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Guest blog post: Tony Joyce - KPMG Tax Partner

About two weeks ago Labour released its tax policy programme that it intends to implement if elected Government come 20 September.  Predictably the increase in personal tax rates by 3% to 36%, and the confirmation of a capital gains tax, was widely criticised by senior National ministers as envy taxes and a hindrance to investment.

Whatever one’s personal view, the good news for voters is that for perhaps the first time in a number of elections there are now very clear differences between the two large political parties on taxation policy. While tax will unlikely be the determining factor of which party voters will support, it is at least good to see some very clear and distinct alternative thinking between the two main political parties. The most obvious difference being a capital gains tax.

There is little doubt that a capital gains tax will come to New Zealand eventually. Whether it is in 2015, 2018 or 2028, New Zealand will get a capital gains tax. We are one of the only developed countries not to have a capital gains tax and while it is true that it takes some years before it becomes a significant revenue contributor, once implemented it will influence investment decisions and also contribute towards our infrastructure requirements and social spending needs. It is difficult to rationally argue against a capital gains tax on economic grounds. However, the timing of when such a tax should be introduced, and the immediate impact this might have on investment, are issues that voters will be weighing up. 

As someone that has a good understanding of how large companies structure their New Zealand business investments, it’s disappointing that almost all parties continue to seek to score political points at the expense of multi-nationals. Labour is no exception in making its tax policy announcement, highlighting its intention to provide additional funding to enable many specialist tax investigators to base themselves in the downtown offices of those multi-nationals considered to be serial tax avoiders. Apparently some $200 million per annum of additional tax revenue will be raised simply by doing this. Whether this is politics or a genuine expectation on the part of Labour’s finance spokesman David Parker is something that could be debated well into the night. National has not been innocent of similar point scoring and regularly highlights how much extra resource and effort it is putting into the fight against large multi-national tax avoidance.

The actual reality of the situation, however, is that our Inland Revenue Department is already perhaps one of the most aggressive revenue authorities in the developed world when it comes to applying the tax avoidance provisions to collect additional revenue. Where taxpayers legitimately take a tax position that the Commissioner does not like, all too often the response is not one of challenging the technical merits of the position, or recommending to Parliament a legislative response is required, it is to jump straight to applying the tax avoidance provisions to achieve the outcome the Commissioner considers just. 

The impact of this approach on new investment in New Zealand is difficult to gauge, however, there is little doubt that foreign investors are not only aware of the “avoidance risks” of investing in New Zealand, they also place a risk factor on New Zealand investment that did not previously exist. Basing many specialist tax investigators at the premises of multi-nationals is therefore highly unlikely to bring in any more additional revenue than is already being collected; and certainly not the $200 million per annum that Mr Parker has budgeted. 

Without fundamental reform of how we tax non-residents, there is little that can be done to collect tax revenue from companies that do not have a significant presence in New Zealand. The solution lies in making New Zealand a jurisdiction where multi-nationals wish to be based, not in applying the tax avoidance provisions to those companies that currently are based here.

Remembering that this “tax avoidance” initiative announced by Labour is about ensuring everyone pays their fair share of tax, it was disappointing that perhaps the most obvious source of additional revenue under the “paying your fair share” heading has been overlooked. Rather than seeking to gain headlines at the expense of multi-nationals, a much greater return on investment could be achieved by targeting additional resources at our black economy. Estimated at as much as $20 billion by some economists, if only GST was collected on just 20% of this, an additional $600 million more tax revenue would result. This is greater than all of Labour’s personal tax hike, the capital gains tax and the additional $200 million avoidance revenue combined. If income tax was also collected this additional revenue could potentially double. Reduce the black economy by half, and up to $3 billion of additional tax revenue could be collected.

If Government, regardless of political persuasions, is serious about ensuring everyone pays their fair share of tax, then surely this must be where the significant investment is made. Better use of technology and a more strategic approach to information sharing could result in enormous amounts of additional revenue coming from a large sector of society which illegally operates outside the tax system.

Grandstanding at the expense of multi-national companies, whose investment dollars New Zealand needs if we are to prosper long term, is not a good look and will do nothing to raise additional tax revenue or encourage new investment. Our Inland Revenue officials are already overzealous in their application of the tax avoidance rules and if anything they should be encouraged to pull back a tad rather than become even more aggressive.

Regardless of the winner on September 20, the challenge for the post-election Government is to grow our revenue base in a manner that does not discourage investment and truly does result in everyone paying their fair share. Tax should be used as a tool to encourage, not discourage investment….and anyone operating outside of the tax system should be the focus of significant additional audit activity.

This article is the opinion of KPMG Tax Partner Tony Joyce

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The Herald on the iTax

This morning's NZ Herald covers an opinion poll it commissioned on public support for lowering the threshold GST is applicable to for purchases made on foreign websites:

A Herald-DigiPoll survey this month found that almost 55 per cent of the 750 New Zealanders polled had bought goods from foreign websites.Of those surveyed, 53 per cent said the $400 exemption should not be removed as the tax would be too inconvenient to collect.

Surprisingly, just under 40 per cent - 38.5% - agreed with the view of the Retailers Association that the 15 per cent GST should be applied to all overseas online purchases to level the playing field for local retailers.

We hope that the Revenue Minister Todd McClay's comments that he is awaiting further advice indicate that an economic approach, rather than an opinion poll, is used to determined whether "the tax would be too inconvenient to collect". 

Revenue Minister Todd McClay says the Government wants to see what other countries do first and a discussion document on the issue, due before Christmas, has been delayed until next year.

...

Mr McClay said he was unsurprised by the poll result and it reflected the competing interests of consumers and retailers.

While he has officials working on that and other issues related to taxing the digital economy, the minister said the issue would remain in the too-hard basket for the time being.

We're awaiting the Government's discussion paper. We are particularly interested to know whether:

  1. a lowered threshold will result in a net loss to the Crown - it would be mad to widen the GST tax base if the revenue received is less than the costs to collect;
  2. whether alternatives, such as reducing GST for New Zealanders (rather than taxing the rest of the world) are considered; and
  3. whether New Zealanders will be compensated with a lower rate of GST equivalent to the amount recovered by increase in the tax base.

We'll have to wait and see on these questions. In the meantime, comments such as the following from Labour's Revenue spokesperson are particularly unhelpful in a debate that is likely to be highly technical with tricky economic trade-offs:

Labour Party revenue spokesman David Clark said the Government "needs to explain to New Zealand businesses why they should be disadvantaged by having GST collected when overseas business don't face that challenge".

"It seems it would be pretty simple to speak with Amazon and other suppliers to ask them to collect GST since they collect, as I understand it, sales taxes for individual states in the US. If that's true, then it's obviously an ideological decision from the Government not to collect it."

How Mr Clark thinks that the New Zealand Government has any tax jurisdiction over companies operating in and domicile in the United States is unclear. Is he meaning that as Minister he would seek agreement from the large online retailers like Amazon to charge just New Zealanders more, and pass the money on to the government? If so, he is being optimistic. Amazon for example is challenging New York State's attempt to force it to collect its sales tax. Why would Amazon (and it's competitors) take any different view to New Zealand?

If Mr Clark thinks that some sort of cross-border legal obligation exists, he is wrong. Tax treaties seldom cover sales taxes.

In reality any further GST levied would be the responsibility of Customs at the border. The screening process is imprecise and carries high administration costs (both reasons for the existing threshold). For the consumer it means parcels/goods are held at the border until GST (and any applicable duty) is paid.  We're not yet convinced that retailers have made the case for an iPhone cover ordered from a US website to be stopped at the border in order for a few dollars of GST to be collected.

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