Aaron Quintal and David Snell: Tax reform would hit NZ companies too

NZ has a strong tax system with few loopholes, write David Snell and Aaron Quintal, and global changes may not boost revenue.
There is no guarantee that New Zealand would be better off overall if the goalposts are changed. Photo / Getty Images
There is no guarantee that New Zealand would be better off overall if the goalposts are changed. Photo / Getty Images

Tax is moving from the backroom to the boardroom. Prime Minister John Key is just one of many who say the amount of tax paid here by some multinational companies isn't fair.

Yet New Zealand has a strong tax system with few loopholes. Corporate tax receipts amounted to $10.5 billion in 2014/15. At around 18 per cent of total tax receipts, that's higher than just about any other country.

How did we get to this disconnect between perception and reality? What might upcoming changes to the international tax system mean for New Zealand?

In part, the issue's down to increasing mobility of capital and growth in technology. Value chains are being transformed. And not much of that value is generated here in New Zealand.

IRD's own data shows the most common form of inbound investment is through distribution and wholesale channels. Our domestic market is limited, with profits genuinely low rather than being artificially avoided.

Consider a branded smartphone. Of its sales price of say $999, profit needs to be shared out between intellectual property holders, software developers, manufacturers, shipping companies, retailers and the local distributor.

We cannot assume that New Zealand tax due from the tech company is anywhere near $999 times the company rate of 28 per cent, equalling $279.72. Much more likely that it will be $9.99 times 28 per cent equals $2.80.

Just as New Zealand wants to tax its 'fair share' of the value chain, so does every other country where work is done or value added to that smartphone.

There are questions which multinational companies (MNCs) need to address. In some situations there can be little connection between where economic activity takes place and where profits are booked.

In our smartphone example, the brand and technology won't be created in New Zealand, so should not be taxed here. But nor will it have been created in Bermuda, the Caymans or the British Virgin Islands, even if it is now owned by a company there. It is hard to disagree when Pascal Saint-Amans, director of OECD Centre of Tax Policy and Administration, says: "The consensus is that the value is not created in Bermuda when there is nobody in Bermuda."

The time is ripe for a major shake-up in the international tax world, with the G20 and OECD-led Base Erosion and Profit Shifting (BEPS for short) process. Since the global financial crisis, governments worldwide have been under more pressure to balance the books - to raise more revenue.

That can only be done by way of internationally co-ordinated action, otherwise governments will compete with each other in a race to the bottom and MNCs will shift reported activities and value generation to low-tax jurisdictions.

The main pillars of the international tax system are nearly a century old. The system is starting to creak at the seams. It treats multinationals as if they were loose collections of separate entities operating in different jurisdictions and as if their activities could be pinned down to those jurisdictions.

Tax rules likely to change include:

• The ways by which transactions between MNC subsidiaries in different countries are priced (known as "transfer pricing"). Transactions are supposed to be priced as if they were conducted "at arm's length" between unrelated parties. The way in which that arm's length price is calculated could change, with a greater proportion of profits taxed in the country of ultimate sale.

• More scrutiny of taxpayers' affairs, with greater transparency, public release of information and exchange of information between IRD and its overseas counterparts. Australia's recent release of selected big business tax data shows a possible direction.

• Tighter rules limiting the extent to which interest can be deducted on overseas borrowing (known as thin capitalisation rules). Most companies deduct all of their interest costs on money borrowed in New Zealand.

Right now, governments only tax companies that have an ongoing physical presence, or "permanent establishment", which can be taxed. What is and is not a permanent establishment has always been agreed on a multilateral basis. But now, Australia and the United Kingdom have new laws that change the meaning of permanent establishment, seeking to tax more activity and raise more revenue.

A similar law in New Zealand would be possible, but not - in our view - desirable.

There is no guarantee that New Zealand would be better off overall if the goalposts are changed. While New Zealand wins if a foreign company pays more tax in New Zealand, we lose when our companies pay more tax offshore.

Given the strength of our current tax law, evidenced by the strong company tax take, our relatively small number of New Zealand-based MNCs have a lot to lose.

If New Zealand agrees that foreign companies doing business with New Zealanders should pay tax here, this will lead to New Zealand companies that sell logs or milk powder to Chinese customers paying tax in China on some of their profit.

Any global norm that comes out of the current project on base erosion and profit shifting is not going to magically give more tax revenue to the Government without New Zealand companies paying more tax to foreign governments.

That's not to say it is the wrong answer. But the debate needs to take the bigger picture into account.

Aaron Quintal is a partner and David Snell an executive director at professional services firm EY.

- NZ Herald

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