The wisdom of compassion

by admin on January 18, 2006

in Tax and Ethics

Richard Murphy’s exposé of the Tax Gap has sparked something of a debate over at AccountingWEB with Alastair Harris describing Richard’s assessment as ‘nonsense.’ In the background, Andrew Goodall and I have been having a conversation around this issue.

There are going to be plenty of people who will argue that Richard is fueling a social and potentially political argument with theoretical accounting gobbledy-gook . They’re wrong. The fiscal system is not just unfair on the small man. It is grossly distorted in favour of large businesses that can organise their structures through competitive tax regimes . Richard and I discussed this at length .

In my day, if the client had deep enough pockets, we could do pretty much what we needed to avoid significant amounts of tax and/or defer huge amounts of NICs. That was late 1980s to early 1990s. Anyone want to disagree with that? And at the time, you couldn’t beat the boys at Arthur Andersen for great tax advice.

In other remarks, Alastair goes on about the way the Treasury is seeking to take more and more in taxation.

There is a much deeper issue at stake here. The ICAEW has not gone ahead with plans for an ethics exam . Yet we’re in the middle of one of the most intense periods of scrutiny I can remember. A new set of Accounting Standards bite this year. They’re already under attack as being potentially unworkable .

As late as 2004, Sir David Tweedie failed to understand the impact of the new standards regime on software developers. I recall giving a speech in late 2004 where I said that Sir David had created a regular mess for the industry . In the same year I noted that the massive swings in numbers in some industries applying IAS would have startling effects, with potential instability in the financial markets.

CODA has talked about the impact of all kinds of governance issues:

"Converting to the International Financial Reporting Standards was reported to have presented the largest headaches for the teams responsible for financial reporting, especially in Europe, with meeting the Sarbanes Oxley requirements also cited as resulting in significant additional workload and operational difficulties for the American companies interviewed."

Anyone whose clients report into the US already know about how hard Sarbanes-Oxley has bitten. The fact is we’re living in a new world where ethics matter.

How can we say we’re socially responsible when we’re prepared to allow the obfuscation of taxation in the reported accounts?  Yet social responsibility is allegedly high in the boardroom agenda . I find that hard to believe.

So it is with a sense of irony I’m pleased to say I’ve been invited to contribute some pieces on the technology of governance to AccountingWEB . You don’t have to guess what sort of questions I’ll be raising.

If you find this offensive. Great. I look forward to the debate. Because what is at stake is the future of our business leadership. If we can’t reconcile our desire to maximise our clients’ wealth with the social need to make fair contribution then we should not be surprised if we’re faced with an aggressive tax regime.

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Just read an article on AccountingWeb about UK taxation of pension contributions paid by a company for the benefit of an employee. Got me thinking about tax and ethics. I don't want to interpret the article but it does seem to indicate an example of legislation (or at least HMRC interpretation thereof) where the impact on the taxpayer is not clear in the rules. Perhaps if the rules were ethical in the first place?.....

Alastair: age puts me closer to heaven (or hell) than most I know. Tax pros? Yes on both counts - I was one!

It is lovely to be classified, even if the classification is wrong, although I suppose my age alone might put me in the "old guard".  In my experience however tax professionals have a thick skin and command premium fees!

I'm not sure I agree with Paul on his historical perspective. It's always been my view that if there's enough money at stake then things can and will be done to mitigate aggressively - heck - I was part of that scene!I do however see the current situation as one side of an increasingly polarised situation that ends up a zero sum game.

If the profession is to be seen to be 'playing fair,' in other words exploiting obvious weaknesses but not playing the semantics game then maybe, just maybe HMRC will be less aggressive.The fact deferred tax in particular has become a quasi-reserve is clearly wrong. That absolutely needs resolving. Similarly, I think Richard is right to talk about 'wholly and necessarily' in respect of foreign interest. But that needs a rethink around group accounting/group tax relief.

None of this is easy but as a profession at risk of losing all respect, I believe 'we' have a duty to our clients to lead the discussion. Anything else - IMHO - is cynical.

Ah, we get to the heart of the debate here. On the one hand, the old guard like Alastair discuss "the right amount of tax" as if they're talking about an individual entity abstracted from the real world, whilst great big softies like Richard Murphy for some reason insist on placing the issue within its social context. (Sorry, I shouldn't use jargon - 'social context' means "people who are neither colleagues nor clients"). 

The deep-down problem here is that tax accountants have generally thought of themselves as respectable, useful members of society, and it hurts like hell to find out that other perfectly respectable people do not see them like that any more. 

It's time to wake up, the actions of Andersens/KPMG/+others let a genie out the bottle, and it ain't going back in anytime soon. "Tax planning" is rapidly becoming a tainted profession, particularly when doing it for large businesses. Witness even Alastair bemoaning how the small guys are on the receiving end of all the clampdowns - now why might that be? Any connection with the actions of the big guys and their tax planners? And if so, as a small guy being asked to make up the shortfall, how does that make you feel? 

The louder the nostalgia for the good old days, and the more stubborn the refusal to accept a social and ethical context to determining "the right amount of tax", then the more tainted the profession becomes. It seems to me that Richard Murphy's signposting the road back to respectability, and Alastair's marching off as fast as he can go in the opposite direction.

Alastair - this is a nonsensical argument. I'm sure government would be far from pleased to hear you say: "Perhaps the law is derived from some sort of moral position." It just doesn't fit with any known facts.

Hi Peter.  you have missed one of my points.  I am not claiming anything is ethical because it is the law.  I am simply stating that it is the law and that ethics has got nothing to do with it.  Perhaps the law is derived from some sort of moral position, although I doubt that and prefer to picture it as the result of incremental tinckering by politicians.  A debate about ethics might be an interesting diversion, but I suspect that would be better hosted on a different forum.  By the way, I don't have a problem with "the right amount of tax".  My point is simply that the "right amount of tax" is a (mostly) objective number derived by application of law to financial transactions and balances.  You seem to be suggesting that it is something else. 

aaah Foucault...wondered when he'd get pulled into the discussion.

I don't see Alastair's problem with "the right amount of tax". Sure, we might have different opinions about high or low, progressive or flat, competitive or equal, but this doesn't prevent a rather obvious rule for assessing the right amount of tax in a parliamentary democracy.  

The right amount of tax is the level intended by parliament, as reflecting the majority will of the people. By that standard it is quite easy to see when somebody is paying the wrong amount, and there can only be two reasons - either a taxpayer is undermining the intention of parliament by some wheeze (legal or illegal), or else parliament is ignoring the will of the people (more serious and tricky to prove - let's assume this one away for now).

It is a matter of public record when exceptions to the basic tax rates are the intention of parliament because they are positively legislated for (enterprise, r&d breaks etc). It is correspondingly obvious when not, because they are not positively legislated for (relocations to tax havens, transfer pricing etc). I do not for a minute imagine that the human race is incapable of successfully clarifying the difference between intention and loophole. Sure, we would need to re-write a good deal of legislation to make this general rule universal, but we have an entire industry of jolly clever people who will be out of work and looking for jobs where they can use their tax knowledge, so they'll probably be happy to re-draft legislation at little cost to the taxpayer, hurrah!

And yes Alastair, when huge transnational corporations orchestrate their paper trails to falsely move profits away from where the real economic activity occurs, and so pay virtually nothing in tax to the societies whose markets, workers, consumers, infrastructure and other public goods they depend on, of course it is unethical.

To claim it is ethical "because it is the law" is not a statement of an ethical position at all, but one entirely devoid of ethics, recognising only the threat of disciplined enforcement by state-sanctioned violence as a rationale for action. Foucault warned me about people like you.

I would argue Dennis that you're right to find it hard to believe that "social responsibility is allegedly high in the boardroom agenda" - I find it hard to believe too. You mention Sarbanes Oxley, and I think this goes to the nub of it: for many companies, they needed a stick to start cleaning up their act, because no amount of carrots seemed to have helped.

Accurate accounting (not just tax but other items too) is only higher on the agenda in the typical boardroom because people are now personally liable, rather than being able to seek protection behind the corporation. They're not becoming any more ethical.

I still see little evidence of the average corporate doing a lot to assuage their ethical guilt. Charitable donations and the like are all very well (and helpful tax breaks?) but I also like what Marc Benioff's salesforce.com has done, which is to donate not just cash but employee time to good causes - 1% of its employees' time is spent that way, while 1% of its equity and profit is donated to the salesforce.com Foundation too. Shame more companies don't take a stronger ethical stance and treat not just tax payments but profits and employees' time as something that can be used for good projects.  

there are a number of interesting themes in your comment which stir me into reply.  Does the Government have a responsibility to run a fair tax system?  An interesting question to which the answer is surely no.  Consider what you mean by a fair tax system.  You would probably supply a comprehensive answer to this, but different people would supply different answers, and even if you attempted to classify the answers you would still end up with many different and conflicting definitions. 

The government has a simple responsibility which is to deliver its manifesto commitments - after all it is answerable to the electorate in our democratic system.  So a) there is no objective definition of a fair tax system, and even if there was there is no such responsibility on the government to provide one.Does the tax system deliver "public goods"?  Again the answer is no, or at least not completely.  Government delivers public goods, and taxation is one of the means by which it raises funds to deliver them; but only one. 

It is worth exploring the fact that it is not only governments that provide public goods - consider the role of charitable organisations.Does the government allow evasion and agressive avoidance?  Clearly it tries not to allow this - in fact it is demonstrably agressive in trying to stop it - some would say over agressive in respect of avoidance.  For example, consider the latest debacle on pensions where it offerred new savings vehicles only to withdraw the offer at the last minute.  Of course the government does have some responsibility to ensure that its laws act in the way intended although it is clearly the responsibility of the courts to interpret the laws it produces.

Direct quote from your last sentence - "if there is a "right amount" of tax it is what the law is designed to collect".  I defy anyone to establish from our current tax laws what the right amount of tax is.  British tax laws are increasingly complex and incomprensible.  It is a requirement of your original arguments about a tax gap that there is a "right amount", but in fact you are taking a subjective definition and attempting to apply it as if it were objective.

love this. havent' pointed to it yet, but i really like your position and arguement

Alastair: Let's put aside the question of professional ethics for a moment. My main concern is what would happen if governments allowed evasion (via tax havens and other means) and aggressive avoidance (eg artifiical arrangements clearly designed to undermine the purpose of the legislation) to continue unabated. That would be a failure of government's responsibility to run a fair tax system that provides the public goods that most people take for granted in developed countries, and it would undermine confidence in the system, with consequences for the level of voluntary compliance.

You can argue that a particular government's anti-avoidance strategy is wrong or over-zealous (eg the UK government's response to the dash for incorporation that followed its introduction of a zero rate of corporation tax) or that legislation is badly written, or that a particular government does not spend its taxes efficiently, but there has to be an anti-avoidance strategy if a tax system is to work fairly and effectively. In this context, if there is a "right amount" of tax it is what the law is designed to collect.Regards, Andrew

"why are we required to pay?" - that is a straightforward question with a straightforward answer - because it is the law.  and the follow up - "how much?" is also directly related to the law.  There is nothing ethical about that!

A fallacy in the position taken by Murphy and Goodall is that there is a "right" amount which is in someway different from the amount actually paid.  If that were true then those payers would be breaking the law.

I'll buy the headline was skewed - that's editorial for you. <p>It's an entertaining argument Alastair but one I don't share. If there is no ethical dimension  to taxation then why are we required to pay?

In your argument, I suspect it is something to do with funding government inspired madcap schemes. Now that would be cynical.

As to taking advantage of more favourable tax regimes, sure I can see that. If that is at the expense of overall economic concerns then it's a road to disaster and exactly the kind of thing that governments are quite right to review - if only they understood what they're looking at in the first place.

But this has got nothing to do with compassion - the stuff about global poverty is a red herring. I am in agreement with you that if you have the wherewithall then avoiding tax is more available to you - does that make it illegal or ethically wrong?  Perhaps there is a debate here, but it has to live in the real world and not in some theoretical utopia. 

It annoys me intensely that the response of government is to go for the small fry - talking avoidance into evasion and continually misinterpreting the rules to their advantage - Artic Systems unfortunately is only one small example, and the fact that for now the government appears to have lost that one is also a red herring because there will be more of it, and unfortunately the people that this affects can ill afford to defend themselves.

The tax system is grossly distorted, but if it is in favour of anyone then it is the government.  And the fact that there are rules that the wealthy can exploit is due to the complexity of the system.I don't buy the argument that taxation is in someway ethical and there is a "right" amount of tax that should be paid.  This is palpable nonsense.  There are clearly different levels of taxation in different countries, and why should there not be?  That some are able to take advantage of this is all part of competitive advantage.  And now it is starting to get to the political bit!

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