Let’s talk about tax.
Or more particularly let’s talk about the recent Australian transfer pricing case Chevron.
In a week when Inland Revenue announced a major restructure which will involve staff now needing ‘broad skill ranges’; it made me think of the type of work I used to do there – international tax.
It was true that my job needed skills other than technical ones:
- keeping your cool when being verbally attacked by the other side;
- being able to explain technical stuff to people ‘who don’t know anything about tax’ – aka anyone at Inland Revenue not in a direct tax technical function;
- ensuring the bright young ones got opportunities and didn’t get lost in the system; and
- generally ‘leveraging’ my networks to support those who were doing cutting edge stuff but not getting cut through doing things the ‘right’ way.
But otherwise what I did required a quite narrow specialised technical skill range. And that was good as it allowed me and my colleagues to focus on one particular area so we could be credible and effective. You know kinda like professional firms do?
As an aside I am not sure how this broad skill ranges thing ties in with the original business case – page 36 – which alluded to the workforce becoming more knowledge based. Coz knowledge-based work is kinda specialised not broad. But then the proposals are coming from a Commissioner who has a legal obligation to protect both the integrity of the tax system as well as the medium to long term sustainability of the department so I am sure she knows what she is doing.
Wonder what the penalties are for breaching those provisions? But I digress.
Back to me. The international tax I did though was actually quite broad compared to the work my colleagues did in transfer pricing. That was eye wateringly specialised and quite rightly so. These were the girls and boys who were on the frontline with the real multinationals like Apple, Google, Uber and the like.
And I was thinking of them recently when an appeal from an Australian transfer pricing case Chevron came out. Two wins to the Australian Commissioner and the Australian TP people – woop woo! Go them.
The guts of the case is that Chevron Australia set up a subsidiary in the US which borrowed money from third parties for – let us say – not very much and on lent it to Chevron Australia for – let us say – loads. And it was with a facility of 2.5 billion US dollars. Now you can kinda imagine the difference between not very much and loads on that was a f$cktonne of interest deductions – see why I get obsessed with interest – and therefore profit shifting from Australia to the US.
Now even though it was a subsidiary of Chevron Australia; the Australian CFC rules don’t seem to apply to the US. Coz comparatively taxed country – thank god we don’t have those rules anymore. And the judgment says it wasn’t taxed in the US either. Didn’t spell out why but I am guessing as the Australian companies are Pty ones – check the box stuff – they get grouped in the US somehow. No biggie for US but bucket loads less tax than they would otherwise pay in Australia.
And according to Chevron it was like totes legit. Coz loads is the market price for lots of really risky unsecured debt. I mean seriously dude like look up finance theory.
To which the seriously unbroad people in the Australian Tax Office said – yeah nah. Theory is like only part of it. The test is what would happen with an independent party in that situation.
- Option one – the seriously risky party ponies up with guarantees from those who aren’t seriously risky. You know how those millennials who buy houses and don’t eat smashed avocado do when their parents guarantee their loans? It is the same with big multinationals.
- Option two – banks don’t lend. So just like for all the milennials who don’t own houses but who do eat smashed avocado and don’t have rich parents.
And the Australian court thought about it all – pointed at the unbroad public servants – and said:
“What they said. Chevron you are talking b%llcocks. The arms length price is one an independent party like millennials would actually pay. This includes guarantees and you price on those facts. Not the fantasy nonsense you are spouting.”
Well broadly. Actual wording may vary. Read the judgments.
Now these are seriously useful judgments – internationally – for the whole multinationals paying their fair share thing. Let’s just hope New Zealand keeps the people who can apply them.
In your (learned) opinion, what is the best/easiest way to fix this whole TP/BEPS disaster? Coming from a fairness point of view, it seems ridiculous what can be achieved with tax planning.
To me at its root is that tax paid in a foreign country really has no value in the home country. Combined with the fact that charities, pension funds and sovereign wealth funds don’t pay tax – there aren’t in built incentives internationally the way there are domestically.
I tried to talk about those issues here. https://letstalkabouttaxnz.com/2017/04/17/fairly-efficient-or-efficiently-fair/
Until that changes – and I can’t see it will – it is just second order rule tightening and case taking. But to date that has given us a tax base of some sort.