Federalism is no doubt a wonderful thing in many respects except, that is, when it generates a complex web of State and Territory taxes which serve no useful purpose beyond enabling States and Territories to engage in some sort of fiscal competition, a sort of “mine is smaller than yours” mentality, while playing lip service to co-operation.
Consistent with its aims and areas of research, ELRI has identified two major problems in Australia’s tax system:
- the lack of standardisation of State and Territories tax laws; and
- the lack of a central administration of those laws.
These problems are:
- adding to the costs of doing business in Australia;
- making Australia less attractive to overseas investors;
- affecting Australia’s international competitiveness in trade;
- adversely affecting Australia’s GDP;
- undermining budget efficiencies for the States and Territories.
The solution lies in:
- implementing the formation of an entity similar to the MultiState Tax Commission (MTC) in the US to achieve a co-operative, shared responsibility for the administration of those taxes, particularly a one stop shop system;
- move to standard tax legislation under the guidance of that new entity.
What can be the reaction of potential overseas investors spurred on by the rhetoric of the benefits of globalisation when the morass of State and Territory tax legislation dawns upon them? What can be the reaction of fund managers trying to take over a unit trust and having to grapple with whether it is “public” or “private” or trying to buy out a property development company and having to go through the labyrinth of definitions, of thresholds and discovering that all this is not the same in all parts of Australia? What can be the reaction of a CEO trying to streamline an Australia wide group to boost turn over when the array of reconstruction provisions is explained? What can be the reaction of a purchaser of an Australian business when a simple thing like complying with different lodgement requirements of each of the States and Territories has to be confronted with its the associated cost? What can be the reaction of an employer told that there has been “harmonisation” of payroll taxes who then finds out that the meaning of “taxable wages’ is not the same everywhere? Or, that there is no harmony between the payroll tax regime and worker’s compensation? How does a company doing business in several parts of this country feel when having gone through a payroll tax audit at great expense, it has to front up to another and another in different States or Territories and do it again? And how does an overseas investor see Australia from a land tax perspective when land tax is just as different as the other taxes and is confronted with the prospect of multiple filings?
It may be legitimate for the States and Territories to enact the laws for which each considers it has an electoral mandate and to regulate the conduct of their communities. But is it legitimate in this new age of globalisation and international competition for them to design their taxes and to draft their tax legislation when the result is a contortion of otherwise straight forward commercial transactions, an imperative to dissect up to eight pieces of significantly different tax legislation and to deal with different taxing authorities within different time frames?
In the contest between competitive federalism v. co-operative federalism, has anyone given any thought to the resultant burgeoning and burdensome compliance costs to Australian business and the inevitable impost on this country’s international competitiveness. Or, to the inefficiencies of State/Territory administration costs and, importantly, to their tax take? Or, more importantly, to the effect on our GDP? Is it really right that there are eight sets of State and Territory tax regimes for 24 million people? Surely, in this, we are over regulated.
2. Examples of the problems: Technical
The following is, sadly, but a snapshot of the problem so far as stamp duties are concerned:
- Buying assets of an Australia wide business: you have to look at all of the States and Territories to find out what assets will be subject to duty. Sometimes stock, debtors, plant, goodwill are included and sometimes they’re not and sometimes they will be when sold with others things; you have to watch out if you assume that the definitions are the same and you have to watch out for the differing lodgement requirements because the penalties can be severe; you have to deal with different authorities, there is no one stop shop and the cost and time to ensure compliance is often several times over the duty you end up paying;
- Buying shares in a company holding land Australia wide: you have to be careful that you don’t assume that marketable security duty has gone in all the States and Territories and even if you remember that, you have to be very careful to consider whether the relevant company is “landrich” or not or is a “landholder” or not; but then what is “landrich” and what is a “landholder”? The threshold tests for when a company is “landrich” or a “landholder”, for when an acquisition is triggered, of what is “land” and what is not, the definitions, the tracing provisions, the aggregation provisions, the exemptions and much more may not the same and differing and difficult valuations issues can arise adding complexity and cost to the final bill for the deal;
- Buying units in a unit trust holding land and non-land assets Australia wide: you have to be on guard for any distinction the relevant State or Territory may draw between “public” and “private”, whether the trust although being public is in any event a “land holding trust” and therefore not “public”, you have to be aware of the differing acquisition thresholds, whether the trust is listed or not, you have to be aware of complex tracing provisions and difficult valuations issues can arise, and as always, the labyrinth of definitions to support the tax design is bewildering;
- Restructuring a company or trust group carrying on a business or holding land and non-land assets Australia wide: you have to weave your way through the maze of the corporate reconstruction provisions where they exist which may or may not permit trusts to benefit and if they do then often to a lesser extent than companies; some require pre-association tests of differing periods, some have post-association tests and some don’t, some have exemptions and some don’t, some allow liquidations or public floats as exemptions and some don’t, and again, the labyrinth of definitions to support the tax design is bewildering;
- Setting up an Australia wide business: you have to be aware when assets in various parts of Australia are acquired that there are an array of “dutiable transactions” and “dutiable property” and in some parts something may be dutiable or may not depending on what other property is acquired and the type of transaction involved; there can be different outcomes depending on fine distinctions between a transaction and what’s in a document, exemptions are not consistent and in many parts just what the particular exemption covers is often hard to fathom, some depending on a Commissioner’s satisfaction about something and others not; and again, you have to watch out for the differing lodgement requirements because the penalties can be severe, you have to deal with different authorities, there is no one stop shop, no system of administrative co-operation between the various authorities to streamline compliance and tax collection;
- Funding a business for its Australia wide operations: you have to remember that mortgage duty has not gone from all parts of Australia; if you do, then you may not cost a project correctly, and again, the failure to account for that duty in the appropriate jurisdiction may render you liable for severe penalties;
- Intergovernmental Agreement: then there is also still unlisted marketable security duty in some parts of Australia; the road to standardisation of the tax base keeps being diverted and hence creates uncertainty for business and resultant cost, a cost which has to come out somewhere.
Payroll tax harmonisation has achieved some consistency but not standardisation and the business community will assume consistency across the jurisdictions at its peril. But, again, the following is, sadly, but a snapshot of the problem so far as payroll tax is concerned:
- Determining the taxable wages: you have to be careful to understand the differences in “taxable wages” in areas such as apprentice/trainees wages, long service leave and redundancy payments, fringe benefits and paid parental leave;
- Lodging returns: you have to remember that the Northern Territory has a different requirement for monthly returns compared to the other jurisdictions;
- Exemptions: you have to apply to each jurisdiction to obtain an exemption such as a charity, at a cost which such organisations can ill afford and then you may get the exemption in all but one jurisdiction;
- Rulings: although there has been some agreement between the jurisdictions on rulings, other rulings are State/Territory specific requiring care in compliance attempts;
- Grouping: you have to consider applications to each relevant jurisdiction where grouping exclusions are relevant, a potentially highly costly and time consuming process;
- Interface with worker’s compensation legislation: risky is the company which thinks that there is any symmetry between the impact of payroll tax and worker’s compensation: it can be the case that, for payroll tax purposes, one State is the correct jurisdiction but, for worker’s compensation, another is the right jurisdiction; and where a company does business in more than one State, such as a mining drilling company, the resulting complexity is multiplied.
Land tax also still presents as a maze for the unwary. Again, the following is, sadly, but a snapshot of the problem so far as land taxes are concerned:
- What land is liable: you have to remember that, in some States and Territories, land tax is levied on all land but, in the ACT, it is not levied on commercial land and is not levied at all in the NT;
- Exemptions: you have to realise that the available exemptions vary across the jurisdictions;
- Grouping: in some jurisdictions, corporations are grouped but in others they are not;
- Thresholds: thresholds apply in most but all jurisdictions;
3. Examples of the problem: Administration
Each of the jurisdictions has its own Office of State/Territory Revenue with everything that goes with it: separate administration, separate IT systems, separate compliance systems, separate appeals systems to name a few. Each has to be approached separately when more than one jurisdiction is or even may be involved. And there is:
- No one stop shop for filing: documents or returns have to made to each where relevant;
- No central auditing: you can finish a long and expensive audit for one jurisdiction only to have to cover the same ground again for another and for another;
- No central education entity: this means that particular approaches and therefore assessments to important issues are different;
- No central rulings entity: this means that there is again no common agreed approach to important issues;
- No centres of technical expertise: this means that there is repetition of attempts to get technical experts;
- No single website: taxpayers have to navigate around websites which are not standard and hence confusing;
- No central help line for taxpayers: taxpayers are confronted with a fundamentally different approach and have to waste time contacting several in many cross jurisdictional transactions;
- No common approach to tax design and drafting: this can result in taxpayer confusion in trying to comply with their statutory obligations and cost in seeking expert advice.
4. Result: Costs to the community – taxpayers, tax gatherers, the economy and Australia’s international position.
The costs to the community occur at both the personal, institutional and economy wide levels and are driven by unnecessary duplication which in turn fuels both additional compliance costs but also produces uncertainty and eventually leads to inaction on the part of business. The impact on Australia’s international competiveness as a destination for international investment should also not be underestimated. In an increasingly volatile international investment market, small additions to the costs of doing business, as exemplified by unnecessary duplication costs, can be highly damaging.
The solution lies in adopting an entity similar to that which has operated in the US since 1967, the MultiState Tax Commission.
In Australia, this would require the States and Territories agreeing, with the “help” (co-operatively if possible, coercively if necessary) of the Australian Government, that:
- major State and Territory tax legislation (duties, payroll and land tax) should be standardised in their tax design so that the tax bases are the same and the legislation is the same;
- there should be a shared responsibility for the administration of those taxes, particularly a one stop shop system.
The States and Territories can be left to set their own rates and thresholds as appropriate.
This approach may require some degree of give and take by the States and Territories, some agreement, some formula to effect an adjustment between them because standardised tax legislation would no doubt be said by some to produce different revenue collections for different States and Territories. But any resultant loss of revenue could be accommodated in this era and within the spirit of co-operative federalism. No longer can the “Not in my State/Territory” argument or the “It will be a disaster for this State’s/Territories’ tax take” argument be allowed to postpone genuine tax reform for the State and Territories. This approach may also require that there should be no segmentation of Australia wide assets or businesses with the complexity that involves. The additional costs imposed by these taxation compliance issues places an unnecessary and eventually unsustainable burden on Australia’s international competitiveness.
US Experience: MultiState Tax Commission (MTC)
The taxes and tax system in the US are not obviously the same as in Australia. But nothing follows from that which would suggest that the US MTC (“Working together since 1967 to preserve federalism and tax fairness”) should not be part of the tax system in this country. Competitive federalism should here give way to co-operative federalism.
1. MTC – Function
When was the MTC formed?
The commission was created in 1967 and “… is an intergovernmental state tax agency working on behalf of states and taxpayers to administer, equitably and efficiently, tax laws that apply to multistate and multinational enterprises.” [Source: www.mtc.gov ]
What are its aims?
The Commission has a number of aims and “… works to achieve the goals of preserving federalism and tax fairness through a comprehensive range of activities …” including:
- Developing recommended uniform state tax policies with respect to interstate commerce
- Encouraging compliance with tax laws and consistency in enforcement through the Joint Audit and National Nexus Programs
- Training and education in complex multiState tax issues
- Supporting states engaged in major and “cutting edge” tax litigation through amicus briefs and technical assistance
- Advocacy of State interests in the field of multiState taxation to Congress and the Executive branch
- The Alternative Dispute Resolution (ADR) program to respond to cases of alleged duplicate taxation of a taxpayer by two or more states.”
2. MTC – Background
Why did MTC come about?
The creation of the MTC was “… as an effort by states to protect their tax authority in the face of previous proposals to transfer the writing of key features of state tax laws from the state legislature. For that reason, the Commission has been a voice for preserving the authority of states to determine their own tax policy within the limits of the U.S. Constitution.”
How did it come about?
The MTC was “… created by the MultiState Tax Compact, the Commission is charged by this law with:
- Facilitating the proper determination of State and local tax liability of multistate taxpayers, including the equitable apportionment of tax bases and settlement of apportionment disputes;
- Promoting uniformity or compatibility in significant components of tax systems;
- Facilitating taxpayer convenience and compliance in the filing of tax returns and in other phases of tax administration;
- Avoiding duplicative taxation.”
3. Programs of the MTC
The MTC has established a number of committees comprised of participating state representatives. “The Audit Committee has the vital charge of administering the Commission’s Joint Audit Program. The committee consists of representatives of the states participating in the Joint Audit Program. The Litigation Committee provides a venue for coordination among state tax attorneys serving in state government. These meetings primarily serve an educational purpose focused on sharing information among legal staffs of participating states about recent court decisions, pending cases, and litigation strategies. The Nexus Committee provides oversight of the Commission’s National Nexus Program and serves as a forum for the exchange of information and coordination of state activity on nexus-related issues. The work of the Technology Committee covers a limited, but diverse range of issues related to the coordination and optimization of information technology as it relates to overall goals of the member states and the Commission. The Uniformity Committee develops initial proposals for model Commission uniform statutes and regulations related to state transaction and income taxation of interstate and foreign commerce. The committee accomplishes its work largely through two sub-committees: the Sales & Use Tax Uniformity Subcommittee and the Income & Franchise Tax Uniformity Subcommittee. A Nominating Committee and Resolutions Committee are two other committees established in the bylaws. These two committees operate less formally to facilitate the Commission’s annual meeting, specifically in the election of officers and the adoption of resolutions and policy statements.” [Source: www.mtc.gov ]
In this regard, the Uniformity Committee’s functions are of particular interest: “One expressed purpose of the MultiState Tax Compact is to promote uniformity or compatibility in significant components of tax systems, and the Commission’s Uniformity Committee is the body devoted to this work. The Uniformity Committee is comprised of state revenue agency personnel appointed annually by their tax administrator, and it is responsible for developing recommendations for uniform laws, regulations and administrative practices for corporate income, sales and use, and other major business taxes. This committee does critical work to help the Commission achieve its objective of encouraging uniform taxation of multistate business activity.” [Source: www.mtc.gov ].
4. Effectiveness of the MTC
“Joint Audit Program states pool their resources to select candidates for corporate income, sales and use, franchise, and gross receipts tax audits. The Commission’s audit staff performs these audits as though they were part of a state’s own audit staff, forwarding their findings and recommendations to each member state based on each state’s individual laws and policies. Each state will review the recommendation and make its own determination for assessment and collection. … A single Commission audit takes the place of separate and duplicative audits by member states, and provides obvious economies of scale to the states. At the same time, it relieves the taxpayer of the burden of multiple ongoing audits. A joint audit is also a good way to achieve uniformity among states with similar laws and regulations in the treatment of income or transactions reviewed in a particular audit. The Joint Audit Program helps states learn of any inconsistent reporting to different states by multiState taxpayers. The states’ position is improved by their joining together; by the same token, corporate taxpayers sometimes find it less burdensome to work with one representative than with numerous individual state tax agencies.”
Reports are that the last 5 years have generated close to US$400 million in assessments. The audit program generally has about a 15 to 1 return on investment.
The Audit program has attracted some criticism (eg., Herbert and Mayster “The Journey of the MTC’s Joint Audit Program”) which if anything reinforces the need to progress to greater harmony or better still standardised legislation. Other commentators have acknowledged the MTC’s “important mission”: see Henchman, J South Dakota, Utah Joining Rush for the Exits at the MultiState Tax Commission.
“The National Nexus Program was created by the Multistate Tax Commission in furtherance of the following purposes:
- Fostering increased state tax compliance by business that is engaged in multijurisdictional commerce.
- Establishing national cooperation in the administration of state tax issues arising in the nexus area, including possible development of a uniform nexus standard which satisfies requisite constitutional standards, the identification of businesses involved in multi-jurisdictional commerce which are not now in compliance with applicable state tax laws, the establishment of a national information network with uniform confidentiality standards, and similar activities.
- Facilitating taxpayer compliance through education as to a taxpayer’s state tax reporting responsibility when it becomes involved in the systematic development of a market in a specific state and providing cooperative services to multiState taxpayers to reduce compliance burdens and to simplify the compliance process.
- Promoting fair, even-handed and consistent state tax enforcement in the nexus area.” [Source: www.mtc.gov ]
Other areas of activity
Other areas of activity of the MTC of interest include:
- Legal Support providing “…individual state support upon request by reviewing and commenting on states’ draft statutes, regulations and legal briefs.”
- Policy Research providing the study of “… state and local tax systems and particular types of state and local taxes. Through comprehensive research, seminars, and dialogue sessions with stakeholders, the Commission member states study and analyze current issues affecting state taxation of multiState and multinational companies with the goal of developing viable options that policy makers may consider in developing fair, efficient and administrable state and local tax systems. Educating and informing taxpayers, policy makers and other stakeholders is a key objective of the Commission’s policy research activities.”
- Training Program “…designed to increase the effectiveness and efficiency of state tax administration. Courses include legal, sampling, audit, technology, and other courses that enhance the knowledge and practical skills of state personnel.”
- Alternative Dispute Resolution providing “… a voluntary, cooperative means of resolving state tax controversies involving two or more states, reducing costs and risks of litigation for both the public and private sectors, providing a means of addressing the multiState character of the controversy so that the interstate issues can be resolved among the relevant parties consistently a result that is not assured even if a taxpayer litigates separately in the different states involved in the issue.”
Some enquiries have been made of the MTC on whether there are any economic impact studies of the MTC in existence covering, for example:
- Impact of the MTC on Gross Domestic or State product;
- Factor income, that is, how much extra income is distributed to the general population as a result of the Gross Domestic or State product;
- Employment consequences;
- Public finance consequences via increased tax receipts;
- Whether the mechanism by which the additional benefits are obtained is through lost receipts or fraud, tax evasion.
As to the first three points, the answers depend on the assumptions underlying the analysis. Under one scenario, assuming the additional revenues were withdrawn from reserves the businesses had set aside to pay taxes, penalties, and interest on audits and assuming that the states spend all of these additional revenues on goods and services in the current period, then GDP will rise the additional spending multiplied by the government spending multiplier. If it is assumed that the state multiplier is 1.4, then an additional US$18.5 million annually increases GDP by US$25.9 million annually. Under a different scenario, assuming that the additional revenues result in reducing business investment by the identical amount, if the business investment multiplier is 1.6 then the additional revenues will reduce GDP by approximately $3.5 million annually. (see Values of multipliers are from Moody Analytics, September 2010, p.5.) However, the state government multiplier assumes that state governments spend all of the additional revenue in the year they are received. This is not necessarily true. The experience of the American Reinvestment and Recovery Act (ARRA) showed that state and local governments frequently “save” part of a revenue stream if they are uncertain of the duration of that stream of revenues.
As to the fourth point, over the past 10 years this program has cost its’ members approximately $7.8 million to operate and has generated in excess of $185 million in additional revenue. The most important factor in the program is not the dollars collected initially, but future compliance which will produce many multiples of additional revenue.
As to the last point, these are additional revenues resulting from audits and voluntary disclosures.
The direct economic impact of the MultiState Tax Commission is quite small and also quite difficult to assess. The uniformity provisions when adopted by states reduce compliance burdens for businesses which can result in greater profits. The audit and voluntary disclosure functions can induce greater levels of compliance which reduce costs to states as well. To date, no peer reviewed study of the economic impact of the MTC has been undertaken.
Australian MultiState/Territories Tax Commission (AMTC)
While competitive federalism should give way to co-operative federalism in this area, it’s unlikely to be achieved other than in phases. What is suggested is that once a co-operative structure is established and its benefits are seen, then the move to a more standard and integrated system will be more achievable.
This phase looks to establish an AMTC drawing on the experience of the MTC and centring on administration but leaving the present diverse taxes in place. In this phase, the AMTC would be established to provide:
- One stop shop for filing
- Central auditing
- Central education entity
- Central rulings entity
- Centres of technical expertise
- Single website
- Central help line for taxpayers
- Common approach to tax design and drafting.
Without careful quantification and economic modelling, it is not advisable to make estimates of the potential savings. If the experience of the MTC were duplicated in Australia then annual savings to taxpayers, tax gatherers and the economy could approximate $1 billion Australian dollars per annum. However, it is likely that the MTC estimates understate the potential savings because they do not take into account the potential loss of business investment from investors wishing to avoid duplication and uncertainty. A phase I AMTC type structure will not end the problem of differential state taxes but rather make the existing system more workable. However, it is hoped that such a change will lead to a timely and effective move towards greater harmonisation of the system leading to much greater potential economic benefits.
This phase looks to take the AMTC from the previous phase centring on administration but not leaving the present diverse taxes in place. In this phase, the AMTC would be established to advise on, co-ordinate and sponsor far more harmonised if not standardised legislation Australia wide.
Again, annual savings to taxpayers, tax gatherers and the economy flowing from the introduction of tax duplication reforms of the type suggest above will apply. The possibility of achieving this phase is not underestimated: see Hildreth, W. Bartley and others Interstate Tax Uniformity and the MultiState Tax Commission.
Reports and proposals to change taxes and tax systems in this country crop up fairly regularly.
“Australia’s future tax system” (Henry Review) was issued on 23 December 2009. Changes to State/Territory taxes were among its many recommendations. In Part 1 – Overview, there are these comments:
“Moreover, Australia retains some other inefficient State taxes on consumption (such as insurance taxes) and a narrow payroll tax. It would be possible to replace the current narrow State taxes base (including payroll tax) with a low-rate, broad cash flow tax that exempts business export sales, more effectively utilising the consumption base. By using existing tax reporting mechanisms, the new tax could more readily be based on the automated systems increasingly used by businesses.”
Some of the Key directions were:
Inefficient State taxes (including the current payroll tax) could be replaced by a low-rate destination cash flow tax, with revenues allocated to fund State services.
Existing land tax arrangements should be replaced, subject to a long transition to slow valuation effects and facilitate landholding adjustments, by a land tax applying to all and regardless of use. The rate scale would be based on the value per square metre of land. A unit value threshold would effectively exempt most land in agricultural use. Most residential land could be subject to tax of about 1 per cent. A higher rate may apply to the highest value land (per square metre). Land tax revenue would also replace stamp duties on land transfers.
The Henry Review recommendations went almost nowhere.
On Saturday, 28 June 2014, the Prime Minister released the “Terms of Reference for the White Paper on the Reform of the Federation” which included a reference that the White Paper would be closely aligned with the upcoming White Paper on the Reform of Australia’s Tax System, referred to in the 2014 Budget Papers So, again tax and the tax system is to be analysed and reported on yet further. In the meantime, the problems and the economic costs of the lack of standardisation of State and Territories tax laws and the lack of a central administration of those laws goes on.
The ideal is to achieve standardised legislation and a central administration and in so doing capture the benefits of an optimal and unified system. Given the long history of State/Territory tax differentials, both in terms of structure and rates, a move to such a system represents an ideal rather than an easily obtained goal. Nevertheless, significant reforms such as the creation of an AMTC can be achieved, will bring immediate benefits and pave the way for substantial taxation reform. There is general agreement that, since the establishment of the MTC in the US, state tax systems have moved toward greater uniformity.
ELRI recommends that the Australian Government together with the State and Territories set up a Taskforce to proceed with the establishment of an AMTC with a view to replicating the structure and functions of the US MTC as the first phase and before the White Paper on Tax Reform is issued and whether or not its recommendations go anywhere.
Certainly, having only a central tax administration is not the ideal but it goes somewhere at least in overcoming the problems there are now.