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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France is changing: an army stalks the streets and Boris Johnson wanders the Tuileries

Will Self on the militarisation of France, and Boris Johnson at the Foreign Office.

At the corner of the rue D’Hauteville and the rue de Paradis in the tenth arrondissement of Paris is a retro-video-games-themed bar, Le Fantôme, which is frequented by some not-so-jeunes gens – the kind of thirtysomethings nostalgic for an era when you had to go to an actual place if you wanted to enter virtual space. They sit placidly behind the plate-glass windows zapping Pac-Men and Space Invaders, while outside another – and rather more lethal – sort of phantom stalks the sunlit streets.

I often go to Paris for work, and so have been able to register the incremental militarisation of its streets since President Hollande first declared a state of emergency after last November’s terrorist attacks. In general the French seem more comfortable about this prêt-à-porter khaki than we’d probably be; the army-nation concept is, after all, encrypted deep in their collective psyche. The army was constituted as a revolutionary instrument. France was the first modern nation to introduce universal male conscription – and it continued in one form or another right up until the mid-1990s.

Even so, it was surprising to witness the sang-froid with which Parisians regarded the camouflaged phantoms wandering among them: a patrol numbering eight ­infantrymen and women moved up the roadway, scoping out doorways, nosing into passages – but when one peered into Le Fantôme, his assault rifle levelled, none of the boozing gamers paid the least attention. I witnessed this scene the Saturday after Mohamed Lahouaiej-Bouhlel ran amok on the Promenade des Anglais in Nice – it was a little preview of the new state of emergency.

On Monday 18 July the French premier, Manuel Valls, was booed at a memorial service for the victims of the Nice attacks – while Marine Le Pen has been making all the populist running, whipping up anxieties about the enemy within. For many French, the events of the past week – including the failed Turkish coup – are steps along the way limned by Michel Houellebecq in his bestselling novel Submission; a via dolorosa that ends with La Marianne wearing the hijab and France itself annexed by a new caliphate.

Into this febrile drama comes a new player: Boris Johnson, the British Foreign Secretary. What can we expect from this freshly minted statesman when it comes to our relations with our closest neighbour? There is no doubt that Johnson is a Francophile – I’ve run into him and his family at the Tuileries, and he made much of his own francophone status during the referendum campaign. In Paris last winter to launch the French edition of his Churchill biography, Johnson wowed a publication dinner by speaking French for the entire evening. He was sufficiently fluent to bumble, waffle and generally avoid saying anything serious at all.

Last Sunday I attended the Lambeth Country Show, an oxymoronic event for which the diverse inhabitants of my home borough gather in Brockwell Park, south London, for jerked and halal chicken, funfair rides, Quidditch-watching, and “country-style” activities, such as looking at farm animals and buying their products. Wandering among ancient Rastafarians with huge shocks of dreadlocks, British Muslims wearing immaculate white kurtas blazoned with “ASK ME ABOUT ISLAM” and crusty old Brixton punks, I found it quite impossible to rid my mind of the Nice carnage – or stop wondering how they would react if armed soldiers were patrolling, instead of tit-helmeted, emphatically unarmed police.

I stepped into the Royal Horticultural Society marquee, and there they were: the entire cast of our end-of-the-pier-show politics, in vegetable-sculpture form and arrayed for judging. There was Jeremy Corbyn (or “Cornbin”) made out of corncobs – and Boris Johnson in the form of a beetroot, being stabbed in the back by a beetroot Michael Gove. And over there was Johnson again, this time rendered in cabbage. The veggie politicians were the big draw, Brixtonians standing six-deep around them, iPhones aloft.

The animal (as opposed to the vegetable) Johnson has begun his diplomatic rounds this week, his first démarches as tasteless and anodyne as cucumber. No British abandonment of friends after Brexit . . . Coordinated response to terror threat . . . Call for Erdogan to be restrained in response to failed coup . . . Blah-blah, whiff-whaff-waffle . . . Even someone as gaffe-prone as he can manage these simple lines, but I very much doubt he will be able to produce rhetorical flourishes as powerful as his hero’s. In The Churchill Factor: How One Man Made History, Johnson writes of Winnie overcoming “his stammer and his depression and his ­appalling father to become the greatest living Englishman”. Well, I’ve no idea if Bojo suffers from depression now but he soon will if he cleaves to this role model. His Churchill-worship (like so many others’) hinges on his belief that, without Churchill as war leader, Britain would have been ground beneath the Nazi jackboot. It may well be that, with his contribution to the Brexit campaign, Johnson now feels he, too, has wrested our national destiny from the slavering jaws of contingency.

Of course the differences between the two politicians are far more significant: Johnson’s genius – such as it is – lies in his intuitive understanding that politics, in our intensely mediatised and entirely commoditised era, is best conceived of as a series of spectacles or stunts: nowadays you can fool most of the people, most of the time. This is not a view you can imagine associating with Churchill, who, when his Gallipoli stratagem went disastrously wrong, exiled himself, rifle in hand, to the trenches. No, the French people Johnson both resembles and has an affinity for are the ones caught up in the virtual reality of Le Fantôme – rather than those patrolling the real and increasingly mean streets without. 

Will Self is an author and journalist. His books include Umbrella, Shark, The Book of Dave and The Butt. He writes the Madness of Crowds and Real Meals columns for the New Statesman.

This article first appeared in the 21 July 2016 issue of the New Statesman, The English Revolt