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.

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From Netflix to rented homes, why are we less interested in ownership?

Instead of owning things, we are renting experiences.

In 2008 the anthropologist Daniel Miller published a book based on an intimate study of 30 households on a single street in south London. The Comfort of Things ­explored the different kinds of relationships people have with what they own.

Miller described a retired couple’s house, cluttered with furniture, framed photographs and knick-knacks accumulated over decades. Down the road, a self-employed man called Malcolm had rented a flat. Malcolm preferred a spartan existence: he kept his belongings in storage, the better to travel at short notice, and conducted as much as possible of his life online. His home was his email address. His central material possession was his laptop.

Today, we are living more like the laptop warrior than the retired couple. Increasingly, our possessions are stored in the cloud or on a distant server. Just as we had grown accustomed to the idea of owning music in the form of data, we are now getting used to not owning it at all. In television, too, we stream instead of buy the latest drama series; when people use the term “box set” they are rarely referring to a box of discs on a shelf in the living room. Everything solid is melting into wifi.

Instead of owning things, we are renting experiences. The proliferation of mobile apps enables us to source or supply whatever we want, for short periods, more easily than ever before. The “sharing economy” is not about sharing, however. I encourage my three-year-old daughter to share her toys with her little brother; I don’t suggest that she charge him an hourly fee for doing so. A better name for it is the Paygo (pay-as-you-go) economy.

The Paygo economy combines two intertwined phenomena: the rise of renting and the decline of stuff. If you are in your twenties and unburdened by wealth you may already have accepted that you will always be in hock to a landlord. If you are in the market for a car, you will probably be thinking about leasing it, or joining a car club, or waiting until Google makes car ownership obsolete. There are even apps that allow you to rent a dog rather than take on the responsibility of owning one.

A world in which we own less and rent more is not necessarily one in which consumers are empowered. You never really own the electronic versions of a book or a film – you can’t lend them to a friend or sell them on – because the publisher retains its rights over them. Even our photos aren’t ours any longer: they are owned by corporations that scrape them for data that can be sold. In a recent article, the Financial Times journalist Izabella Kaminska argued that “ownership of nothing and the rental of everything represents . . . the return of an authoritarian and feudalistic society”.

The Paygo economy is changing our relationships with each other and with ourselves. Possessions form part of what the marketing academic Russell Belk calls “the extended self”. In Daniel Miller’s book, he describes how objects, however trivial, can embody relationships. Each household’s collection of stuff – tacky souvenirs, CDs we borrowed and never gave back – forms a constellation of personal significance. Post-materialism does not equate with spiritual enrichment. “Usually the closer our relationships with objects,” Miller writes, “the closer our relationships are with people.”

Human beings have a deep-seated tendency to imbue physical items with the ­essence of their owner. Hence the market for rock-star memorabilia: an old guitar that has been played by John Lennon is more valuable, and more revered, than a new replica that has not.

We apply this intuition even to money, the units of which are, by definition, interchangeable. Psychologists who study “essentialism” have found that people are less likely to recommend that stolen or lost cash be returned when it has subsequently been deposited in a bank account, as opposed to remaining in paper notes.

When things evaporate, so does ­meaning. A fetish for owning things connects to a yearning to retain a distinct identity in the face of change. Japan has been economically stagnant for decades and, as a result (and perhaps a cause), has preserved a set of idiosyncratic social norms, at odds with the rest of the developed world. One of these is a strong preference for owning music in a physical form: 85 per cent of the music bought in this technologically advanced society is on CD or vinyl. Japan is also the last developed country to rely on fax machines. A fax, unlike an email or the past, is something you can hold on to.

One way of framing the central arguments of British politics is that they are about the rights of owners versus renters – and not just in the sense of home ownership. Long-standing Labour members believe they own the party, and are outraged both by Momentum clicktivists and £3 voters. What appals many who voted Leave in the EU referendum is the thought that migrants can, in effect, rent a livelihood from the UK, treating the country as a giant Airbnb host. They want to know if this is still their country, or if they are now merely tenants of it.

Most younger voters chose Remain, but relatively few of them voted. That was a function of their lack of home ownership as much as age: millennials who rent are nearly half as likely to vote in elections as their peers who have managed to get on to the property ladder. This is partly a product of the mundane business of spending enough time in one place to get on the electoral roll, but it nonetheless suggests that renters form weaker bonds with the society in which they live.

For centuries, what we own has been an important way of placing ourselves in relation to those around us. The 18th-century curiosity cabinet was a collection of objects used to display the erudition and refinement of its owner. In the 20th century, houses became showcases. Your curtains, your car and your choice of decor said who you were or wanted to be. This was the era of what Thorstein Veblen called “conspicuous consumption”. In the Paygo economy, we will have fewer things of our own to ­display, as our possessions dematerialise and we rent more of what we need.

Despite all this, human nature has not changed: we are still apes with status anxiety, endlessly preoccupied by our position in any given hierarchy, eager for ways to convey our aspirations and allegiances. So we find other ways to signal. Rather than deploy what we own to say who we are, we use our photo streams and status updates to show it, even going so far as to arrange our meals and holidays with the aim of generating impressive on-brand content.

The vacuum of meaning opened up by the disappearance of stuff may even have increased the stridency of our political debate. One way I can let people know who I am is by loudly asserting my membership of a political tribe.

If I can’t show off my possessions, I will show off my beliefs.

Ian Leslie is the author of “Curious: the Desire to Know and Why Your Future Depends on It” (Quercus)

Ian Leslie is a writer, author of CURIOUS: The Desire to Know and Why Your Future Depends On It, and writer/presenter of BBC R4's Before They Were Famous.

This article first appeared in the 16 February 2017 issue of the New Statesman, The New Times