For a long time, I’ve struggled to understand the social value of trusts. Obviously, they’re useful for the people that have them but it seems that the value they get is nearly exclusively from preventing people making legitimate claims on their assets. Creditors, ex-partners, the government (and through it, the rest of us) end up not being able to get what they would otherwise be legally entitled to if the trust didn’t exist. They seem like artifices with little purpose beyond protecting people from having to pay their debts.
One of the most popular uses of trusts is to hide income for tax avoidance or evasion (depending on your point of view on its legitimacy). The Right’s ‘solution’ is to align the top tax rates so there is no tax advantage in putting income through a trust. Apart from being tax cuts for tax cheats and a path that virtually no other wealthy country has gone down, National hasn’t actually aligned the tax rates. The new rates will open just as large a gap between the top rate and the corporate rate as formerly existed between the top rate and the corporate rate.
As the Sunday Star Times explains, the rich can just use investment companies (owned by their trusts) to take advantage of the gap: “tax changes announced in the Budget will give the rich the 33% tax rate many have already granted themselves by using trusts to convert large swathes of their income into tax-free capital payments.”
Mucking around with tax rates isn’t a solution to the abuse of trusts and companies. The real solution has always been for the law to open its eyes to the abuse. So, I was happy to read about the IRD’s success in a recent court case against two surgeons.
Ian Penny and Gary Hooper cut “their salaries from above $650,000 and $302,000 a year to around $120,000 following the increase in the top personal tax rate to 39% on April 1, 2000.
Their families continued to derive substantial income above those figures through dividend distributions to family trusts from the companies both men established to employ themselves as top orthopaedic surgeons in Christchurch.
IRD claimed the change allowed both surgeons to exploit the difference between the 33% company tax rate and the 39% top personal tax rate, and both Penny and Hooper agreed in court that their new salaries were not commercially realistic.
Judges Tony Randerson and Grant Hammond found against the surgeons.
“I consider it is no coincidence that the restructuring of Mr Hooper’s practice occurred in 2000,” said Judge Randerson, while Judge Hammond described it as a “rather obvious, indeed blatant, strategem.”
The avoidance was “particularly marked in Mr Penny’s case where over $2 million in company profit was diverted via his family trust to himself in the form of unsecured, interest-free loans with no specified term for repayment.”
The court came up with a legally novel but pretty common sense concept of a ‘market salary’. As Justice Randerson held: “The difference here is that salaries were adopted at levels so far below ordinary commercial expectations that, in the absence of legitimate reasons for doing so, there is a strong implication of tax avoidance.”
In total, the court found the surgeons had avoided $168,000 of tax. That’s enough to pay a teacher or nurse for three years.
Thousands more very wealthy people have been ripping off working Kiwis for years. This decision will potentially result in many more similar rulings. It should stop the abuse of trusts and companies by rich people who are too greedy to pay their fair share and meet their legal obligations.