NTER) in Encouraging Competitive Neutrality
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School of Business Law and Taxation The Effectiveness of the National Tax Equivalent Regime (NTER) in Encouraging Competitive Neutrality Josephine Doueihi This thesis is presented for the Degree of Doctor of Philosophy of Curtin University February 2019 0 0 Abstract The Hilmer report (1993) sought to recommend a consistent national approach to encourage greater competition in the Australian economy. One of the ways it sought to do this was to remove any competitive advantages government-owned businesses might have by way of any tax advantages. 1 These competitive advantages needed to be removed in order to achieve competitive neutrality - a market whereby all firms compete on a level playing field and are subject to the same rules and regulations regardless of their ownership. This aim to achieve competitive neutrality between public and private businesses paved the way for the formation of the National Tax Equivalent Regime (NTER). The National Tax Equivalent Regime (NTER) is an administrative inter- governmental arrangement under which, for competitive neutrality purposes, the Federal income tax laws are notionally applied to listed governmental business entities owned by the State and Territories as if they were subject to those laws. The resulting NTER tax is a liability owed and paid by these entities directly to their owner State and Territory Governments – it does not form part of the actual Federal income tax base as it would for privately owned companies. Apart from some specific modifications, NTER entities are treated in the same way as their federal counterparts. For example, an NTER entity is required to lodge income tax returns, make quarterly or monthly PAYG instalment payments, is subject to audit or other compliance assurance activities by the Australian Taxation Office (ATO), has the ability to seek private rulings, and is subject to interest and penalty charges in the same manner applicable to privately owned organisations. 2 The follow up to the Hilmer Report, the Competition Policy Review Final Report (“The Harper Review”), was released on 31 March 2015. Competitive neutrality formed one of the critical competition topics covered in this report. The NTER was mentioned in several of the submissions but none called for a sizeable sweeping reform of the system currently in place, nor was it suggested in any of the recommendations of the Final Report. It does not appear that the findings or recommendations of the Competition Policy Review will have any impact on the 1 Department of Treasury and Finance (Vic), Guide to National Competition Policy , (n.d.) 3. 2 Australian Taxation Office, Manual for the National Tax Equivalent Regime (Version 10), (2016) 6. 1 structure or administration of the NTER. The recommendations relating to competitive neutrality included: • Recommendation 15: a review of competitive neutrality policies by the proposed Australian Council for Competition Policy; • Recommendation 16: greater transparency and effectiveness surrounding the competitive neutrality complaints process; and • A requirement for annual reports to include a statement on compliance with competitive neutrality principles. 3 The objective of this research is to determine whether the National Tax Equivalent Regime achieved its goal of encouraging competitive neutrality. Key findings The key findings of the research were that, while the NTER did contribute to its goal of encouraging competitive neutrality, there were a number of areas, both within the tax law and within the regime, which resulted in both advantages and disadvantages when the private and public sector were compared. The NTER entities had a number of advantages and disadvantages over their privately-owned counterparts. A comparison of tax paid between NTER entities and their privately-owned counterparts found that NTER entities typically paid more tax. In addition, compared to their privately-owned counterparts, the NTER entities studied had higher liabilities compared to total equity, paid a higher rate of interest (when interest paid was compared to total borrowings), paid more dividends, and had a lower ratio of expenses to each dollar earned. A case study considered the effect of the removal of the NTER, and instead increasing the amount of dividend paid to Treasury. It was found that doing so would increase the return on assets, net profit margin and earnings per share ratios increased on average 32.65% for those companies studied, with the majority increasing in the vicinity of 40 - 43%. If compared to a privately-owned entity, this advantage would be material. 3 Commonwealth of Australia, Competition Policy Review Final Report , (2015) 50-51. 2 Further, a comparison of the tax allowance provided by the price regulator to the tax paid was studied to determine whether the tax allowance would be a suitable and more efficient substitute for the NTER. It was found that the tax allowance would not be an adequate substitute for a tax equivalent regime. The comparison of the tax allowance to the tax paid has been the subject of a review by the Australian Energy Regulator, which was concluded in December 2018. 3 Acknowledgements This was a very long road but we got there in the end. There are a lot of people to thank. Firstly, I need to thank Curtin University for taking on a topic that nobody wanted! To all my supervisors, past and present, thank you. Helen Hodgson and Dale Pinto, this would not have been possible without you. Helen, thank you for your endless patience, guidance and direction. Thank you for always making time to go through my work, even if that meant to you were looking at my work on planes, after long hours spent in conferences, and on weekends. There is no thank you big enough. Also, a big thank you to Carmela Briguglio for the mammoth task of editing a PhD thesis in tax law during the Christmas/New Year period when most people were enjoying the holidays. I also need to give my thanks to Sally Joseph for your friendship, advice and guidance. A big, huge thank you to Greg McLennan for always being (somewhat) willing to talk through ideas and theories when you wanted nothing more than to drink your coffee in peace. I always knew that if I could defend an idea against your critical mind then I was onto a winner. To my family, who tolerated years of cancellations, unreturned calls and text messages, and only every now and then threatened to disown me in an attempt to have me re-join society. Thank you. I’ll name you all: Jamilla, Juliet, Joanne, Boutros, Georgette and Boulos. (No, Georgette, you can’t have royalties). And to the babies, Anthony, Joshua and Antonio, who made life fun. And also, to my adopted siblings, Andy, Karin and Sandra; and to Uncle Max and Auntie Hasna, and Josephine, Youssef and Eva for never taking my silence and absence personally and teaching me the true meaning of family. I also need to acknowledge the work crew who, for the better part of a decade, heard little more than cancer and PhD talk from me. To my bosses, Nick Nittes, Chris Johnston, and George Boulous; and Jim Mitchell and Kevin Jones, and Aloisie Krasny thank you for tolerating me. And to Victor Camilleri, thank you for being the logical, calming influence to my crazy, disorganised existence. 4 Thank you to Peter Maher for giving me the idea of having this topic for my PhD, and for filling in the history and gaps of the NTER when I had questions; and Will Dolan for filling in the gaps of the electricity industry during privatisation. Thank you also to Ben Stonehouse and Richard Boo of the AER. Also, a big thank you to all my friends who put up with years of absence, especially Cameron Joyce, Ned Banda and Jomana Watfa. And a special mention to Joanne Laoulach who always comes back into my life with calm, gentle advice whenever I need to make some big decisions. Joanne, you were a godsend in many difficult times. Mum, this one’s for you. Rest in peace. 5 Contents Abstract ................................................................................................................... 1 Acknowledgements ................................................................................................. 4 Acronyms .............................................................................................................. 12 1 Introduction ................................................................................................... 13 1.1 Introduction ..............................................................................................13 1.2 Objectives .................................................................................................13 1.3 Background ..............................................................................................14 1.3.1 The National Competition Policy and competitive neutrality.............. 14 1.3.2 Alternative tools available to achieve competitive neutrality .............. 17 1.3.3 The National Tax Equivalent Regime (NTER) ................................... 18 1.3.4 The need for tax neutrality ................................................................. 19 1.3.5 Other considerations .......................................................................... 21 1.4 Significance ..............................................................................................24 1.5 Research methods .....................................................................................25 1.6 Chapter outline .........................................................................................26