deposit Refund from the Tax Pooling Account (to the extent that the Tax Deposit Refund relates to a credit balance of the Tax Pooling Account which is funded by a Tax Deposit in respect of Client) must be received and deposited into the Refund Bank Account and be held in trust for Client or, where relevant, its Associates;
(d) any Sale Price received by Guardian Trust in respect of a Sale which is payable to Client in accordance with the agreement between TMNZ and Client is received and held in trust for Client or, where relevant, its Associates;
(e) each deposit of a Purchase Price made by Client to the Sale/Purchase Bank Account is for the Purchase of a Tax Deposit in the Tax Pooling Account and is held in trust for Client or, where relevant, its Associates;
(f) Guardian Trust has the sole signing authority (to the exclusion of TMNZ and any other party) on the Bank Accounts;
(g) Guardian Trust has the sole right (to the exclusion of TMNZ and any other party) to make any request or give instructions to Inland Revenue regarding the Tax Pooling Account, including as to making any Tax Deposit Refunds or Transfers;
(h) Guardian Trust will not deal with the Bank Accounts or the Tax Pooling Account (as it relates to Client) except in accordance with these terms and conditions; and
(i) Guardian Trust has given notice to Westpac Banking Corporation (or any other relevant bank) of the trust arrangements affecting Bank Accounts pursuant to these terms and conditions.
4.3 TMNZ will have no right in relation to the operation of any of the Bank Accounts or the Tax Pooling Account, including to make any request or give any instructions to Inland Revenue as to making any refund from any of the Bank Accounts or the Tax Pooling Account, and as to transferring any amount from the Bank Accounts or the Tax Pooling Account, provided that the parties acknowledge that TMNZ may have read only access to the Bank Accounts and the Tax Pooling Account.
4.4 Guardian Trust and TMNZ will maintain the Tax Pooling Account. Guardian Trust will maintain each Bank Account with either Westpac Banking Corporation or another registered bank.
4.5 Guardian Trust will maintain the TPRS at all times to accurately reflect the balance of any Deposit, Tax Deposit and other monies held in each Bank Account and the Tax Pooling Account on behalf of Client.
4.6 In respect of any Associate, Guardian Trust shall act upon the written instructions of Client, or as instructed by Client from time to time.
5. TAX DEPOSIT PROCESS
5.1 Client may make a Tax Deposit by:
(a) Client making a Deposit of cleared funds to the Deposit Bank Account before noon on a Provisional Tax Date;
(b) Client procuring a direct transfer to the Tax Pooling Account of a credit tax balance at Inland Revenue; or
(c) Client procuring a direct transfer to the Tax Pooling Account of an amount from another tax pooling intermediary's tax pooling account.
5.2 On each Provisional Tax Date, Guardian Trust will remit to the Tax Pooling Account, for effective receipt by Inland Revenue on that Provisional Tax Date, all cleared funds that are in the Deposit Bank Account as at noon on that Provisional Tax Date.
5.3 Guardian Trust will record the amount of the Tax Deposit to Client’s account in the TPRS and send a statement to Client to confirm receipt of such Tax Deposit under Clause 5.1 within 8 Business Days of the Provisional Tax Date. TMNZ will notify Inland Revenue of the Tax Deposit in accordance with section RP 18(3)(b) of the Income Tax Act 2007.
6. TAX DEPOSIT TRANSFER PROCESS
6.1 When Guardian Trust receives a request by Client via TMNZ to Transfer a Tax Deposit to the account of Client or an Associate at Inland Revenue, or to the tax pooling account of another tax pooling intermediary, Guardian Trust will request the Transfer of the Tax Deposit to the account of Client or of the nominated Associate at Inland Revenue, or to the tax pooling account of the tax pooling intermediary, within 5 Business Days.
6.2 In relation to any request under Clause 6.1, TMNZ will ask Inland Revenue to credit the Client's, an Associate's or a tax pooling intermediary's account (as applicable) on the date the Tax Deposit was made in the Tax Pooling Account or, if requested in writing by Client, on some later date in accordance with section RP 19(2) of the Income Tax Act 2007.
6.3 Guardian Trust will record such Transfer of a Tax Deposit to Client’s account in the TPRS and send a statement to Client to confirm the Transfer of a Tax Deposit pursuant to Clause 6.1 by the 5th Business Day of the following month.
6.4 TMNZ will not ask the Commissioner to make a Transfer of an amount under section RP 19(1) of the Income Tax Act 2007 other than as set out in these terms and conditions.
7. TAX DEPOSIT PURCHASE PROCESS
7.1 Client acknowledges that TMNZ will prioritise requests for purchases according to the date of receipt of such requests and that there is no representation or warranty that Client will be able to purchase a Tax Deposit.
7.2 Client acknowledges that TMNZ will be selling Tax Deposits to Client at a margin.
7.3 If and to the extent that TMNZ is able to procure a person or persons (“Third Party Seller”) to sell to TMNZ a deposit in the Tax Pooling Account that has the same purchase/sale date as the Purchase/Sale Date requested by Client, TMNZ agrees to enter into an agreement to sell the requested amount of such deposit to Client. The agreement between Client and TMNZ shall specify:
(a) the amount of the Tax Deposit;
(b) the amount of the interest cost payable by Client to TMNZ in respect of such Purchase;
(c) the Provisional Tax Date to which the Purchase relates;
(d) the Purchase/Sale Date; and
(e) that the agreement is conditional on the Purchase Price being paid by Client by electronic transfer to the Sale/Purchase Bank Account by noon on the Purchase/Sale Date.
7.4 When Client and TMNZ have reached agreement TMNZ will send these details to Guardian Trust.
7.5 Where Client has agreed a Purchase Price with TMNZ, but makes a payment that is less that the Purchase Price, the arrangement will be converted in a Flexitax arrangement.
7.6 The Purchase Price must be greater than $1000 to be eligible for Flexitax. The payment will be allocated to the earliest requested tax deposit, and will be applied pro rata to meet the interest and the amount of Tax Deposit.
7.7 The arrangement will be converted to a Flexitax at the next Purchase / Sale date following receipt of the first payment. Client will be charged interest from the Tax Deposit date to the Flexitax Date at the rate agreed in clause 7.3, and thereafter at the Flexitax Rate. Client is able to continue making instalments against the Flexitax Arrangement until the full amount of the Tax Deposit has been purchased, subject to the legislative timeframes set out in section RP 17B of the Income Tax Act 2007.
7.8 Guardian Trust will complete the Purchase process by transferring the purchased Tax Deposit to Client’s account in the TPRS as soon as practicable. If, for any reason, the Purchase process is not completed in accordance with the above provisions, Guardian Trust will immediately on request of Client return the Purchase Price, and all associated interest, to Client by deposit in cleared funds into the Client bank account registered with Guardian Trust.
8. TAX DEPOSIT SALE PROCESS
8.1 Client acknowledges that TMNZ will be selling Tax Deposits that it has purchased from Client at a margin.
8.2 If and to the extent that TMNZ is able to procure a person or persons (“Third Party Buyer”) to purchase from TMNZ a Tax Deposit, or any part of it, that has the same purchase/sale date as that offered by Client, TMNZ agrees to enter into an agreement to purchase such Tax Deposit from Client. The agreement between Client and TMNZ shall specify:
(a) the amount of the Tax Deposit, or part of it;
(b) the amount of the interest payable in respect of such Sale;
(c) the Provisional Tax Date (or other date) to which the Sale relates;
(d) the Purchase/Sale Date; and
(e) that the agreement is conditional on the Sale Price being paid by electronic transfer to the Sale/Purchase Bank Account 3 days before the Purchase/Sale Date.
8.3 When Client and TMNZ have reached agreement TMNZ will send the request to Guardian Trust.
8.4 Guardian Trust will update Client’s account in the TPRS and send a statement to confirm any sale of the Tax Deposit by the 5th Business Day of the following month. Guardian Trust will deposit the Sale Price in cleared funds into the Client bank account registered with Guardian Trust on the Purchase/Sale Date.
9. TAX DEPOSIT REFUND PROCESS
9.1 When Guardian Trust receives a request by Client via TMNZ to refund a Tax Deposit which is held to the account of Client or an Associate in the Tax Pooling Account, Guardian Trust will then procure the Tax Deposit Refund of the amount of the Tax Deposit plus Use of Money Interest (if any) to be deposited into the Refund Bank Account and then immediately paid to the Client bank account registered with Guardian Trust.
9.2 Guardian Trust will send a statement to confirm the refund of a Tax Deposit plus Use of Money Interest (if any) by the 5th Business Day of the following month.
10. GENERAL TERMS
10.1 Client agrees that it is acquiring the services of TMNZ and Guardian Trust for the purposes of the payment of tax under the Income Tax Act 2007 and the Tax Administration Act 1994.
10.2 Client agrees that it will only use the services of TMNZ for the internal business use of Client and its Associates and that it will not use the services of TMNZ to operate a tax pooling arrangement where Client is the intermediary.
10.3 TMNZ reserves the right to restrict or suspend the future rights of Client regarding the Purchase or Sale of Tax Deposits under these terms and conditions in the event of Client not meeting its material responsibilities under these terms and conditions provided TMNZ has given Client written notice of the same and the same has not been remedied within 10 Business Days, and then only to the extent that the same remains unremedied.
10.4 TMNZ is not acting as a tax advisor to Client in relation to any tax matters of Client or its Associates.
10.5 TMNZ has intellectual property rights in the services, processes, relationships and software access provided to Client and TMNZ retains all these rights when information, services, or software access are provided to Client. Client will not change or interfere with the software and will not copy the software without the written consent of TMNZ other than in order to fulfil its obligations under these terms and conditions, which TMNZ grants a licence to Client so to do. Any intellectual property rights arising from improvement or change to any such service or software devised or made by Client or any person belongs to TMNZ, and TMNZ shall grant Client an unrestricted, royalty-free licence to use the same in order to fulfil its obligations under these terms and conditions.
11. DISCLOSURES
11.1 In accordance with the requirements to be registered by Inland Revenue as an intermediary, TMNZ provides notice that:
(a) TMNZ has administration and information technology systems that:
(i) protect the privacy of the personal information and payment details acquired by TMNZ in the operation of the Tax Pooling Account; and
(ii) record the amount remaining at any time in the Tax Pooling Account that has been contributed by each taxpayer from whom TMNZ accepts payments.
(b) TMNZ will maintain and operate those systems as required by the relevant income tax legislation.
11.2 In accordance with section RP18(3)(a) of the Income Tax Act 2007, TMNZ hereby advises Client in respect of each payment by Client to a Bank Account or the Tax Pooling Account that the payment to the Tax Pooling Account does not satisfy any obligation of the taxpayer to make a payment to Inland Revenue. This notice will also be included as part of the TMNZ statement of account sent to Client.
11.3 Each of the persons acting as an officer of TMNZ and any principal of TMNZ:
(a) is not a discharged or undischarged bankrupt;
(b) has not been convicted of an offence involving dishonesty; and
(c) is eligible to be a company director.
11.4 Client acknowledges that:
(a) Inland Revenue is not required to oversee or audit the operation of the Tax Pooling Account and that Inland Revenue is not liable for any loss that a person suffers because of the way in which TMNZ operates the Tax Pooling Account; and
(b) Inland Revenue may refuse to accept a request for a Transfer, or may reverse a Transfer, if Inland Revenue considers that the request for the Transfer is made for the purpose or effect of tax avoidance.
12. CONFIDENTIALITY
12.1 TMNZ will keep confidential all information they receive from Client, unless such information has already lawfully been made public through no breach of these terms and conditions. TMNZ will not disclose details regarding Client unless required to do so by law. If TMNZ Client will keep confidential all information disclosed to it by TMNZ and/or Guardian Trust in relation to these terms and conditions and Guardian Trust and TMNZ processes unless such information has been made publicly available through no breach of these terms and conditions. Client will not disclose details regarding TMNZ and/or Guardian Trust unless required to do so by law.
13. TMNZ REPRESENTATIONS AND WARRANTIES
13.1 TMNZ represents and warrants that:
(a) it has the power to enter into, exercise its rights and perform and comply with the obligations stated in these terms and conditions;
(b) it has been granted approval by the Inland Revenue to operate the Tax Pooling Account;
(c) its entry into, exercise of its rights and performance of and compliance with its obligations under these terms and conditions do not and will not:
(i) contravene any law to which it is subject, including without limitation, the Income Tax Act 2007; or
(ii) contravene any of the documents constituting it; or
(iii) exceed any limitation on, or constitute an abuse of, the powers of its directors or officers;
(d) its obligations under these terms and conditions are legal, valid, binding and enforceable in accordance with their respective terms;
(e) all information provided to Client in connection with these terms and conditions is true and accurate as at the date that information was provided and remains so at the date of these terms and conditions and there are no facts or circumstances which have not been disclosed to Client which would make that information untrue, inaccurate or misleading; and
(f) no Event of Default has occurred and is continuing which relates to TMNZ.
13.2 TMNZ undertakes that it will perform and comply with its obligations under these terms and conditions, and that all statements made by TMNZ will be made with all due care after diligent consideration.
13.3 TMNZ will use best endeavours to ensure the performance of obligations in relation to the tax pooling arrangements by Inland Revenue and Guardian Trust. TMNZ will not be liable for any costs or losses of any nature whatever that are attributable to the actions of Inland Revenue or Guardian Trust, including without limitation consequential losses, special incidental or exemplary damages, or losses of profits or opportunities.
13.4 TMNZ undertakes that it will notify Client of the occurrence of any Event of Default and any event or circumstance which may have a material adverse effect on it, immediately upon becoming aware of it, giving full details of it and any action taken (or to be taken) as a result.
13.5 TMNZ undertakes that it will immediately notify Client of any enquiry, or other communication, by Inland Revenue that relates to, or could result in, the winding up of the Tax Pooling Account, giving full details of any such enquiry or communication and of any action taken (or to be taken) as a result.
14. EVENTS OF DEFAULT
14.1 The following are Events of Default whether or not within the control of a party:
(a) Guardian Trust fails to transfer to Client any amount due in respect of the Sale or refund of a Tax Deposit or a Deposit on the date due in accordance with these terms and conditions; or
(b) Guardian Trust fails to action a request to transfer a Tax Deposit to a Client, or Associate’s Inland Revenue account pursuant to Clause 6 of these terms and conditions; or
(c) without prejudice to Clause 14.1(a), Guardian Trust and/or TMNZ, as appropriate, fails to perform or comply with any of its other obligations under these terms and conditions in any respect which Client considers material and, in the case of a failure that is capable of remedy, that failure is not remedied to the satisfaction of Client within 14 Business Days of the date that Guardian Trust and/or TMNZ, as appropriate, first became aware of it; or
(d) Guardian Trust and/or TMNZ, as appropriate:
(i) is insolvent or unable to pay its indebtedness as it falls due; or
(ii) stops or suspends, or threatens to stop or suspend, payment of any of its indebtedness for borrowed money, or begins negotiations or takes any proceedings to reschedule any of its indebtedness for borrowed money; or
(iii) makes, or proposes to make, an assignment, arrangement, composition or compromise with, or for the benefit of, its creditors in respect of or affecting any of its indebtedness; or
(e) an order is made, resolution is passed or other step taken by a person for the dissolution of Guardian Trust and/or TMNZ, as appropriate, except for the purpose of a solvent reconstruction or reorganisation; or
(f) Guardian Trust and/or TMNZ, as appropriate, ceases or threatens to cease to conduct all or a substantial part of its business, or disposes of, or threatens or agrees to dispose of (either by a single transaction or series of transactions, whether related or not and whether voluntary or involuntary) all or a substantial part of its assets; or
(g) Guardian Trust and/or TMNZ, as appropriate, is declared at risk pursuant to the Corporations (Investigation and Management) Act 1989, or a statutory manager is appointed or any step taken with a view to any such appointment in respect of it under that Act (including a recommendation by, or submission by any person to, the Securities Commission supporting such an appointment); or
(h) the authorisation by Inland Revenue for TMNZ to operate the Tax Pooling Account with Guardian Trust is withdrawn (which for the avoidance of doubt includes a winding up or proposed winding up of the Tax Pooling Account); or
(i) there is a change of legislation relating to the operation of the Tax Pooling Account, impacting in a material adverse manner on the security of the Tax Deposit for Client.
14.2 If an Event of Default occurs Client may, without prejudice to any other remedies, terminate these terms and conditions immediately by notice in writing to Guardian Trust and TMNZ.
14.3 If Client, as a result of any enquiry or communication by Inland Revenue, TMNZ or Guardian Trust, reasonably anticipates that the Tax Pooling Account may be wound up Client may, without prejudice to any other remedies, terminate these terms and conditions immediately by notice in writing to Guardian Trust and TMNZ.
14.4 Upon termination of these terms and conditions for any reason, Client may request at any time that any Deposits, Tax Deposits or other moneys held on behalf of Client (including Use of Money Interest) be transferred to its account at Inland Revenue or to the Refund Bank Account (and be paid immediately to the Client bank account registered with Guardian Trust) or otherwise at its direction, and Guardian Trust shall comply with such request as soon as reasonably practicable.
15. TERM OF AGREEMENT AND TERMINATION
15.1 These terms and conditions shall apply until terminated with one month’s written notice by any party.
15.2 If an agreement in writing is required to transact with TMNZ, please contact the TMNZ office directly as per the contact details on the TMNZ website.
