Diverted Profits Tax Will Go Nowhere

The 40 per cent tax on diverted profits is expected to raise $100 million.  That implies that the federal government estimates a mere $250 million of diverted profits.  To put that figure into perspective, the federal government recently announced a tightening of the rules on the grandparent child care benefit.  That policy change would result in welfare savings of $250 million.

Grandparents allegedly rorting the welfare system are a much bigger budget problem than multinational corporations allegedly rorting the tax system.

Indeed, Tax Commissioner Chris Jordan gave the game away on March 16 when he told a Tax Institute conference that the gap between what large corporates and multinationals pay and what they should pay in tax was "relatively modest" and that "the biggest gap we've got in the system is us" — that is, individual taxpayers.

After five years of hyperventilating about corporate tax avoidance, this is a striking confession.  The previous treasurer Joe Hockey made much of the fact that the ATO had identified 30 multinational corporations likely to offend and had embedded agents in those firms and would carefully investigating their practices.

True, Scott Morrison did say that this diverted profits tax is a tax integrity measure.  Ensuring the integrity of the tax base is a legitimate policy goal.  But a diverted profits tax is a counterproductive and illiberal way to go about it.

UPFRONT LIABILITY

It allows the ATO to impose upfront liability and collect tax on allegedly diverted profits.  It reverses the onus of proof and removes the right to silence — thus multinational corporations the right to natural justice under the Australian legal system.  That is not a reasonable integrity measure but rather a punitive regime that targets foreign investors and successful Australian companies.

This is a policy that substantially increases the powers of the ATO without any governance measures to ensure that abuses do not occur.  No doubt these powers will be exercised by the ATO to collect revenue beyond the amount intended by Parliament.  That is simply the nature of regulatory bureaucracies and it will be small comfort for those multinationals who successfully challenge the ATO that their money is eventually returned to them.

Even more fundamentally, the diverted profits tax doesn't sit well with current policy settings, nor with economic reality.  There is currently a lot of effort and anti-business rhetoric to collect $100 million.  Is it a coincidence that business investment is low?  Or is that government is passing tax laws that violate societal norms of fairness and are creating an uncertain and arbitrary tax environment?

Business doesn't know what tax rate they will face in Australia in years to come.  It could be 30 per cent.  It could go down to 25 per cent over 10 years if the Turnbull government's corporate tax cut goes through.  Or it could be as high as 40 per cent if some Canberra bureaucrat, empowered by the diverted profits tax, gets a bee in their bonnet about multinational structures they do not understand.

There's been a lot of talk about policy uncertainty in the Australian energy market.  With a lot less fanfare the corporate tax confusion is doing the same to the entire corporate sector.  This is not how to ensure jobs and growth.

In the meantime, Australia is facing an international environment where the British Prime Minister is openly discussing turning the UK into a tax haven, and the Trump administration wants to reduce America's corporate tax rate to between 15 and 20 per cent.  The Turnbull government has chosen the wrong time to put multinational engagement with Australia at risk.