Policy of inaction on multinational tax

Federal Treasurer Joe Hockey.
Federal Treasurer Joe Hockey.
Federal Treasurer Joe Hockey.

Federal Treasurer Joe Hockey.

Federal Treasurer Joe Hockey.

Federal Treasurer Joe Hockey.

Federal Treasurer Joe Hockey.

Federal Treasurer Joe Hockey.

Heading into the G20 in Brisbane last month, Treasurer Joe Hockey thundered that multinational companies who avoided paying tax were akin to "thieves" whose actions rendered it harder for governments to tackle poverty.

Sadly however the government's actions have failed to match its rhetoric. This week's crafty back-down on Section 25-90 of the Tax Act – interred on page 117 of the mid-year economic report – is the mark of a government going soft on multinational tax avoiders and getting tougher on its ordinary tax-paying citizens.

The mooted $600 million in relief on tax deductions on overseas debt is another $600 million hit to those who can least afford it.

Meanwhile, those who can most afford it appear destined for further tax relief.

The Abbott government is considering changing tax disclosure laws after complaints by private business owners that they could be kidnapped and held at ransom when people inspected their published tax information and realised how wealthy they were.

Under the current tax transparency laws – which were passed under Labor and which Coalition ministers including Treasurer Joe Hockey voted against –  from July, tax commissioner Chris Jordan would begin publishing the tax details of about 1600 public and private companies with $100 million or more annual turnover.

Once again, the government's rhetoric is a stark contrast to the reality.

"Supporting greater tax transparency and information exchange is our best weapon to crack down on tax avoidance and evasion right now," the Treasurer said in October.

But on Wednesday, the Treasurer's Office released a statement rebutting Fairfax Media coverage of the roll-back of 25-90. The story was "wrong" said the Treasurer:

"Upon coming to office, Treasury advised us that the abolition of 25-90 should not proceed.

"The Treasury said that to do so would result in significant increases in complexity and compliance costs. They also said it would impede legitimate taxpayer activity in investing offshore."

Despite these protestations, there is no getting around the fact that the roll-back of 25-90 has the effect of enhancing the deductions which multinationals can claim against the interest on their foreign debts.

Martin Lock, formerly head of withholding tax at the ATO, says Australians ought to be entitled to see the record of the "consultation with stakeholders and the ATO" that Mathias Cormann says makes it "very clear that a targeted anti-avoidance provision would be ineffective".

"Australians are entitled to know who the select group of stakeholders was, who they represented, what evidence they presented and whether and who tested that evidence. What the ATO, Treasury and the select group of stakeholders said in private consultation should be on the public record," Lock tells Fairfax Media.

"The 'cost of compliance' card is one often played by large business when proposed tax law changes, unfavourable to them, are proposed.  Rarely, if ever, is evidence of that cost, or how it was calculated, published. Large business plays the card knowing the ATO is publicly committed to reducing the cost of compliance." 
 
"It is difficult to see how, if Section 25-90 were repealed, a multinational company's cost of calculating the amount of interest expense specifically attributable to multi-billion dollar borrowings to finance share acquisitions in related foreign subsidiaries would be prohibitively high, especially if the dividends from those shares are tax-free in the company's hands under section 23AJ of the 1997 Tax Act," he says.

"Cormann is effectively saying that the reason multinationals should continue to be allowed a tax-deductible claim for such attributable interest is that it would be too costly for them to work out the attributable amount, and that repealing 25-90 to end their generous entitlement to the claim would be ineffective. As a matter of both principle and evidence, the proposition is highly questionable."

Tax lawyer and academic Tony Anamourlis agrees the move is one definitely in favour of the multinationals.

"If they abolished 25-90 – as Labor proposed – there would be no deductions on the debt, therefore there would be more tax paid in Australia. The companies would be subject to the thin capitalisation rules.

"So you wouldn't shift profits out of Australia into a foreign jurisdiction. You wouldn't load up your foreign subsidiaries with debt."

Despite selective leaks to media about crackdowns on multinational tax cheats, the reality of this government's track record on multinational tax avoidance is more crack-up than crack-down.

There is also the savage gutting of the Australian Taxation Office - the one part of government which actually raises revenue rather than spending it.

The process - actually began under Labor - saw some 3000 jobs gone by October this year and another 1700 projected to go by next year. One the while, that's one in five jobs gone.

The evisceration of the ATO has been made worse by a bizarre policy of "co-regulation" which effectively puts the foxes in charge of the chicken coup.

In order to cut costs, the Big Four global audit firms, as well as a couple of second tier players, have been invited to participate in a pilot scheme that sees them doing tax compliance for their own audit clients.

Under this External Compliance Assurance Program (ECAP), the tax affairs of multinationals will now be policed by their own auditors, the very firms who tee up their tax haven arrangements.

I'm not so cynical to believe that Joe Hockey and finance minister Matthias Cormann are deliberately taking from the poor to give to the rich, but they do appear spineless in the face of lobbying and political donations.

Ideally, the government would like to tackle poverty, as its ministers attest, but they are going about it the wrong way.

They are doing little to quash talk of a hike in the GST, as promoted by peak business lobby, the Business Council of Australia.

While the latest anti-avoidance back-flip lends a helping hand to the country's most powerful companies it also promotes overseas debt.

There is no economic benefit to be had by encouraging higher debt levels offshore.

But a rise in the GST, were it to occur, would have the effect of dampening demand at home. Economically it doesn't make sense, especially at a time when the budget deficit is doubling.

It should be said, however, that there has been one move in the right direction.

As a result of coverage in these pages of some of the most aggressive multinational tax avoiders, the government moved earlier this year to tighten up the "thin capitalisation" rules which put a lid on how much debt a multinational carries in Australia, and therefore how much it can claim in interest deductions.

There should be more of it.

Unfortunately though, despite all the fuss about alleged crackdowns, the outlook for any substantial action is bleak.

This story Policy of inaction on multinational tax first appeared on The Sydney Morning Herald.