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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The public like radical policies, but they aren't so keen on radical politicians

Around the world, support for genuinely revolutionary ideas is strong, but in the UK at least, there's less enthusiasm for the people promising them.

You’re probably a getting a little bored of the litany of talking head statistics: trust in elected officials, parliament, the justice system and even democracy itself has been falling steadily for years and is at record lows. Maybe you’ve seen that graph that shows how people born after 1980 are significantly less likely than those born in 1960 to think that living in a democracy is ‘essential’. You’ve possibly heard of the ‘Pasokification’ of the centre-left, so-named the collapse of the once dominant Greek social democratic party Pasok, a technique being aggressively pursued by other centre-left parties in Europe to great effect.    

And so, goes the logic, there is a great appetite for something different, something new. It’s true! The space into which Trump et al barged leaves plenty of room for others: Beppe Grillo in Italy, Spanish Podemos, Bernie Sanders, Jean Luc Melanchon, and many more to come.

In my new book Radicals I followed movements and ideas that in many cases make someone like Jeremy Corbyn seem positively pedestrian: people who want to dismantle the nation state entirely, use technology to live forever, go off grid. All these ideas are finding fertile ground with the frustrated, disillusioned, and idealistic. The challenges of coming down the line – forces of climate change, technological change, fiscal crunch, mass movements of people – will demand new types of political ideas. Radical, outsider thinking is back, and this does, in theory at least, offer a chink of light for Corbyn’s Labour.

Polling last week found pretty surprising levels of support for many of his ideas. A big tax on high earners, nationalising the railways, banning zero hours contracts and upping the minimum wage are all popular. Support for renewable energy is at an all-time high. According to a recent YouGov poll, Brits actually prefer socialism to capitalism, a sentiment most strongly held among younger people.

There are others ideas too, which Corbyn is probably less likely to go for. Stopping benefits entirely for people who refuse to accept an offer of employment is hugely popular, and in one recent poll over half of respondents would be happy with a total ban on all immigration for the next two years. Around half the public now consistently want marijuana legalised, a number that will surely swell as US states with licenced pot vendors start showing off their dazzling tax returns.

The BNP effect used to refer to the problem the far-right had with selling their ideas. Some of their policies were extremely popular with the public, until associated with the BNP. It seems as though the same problem is now afflicting the Labour brand. It’s not the radical ideas – there is now a genuine appetite for those who think differently – that’s the problem, it’s the person who’s tasked with delivering them, and not enough people think Corbyn can or should. The ideal politician for the UK today is quite possibly someone who is bold enough to have genuinely radical proposals and ideas, and yet appears extremely moderate, sensible and centrist in character and temperament. Perhaps some blend of Blair and Corbyn. Sounds like an oxymoron doesn’t it? But this is politics, 2017. Anything is possible.

Jamie Bartlett is the head of the Violence and Extremism Programme and the Centre for the Analysis of Social Media at Demos.

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