Tax incentives for foreign direct investment part II : Design considerations

Part I of this article concluded that tax incentives for foreign direct investment (FDI) have become increasingly common over the past 10 years or so, especially among developing countries, and that there is substantial evidence to support the proposition that tax considerations now play an important role in many investment decisions. Countries seeking to attract FDI often feel compelled to offer tax inducements that are at least as attractive as those offered by their neighbours or competitors. Countries do so at a cost, however, and that cost may be substantial. Governments are thus placed in a dilemma - can they afford to cut taxes in order to attract investment, and can they afford not to? The second part of this article assumes that countries, and especially most developing countries, will continue to feel obliged to provide tax incentives. The aim of this part therefore is to examine ways in which those incentives can be made more effective and more efficient, thereby reducing their cost to the host country.

Exempt treatment of financial intermediation services under a value-added tax: an assessment of alternatives

Most countries with a value-added tax (VAT) exempt financial intermediation services from the tax. While exemption is generally perceived to be undesirable, it is also widely regarded as unavoidable because of technical difficulties in applying VAT to these services. This article reviews the standard rationale for exempt treatment and then considers the relative merits of two recent challenges raised in the tax literature. The first challenge involves the application of cash flow taxation to financial intermediation services in a manner that is consistent with an invoice/credit VAT (which is the dominant form). The second challenge proposes a comprehensive system of zero-rating of financial intermediation services, which is supported by a characterization of the household consumption of such services as non-taxable. The author argues that each of these alternatives to an exemption system suffers from both theoretical and practical implementation difficulties that make maintenance of exempt treatment the preferred approach, at least in the short term. There is, however, a simpler alternative to these fundamental reform options, involving modification of just one aspect of an exemption system to relieve some of its more problematic aspects. Many of the interpretative problems and associated inefficiencies that plague an exemption system arise from the need to distinguish between taxable and exempt financial services. The author argues that these difficulties can be eliminated, to a large extent, by basing the distinction on the form of prices. In support of this approach, he points out that it is consistent with the underlying reasons for the application of exempt treatment. The author considers a number of other possible modifications, but these are either rejected outright or viewed with a healthy skepticism. For example, the author is critical of the apparent rationale for the application of cash flow taxation to property and casualty insurers. He also rejects proposals that accept some looseness in the formulaic allocation by financial intermediaries of the costs of business inputs between exempt and taxable services for input credit purposes. In his view, an explicit reliance on pricing structures to draw the boundary between exempt and taxable services is preferable to the provision of relief for blocked input tax credits of financial intermediaries. Finally, the author is skeptical of the case for a policy response intended to address the tax bias under an exemption system for financial intermediaries to insource supplies.

Impact of the new business tax system (alienation of personal services income) Act 2000

The implications of categorising income as "personal services income" and the actual meaning of this term have been marked with uncertainty. The Commissioner of Taxation has long asserted that "personal services income" inherently may not be derived by an entity other than the person whose exertions produce the income. In Liedig v FCT (1994) 28 ATR 141, however, Hill J held that in the absence of a specific legislative provision, there was no basis for the Commissioner's doctrine. The specific legislative measures Hill J required were put in place through the New Business Tax System (Alienation of Personal Services Income) Act 2000. In certain circumstances this Act prevents interposed entities from deriving personal services income. Such payments are attributed instead to the individual who performs the services.

It will also be seen, however, that these provisions do not apply to entities that are conducting a "personal services business". It is submitted that the combined effect of, inter alia, the Act's definition of "personal services income" and "personal services business" is to give the Act a narrower scope than the Commissioner's personal services doctrine. Moreover, it will be submitted that the statutory definition of personal services income also suffers from the same flaws that Hill J identified as relevant to the Commissioner's personal services doctrine.

Response : A defensible and workable approach to the income tax treatment of financial instruments

It is a privilege to have the opportunity to respond to the comments on my monograph1 provided by Mark Gergen, Glenn May, and Gordon Longhouse. Their comments, which are inevitably coloured by their very different perspectives, reflect the considerable expertise that each one of them has in the area of the income taxation of financial instruments. Indeed, it is with some hesitation that I offer a response in defence of various portions of the analysis presented in my monograph in support of some pretty modest proposals in this extremely difficult area of income tax law. Although I spent considerable time exploring some necessary first principles and their implications for the design of a system for the income taxation of financial instruments, I made several concessions to certain practical constraints that led me to support, in some measure, the status quo reflected in certain of the existing literature, as well as the legislation in a select group of countries. On the assumption that many readers may be unfamiliar with the monograph, I propose to respond by outlining much of my analysis in the monograph and the proposals that are the logical outcome. Throughout the outline, I will highlight and respond to what I see as the important points of difference emphasized by Gergen, May, and Longhouse.

Taming Complexity in Australian Income Tax

Taxpayers and tax authorities recognise that complex Australian income tax law is in need of simplification - during the past decade there have been two ineffective attempts at simplification of the tax law - first by redrafting the law in plain English without addressing structural issues - second by the proposed wholesale replacement of the legislation with a new foundation, incorporating most of the causes of the complexity in the current law - with tax law growing in size and complexity, new paths to simplification must be considered.

Capital gains tax in South Africa : lessons from Australia?

In the budget review of23 February 2000, the South African Minister of Finance announced that a capital gains tax ('CGT') would be introduced into South Africa, the anticipated start date at that point being 1 April 2001. Pursuant to Taxation Laws Amendment Act 5 of 2001, a CGT of general operation was introduced into the South African Income Tax Act 58 of 1962 (the 'ITA 1962') through the insertion of the Eighth Schedule¹, read together with s 26A of the Act. Section 26A is the charging provision that states that a person's taxable income included their 'taxable capital gain'. As discussed below, the start date was revised to 1 October 2001.

Moving personal tax online: the Australian Taxation Office's E-Tax initiative

In exploiting the capabilities of online technologies, governments have developed policies and launched projects to conduct transactions and deliver their services through the Internet. The motivations for this include cost cutting, efficiency improvements, service enhancements, and leadership in business transformation. However, these diverse goals are not necessarily consistent, especially in the early stages of implementation. The e-government initiative discussed in this case study (E-Tax) provided an additional service to individual Australian taxpayers by enabling them to file their tax returns online. This case study provides an analysis of the E-Tax implementation in the first three years of its operation. Data on E-Tax use compared to other filing methods show that the package worked well technically, was favorably received by users, and was consistent with policy on e-government. However, adoption levels in the early stages did not meet government targets. The analysis suggests that impediments to a greater level of E-Tax use included entrenched patterns of filing, the nature of the taxation system, and political sensitivities. The E-Tax case demonstrates how complex e-government projects can be and the need to take contextual factors into account in planning and evaluating e-government implementation.

"To GAAR or not to GAAR-that is the question:" Canadian and Australian attempts to combat tax avoidance

In both Canada and Australia the relevant governments found their initial legislative attempts to combat tax avoidance to be ineffective. In time in each country it was concluded that the respective general avoidance provisions were of limited application and avoidance provisions were of limited application and ineffective to combat the sophisticated tax avoidance schemes promoted by tax advisers. In Canada it was determined that Income Tax Act, R.S.C 1985, s. 245(1) would be repealed and replaced with a general anti-avoidance rule ('GAAR') contained in a new s. 245 ITA. The Australian government similarly decided to replace Income Tax Assessment Act, Cth. 1936, s. 260 with a new general anti-avoidance measure, Part IVA ITAA. This article compares and contrasts the Canadian and Australian GAARs. Through the evaluation of each regime the article seeks to identify which model is most effective. It will be sen which model is most effective. It will be seen that both regimes have some features that are preferable to the other and thus both GAARs might be improved by incorporating aspects of the other anti-avoidance model.

Isolated transactions: current income tax implications

Profits from isolated transactions will often be potentially caught by the capital gains tax provisions of the income tax legislation. Because the provisions usually tax gains at concessional rates but only apply to gains that are not otherwise taxable, it is important to determine when gains from isolated transactions constitute ordinary income. This article discusses when isolated transactions generate ordinary income, as well as briefly mentioning what statutory provisions they might be assessable under. Isolated transactions will generate ordinary income when the transaction has the sufficient indicia of a business, or when it comes under one of the strands of Commissioner of Taxation (Cth) v Myer Emporium Ltd (1987) 163 CLR 199. However, the law in this area is complex and unclear in parts. The relevant tax ruling, TR 92/3, is incomplete and at times inaccurate and so is of very limited assistance.