Dale Boccabella
If we needed another example of just how difficult meaningful and principled tax reform is in Australia, we got it recently in the reaction to the Government’s announcement that it would abolish the “statutory formula” method for valuing fringe benefits representing employer-provided cars. The reaction at times was hysterical.
Some of the claims were extreme and they are obviously calculated to put as much pressure on the Government to back down fully, or at least in part. These are the facts in regard to the relevant tax law.
Where an employer provides a car for the use of an employee, a fringe benefits tax liability might arise. There are two methods of valuing this type of car usage benefit. One is the “cost method” and the other is the“statutory formula” method.
The cost method works out the cost of operating the car for the year (for example, petrol, servicing, insurance). From there, the employer (with the employees help) establishes the percentage of private use (such as a weekend drive to country) and percentage of income producing use (travelling from work premises to clients) of the car by the employee.
This is done on the basis of kilometres travelled on each activity by the employee. This is ascertained by the employee, for the employer, by keeping a log book of income producing trips for 12 weeks in the first year in which the employee had use of the car.
Once the percentage of private use is established, it is applied to the cost of the car to establish the taxable value of the benefit (for instance, the operating cost of $8,000 with 40% private use would mean a taxable value of $3,200).
Putting aside some transitional rules, the statutory formula method applies a flat 20% to the cost of purchase of the car. (If the car is more than four years old, the cost of the car is reduced to 66.6% of the cost of purchase). Under the statutory formula method, there is no requirement on the employer to establish the percentage of private use of the car by the employee.
That is, the statutory formula is not valuing the car fringe benefit by reference to the employee’s private use of the car. For example, if the car has a purchase cost of $32,000, the taxable value of the car benefit is $6,400 under the statutory formula method (that is, $32,000 x 20%).
The employer can choose whichever method suits them, including the one that gives the lowest taxable value. It is clear that the statutory formula method, like other presumptive tax mechanisms, is a simplification measure; it means an employer (or employee) can avoid the tax compliance obligations associated with keeping a log book under the cost method.
Generally, the statutory formula method will give a lower taxable value than the cost method when the car has a high percentage of private use, and the cost method will give a lower taxable value when there is a low percentage of private use. One could question the costs that are included in calculating costs(and therefore, taxable value) under the cost method (e.g. deemed interest, deemed depreciation). However, it is only the cost method that accurately ascertains the private use element of the car benefit.
This is what a principled, equitable and efficient income tax system should be taxing. Fringe benefits tax (FBT) is a surrogate income tax on employees who receive benefits for private consumption, but one unfair aspect of the FBT regime is that it taxes all benefits at the top marginal rate of tax applicable to natural persons (currently 46.5%) even though the recipient of the benefit may be on a lower tax rate than 46.5%).
This means that where the statutory formula method gives a lower taxable value than the cost method, the taxpayer is getting a tax concession.
This is recognised in the annual Tax Expenditure Statements issued by Treasury. The Tax Expenditure Statements contain a list of items where taxpayers are getting a tax concession, along with an estimate of the aggregate of the tax concession.
The statutory formula method is listed as a significant tax expenditure. On the other hand, where the statutory formula method gives a higher taxable value than the cost method and the employer fails to elect into the lower cost method (this will rarely happen), the employer is being (unfairly) overtaxed. This would be a negative tax expenditure.
The removal of the statutory formula method simply moves this part of the tax system back to a principled position by removing a tax concession. These facts have been completely lost in the “debate”.
In spite of the above, there is a legitimate issue about the start date of the new rules. The removal of the statutory formula method only applies to all new contracts entered into after 16 July 2013, but even then, the statutory formula can be used for the rest of the current FBT year (that is, until 31 March, 2014). After that year, only the cost method will be available.
All existing employee car usage arrangements can continue to use the statutory formula until the car is changed over. In this sense, these new rules are not retrospective. But, many employers and employees would have been in the process of arranging a new car on the announcement date but that arrangement may fall short of having a concluded contract.
In this sense, it is arguable that the Government measure does operate retrospectively for these employers and employees. To deal with the “immediate start date” issue and “retrospective” issue, the Government could have provided for a more generous deferred phase out of the statutory formula method (for instance, until March 2015).
In 2011, when the Government amended the multiple rates under the statutory formula method to move towards one rate (i.e. 20%), which increased the taxable value on most cars, the Government provided a transitional period whereby tax increases were progressively introduced over three years.
More important to the national interest, does this episode (which may not be over yet) say anything about the prospects for meaningful and principled tax reform? It is certainly not encouraging. It does send the message that those with tax concessions, and the industry serving those tax concession recipients, will not give up their concessions without a fight. It probably does not help where there is a lack of bipartisanship, which is the case with the removal of the statutory formula as the Coalition have indicated they will oppose this measure.
Similar to many areas of human conduct, the longer tax concessions remain in place aspart of the tax system, the higher the level of normality that isachieved. Normality and entrenchment can reach the point where usersof the tax concession start believing that the concession is a normalpart of a benchmark tax system.
Some of those complaining about the removal of the statutory formula method may genuinely believe that the government is imposing a tax increase on them over and above what a benchmark income tax would impose, rather than seeing the government’s announcement as the removal of a tax concession.
Many complainants though will be moved by pure self-interest and these people know full well they have been accessing a tax concession. Sadly, our tax system is riddled with many significant tax concessions that depart from a benchmark tax system – such as the 50% tax concession on capital gains of natural persons, 100% exemption on all the gain made on the family home, generous tax concessions on superannuation, failure to tax all land under state land tax regimes.
Some not-so-apparent concessions involve negative gearing, or the current generous treatment of discretionary trusts and the lack of death duties. The longer tax concessions remain in our tax system, the more normality they will achieve. In turn, the harder it will be for future politicians to remove or scale back the concessions.
In a future where Australians demand more services from Government and at the same time resist higher taxes, scaling back tax concessions may be the least displeasing option to meet desired revenue needs. One heartening thing for future governments is that there are still many tax concessions worth a lot of lost revenue that could be wound back.
Dale Boccabella is an Associate Professor of Taxation Law at the Australian School of Business. This opinion piece was previously published on The Conversation under “The truth about FBT on cars: meaningful tax reform is hard“.
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It has always seemed anomalous that a taxpayer could get a tax benefit for what effectively amounted to private expenditure by being able to use the FBT method that worked to their best advantage. I, for one, don’t have an issue with getting rid of the statutory formula method.
Good article Dale. A lot of the hysteria is also coming from the businesses in the car leasing industry, of which I believe most of this is unfounded. It has been said that there will be a sudden glut of second hand cars (no more than normal), and while some people if they have to pay for their own car will opt for a smaller car – I believe a lot of people won’t and will still keep their “big” car that they are use to. All this announcement will do is push companies away from providing a car to providing a car allowance and employees will have to supply their own cars (of which many will still opt for the car lease arrangement as it’s cheaper than having to forkout either $20-40k+ for a car or take out a loan to buy a new car.
The only ones which this would adversly effect will be those on Work Visas who will find it 1. hard to get a car loan, 2. no neccessarily want to sign up to a 3 year lease on a car because of uncertainty as to whether their job will be around for the full 3 years. But this could just mean that companies have to build into an foreign employee contract that if it finishes before the end of a car lease (by the employer) then the car lease is bought/paid out by the employer.
As for the car leasing companies saying that this announcement means they have to lay off a certain number of employees, all I can say is perfect timing for them as the chances are that they were probably already in financial trouble and this gives them the excuse to downsize without showing their true financial position to those employees they retain. I say this because there is no way one can determine the effect of these changes on the industry within a day of the announcement being made.
Thanks for the article Dale. Much of your comments has been missing from the debate.
The Statutory Method is purely a compliance short cut. The Henry Review only recommended it “to reduce compliance costs in the medium-term.” It follows that if there was a way for the operating cost method to be applied in a low compliance cost way, then the statutory method should be abolished. That’s what the Govt are claiming with ‘apps’ and what not.
I believe the big blow up is the fact that perhaps lots of people (like myself) take a salary packaged car for practically 100% private use, and the statutory method is essentially a “give away” by the government. Even if I was to adopt a low compliance cost method of the operating cost method, I’d still be much worse off in any case. I won’t package a car when my lease is finished, i’ll just pay more income tax like normal people do! Back to the benchmark rate I go.
And it is not a rort, it is a tax concession, by design. If the government had only ever wanted business use to be treated concessionally, we would have never had the statutory method in the first place. It bugs me that some politicians have been framing it this way. It’s like getting upset that some people are using the safe-harbour method for thin cap purposes but whose debt ratio in reality is a lot lower. That’s the point of the safe-harbour (or any safe-habour) and the statutory method is one such one.
The other issue was industry consultation and transition. The Henry Report indicated that in 2007-08, the statutory method was used for $1,647 million of benefits, whilst the operating cost method was use for $147 million. (this was before the flat 20% rate of course).
So it would be obvious that entire salary packaging industries have emerged and were depended on the statutory method. In my view, it would have been a bit more sensible to phase in the removal of the statutory rate, but actually increasing the statutory rate by say 10% every year for new contracts and contracts started from the start of the phase in period.
By the time it hits 30% or 40%, hopefully lots of people would have moved over to the operating cost method. – policy intent achieved.
Lots of people would have also dropped out because it was uneconomical and just pay more income tax instead – policy intent achieved.
And lots of other people would stay in, and keep paying more FBT (like myself) as it would always be better than the operating cost method. They would pay more FBT – policy intent achieved.
A transitional period of an increasing statutory would have at least given the packaging industry time to adjust to the changes.
Meaningful tax reform is fine. However (& I have a novated lease), targeted tax benefits that lead to positive impacts on the economy should not be changed without a great deal of consultation. Without a novated lease, I would replace my car less often (lucky if I change it every 10-12 years as it is). Newer cars are safer & greener. I would have refomed this by limiting the use of the stat formula to 1) New cars & 2) Made locally. That way, you also help local industry. All of these factors were ignored. If the car industry is helped by increasing sales, this may reduce their need for other assistance.
Your article seems to suggest that self-interest was the motivating factor for opposing this change. For all the reasons I just noted, self-interest was not one of them. Losing the tax concession is a bad thing. Where is the balance to keep the good objectives that I noted above? An example of meanful tax reform is the set minimum deduction of $2000 & potentially removal of the need to lodge a tax return – reduce administration (which would probably save more than the refunds it pays out). Standardize tax rates & tax calculations rather than having a different way to calculate a small, medium or large business or something as simple as payroll tax (just as an example). Centralise administration rather than have 3 levels that all squabble for their piece of the pie. These will all save money by reducing administration via duplication & doesn’t hurt our economy or cost the taxpayer extra. (unless it is your job that is duplicated)
The last lot of “tax simplification” just created more complexity – this is where the savings are. Maybe we need to reform the constitution & get rid of the state governments – think of how much that would save!
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