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Fiscal Neutrality: Foreign Ghost in Our GST Machine?1

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Fiscal Neutrality: Foreign Ghost in Our GST Machine?1 eJournal of Tax Research vol. 18, no. 1, pp. 193-301 Fiscal neutrality: 1 Foreign ghost in our GST machine? Gordon Brysland2 Abstract This note argues for the orthodox view that EU neutrality is not part of the GST law. It is no foreign ghost in our GST machine, to use the metaphor selected for this note. The reasons for a negative answer on the issue are diverse, over-lapping, consistent, and ultimately mundane. They also go beyond any mere analysis of the respective legislation and cases in each jurisdiction. The stark differences between the two legal systems and, more importantly, their interpretation protocols are vital to explaining why the orthodox view on EU neutrality is not just the better one, but effectively the only viable one. After a review of the VAT neutrality concept generally, attention turns in this note to the landmark judgment of Hill J in HP Mercantile, his later comments on ‘underlying philosophy’, and the way they have been received by the courts and commentators. This leads to a review of the principles which apply in our system of statutory interpretation, and discussion of the handful of Australian cases which directly consider EU neutrality. That neutrality, like our own, however, is properly to be understood only within its particular legal, economic and political milieu. A review of EU interpretation principles, the impact of EU law in Britain and selected EU neutrality cases then follows. Observations made on these matters flow into a discussion of Rio Tinto, consumption, practical business tax and tie-breaker issues. The central conclusion reached by this note is that our interpretation protocols, and the real differences between the respective legal systems, only serve to confirm that EU neutrality is not part of the GST law. This is a less than surprising outcome. The Div 11 neutrality we do have, however, works to acceptable modern VAT standards of purity and integrity. Final comments are made about the ‘life of our GST statute’ so far and its future prospects. Key words: goods and services tax, underlying philosophy and Hill J, HP Mercantile decision, VAT concept of fiscal neutrality, input tax credit access, statutory interpretation in Australia, judicial approaches to the GST law, Australian neutrality cases, statutory interpretation in Europe, teleological principles, EU system of law, European law in Britain, EU neutrality cases, Rompelman decision, key aspects of EU neutrality, adoption of EU neutrality in Australia rejected, Rio Tinto Services decision, impact of foreign cases, policy preconception, relevance of consumption, practical business tax, application of tie- breaker rules. 1 This note revisits themes considered in a paper given at the Law Council Tax Committee Workshop on 18 October 2008, and later comments on the issue in Peacock (ed) GST in Australia: Looking Forward from the First Decade (at 40-42). 2 Gordon Brysland, Assistant Commissioner, Tax Counsel Network, Australian Taxation Office, BEc, LLB (Hons), FAAL. All views and any errors are mine alone. Special thanks to Michael Evans and Oliver Hood. 193 eJournal of Tax Research Fiscal neutrality: foreign ghost in our GST machine? TABLE OF CONTENTS 1. INTRODUCTION 194 10. EU NEUTRALITY CASES 266 2. VAT AND NEUTRALITY 198 11. COMMENTS ON NEUTRALITY 277 3. HP MERCANTILE 203 12. FOREIGN GHOST REVISITED 279 4. HILL J’S FINAL COMMUNIQUÉ 205 13. RIO TINTO SERVICES 285 5. VIEWS OF COMMENTATORS 210 14. CONSUMPTION ISSUES 289 6. INTERPRETATION IN AUSTRALIA 214 15. PRACTICAL BUSINESS TAX 294 7. AUSTRALIAN NEUTRALITY CASES 244 16. TIE-BREAKER IDEAS 297 8. INTERPRETATION IN EUROPE 248 17. SOME CONCLUSIONS 299 9. EUROPEAN LAW IN BRITAIN 261 1. INTRODUCTION 1.1 A New Tax System Twenty years ago, a package of bold tax reforms was implemented in Australia. They included replacing the old sales tax regime with a new GST law3 substantially modelled on VAT-type legislation in force elsewhere. Political, economic and legal arguments supported passage of the package as a whole.4 One legal reason was that the High Court had held that State franchising fees were constitutionally invalid.5 The Tax Reform paper with the draft legislation said the existing system was ‘out of date, unfair, internationally uncompetitive, ineffective and unnecessarily complex’.6 Hill J said that Tax Reform (the paper) ‘was a political document and did not purport to be otherwise.7 The Australian Financial Review on 3 August 1998 ran an article headed – MPs see ‘monster’ tax reform as a winner. The decision effectively to hand the GST revenue over to the States and Territories was described as a ‘game-changer’.8 The A New Tax System Bills for the original blueprint were introduced into parliament on 2 December 1998. A nineteen month gestation period involving a range of complications followed – ‘long and turbulent’, as one commentator described it.9 The new laws finally took effect on 1 July 2000. In the prophetic words of Alfred Deakin, the States were ‘financially bound to the chariot wheels of the central Government’.10 3 The A New Tax System (Goods and Services Tax) Act 1999 and the A New Tax System (Goods and Services Tax) Regulations 1999. 4 Stewart Reforming Tax for Social Justice (1998) 23 Alternative Law Journal 157. 5 Ha v New South Wales (1997) 189 CLR 465, cf Williams ‘Come in Spinner’: Section 90 of the Constitution and the Future of State Government Finances (1999) 21 Sydney Law Review 627. 6 Treasury Tax Reform: not a new tax, a new tax system (at 5). 7 Hill J Tax Reform: A Tower of Babel; Distinguishing Tax Reform from Tax Change (2005) 1/2 Journal of the Australasian Tax Teachers Association 1 (at 17). 8 Alley, Bentley & James Politics and tax reform: A comparative analysis of the implementation of a broad- based consumption tax in New Zealand, Australia and the United Kingdom (2014) 24/1 Revenue Law Journal 1 (at 13). 9 McCarthy The Australian GST – Why is it the Way it is and Where to from Here? in Peacock (ed) GST in Australia: Looking Forward from the First Decade 61 (at 61). 10 Deakin Federated Australia: selections from letters to the Morning Post 1900-1910 (at 97). 194 eJournal of Tax Research Fiscal neutrality: foreign ghost in our GST machine? It had been fully a quarter of a century since the Asprey Report recommended a broad- based consumption tax. Essentially, we picked and chose and innovated on GST from laws elsewhere.11 The full history of this is traced by Kathryn James in a British Tax Review article – We of the ‘never ever’,12 and by former Tax Commissioner Michael D’Ascenzo in his paper for this conference – Making the Value Added Tax Happen.13 We generally liked the new drafting style of the GST law,14 though the terminology jarred for a few. One federal judge said the statute was ‘horribly named’,15 while another called it ‘spin’.16 It looked more to principles in some areas, though it descended into familiar rule-based tactics in others. We looked twice at the volume of exemptions, seen as ‘anathema’ generally to value added taxes,17 but which temper their regressive tendencies. Overall, we were impressed by the vision of the project. Downes J said our GST was ‘based on a simple idea’.18 That idea, commented Blow J, was that the ‘very nature of the GST, as a species of value added tax, is that burden of all GST payable by the members of a chain of suppliers is passed on to the ultimate consumer’.19 A tax based on a simple idea is not the same thing as a simple tax, of course, particularly when the simple idea is high-level economic in nature On whether GST is a simple tax, Richard Vann said – ‘To put it mildly, simplicity was oversold’.20 We came to find that the GST law not as simple as we had hoped for, and that we had in fact not escaped classification cases.21 Making certain public goods GST-free as a way of addressing inherent regressivity would only add to the complexities of administration and provide fertile ground for costly disputes.22 And, many of us wondered what influence foreign VAT principles may have in Australia. 11 Acquisition supplies, the RITC regime, our financial supply regulations, and subjection of government to the tax, for example – Brysland GST and Government in 2010 in Peacock (ed) GST in Australia: Looking Forward from the First Decade 3. 12 James We of the “never ever”: The History of the Introduction of a Goods and Services Tax in Australia [2007] British Tax Review 320, cf Alvey & Roan A Public Policy Case Study of the Introduction of the Goods and Services Tax: tax reform can be successfully achieved (2015) 10 Journal of the Australasian Tax Teachers Association 67. 13 D’Ascenzo Making the Value Added Tax Happen [2019] ATAX Where Policy Meets Reality Conference paper. 14 Richardson & Smith The Readability of Australia’s Goods and Services Tax Legislation: An Empirical Investigation (2002) 30 Federal Law Review 475 (at 485). 15 Lindgren J The Curious Case of GST [2009] TIA National GST Intensive Conference paper (at 3). 16 Logan J Where are we with GST – black letter or the practical business tax? [2008] TIA National GST Intensive Conference paper (at [2]). 17 Crawford, Keen & Smith Value Added Tax and Excises in Adam (ed) Dimensions of Tax Design: The Mirrlees Review 275 (at 305), Ebrill The Modern VAT (at 100), James The Rise of the Value-Added Tax (at 50-52). 18 Downes J Eleven years of the ‘practical business tax’ (February 2012) 70 Law Institute Journal 70 (at 70).
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