Why tax avoidance is like porn

I know it when I see it.

I know it when I see it.                                                                                                                                                        

Justice Potter Stewart of the US Supreme Court gave one of history's least fulfilling answers when he was asked to define "hard-core pornography"; but the grain of truth contained within is important.

The same temptation to throw one's hands up at the difficulty of defining complex phenomena is everywhere. The Economist's Daniel Knowles, for instance, suggests that it applies to poverty while the Sorites paradox – a close relative – attaches the problem to bald men and heaps of wheat.

It also applies, pretty much perfectly, to tax avoidance.

We all know it when we see it. Take, for example, Polly Toynbee's column from the Guardian today:

The big sell is trusts, special ones devised for this company's clients, guaranteed to protect almost all your wealth from inheritance tax. They are right, it can be done easily. Put all moveables and all cash and investments into a discretionary trust, and it passes to your heirs without tax as soon as you die, not even waiting for probate. It counts as a gift so the beneficiaries need pay no tax either. Called a "discretionary trust", as technically St James's are the legal trustees, the discretion in fact remains in all but name with you: the company will do whatever you ask, so you still control the fund and you can still take money from it. But for reasons that defy basic tax fairness, it avoids all inheritance tax. Why?

Or this example from the New Yorker back in March:

Since New York City tax laws don't apply to people who are deemed to be nonresidents, even if they own a residence in the city and work there, Robertson was allowed to spend no more than half a year – a hundred and eighty-three days – in New York City. This exile was self-imposed. If he had paid New York City tax, which in the top bracket reaches a rate of 3.6 per cent of taxable income, he could have spent as much time in the city as he wished...

Friday nights were particularly risky, since Robertson or his wife often had social events scheduled in the city. In order to "earn a tax day," as he put it, he usually left town on Friday before midnight, even if his wife stayed at the apartment. Robertson's driver had to be on alert: as long as they crossed the Queens border en route to Locust Valley by midnight, Robertson didn't have to "waste" a Saturday as a New York day. Even one minute of a day spent in the city counts as a day of residence. (Exceptions are made for people who are in transit from one destination outside the city to another – from Newark airport to Long Island, for example, or to LaGuardia for a flight.) Robertson said he never missed the midnight deadline, although when he couldn't get his driver or a limousine service in time he occasionally had to hail a cab. On one occasion, Robertson came back from a trip and found himself crossing into Manhattan at 11:45 P.M. That mistake cost him a full New York City day, which he could have avoided by whiling away fifteen minutes at the airport.

Or the three multinationals hauled up in front of the Public Accounts Committee, about whom Richard Murphy writes:

For Amazon things were much worse. Their rep could not justify how an order made in the UK for a product in a UK warehouse, shipped by UK staff through the UK post and with a bill enclosed printed in this country could somehow have anything to do with Luxembourg when so very obviously it hasn’t. Despite this he had the gall to claim tax must be paid where the economic substance of the deal is – even though Amazon does nothing of the sort…

Google tried harder but they had created one insurmountable obstacle for themselves. Their argument was profits should be taxed where they are earned and they said US technology drove their European profits. But for their admission that the payments made from Europe for that technology never reach the USA and instead get parked in tax-free Bermuda ended whatever shred of credibility they’d tried to create.

All of these things are as clearly tax avoidance as Reader's Wives is clearly pornography. The problem comes when you try to come up with a definition which encompasses all of these examples while not also covering whatever the taxation equivalent of Last Tango in Paris is.

You can try to define it as acting to deliberately minimise your tax take – but then, what is taking out an ISA? That is an action which is performed for no other reason than the tax benefits, but it's clearly not tax avoidance.

There must, then, be some definition of the spirit of the law. Loopholes in tax are put there for a reason, but sometimes that reason is tricky to specify completely. So, for example, the loophole that investment income in taxed less that earned income exists to encourage people to invest their money (which is good for growth) – but when hedge fund managers are payed through "carried interest", that gets classed as tax avoidance, because it is technically investment income, but hasn't actually required any investment from the people benefiting.

Unfortunately, that definition doesn't work either. The absence of VAT on books, for example, is to promote an educated, well-read population; but even though 1001 reasons Britain is shit doesn't do that, we don't call it tax avoidance.

The problem persists even if you just look at specific examples of avoidance. Multinational corporations, for instance, sometimes headquarter themselves in of tax havens. Other times, they leave their headquarters where they are, but manipulate their accounts so that it looks like all their profits come from tax havens. Tempting as it is, it's very tricky to come up with a catch-all definition of avoiding behaviour in this situation.

Is it "not paying tax where you are headquartered"? Or is it "not paying tax where the money is earned"? Or is it a third, "pretending money is earned in one place, when it's really earned in another one"? Or a fourth, "paying tax in a tax haven"? Or even just "operating out of a tax haven"?

Perhaps the real solution is to just stop trying. Call out egregious examples of tax avoidance, but resist the lure to dictate a full definition of the term. Make clear to those who set policy that building a tax code which is easily abused will result in protest, and that avoiding tax will result in bad press. But save definitions for the courts, because it's a fight which seems nearly impossible.

Photograph: Getty Images

Alex Hern is a technology reporter for the Guardian. He was formerly staff writer at the New Statesman. You should follow Alex on Twitter.

Photo: Wikimedia Commons and Getty
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“Rise like lions after slumber”: why do Jeremy Corbyn and co keep reciting a 19th century poem?

How a passage from Percy Shelley’s The Masque of Anarchy became Labour’s battle cry.

“If I may, I’d like to quote one of my favourite poets, Percy Bysshe Shelley,” Jeremy Corbyn politely suggested to a huge Glastonbury audience. The crowd of nearly 120,000 – more accustomed to the boom of headline acts than elderly men reading out romantic poetry – roared its approval.

“Rise like lions after slumber, in unvanquishable number!” he rumbled. “Shake your chains to earth like dew, which in sleep had fallen on you: ye are many – they are few!”

The Labour leader told the crowd that this was his favourite line. It’s the final stanza of Shelley’s 1819 poem, The Masque of Anarchy, written in response to the Peterloo Massacre earlier that year, when a cavalry charged into a non-violent protest for the vote.

Though it was not published in Shelley’s lifetime – it was first released in 1832 – the poem has become a rallying cry for peaceful resistance. It has been recited at uprisings throughout history, from Tiananmen Square to Tahrir Square.

Corbyn’s turn on the Pyramid Stage was not the first time he’s used it. He recited the stanza during his closing speech on election night in Islington, and the audience began quoting along with him:


It was also used by comedian and celebrity Labour supporter Steve Coogan at a rally in Birmingham:


During Corbyn’s second leadership campaign, his ally Chris Williamson MP told a public meeting that this part of the poem should be “our battle cry” . He delivered on this the following year by reciting the poem to me in his Renault Clio while out on the campaign trail in England’s most marginal constituency (which he ended up winning).

You can hear it echoed in Labour’s campaign slogan: “For the many, not the few”.

Corbyn’s election guru, James Schneider, told the Standard at the time that “it would be a stretch” to say the slogan was taken directly from the poem, but that “Jeremy does know Shelley”. Yet even he took the time to recite the whole stanza down the phone to the journalist who was asking.

Corbyn is famously a fan of the novelist and author Ben Okri. The pair did a literary night at the Royal Festival Hall in London’s Southbank in July last year, in which the Shelley lines came up at the end of the event, as reported by Katy Balls over at the Spectator. Okri announced that he wanted to recite them, telling Corbyn and the audience:

“I want to read five lines of Shelley . . . I think there are some poems that ought to be, like you know those rock concerts, and the musician starts to sing and the whole audience knows the lines? And sings along with them? Well this ought to be one of those, and I’d like to propose that we somehow make it so that anytime someone starts with the word ‘Rise’, you know exactly what the lines are going to be.”

Which, of course, is exactly what Corbyn did at Glastonbury.

“We have this huge, abundant literature on the left and it’s hardly known”

The former left-wing Labour leader Michael Foot loved the poem and recited the lines at demos, and Stop the War – the campaign group Corbyn supports and chaired – took a line from it as the title of its 2014 film about anti-Iraq War action, We Are Many.

So why does the Labour left rally around some lines of poetry written nearly 200 years ago?

“It’s a really appropriate poem,” says Jacqueline Mulhallen, author of Percy Bysshe Shelley: Poet and Revolutionary (Pluto, 2015). “Shelley wrote a poem about the fact that these people were protesting about a minority taking the wealth from the majority, and the majority shouldn’t allow it to happen.

“He was writing at the beginning of industrial capitalism, and protested then, and 200 years later, we’ve still got the same situation: food banks, homeless people, Grenfell Tower, more debts – that’s why it has great resonance when Corbyn quotes it.”

“Shelley said there’s loads of us, it’s just a little corrupt crew – well, of course that applies now”

Michael Rosen, the poet and former Children’s Laureate, also describes the poignancy of Shelley’s words in Corbyn’s campaign. “You’ve got a sense of continuity,” he tells me. “Shelley was campaigning for freedom, for free thought, for free love. He was campaigning for a fairer society; it was a time of incredible oppression. He said there’s loads of us, it’s just a little corrupt crew – well, of course that applies now.”

Rosen celebrates the poem’s place in the Labour movement. “When any of us from the left quote people from the past, we’re saying that we have traditions... We’re making a claim on our authenticity,” he says. “Just in the same way as the right and the establishment draw on the pageantry of the Queen, or talk about Parliament or quote Winston Churchill. These are our traditions, which are different. You hardly ever come across it, either in newspapers or history lessons or anything.”

Rosen, a friend of Corbyn’s, believes his speech brings a left-wing tradition alive that is often forgotten. “We have this huge, abundant literature on the left and it’s hardly known. What’s great about Jeremy calling on it is to remind us . . . This stuff sits in old museums and libraries, gathering dust until it’s made active and live again. It’s made active and live particularly when being used in an environment like that [Glastonbury]. He was making the words come alive.”

Read more: 7 things we learned from Jeremy Corbyn on The One Show

The Masque of Anarchy’s final stanza has been recited at high-profile protests throughout history – including at the 20,000 garment workers’ strike in 1909 in New York, the student-led demo in China’s Tiananmen Square in 1989, anti-Poll Tax protests, and at Tahrir Square in Egypt during the Arab Spring, according to Mulhallen. The way civilians were treated by the authorities in many of these protests echoes what happened at Peterloo.

So does Corbyn’s penchant for the verse mark a similar radical turning-point in our history? “It’s indicating a change in attitude that people should start thinking about redistributing the wealth again,” says Mulhallen. “People are becoming much more aware.”

Anoosh Chakelian is senior writer at the New Statesman.

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