Speech to 2009 NZICA Tax Conference:
Expert Opinion to Navigate the New Tax Landscape
Auckland, 16 October 2009
I am delighted to have been invited once again to deliver the opening address at your annual conference.
This year's conference is once again densely packed with discussions of recent tax policy developments, many of which I will touch upon this morning, as I look at where we are and where we are going over the next year or so, in the context of the Government's tax policy work programme.
The policy work programme, which was announced in March this year, and updated in September, has four broad themes. They are:
- Better positioning New Zealand in the world economy.
- Responding effectively to the changing economic and fiscal environment.
- Maintaining tax revenue.
- Improving tax administrative systems, so that they can operate more effectively and deliver greater value for money.
These four, very broad themes cover just about everything on the government's tax policy work programme although not all projects fall neatly into one category or another.
Before I go on to discuss individual projects, I would like to turn briefly to the always critical influence on tax policy of the fiscal and economic climate.
Fiscal and economic climate
When it was elected, late last year, the new Government faced an immediate challenge from the worldwide economic crisis.
As a small, open economy with high levels of external debt, New Zealand was especially exposed to the economic downturn.
The financial meltdown in late 2008 threatened a re-run of the depression of the 1930s.
Several months down the track, there is now growing confidence that such a scenario has been averted by the actions of governments throughout the world, including New Zealand's.
The position now seems to have stabilised.
There are positive signs, even though the world economy is still not robust.
The hangover from the turbulence will be with us for some time, however.
Since 2008 the New Zealand Government has gone from budget surpluses to deficits.
And the Treasury's post-election, medium-term fiscal projections are for budget deficits to remain until the 2016/17 year.
Even then we will return to a sustainable fiscal position only by fiscal drag moving the average worker on to the top personal marginal tax rate of 38 percent.
The Government is committed to moving to an alignment of the top personal tax rate, company rate and trustee rate at a maximum of 30 percent as a desirable medium-term goal.
This has long been United Future's policy, so obviously has my full support.
To move towards such alignment while also achieving a sound fiscal position requires us to look again at the tax system in fundamental ways.
Tax Working Group
This examination is being done in conjunction with the Tax Working Group, which is being co-ordinated by Victoria University.
The working group is leading a debate on the medium-term direction of New Zealand's tax system.
In doing so it is drawing on the experiences of other countries and their tax systems.
Other countries have capital gains taxes and land taxes.
One question for the working group is whether there is a place for such taxes in the New Zealand tax mix.
This is a discussion we should and need to have, but encouraging the debate is not without its political difficulties.
Publication of various background papers prepared for the Tax Working Group's consideration has been accompanied by a lot of media interest on details of the contents and speculation on Ministers' views on the various options being explored - will the Government introduce a capital gains tax, a land tax, rental property tax, and so on?
I want to stress once again that the Government has made no decisions on the future tax mix.
What is more, the working group itself has not even yet reached a final position on the many options, let alone presented it to the Government.
While the working group has not been set up as a revenue-raising body, at the end of the day we need a tax system that raises sufficient revenue to meet our significant fiscal challenges, and does so in the fairest and most efficient way.
The Tax Working Group process will assist the Government as it prepares to meet future challenges.
The Henry review
The Government is also closely monitoring the progress of the Henry review, which is expected to report to the Australian government in December.
Tax developments in Australia, our closest economic partner, are of special importance to us, given our economic interaction and the fact that about 55 percent of foreign direct investment into New Zealand is from Australia.
New Zealand's submission to the Henry review, made in October last year at the invitation of the Australian Treasurer, presented the case for introducing trans-Tasman mutual recognition of imputation and franking credits.
It was interesting to note that in a speech delivered in August this year, Dr Henry said that he did not think the time had come for dividend imputation to be abandoned.
It should be retained, at least in the short term.
He cited as significant benefits of the system that it assists small and medium-size firms in accessing equity capital, ensures that the labour income of owner-managers that is paid out as dividends is appropriately taxed, albeit with some potential deferral, and it encourages Australian companies to pay Australian tax.
New Zealand's full imputation scheme has been an important part of the tax system for similar reasons.
Interestingly, in the same speech Dr Henry talked about mutual recognition.
He acknowledged arguments advanced in New Zealand's submission as well as counter-arguments.
He noted, however, that different considerations arise when the issue is viewed from the objective of developing a Single Economic Market.
I believe that mutual recognition is essential if we are to have a truly Single Economic Market, while retaining our respective imputation systems.
We have put our own review of aspects of the imputation system on hold until we know what the Henry review will be recommending.
That should become clearer before too long.
The changing international environment
Regardless of what results from the Henry review, there will doubtless be important tax consequences for New Zealand.
That is a reminder of how important it is to ensure our tax system remains competitive in a changing world.
It is also a key focus of the Tax Working Group.
We have already begun reform of our international tax rules.
The omnibus taxation bill that passed its final stages in Parliament last month removes tax on active income earned through offshore subsidiaries and on foreign dividends received by New Zealand parent companies.
The idea behind this far-reaching reform is to help New Zealand grow its own internationally competitive businesses.
That will not happen if our businesses face tax disadvantages they would not face if they moved to Australia or another country.
And until last month, one of those disadvantages was our comprehensive rules for the taxation of that offshore active income.
We have now moved our rules into line with Australia's.
We will not tax CFC income if it is unlikely to have been diverted from New Zealand.
The next stage in the reform will be to take the policies we have now legislated for and apply them as appropriate, not just to subsidiaries but also to branches, joint ventures and other significant offshore investments.
To this end, a discussion document with suggestions on how the active income exemption could apply to significant interests in foreign investment funds will be released within the next few months, while rules for branches and financial CFCs will be developed next year.
Officials are also investigating the desirability of a mechanism for relieving withholding tax on dividends paid to foreign shareholders if those dividends represent distributions of active foreign-sourced income.
That could reduce the cost of capital for businesses that expand offshore.
Other international challenges
Our tax system faces other international challenges.
The recent economic turbulence has put enormous pressure on government revenues and this, in turn, has had a profound effect on tax systems throughout the world.
One positive outcome has been an increasing focus internationally on the need to increase transparency of countries' tax laws and to improve information exchange between tax administrations.
The OECD has been running a project with this objective since the mid-1990s.
That project had made only limited progress until this year.
In part, that was because some important OECD jurisdictions, notably Switzerland, maintained bank secrecy laws that did not allow effective exchange of taxpayer information.
All that changed as a direct result of escalating international pressure resulting from the economic crisis.
It culminated in the G20 Leaders Summit in April this year, where it was agreed to take action against non-cooperative jurisdictions, including tax havens.
As its official communiqué stated: "We stand ready to deploy sanctions to protect our public finances and financial systems. The era of banking secrecy is over."
Almost all tax jurisdictions have now agreed to implement OECD standards of transparency and information exchange.
At an international meeting in Mexico earlier this month, it was agreed that a new international organisation - the Global Forum on Transparency and Exchange of Information - would be established to ensure that the standards are implemented.
New Zealand has been a strong supporter of the OECD work on transparency and exchange of information, and of the developments arising out of the G-20 this year.
The implementation of OECD standards on transparency and exchange of information will enable tax authorities to obtain tax records, business books and accounts, bank information, ownership information, and other tax-related information from each other for the purpose of detecting and preventing tax avoidance and evasion.
Information exchange arrangements are typically established by concluding treaties.
Exchange of information arrangements has always been part of our double tax agreements, or DTAs as they are commonly known, with our trading and investment partners.
However, DTAs are not the most appropriate treaties for all jurisdictions.
They are also resource-intensive to negotiate, and building a DTA network is painfully slow.
Since 2003, New Zealand has been attempting to negotiate tax information exchange agreements with low-tax international finance centres.
These agreements are much easier and quicker to negotiate than DTAs, and can be concluded with any jurisdiction.
Until this year, however, we had signed only one, with the Netherlands Antilles, in 2007.
However, international developments this year have resulted in a massive escalation of tax information exchange agreements worldwide.
New Zealand has been a major beneficiary of this development.
So far this year we have signed a further eight such agreements - with Bermuda, the British Virgin Islands, the Cayman Islands, the Cook Islands, Gibraltar, Guernsey, the Isle of Man and Jersey.
A further four agreements are expected to be signed in November, and many more negotiations are in progress.
These international developments will not, however, remove the threats to our ability to raise revenue.
Our company tax base, in particular, remains susceptible to international pressures.
In response, New Zealand has reduced its company tax rate from 33% to 30% and aligned it with the Australian rate.
But the international trend is for company tax rates to reduce still further as countries compete for capital and expertise.
As I mentioned earlier, it is a Government goal to align our top personal rate with the company tax rate.
Although we need to be ready to respond to future company tax rate pressure, if our company tax rate reduces further it will put added pressure on revenue sources.
That is an issue that the Tax Working Group will need to consider.
We need a tax system that works now and into the future.
Withholding tax on cross-border income has been subject to similar international pressures.
Over the last few years, many other countries have been progressively reducing their withholding tax rates on cross-border income flows, which has put pressure on New Zealand to do the same.
When Australia lowered its rates with the United States a few years ago we were left in a difficult situation if we wanted to keep our companies in New Zealand.
Consequently, as part of the international tax review, in 2007 New Zealand developed a new double tax agreement strategy to reduce withholding tax rates with our major trading partners.
The strategy is designed to reduce tax barriers to New Zealand businesses investing offshore and to the repatriation of profits when that investment takes place.
We already had some mechanisms in domestic law to reduce the impact of withholding tax, such as the foreign investor tax credit and approved issuer levy.
However, it is preferable to agree to lower withholding tax in our double tax agreements so as to achieve reciprocal reductions.
Australia has been reducing withholding taxes in its major treaties over the last ten years.
We have now done that in new or updated DTAs with Australia and the United States, and we are looking forward to doing the same thing with our other major trading partners.
I am pleased to announce that, for the same purpose, re-negotiation of our DTA with Canada will begin in November, and re-negotiation of our DTA with the United Kingdom will begin in February.
Other policy work
I would like to turn now to developments in a number of other projects on our work programme.
I noticed that your programme includes a session with the rather poignant title of "Gift duty - the forgotten tax".
I do not think that what I am about to say next will any way harm David McLay's carefully prepared presentation on gift duty - on the contrary, it may enrich the context of the discussion.
Gift duty has not been completely forgotten.
Indeed, the Government is soon to embark on a review of the scope of the tax.
Gift duty serves to protect against the use of so-called "gifts" for purposes of income tax avoidance, sheltering assets from creditors or spouses, and avoiding obligations such as paying child support.
Over the past year or so there have been repeated requests for the Estate and Gift Duties Act be amended to exempt certain gifts from gift duty.
In considering those requests, it became apparent that the current exemptions from gift duty that are set out in law are fairly ad hoc, and there appears to be no coherent framework to determining which exemptions should be granted.
This leads to some undesirable inconsistencies - for example, gifts to some central and local government entities, such as Te Papa, are exempt from gift duty, whereas gifts to others, such as the Auckland Art Gallery, are not.
Furthermore, the way the legislation is currently structured means that a gift attracts the tax unless it is specifically exempted.
Instead of continuing to determine exemptions on an ad hoc, case-by-case basis, it may be better to consider narrowing the ambit of gift duty so that it applies only to certain "gifts" - such as transfers of property to natural persons, family trusts and closely held companies.
That is only one of several options that will be the subject of consultation early next year.
In the meantime, given that the review will take some time, the taxation bill planned for introduction in November is likely to include a number of specific exemptions.
Portability of retirement savings
The November tax bill will also include legislation that allows transfers of retirement savings between certain Australian superannuation funds and New Zealand KiwiSaver funds.
You may recall that in July, Australia and New Zealand signed a memorandum of understanding that paved the way for portability of these savings.
It is good news for people who have retirement savings in both Australia and New Zealand, as many people have, because they will be able to consolidate them into one account in their current country of residence.
The bill is expected to be passed by the middle of next year.
The portability arrangement will take effect two months after both countries have enacted the necessary legislation.
I will shortly be taking to Cabinet my proposals for changes to the binding rulings legislation to clarify certain key provisions and ensure they apply as intended.
Binding rulings were introduced in 1991 to provide taxpayers with greater certainty about the tax implications of entering into business transactions for which the interpretation of law is a key element.
The issues paper released for public consultation in July focused on suggested changes to the legislation, not the administration of the process.
One of the main issues explored in the paper was the need to clarify the ability of the Commissioner of Inland Revenue to rule on section BG 2 of the Income Tax Act.
The other key issue raised in the paper concerned the Commissioner's discretion to decline to rule if the matter on which the ruling is sought is subject to an objection, challenge or appeal.
The paper also covered needed clarification of the law in relation to matters such as fee waivers, rulings on mass-marketed schemes and partially successful rulings.
Many of the submissions that were received commented on administrative problems such as the time it takes Inland Revenue to issue a binding ruling.
These are administrative matters, not legislative ones, and they are currently under discussion between Inland Revenue and representatives of the legal, accounting and business sectors.
I am advised by the Commissioner that good progress is being made in providing a speedier service in this area.
The proposed legislative amendments should cover most of the matters outlined in the issues paper.
The smooth functioning of the process for resolving disputes between taxpayers and Inland Revenue is another area of great interest to your institute, as it is many others, the Government included.
Some of the concerns about the process that you have identified are clearly administrative matters and are best resolved by means of administrative measures.
Indeed, I am aware that Inland Revenue has reached agreement with your institute and the New Zealand Law Society on many of the administrative changes that you sought in your recent joint submission to me and to the department.
On the other hand, there remain a number of possible legislative matters still to be worked through - in particular, whether taxpayers should be allowed to opt out unilaterally from the full disputes process, whether new timeframes are needed, and whether the rules should be simplified for disputes involving small amounts.
The legislative aspects of your concerns can be dealt with through the normal tax policy process.
An issues paper planned for release in the first half of next year will set out the policy rationale for the current legislation in these areas, as well as possible options for change.
The paper will also cover a number of legislative issues on which there is agreement between Inland Revenue, the institute and the Law Society - such as the need to relax the evidence exclusion and exceptional circumstances provisions.
As you know, Inland Revenue also manages a raft of important social policy programmes, including KiwiSaver, Working for Families tax credits, student loans and child support.
It also has a key role in the charity sector.
As Minister of Revenue, I have always taken a particular interest in this aspect of the Revenue portfolio and will continue to do so.
As you know, encouraging a culture of charitable giving in New Zealand has long been an important policy goal of mine.
Last year saw the lifting of the caps on the tax relief for donations given to charities and other philanthropic organisations.
The omnibus taxation bill that passed last month introduced a voluntary payroll giving scheme that will allow employees to make regular charitable donations directly from their pay, as part of an employer-initiated workplace giving scheme.
The scheme will be available to employers who wish to offer it to their employees from 7 January next year.
Looking to the future, work continues on other tax incentive options that other countries have used to encourage philanthropy and generosity.
For example, the Government is exploring the merits of a gift aid type scheme that enables the tax benefits of donations to go directly to the donee rather than the donor, and making it possible to claim tax relief on items of cultural significance to New Zealand.
This work will be carried out in the early part of next year.
Within a few weeks I hope to be able to release a discussion document setting out proposed changes to aspects of the government's child support scheme.
About one in five of the letters I receive as Minister of Revenue are from people who are unhappy about some aspect of the scheme.
The question of when the discussion document is coming out is frequently asked by correspondents, many of whom seem eager to have their say on what they see as the shortcomings of the present scheme.
It should be pointed out, however, that by its very nature, an externally imposed child support scheme will be less flexible than good private arrangements between parents.
Fortunately for them and their children, many separated parents are able to make private, relatively amicable child support arrangements.
The state scheme is there as a back-up for those parents who are on a benefit or who are unable to make satisfactory private arrangements.
Although there is always room for improvement, a state-provided child support scheme cannot satisfy all participants all the time.
A lot has changed - in patterns of raising children, in workforce participation, and in family law - since the scheme was introduced, in 1992.
It is now timely, therefore, to look at updating it in some key areas.
The discussion document will seek people's view on proposals to update the child support formula that determines how much child support a parent must pay.
The proposed changes will take into consideration levels of shared care, the costs of raising children today, and the income of both parents, leading to a revised formula that takes better account of modern parenting arrangements.
I expect to receive a great many submissions on the matters under discussion, and the Government will have to weigh up the pros and cons of any changes of this nature before deciding on the next steps.
People who do not wish to write a formal submission on the proposals set out in the discussion document will be able take part in an online consultation if they wish to do so.
If all goes well, it may be possible to legislate for resulting changes to the scheme sometime next year.
Income splitting, or allowing families with children to split their incomes for tax purposes, thereby reducing their overall tax liability, also remains an area of great interest to me.
Indeed, the post-election Confidence and Supply Agreement between my party, United Future, and National includes support to the first reading in Parliament for a bill giving effect to our income splitting policy.
The idea was first floated in a discussion document published in April last year, to which there was a good response.
That initial consultation is to be followed up by an officials' issues paper, planned for release by the end of this year, seeking submissions on the detailed design of the proposal.
While on the topic of forthcoming legislative changes I would like to devote a few words to taxation bills generally.
It has been an extraordinarily busy year on the legislative front, and I suspect we are all suffering some degree of bill fatigue.
That "we" includes your institute and the many tax practitioners here today who regularly make detailed submissions on proposed legislation.
You play a hugely important role in helping to ensure that proposed legislation works effectively.
Last December, you may recall, saw the introduction and passage under urgency of tax changes announced in the lead-up to last year's general election.
Those changes included a three-year programme of personal tax cuts, introduction of an independent earner tax credit, repeal of the research and development tax credit, and changes to KiwiSaver.
In February of this year the Government announced a series of legislative changes aimed at making it easier for small and medium businesses to manage their cash flows and meet their tax obligations in what was a time of global financial crisis.
Those changes were in place by March.
This year's Budget announcements included the deferral of personal tax cuts that were to have taken effect over the next two years, to prevent further increases in government debt.
A taxation bill giving effect to those and other tax changes was introduced under urgency on Budget day, passing its final stages on the following day.
Throughout all this, the substantial taxation bill that had been introduced in July 2008 made its slow and stately progress through Parliament.
The bill introduced a number of major business reforms, including the first stage of the reform of New Zealand's international tax rules, reform of the taxation of the life insurance business, and changes to strengthen the definitions of "associated persons" in income tax law.
The progress of the bill was delayed in part by the election, since it was one of nearly 80 bills that lapsed when Parliament rose for the election.
It was reinstated by the new Parliament in December, when it resumed its place before a new select committee that had to come to grips with its formidable content.
The bill's slow progress was also due in part to its sheer size, complexity and scope.
At one point the bill was over 800 pages long.
Every activity connected with it - from drafting, to select committee consideration, to proof-reading - took much longer than it would have normally.
The situation was not helped by the unavoidable addition to the bill along the way of various new measures that had arisen in the meantime - and by the need to change the application dates as originally proposed because of the time that had passed since introduction.
It was a relief to everyone involved when the bill passed its final stages in Parliament last month, having slimmed down to a mere 630-odd pages along the way.
As I told Parliament at the bill's second reading, in July, I hope we will be able to keep future tax bills to a more manageable size and scope.
It was a promising start, therefore, when the tax bill introduced later in July weighed in at about 50 pages.
The focus of that bill is on new withholding tax rates on interest paid to individuals, to align them with personal income tax rates.
The bill will inevitably be added to and changed as it progresses through Parliament, but should definitely be much faster and easier to deal with, with passage expected before Christmas.
Better value for money in the tax administration
The final big issue I want to address today is the need for a more efficient and effective public service as reflected in the Inland Revenue Department, my area of responsibility.
We cannot achieve a world-class, internationally competitive tax system by policy measures alone.
We also need a first-class tax administration that collects revenue and delivers services with speed and certainty.
In the time since I was chairman of the Finance and Expenditure Committee's Inquiry into Inland Revenue, in 1999, I have been impressed with the improvements the department has made.
There is, however, still room for improvement, especially at a time when the government is pushing to ensure that we get increasing value for money from the public service as a whole.
Greater efficiency will not be achieved by increased funding for the public service - there is simply no money for that.
The public service has to think and act smarter - just as the private sector has to do.
With that in mind, Inland Revenue is embarking upon a major transformation exercise.
It needs to move away from the technology and management style of the 1980s, when the FIRST computer system was built, to a model suited to this century.
That will mean making increasing use of e-business tools and the internet, tools that did not exist in the 1980s.
Let me illustrate this point with an example I have used on a number of occasions, because it is a very good example.
Each working day Inland Revenue posts, on average, over 100,000 envelopes containing various pieces of correspondence.
That is over half a million letters a week, and over 25 million letters a year.
It is an impressive amount of mail for a population of a little over four million people.
Inland Revenue is aware that it needs to cut that mail dramatically.
Streamlining the system will require some policy and legislative changes, which the government will back.
We need to if we want to have a 21st century tax administration.
Cabinet has given the go-ahead to legislation that will dramatically simplify the administration of student loan repayments, as a first step in the modernisation process.
The idea is to move away from the time-consuming paper-based management of loan repayments to electronic management and communication.
A bill giving effect to the student loan changes will be introduced later this year.
The next step in the transformation process will be to look at what can be done with PAYE and the personal tax summary systems.
The employer monthly schedule is the key vehicle for operating the PAYE process.
It helps to bring in about 41 percent of Crown revenue through the collection of PAYE, child support and student loan repayments.
When it was introduced, in 2000, the employer monthly schedule provided an efficient mechanism through which Inland Revenue could interact with employers in the collection of payments and information.
It also removed the need for employers to carry out an annual PAYE reconciliation and for employees to complete an annual income tax return.
However, over the years, pressure on the schedule has mounted.
As a result, the employer monthly schedule has now reached its limit in terms of the amount of information it can contain.
For example, the use of the schedule to collect KiwiSaver deductions since 2007 has added significantly to that amount of information that needs to be collected via the schedule, adding further complexity to it.
The schedule has become so complex that employers now make a lot of errors in completing it, requiring greater Inland Revenue intervention.
The systems are predominantly paper-based, labour- intensive, and at capacity.
Despite Inland Revenue's efforts to get employers to move from paper filing to electronic filing, only about 26 percent of the 180,000 schedules that Inland Revenue receives are sent electronically.
I have even been told of a group of about 20,000 employers who calculate their PAYE deductions electronically and then print them out, put them into an envelope and post them to Inland Revenue - instead of filing them electronically.
All this has led to the processing of employer monthly schedules becoming very expensive and less sustainable by the year.
The implementation of future tax and tax-related social policy changes, and there will inevitably be some, will be seriously compromised if the employer monthly schedule has to accommodate even more information.
The only answer is to go electronic and, as with student loans, get rid of the paper, the telephone contacts, and the manual interventions.
To that end, Inland Revenue has been giving serious consideration over recent months to what a future PAYE system might look like, one that is fast, efficient and gives greater certainty to all involved.
Personal tax summary
Any changes to the PAYE system will subsequently affect the personal tax summary system, which is also operating at capacity.
The personal tax summary replaced the requirement for individuals who earned income solely from salary and wages to file a tax return.
Instead, the idea was for Inland Revenue to issue an income statement showing gross income, tax deducted and refunds due only if an individual requested one or had a student loan or received family support.
In other words, the personal tax summary provided a means for individuals to reconcile their tax affairs if required.
There are now increasing pressures on the personal tax summary process, which was designed in a paper-based environment.
At the time it was envisaged that only a small minority of individual taxpayers, perhaps about 400,000 at most, would request one.
All that changed with the numerous changes over recent years to social policy programmes that interact with the tax system, such as Working for Families, and with the advent of personal tax summary intermediaries, who have stimulated great interest in personal tax summaries.
As a result of those changes, increasing numbers of individual taxpayers are requesting an end-of-year square-up, which means a growing number of interactions with Inland Revenue.
Therefore any consideration into how Inland Revenue can move towards a world-class tax administration will necessarily involve thinking about long-term measures that will not only deal with the symptoms but also with the system itself.
I have cited these examples in some detail to give you an idea of the detailed work that will be required if Inland Revenue is to be in a position to provide better value for money.
These are early days yet in planning the next stages in the modernisation of the tax administration.
Detailed proposals have yet to be developed, much less agreed to by Cabinet.
There will of course be a lot of consultation with affected taxpayers, tax advisors, and professional bodies such as your institute.
I will conclude today by thanking you once again for your continued contribution to tax policy and to an improved tax system, one that better meets the needs of the 21st century.
I wish you a very successful conference.