Tax Break

John Fisher, international tax consultant

Archive for the category “Australia”

Bog standard (almost)

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These days a bloke would do anything for a free ticket to Australia

Charles Dickens’s fecund imagination allowed Pip’s benefactor Magwitch to return to England  from transportation to an Australian penal colony, albeit at risk of judicial execution. By all accounts, thanks to the triple-knot of location, location, location, escape for  real-life transportees wasn’t all that simple. What the desperate convicts of the nineteenth century needed was the solution of the  twentieth – air travel. And, in a twist of fate, the first person to pilot a controlled flight in Australia (back in 1910) was none other than history’s greatest master of escape, Harry Houdini.

Well, by now, the world’s tax advisors are becoming used to the locks, double locks and padlocks being used to prevent international tax planners from thinking out of the box. But, the tax treaty signed (though not yet ratified) last month between Israel and Australia plonked a kangaroo, with a 10 ton weight in its pouch, on the box’s lid.

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Truth be told, the Wright Flyer never did move very much.

The treaty itself is not very exciting. It contains much of the usual – just about comprehensible – gobbledygook, together with a fair share of the totally ludicrous. An  example of the latter: SHIPS AND AIRCRAFT SHALL NOT BE REGARDED AS IMMOVEABLE PROPERTY. Thanks for that.

There is also an unhealthy obsession with the amount of time that needs to elapse before work on a  construction site or installation project by a resident of one country  becomes taxable in the other – too many numbers and too many conditions (and given the nature of trade between the two countries – not too many instances).

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Spreading the love (and hate)

At the end of the day – as with all treaties – it is withholding taxes that are the real bread, butter and Vegemite of the agreement. These fit within the ‘new normal’ of international double taxation treaties: 5% – 15% for dividends, 5% – 10% for interest, and 5% for royalties. It is the Australians who benefit from this much more than the Israelis. While, in the absence of a treaty, dividends from Israel can rack up upwards of 30% tax, as long as Australian corporate income is franked (ie the company paid tax in Australia), there is no Australian withholding tax. Similarly, Australia’s withholding tax on interest is 10% as opposed to Israel’s mainly 25%. Only when it comes to royalties are the tables  turned.

Among the sparse points of genuine interest is the question of whether the exemption on pensions from Australia to Israel applies to immigrants to Israel in their first 10 years of residence.That one will have the experts opining vigorously.

What makes this treaty ‘different’ is the (what I believe to be unique) ‘Article 28, Protocol’. Now, many treaties have protocols which are agreed explanations and adjustments to those carefully negotiated agreements.  The recent protocol (not yet in force) to Israel’s treaty with the UK (Tax Break  27/1/19) is effectively a new treaty. But, to have a section in the treaty that simply refers to an attached protocol as part of the treaty is – at first sight – circular and balmy.

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No!! Not Hybrid Instruments!

However, closer inspection reveals all. Article 28 is to tax advisors what Room 101 was to Winston Smith in Orwell’s 1984 – the fulfillment of their greatest fear. Among all the normal explanations and clarifications, just in case anyone had any ideas about favourable interpretation of the treaty,  is a section that lists most of the goodies of the BEPS project, stating that nothing in the treaty can stop a country clobbering anybody who tries it on, whatever the wording. Game, set and match.

The Great Houdini’s most famous escape was from a water-filled tank in which he was inserted upside down, heavily manacled. Antipodean tax planners will  soon be standing upside down working out what to do next, together with their right-way-up Israeli counterparts.

No flies on them, mate

Some people will go to extreme lengths not to visit Australia

Some people will go to extreme lengths not to visit Australia

Filling in the immigration card at the start of the descent into Melbourne International Airport earlier this week, I could not help but chuckle as I checked the “No” box against the question “Do you have any criminal convictions?”  I was unavoidably reminded of that hackneyed joke, attributed to the late Tony Hancock and especially popular among up-ourselves Poms, who is reputed to have answered: “I didn’t know it was still a prerequisite”.

One of the purposes of my visit to Australia is to speak at various events on the topic of the Business and Taxation Environment in Israel. As, a few weeks prior to my trip, a senior Israeli Government Minister had done the rounds here, I decided to ask him what he had spoken about. “Business and Zionism – I avoided politics.” When I replied to his enquiry as to my subject: “Taxation”, he slapped me on the back and suggested that perhaps I should speak about politics.

Remarkably, in the three weeks since preparing my presentations for the visit there have been no less than two momentous events directly affecting the taxation environment in Israel as well as an indirect one. Luckily, my powerpoint slides and the bloke talking around them, are sufficiently vague for nobody to have yet noticed the hurriedly shoe-horned bits. But the trip is yet young.

Just trying to do the right thing

Just trying to do the right thing

First off was a proposed amendment to the Income Tax Ordinance, tabled in the Knesset on January 29, that – if, and when passed – will empower the Income Tax Authority to demand automatic supply of information on  foreign residents’  income in Israel (primarily from financial institutions) and allow its voluntary transfer to foreign tax authorities on the basis of an international agreement that is not necessarily, as at present, a double taxation agreement. This, of course, smells of the brown-nosing that in school earned a thoroughly deserved duffing-up behind the bicycle shed by ones classmates. But the Israeli authorities are only bowing to the inevitable pressure from the G20 and OECD to ensure worldwide automatic exchange of information – one of the main tools in the international fight against tax evasion.  Passage of the law will pave the way for Israel to become the umpteenth signatory of the OECD’s sexily named “Multilateral Convention On Mutual Aministrative Assistance In Tax Matters” (MCOMAAITM…just kidding), which provides a legal basis for countries to agree on the said automatic exchange of information.

Confirming the timeliness of the Israeli move, on February 13 the OECD met its deadline to provide “A Standard for Automatic Exchange of Financial Account Information” (ASFAEOFAI….never mind) in time for the meeting of G20 Finance Ministers and Central Bank Governors on February 22 – 23 in Sydney (where I hopefully arrive just as they are leaving – it is all in the timing). This standard is based on the US FATCA rules and, when implemented either through bilateral or multilateral agreement, will require financial institutions to do those things the Israeli proposed legislation aims to facilitate. Automatic exchange of information will not be required where the other party does not reciprocate (you scratch my back and I’ll scratch yours) or where the other side is unable or unwilling to guaranty secrecy (being a brown-nose is one thing, but never a sneak).

However,  perhaps the most momentous event came to light early this morning (which was yesterday in Israel). I awoke to discover that an eminent  Tax Lawyer-friend with whom I had worked closely until I boarded a flight for Hong Kong last Sunday evening,  had been appointed a District Judge along with another equally eminent Tax Lawyer who was not a friend and with whom I had not worked closely at any time before boarding that flight for Hong Kong last Sunday evening.  It is evidently rare in Israel for partners in Law firms to be appointed directly to a senior court – but this reflects a welcome seriousness of purpose on the part of the Israeli authorities and raises the bar on the professionalism of the judiciary in deciding tax matters.

Another way of dealing with the latest mad-cap trust legislation

Another way of dealing with the latest mad-cap trust legislation

All in all, when I started preparing my presentations in January the Tax Environment was looking far more mature than at any point I can remember. The events of the last three weeks have only enhanced that position. There is, however, one exception: the new mad-cap trust legislation – concocted by the Tax Authority –  that came into force on January 1. The amended law needs to be placed on a convict ship and transported to Australia, never to return.  While I have every respect for the officers of the Income Tax Authority, it would not be a crime if one day the Finance Ministry were to take a leaf out of the Justice Ministry’s book and decide to appoint partners from major  law and accountancy firms to senior positions in the Tax Authority. After all, the present Australian Tax Commissioner is a retired partner of one of the Big 4. No prizes for guessing which one.

Turning left at the end of the world

Australian prime minister leaving lunch meeting?

A few years ago the president of one of those numerous archipelagoes peppered across the Pacific Ocean made an accusatory statement about Australia that threatened a diplomatic incident. Listening to an interview on the BBC with the then Australian foreign minister my mind was tuned to expect a suitably circumlocutory diplomatic reply. “Frankly, he is talking a load of crap” was the actual response – the minister probably calculating that the Polynesian ruler would be too busy eating his mother-in-law to be bothered to take the matter further.

Mature Australian

 

The Aussies are a truly wonderful species – they say what they think and they do what they say and to hell with the consequences. In fact,  despite my buttoned up Britishness, some of my best friends are Australians and I can always expect to be sent home laughing at some outrageous statement that I could never have got away with myself. What I would not expect is to be taught a lesson  by them in the fundamentals of taxation. But that is exactly what is happening at the moment – and they are acting in a far more mature manner than their counterparts in Europe and North America – which, to be fair, is not saying much.

As of the beginning of July Australia is introducing two new taxes, neither of which are particularly loved by Labor prime minister Julia Gillard but appear important to her coalition partners, the Greens (that is the Green Party rather than Mr and Mrs Bruce Green of Wallamaloo Street, Perth). The Mineral Income Rent Tax (30%) which will apply to sectors of the hugely profitable mining industry is designed to redistribute wealth while the Carbon Tax is designed to substantially cut greenhouse gases. The Carbon Tax, initially fixed at a fairly random A$23 per tonne of carbon emissions will morph into a Cap and Trade system in 2015 allowing the market to decide the fair price while limiting overall emissions. As both taxes, especially the carbon tax, are regressive – they affect lower income people most because they up the price of basic goods like electricity – much of the revenue from the new taxes is to be funneled back to consumers by direct monetary grants and tax breaks as well as assistance to farmers and industry to meet lower  emissions targets.

But what really caught my eye was the expected effect of all this on this week’s Budget speech to be delivered to Parliament by Wayne Swan (not – as you might think – a gyrating contestant in the latest season of America’s Got Talent, but Australia’s Finance Minister and current holder of Euromoney’s Best Finance Minister Award).

There has been a lot of lobbying for a significant corporate tax rate cut to be partly funded by the revenue from the two new taxes. Currently at the unfashionably high rate of 30%, the recent Henry Tax Review recommended lowering the rate to a more competitive 25%.

Can I interest you in a factory in Dublin with 400 employees?

No way, mate! The government is determined to push the country into budget surplus in the next financial year, so the rate is going to drop all the way to…29% and to hell with any whinging possums who don’t like it. Here is a case of fiscal responsibility (Greeks might like to look that up) coupled with a gutsy position that racing to the bottom in tax rates is not some Holy Grail. The concept of competitive tax rates is problematic. While competition may be healthy in predominantly all sectors of the economy – that is not what taxes should be about. Taxes are about funding what is needed outside the scope of the market to maximise the lot of civil society as a whole. The fact that corporate taxes have been abused by countries from Ireland to the Baltic States – especially in their lust for the refugees from the American system – does not turn tax competition into a moral goal, let alone an ideal. The race to the bottom should not be confused with the Laffer Curve -seeking the rate at which government revenue is maximised is what fiddling with the tax rate should really be about.

The tax world needs more Australias. Amen.

Princess Alexandra showing Miss Goolagong what ladies ought to wear for tennis

Of course, Australia is not perfect. It did a pretty good job in the, not so distant, past of  making the indigenous population miserable – including forcibly removing children from their families which was heinous. When then prime minister Kevin Rudd made his famous apology in Parliament to the Aborigines in 2008 it took me back to the Wimbledon of my youth. In 1971 the Center Court rang to the Umpire’s call “Game, set and match to Miss Goolagong” as that exotic young lady took the Women’s Singles title. When she won it the second time ten years later, I had a creeping suspicion that she would take out a duster and can of silver polish to clean the winner’s dish – “Game, set and match to Mrs Cawley” was just too Australian. G’day, cobbers!

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