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Labor’s $3,000 cap on managing tax affairs

On a long list of measures being proposed by Labor to close tax loopholes used by multinationals and ‘the top end of town’ is a proposal to cap the allowable tax deduction for managing tax affairs to $3000. The full policy, Plan for making multinationals pay their fair share, is linked here.

A deeper analysis

Labor’s proposal to disallow any amount above $3,000 spent on managing one’s tax affairs as a tax deduction is a misguided and inappropriate policy response.

I say that for a number of reasons including:

  • It appears to have been generated as a result of some 48 deduction claims which appear one way or another to have given rise to excessive amounts of foregone revenue. I know nothing about those 48 claims but no matter how egregious they are, it is hardly appropriate to respond by subjecting the whole taxpaying community to this broad-brush draconian response.
  • The well-heeled will continue to pay for these tax management services irrespective of the tax deductibility as they have the funds to do so. The people who will suffer the consequences are especially those who are experiencing change requiring careful tax advice which currently could depending on the circumstances be fully deductible but will now be restricted to a $3,000 deduction. This could include either partner in a divorce situation, either partner left after the death of a spouse or partner, and people in small business restructure arrangements.

All these can require complex and involved tax advice which will be far more expensive as a result of this proposal.

Tax agents as front-line auditors

Since the introduction of self-assessment, the Australian Tax Office has effectively been using tax agents as quasi front-line auditors to weed out bogus or inflated claims.

While the majority of agents have done a good job in playing that role, there is no doubt that some aspects of that work have not been done to the standard required. With that in mind there is now a clear and unambiguous process being undertaken to remove the worst elements through regulation and education. As a result, I am confident, and the latest figures do bear this out, that overall standards are improving.

That process however will not be helped by a heavy-handed approach that will make competent, entirely legal tax advice more expensive especially when provided by tax advisors who are doing their best to ensure their clients comply with the law.

This proposal is deeply flawed and should be abandoned at the earliest opportunity.

The Tax Institute has written to the Leader of the Opposition, the Hon Bill Shorten MP, expressing the Institute’s concerns over the comments recently made in the media by the Leader of the Opposition that the availability of a tax deduction for fees incurred for tax services provided by accountants are a ‘rort’ and should be capped at $3,000. The Institute opposes such a measure. A copy of the letter is reproduced below, or can be accessed as a pdf here.

Bob Deutsch is Senior Tax Counsel at The Tax Institute.

From Tim Neilson, President of The Tax Institute, to Bill Shorten

15 April 2019

The Hon Bill Shorten MP

Leader of the Opposition

Australian Labor Party

PO Box 214

MOONEE PONDS VIC 3039

By email: Bill.Shorten.MP@aph.gov.au

Dear Mr Shorten,

Re comments attributed in the media to you concerning tax advisers

It has been reported in the media recently that you described the long standing, express statutory availability of a tax deduction for assistance from a lawfully authorised tax practitioner as a “rort”, and propose that a Labor government would cap that deduction at $3,000.

The purpose of this letter is to present The Tax Institute’s view on that deduction in the context of Australia’s tax system and the role played in it by tax practitioners. (The Tax Institute is the leading forum for the tax community in Australia. For further information, please refer to the Appendix.)

Australia’s tax laws now run to many thousands of pages. Ordinary Australians did not ask for that. It has been inflicted on them by successive governments.

Over 30 years ago, the Commonwealth government decided to abdicate primary responsibility for administering its own tax laws and to impose that responsibility, via the so-called “self-assessment” system, on ordinary Australians, and to subject ordinary Australians to the threat of severe penalties if they failed to achieve perfection in carrying out that newly imposed obligation.

The apparent intention of that measure was to reduce the administrative costs incurred directly by government. The correlative effect was to increase drastically the costs incurred by many Australians in seeking to meet their new obligations.

Not surprisingly, today most Australians employ a registered tax agent to assist them with the task of complying with the “self-assessment” regime. They pay the agent, and in accordance with the letter of the law claim a deduction for that payment.

Many such Australians have comparatively simple financial affairs and would pay less than $3,000 for such assistance. But many don’t. If they are to obey the laws government has chosen to impose on them they need help. In many cases they will need more than $3,000 of assistance. For example:

  • someone considering making the leap of faith to create a new business, which may in time provide employment and prosperity to many other Australians, will need extensive advice on the tax consequences of all aspects of that decision;
  • many people with foreign income or assets e.g. migrants need to address aspects of tax law that are complex even by the standards of the tax regime in general;
  • people facing difficult circumstances such as a family that has suffered bereavement often need specialist assistance to sort out unwelcome problems.

It has been reported that one purported “justification” of the proposed measure is that some proportion of the tax compliance expenses is paid by some taxpayers for advice on complying with the law in a way that carries a reduced tax cost.

Firstly, as noted above, there can be many other reasons why an ordinary Australian would pay more than $3,000 for tax assistance. It is a matter of public record that Labor appears to have announced this policy on the basis of deficient information, considerably overestimating the amount of money actually spent on such tax assistance. Once that total amount is correctly identified, there remains the question of how much of that total is spent on advice on reducing tax and how much is necessarily spent merely on calculating and reporting taxpayers’ liabilities. The Institute strongly believes that many taxpayers spend considerably more than $3,000 solely on the latter.

Secondly, so what if taxpayers do pay for such advice? Australians pay architects to design the best possible living space in accordance with planning laws. They use buyers’ advocates to get the cheapest house price, insurance brokers to get the cheapest insurance and travel advisers to get the cheapest holidays. What’s wrong with them saying to their tax advisers “these are my circumstances – how do I comply with the tax laws at the least cost?” Does Labor believe that Australians should be practically compelled to pay more tax than the law requires, by the costs of tax assistance being made considerably more expensive through the de facto tax increase of denied deductibility?

The Tax Institute is proud of the fact that vast numbers of its members provide essential help to vast numbers of ordinary Australian taxpayers in complying with the often bewildering and onerous demands that the tax law imposes on them. The work of qualified tax professionals is an essential part of Australia’s tax system, as has been recognized for many years, especially since the advent of the self-assessment regime. Tax deductibility of advice in complying with tax laws is a legitimate expense of business, investment or other income earning activities. We utterly reject the notion that an open, express and long standing right to a tax deduction for costs in complying with laws imposed by government is a rort, and strongly oppose a de facto tax increase by restriction of that right.

Whatever motivated the remarks which this letter addresses, many of the Institute’s members have interpreted them as insulting to them and their clients. The Tax Institute urges Labor to acknowledge publicly the importance of taxpayers getting the assistance they need to comply with the tax system and that that advice often legitimately costs well over $3,000 and to reconsider this ill-informed and counterproductive proposal.

If you would like to discuss any of the above, please contact me on 02 8223 0003.

Yours faithfully,

Tim Neilson

President

CC The Hon Chris Bowen MP

CC The Hon Dr Andrew Leigh MP

 

6 Comments
Steve Martin
May 07, 2019

Bob Deutch's article is very welcome. The policy just shows incompetence when it comes to tax policy. It is in everyone best interests that taxpayers get competent advice on their tax affairs. The costs of defending audits or litigation can be onerous.
The provision that deals with managing tax affairs was intended to be broad for the very reasons Bob refers to - self assessment, and the incredible importance of a professional tax advice industry to do the hard lifting to maintain integrity in the tax system.
I only wish Labor had announced this policy earlier; the TIA might have not been so cautious in buying into the political policy sensitivities of the franking credit and negative gearing policies.

Sonja
May 03, 2019

This measure was introduced to stop wealthy individuals reducing the tax they pay to almost zero by claiming, presumably, tens of thousands of dollars in deductions for managing their tax affairs. Given that most individual tax returns cost less than $200 to manage, at an average hourly rate of $30, the Tax Institute is suggesting that complex tax affairs would take more than 100 hours of work to manage.

Graham Hand
May 03, 2019

Hi Sonja, the issue is not the cost of a simple and standard tax return for an employee. The problem is sorting out a more complex issue, and I suggest the skills needed from an experienced tax expert with the required professional qualifications and knowledge cost a lot more than $30 an hour. Cheers, G

Darren
May 03, 2019

Hi Graham,

With this policy everyone should pray they don't get audited or object to an ATO ruling ... or worse, go to a tribunal to argue the case. Have we all forgotten the standover tactics of the ATO which have been under scrutiny

yes tertiary qualified labour with years of experience is way more than $30/hr ... a non-skilled labour eg gardener makes more than $30 /hr these days

Allan
May 03, 2019

I don't think any of us who have relatively straightforward tax affairs with few options for avoiding tax appreciate some of the machinations executed by the wealthy and their advisors as they seek to comply with the semantic rule of taxation law rather than the spirit of the same. It is likely that neither of these groups appreciate those who evade some or all of their tax liability through illegal means.

That said, the point is fairly made that none of us asked for the current ludicrous complexity in tax law, and it is the very politicians criticising the status quo who may soon have the legislative capacity to do something about this.

Rather than shooting the messenger, perhaps their time and focus would be better spent on formulating simple yet robust tax policy that meaningfully reduces the opportunity for exploitation of these claimed "rorts".

Judging by Labor proposals like the franking credits refund proposal, we're not off to a good start. More complexity and more machinations to come I fear.

Thomas
May 02, 2019

The FIRE industry has been targeted by the Labor policies. Just playing catch up to the poverty working class who had a real wages reduction of 20% with the current goverments cut to penalty rates. Unfortunately that group didnt have a lobby group to defend their basic rights.

 

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