About the Author

Dr Muriel Newman

Dr Muriel Newman

Taxing Commercial Charities


Print Friendly and PDF
Posted on
By

Over recent years Google and Facebook have become targets in a campaign questioning whether such successful international companies are paying their “fair share” of tax in the countries in which they operate.

During last year’s APEC Leaders’ meeting in Peru, then New Zealand Prime Minister John Key joined the debate, telling the conference’s keynote speaker, Facebook founder Mark Zuckerberg, that the company had a “PR issue”, and that they needed to “demonstrate to the world that they pay their fair share of tax in every country that they operate”.

Facebook, which opened a small office in Auckland in 2011, is reported to have paid $43,000 tax in New Zealand last year, while Google, which has almost no operations in this country and bills local customers for advertising services from Singapore, paid just over $233,000 in tax.

Apple is another global company that has come in for criticism. As the largest company on the United States stock exchange and worth almost NZ$800 billion, it is now facing sanctions imposed by the European Commission for the crime of taking lawful advantage of favourable tax laws introduced decades ago by the Irish Government to attract overseas companies. Both Apple and the Irish Government are appealing against the ruling. 

John Key thought that Apple – which paid $9 million in tax on sales of $732 million in the year to September 2015 – was probably paying its fair share of tax in New Zealand: “We expect a New Zealand company to pay its fair share of tax, we expect a New Zealand citizen to pay their fair share of tax, should we expect a multinational to play by different rules?”

However, if the Prime Minister was genuine about the need for companies to pay their ‘fair share’ of tax in New Zealand, shouldn’t he have already closed the loophole that is being used by some of the country’s biggest commercial operators, to avoid paying tax?  The loophole involves ‘for-profit’ commercial businesses that register as charities, yet use only a fraction of their ‘tax free’ income on their ‘charitable purpose’.

A number of commercial charities are household names. These include the cereal giant Sanitarium, Mission Estate Wines, and iwi corporations – including the Ngai Tahu Charitable Group, which operates the bus company, Go Bus, the tourist attraction Shotover Jet, and more than 30 other commercial businesses.

Perhaps those New Zealanders who target Facebook and Google for criticism should look closer to home and focus on those large commercial charities running for-profit businesses that do not pay their ‘fair share’ of tax. 

Without a doubt, charities play an important role in society. Charity is also very big business. There are over 27,000 registered charities in New Zealand, managing an asset base of over $40 billion. Their annual income is estimated to be over $15 billion, including $6 billion of government grants, and almost $3 billion of public donations.

Tax rebates on donations cost the Government around $260 million a year, while the tax revenue that the Government is missing out on is estimated to be in the region of $1.5 billion.

Local councils miss out too, as many charities are exempt from rates, despite using local services.

At the present time there is no cap on charitable giving – people and companies can claim rebates and deductions for charitable donations up to the level of their annual net income.

When it comes to charities that operate businesses, the Income Tax Act states, “Income derived directly or indirectly from a business carried on by, or for the benefit of a trust, society, or institution is exempt income if it carries out its charitable purposes in New Zealand, is registered as a charitable entity, and no person with some control over the business is able to direct or divert, to their own benefit or advantage, an amount derived from the business.”

Essentially this means that for-profit businesses that register as charities are tax free, with little oversight as to whether their profits are used for charitable purposes.

Successive governments have looked into tightening up these laws.

Back in 1966, a Holyoake Government review of tax laws, including those relating to the trading activities of charitable operations, concluded that “incomes derived from activities of a commercial nature should be included in the tax base”.

They recommended that “Profits from trading derived directly or indirectly by charitable organisations and dividends derived from any company substantially owned by such organisations are assessable for income tax at normal rates.”

Their recommendations were ignored.

In 1987, Roger Douglas, then Minister of Finance in David Lange’s Labour Government, proposed a number of law changes to prevent tax avoidance by charities: “No charity receiving donations would have to pay tax on any aspect of that operation, but a charity that was involved in commercial business to raise money would be treated like any other business. It would pay tax on its profits, but its legitimate expenses would be deductible”.

The Minister explained that “the reason for including income from charitable activities – but not from donations – in the tax base was to limit the scope for charities to be used for tax avoidance.”

Again, those changes were never adopted.

In 2001, Michael Cullen, then Minister of Finance in Helen Clark’s Labour Government, recommended taxing the trading operations of charities: “Make trading operations owned by charities subject to income tax in the same way as other businesses, but with an unlimited deduction for distributions made for the relevant charitable purposes”.

These suggestions were also ignored, even though Labour was undertaking a complete overhaul of charity law.

Until that time, the charities sector was largely governed by Inland Revenue, through its administration of the charitable income tax exemptions. This changed in 2005, when Labour’s Charities Act established the Charities Commission as an autonomous Crown entity to regulate the sector.

Their reforms also allowed Maori tribal groups to register as charities for the first time. Until then, any group wanting to register as a charity not only had to have a legitimate charitable purpose – involving the relief of poverty, the advancement of education or religion, or any other matter beneficial to the community – but they also had to meet a public benefit test, to ensure charitable benefits flow into the wider community and not to private individuals and their relatives.

Since Maori tribal organisations are based on the blood ties of relatives, they failed the public benefit test and could not gain charitable status. However, section 5 (2) of Labour’s new law introduced an exemption from the blood tie disqualification for those involved in the administration and management of a marae.

This law change paved the way for some of the country’s biggest and richest corporations, to register as charities and avoid paying tax.

In essence, this means that many of the contributors to the $40 billion combined wealth of the Maori economy, such as Ngai Tahu, are tax free.

And while many of these iwi leaders have, over the years, condemned the Government for the fact that some of their tribal members are over-represented in the wrong sort of statistics, they have nevertheless organised their own affairs to avoid paying the tax that funds social services for those in need.

During National’s first term in Government, they announced a ‘first principles review’ of the Charities Act. Some thought it would provide an opportunity to address this issue. However, as a result of an overhaul of the public service, the Charities Commission was disestablished, with its functions transferred to the Department of Internal Affairs – to save an estimated $2 million over 4 years – and the review was cancelled.

A number of law changes have been made over the years to tighten up the reporting standards for charities – including just last week, when a new Charities Amendment Bill was passed by Parliament to prevent convicted tax fraudsters from becoming officers of a charity, and to introduce a 20-day time limit for responding to information requests from the Charities Service – but the favourable tax treatment of for-profit commercial charities has not been changed.

While this issue remains unresolved in New Zealand, other countries, such as the UK, have confronted it. There, charities are classified as ‘trading’ if they sell goods or services to customers. But if that trading is part of the charity’s primary purpose, such as an independent school charging students tuition fees – or if it helps the charity’s primary purpose, such as a museum running a cafe for visitors – no tax needs to be paid on the profits. However, if the trading is unrelated to the primary purpose, profits are taxed.

Lord Richard Balfe of Dulwich is an NZCPR reader, who spoke in the House of Lords late last year on the need for charity reform in the UK. I asked Lord Balfe, who is this week’s NZCPR Guest Commentator, if he would share his perspective on the future of the charities sector: 

 “The common image of charities is of benevolent institutions doing good in a quiet way for generally people or animals who need help. The reality is not quite like that. Today in Britain charities are big business and often pay big salaries. It was recently reported that the Chief Executive of the Scottish society for the Prevention of Cruelty to Animals, with bonuses, raked in £216,000 and will collect around £100,000 as an exit package. In comparison the Scottish first Minister Nicola Sturgeon gets £135,000 and Prime Minister Theresa May £142,000.

“The same edition on page two carried a story that the Charity Commission is investigating a charity called ‘Support the Heroes’ which is supposedly dedicated to ‘help veterans with post-traumatic stress disorder’. They have been ‘banned from collecting donations because of concerns that too much money is going into the pockets of professional fundraisers’… The reality is that there is a need for fundamental reform.”

Of course, scandals hit charities in New Zealand too, but the biggest charity scandal remains the fact that commercial charities are not paying any tax, let alone their ‘fair share’.

What’s worse is that the IRD notes on their website, “If your charitable organisation is assessed as being fully exempt from income tax, you don’t need to file an income tax return unless we ask for one.”

That means that the only monitoring on whether the billions of dollars of business income generated by commercial charities is genuinely being used for their specified charitable purpose, is that which is carried out by the Charities Service, which is poorly resourced to investigate such abuse.

The most sensible way forward would be to enact Michael Cullen’s suggestion, to tax for-profit businesses owned by charities in the same way that private firms are taxed, while allowing unlimited deductions on distributions made to their relevant charities. This policy change would remove any unfair tax advantage that charity-owned businesses have over private firms, and by taxing retained earnings, there would be an increased incentive for businesses to invest more in their charitable purpose. 

In addition, the Charities Services clearly needs a stronger monitoring regime to reassure the public that distributed funds are being used in a genuine way.

Essentially, Michael Cullen’s policy would mean that any profits generated by commercial charities that were used for their charitable purpose would be tax free, while all other income would be taxed at their normal business rate.

In reality, the present system represents a gross failure of policy and oversight by the Government. It also demonstrates a lack of political courage, as politicians clearly fear a backlash – particularly from iwi leaders – if they make changes in this area.

However, the public response is likely to be positive, since the changes would only disadvantage those charities that aren’t applying the majority of their profits to their charitable purpose.

In making such changes, the Government would be doing the right thing by ensuring that anyone who is using charities for tax avoidance pay their ‘fair share’.

THIS WEEK’S POLL ASKS:

Should for-profit commercial charities pay tax on income that is not directly used for their charitable purposes?  

 

*Poll comments are posted below.

 

*All NZCPR poll results can be seen in the Archive.

Click to view x 120

THIS WEEK’S POLL COMMENTS

There needs to be close scrutiny of charities which avoid paying taxes on business arms of their organisation. Too frequently then hide too much behind their charitable arm for their own benefit. Peter
Parliament needs to take ownership of this matter and remove the tax free status of any so-called “charity” which in anyway makes a profit from commercial activities. Tony
This legal fraud needs to be eliminated. John
Any charity that uses income for any purpose other than contributing directly to their stated charitable objectives, should pay tax on that portion of income. For it to be any other way means that competing commercial enterprises are unfairly penalised in their market sector by having to meet their tax obligations. Michael
Maybe the Maori and other pseudo religious/cultural “charitable” trusts will contribute more to the ‘social costs’ of their dysfunctional behavior from their own pockets or profits? Ced
Who is going to inform the general public of these unfair tax laws especially as far as greedy iwi are concerned? Monica
I get incensed everytime I pass a Ngai Tahu development when I pay my Provisional Tax, knowing that they are making millions and paying little or no tax. It’s time it changed. Craig
It’s more than unfortunate that the public at large is unaware of these issues, in particular the fact that Iwi have been handed over billions of dollars and established some significant businesses supposedly for the betterment of Maoridom, but which benefit a small percentage of the Maori population. I would like a poll to be taken of what New Zealanders at large think of this and what Maori think about the way the Treaty settlements have been used. Greg
Yes Yes Yes Any private citizen pays tax but has an exemption on funds given to Charities All these so called Charitable enterprises should be subject to the same rules. Profits kept or reinvested need to be taxable Profits used for the stated charitable purposes can be tax free. A level playing field for all. We just need a government with the Kahunas to do it. Robin
Yes they should, I am very selective of the charities I support and always ask if they are being paid to collect. If they are, no money! Stevo
Care needs to be exercised so that community services are not impacted. For example fire equipment attracts gst, A fire callout to save say a car accident attracts gst, An ambulance ride non urgent which is covered by ACC but employed to be risk preventive, attracts gst. If profit is added to this type of essential service we may see services decline. As always with bureaucrats there is danger in losing the baby as they hurl out the bathwater. Richard
Most certainly. Rob
Time to drain the swamp of all these lazy, gutless politicians, leeches, iwi with their massive handouts who have done stuff all to help their “people”. Roll on Election Day. Carolyn
Of course. Graeme
Yes and not before time. Athol
Of course for-profit commercial activities by charities should pay tax on income not directly used for charitable purposes. What on earth is stopping the politicians and IRD from sorting this out. Plenty have spoken but none have acted. Politicians, what are we paying you for? Rob
Without question “for-profit charities etc. etc. …” should pay tax, just as most of us do – simple! Stuart
It needs clamping down on NOW, Mr English it’s an election issue!! Brian
I don’t really understand this. If successive governments have looked to address this, what has stopped them? Surely if they feel strongly enough about this to have drafted a proposal, what stops them drafting it as a law/amendment and get it voted on in parliament? Laurie
If is a business run for commercial profit and unrelated to the charity they are running then of course they should be taxed. Any Profits from some of the IWI run businesses should also be taxed at normal rates. Other wise the suckers called Tax payers pick up the tab. Colin
Absolutely a resounding YES. Carolyn
Definitely. To do otherwise is cheating the rest of us of resources our communities need. Ross
Cannot happen soon enough. Terry
A wrought on ordinary taxpayer – a change is necessary. Brian
Of course they should pay tax, those groups share the benefits of tax paid by every one else. Gerard
All trading should be GST assess-able and all profits taxable just the same as any company. Robert
Huge Maori business places like base in hamilton, I believe, do not pay tax, while next door kiwi ones do, that stinks. Norman
The present charities law should also relate to ME. That is to say, “Should normal citizens pay tax only on the things NOT directly related to running their lives” So why should commercial businesses not pay tax on their profits, just because they elect to be charities and support some organization or other. Organized theft. The maoris being in the thick of it does not surprise me, but everyone already knew that, but doesn’t want to say anything against it because then you are a racist. Well, call me racist then. I sure know that I am prejudiced. Neil
This is a simple matter of fairness and would stop the current rorts. The broadening of the tax base in this way would be of benefit to normal tax paying citizens. Politicians need to demonstrate some back bone in this matter. Ray
I’m in business and compete directly with a ‘tax exempt’ organisation, how is that fair? Anon
Absolutely. If you can find a politician with a gram of guts to implement it. William
I second Michael Cullen’s policy. It is a sensible way to bring fairness into tax paying. Dennis
It`s a shame on Governments and Councils to still allow this daylight robbery to continue. However with the likes of Ngai Tahu, the govt., required them to have their membership (of Ngai Tahu blood) up to date before he that disgraced Knight Graham would pass over the money. Not only that but that twit Nic Smith, when the Govt., handed the Eyrewell forest to them as part payment for those many dubious settlement claims bucked because they hadn’t be informed about the carbon credits (Caveat emptor) when the rest on the county knew about it he gave them another $30Mil plus and an area of the state forestry with cutting rights? UTU Every month of May Politicians should be listed on the duck shooters licence and there be no limitations. They are the biggest group of duck shoveler’s out. Robert
One rule for all. Brian
The answer is of course YES; but have we in New Zealand any Political Party willing or able to take a decision such as this? First of all this is an election year, and no Party would entertain such a destructive idea that would ruin any chance of either winning seats in Parliament, or being able to govern! This refers of course to those who have to stand in electorates; rather than the List members who have no view point, and depend on whatever their Party tells them how to vote. Then there would be the huge re-action from the Maori Iwi, at being singled out for a Racist tax imposed by the European invaders. Supported by numerous academics, and the battalions of leftists invoking emotive concerns on such as it being a selective tax levelled against principally those who give willingly to Charity. If Labour when in power, failed to proceed against this avoidance of commercial charities in paying legitimate tax demands; one can bet that National or indeed any political Party, will refrain as well. Like our ever expanding unaffordable Welfare it will like the Grecian experiment, simply explode in the end, under its own increasing debt.  Brian
Without a doubt and there should be no Government grants. Tom
Definitely. Clark
Keep it an even playing field for all of us who pay income tax. Ross
It must be too good to be true as every one apart from the ordinary NZ taxpayer is on the biggest benefit of all ! free money ! Dire Straits had it right “Money For Nothing”. Peter
Fair enough to not tax the charities dividend from such entities but they should pay tax on the commercial aspects of the business like all other companies. Nick
Of course they should pay their fair share. Michael
Also the Govt should look at Maori business corporations. These companies pay less tax than other businesses in here NZ. Laurent
Absolutely! Small usinesses are carrying a disproportionate tax burden whilst charitable trusts retain untaxed incomewhich is not being used for charitable purposes. Mark
Of course but as Muriel so rightly points out, this would ruffle the feathers of Iwi and clearly our politicians are scared of Iwi. The only way this will change is by the introduction or binding referenda where Kiwis will make the call and politicians will just put the results of the particular vote, into law thus helping our gutless pollys to “grow a pair.”It works in Switzerland and will work here as well thus bringing back true democracy to this country. Ronmac
Too much of a rip of charites that y/to many using it to avoid tax could name a number of guys who have not paid tax for at least forty years so why should I be honest and pay tax and they don’t. Russell
They and I support the idea that, just like all of us can only claim what they actually give to charities. Ido
This is well over due! Kim
The key descriptor here is “for profit charities”. That is what businesses are all about – “for profit” otherwise they wouldn’t exist. Taxing such for profit organisations would relieve some of the tax burden that ordinary working citizens pay. Why should the ordinary working citizen bear the brunt of the tax burden? It’s all about a fair crack of the whip is it not? Kevin
The tax concessions kneed to be changed every business charity iwi groups should all pay the same tax. Bruce
…the greedy “iwi elite again on the gravy train…. tax them hard and fast…!!!! Chris
They should also pay local taxes, such as council rates. John
I did not realise this anomoly existed and it should be corrected ASAP! Joe
Commercial enterprises should all be on a same footing, no matter ownership. JayJay 
Definitely. Colin
For too long they have circumvented the laws of the land. Fraser
Far, far too overdue. Terry
Absolutely!! They’ve been exploiting the tax system for too long with their phony racist and religious endeavours thus putting an extra burden on other tax payers by not paying their fair share. Tony
Scandalous position that parliaments have neglected to tax charities on their business ventures which are not used for charitable purposes. Max
Overdue, that means over-due! Peter
It is a no brainer. Jim
Why should those get away from paying their share and those iwi charaties give very little back to their tribal members who a lot of them are being paid as social welfare users. Ken
Contradiction in terms? Anthony
Far too long they have been ripping off the system. Some companies have an unfair over co’s that do pay Tax IE Sanitarium. Tony
Yes of course they should everybody else has to pay tax on income earned so why should they not also. Digby
Why should they have an unfair trading advantage. Peter
Religious groups as well .look at all the properties they own and the big incomes they pay their leaders eg Tamati with his big flash cars ,houses and extravagant life style . Religion is the best business in the world , look at how many are trying to get into . Jock
How can legitimate businesses compete with the non taxpaying entities. Arthur
Definitely, including iwi charities. Geoffrey
How can Iwi hold themselves up as a successful business model when they don’t pay their shasre of tax, an effective 33% windfall annually. Kevin
Absolutely yes. I would also question some of the ‘so-called’ charitable purposes and make them accountable. Hard as it is for me to say, I agree with the ‘Cullen’ proposal, and it should be reintroduced. As for government cowering to iwi backlash, what’s new? Iwi have been holding the country to ransom for generations – we need a government with some backbone and integrity to stand up to them. Bruce
Of course. Bruce
Its amazing that this hasn’t been put in place years ago. True charities need all the help they can get/deserve. Anthony
I seem to read about organisations who class themselves as charities on a regular basis and most are complaining about what a hard time they are having. Then there is the other aspect where huge organisations including Maori enterprises and religious bodies are also getting tax free status. I understand that when Maori organisations are registered for tax they pay at a much less rates than others. I agree with the comments in the articles by Lord Balfe and Muriel that the rules should be tightened and quickly. I was so incensed by this that I wrote to my M P a month ago asking for action. Mike
I would have thought Michael Cullen’s proposed change would actually win votes for the Government. My friends all think the same . Oh for some politicians who know the difference between right and wrong. Alan
This should have been looked into years ago. Ngaire
Why should they not pay their fair share of tax on an equal footing with every other free enterprise and trading entity. Currently commercial charities can knock out competition because of their tax advantages. Why does the Government not close these loopholes in the tax system. Instead they had chosen to increase the GST slug. payable by all citizens. Thereby increasing a black economy by those wanting to avoid paying GST. Ed
Past Governments, & particularly the one we have now, have made Iwi elite very rich. Should we expect a return on money gifted any time soon ; DON’T BE RIDICULOUS !. As for the likes of Sanitarium etc, that should have been sorted in Holyoak’s day, over 50 years ago. A.G.R.
PUT all commercial ops on a level playing field. Income of Maori authorities has arisen mainly thru Got settlements and taxpayers should get some benefits now in return. Trevor
The sooner the better. But what government is willing to tackle the iwi Richard
Without doubt as it not only the taxpayer propping up these industries avoiding tax but other companies that do, not being on a level playing field for contracts etc. Di
Maori are the best example of not paying tax on non-charitable income. Why? As the Treaty was ratified by the borders of New South Wales (NSW) being extended to encompass “all of the islands of New Zealand”, Maori immediately became fully fledged British subjects and as it is illegal for British subjects to be in partnership with their Queen all Maori/Crown partnership privileges are a fallacy and legal action should be taken, George
One example that is raping the system is the Destiny Church. Disgusting Robyn
If not those so called charitable tun businesses have an unfair advantage which allows them to gain commercial advantages. Bryan
Companies such as Sanitarium are secretive and not really what a charity should be about in my opinion. Julian
Otherwise they are freeloading on the tax payer. They are the ‘freedom campers’of the tax system. Catherine
Their “charitable purposes” should also be very tightly defined. Maurice
Yes, they should be, It is no fair on the small business owner who pays Tax, If I had knowen all this when I had my business would have regested as a charitieable Trust, Commercial business must pay Tax like any other company. Geoff
And that should include maori trading entities however organised. Bernard
Yes they should pay their fair share like everyone else. This is a politically expedient rort. Robert
All the recommendations have been for tax to be payable, so why has it not been implemented? Mark
YES YES YES. Wayne
NZ’s ‘tax bucket’ is missing out on billions of dollars annually. This is only achieved because the countries politicians don’t have the balls to stand against their voters who are mired in the ‘charitable’ institutions. Political expediency it is called. Maureen 
I believe that all commercial activities should be subject to tax review. Gerhard
Most definitely. Jan
Absolutely. Brett
Very definitely. Not to tax such commercial profits means that tax not imposed is a government hand-out that in my opinion is morally and ethically unjust. Paul
It is a disgrace that these organizations are not paying tax, when the average person is taxed on all income and then taxed on interest earned on any savings that they are able to make. The Government needs to make changes to the Tax Laws immediately and as well as these organizations the churches should be made to pay tax as well. Allan
Time for a change. Allan
It would be fair and reasonable to do so. Reynold
It is just a rip off. Jeff
This “fair share” BS should apply both ways…how about beneficiaries only claim their “fair share” and how about someone paying high taxes their whole life getting back their “fair share” when sick ( not ACC) and unable to work instead of being told they are entitled to nothing. “Fair share” is a liberal PC term to stop the people paying the most getting anything back. Derejk
About Time. John
Absolutely YES. Dot
The entire charitable status system needs to be abolished, and started again from scratch with far tighter eligibility criteria: it is currently a mess. Graham
Just another anti social way of pocketing other peoples money to the benefit of a few bludgers! Can anyone tell us what good any charities really do other than to perpetuate a their own existence and propagate free entitlement mentalities. Dismantle the lot Charity begins at home! Colin
Stop the tax ripoffs. Graham
Why is governments not willing to do the right thing in this country, can someone provide an accurate estimate of missed tax opportunity and use this to promote it. Paul
This has been a huge anomaly for so long. It is grossly unfair that so many don’t have to pay taxes. Maori commercial ventures are making huge money yet contributing nothing while someone living in their car working is paying taxes! Also one would have thought all Maori should be pretty comfortbale these days if the money was being distributed between all those who should receive it.But we the taxpayer are still told we need to throw more and more money at Maori because they are poor! Really! Gail
Most definitely. Beryl
Absolutely!! NZs second and third corporations ranked by wealth and assets operate as charities and pay no tax. Those who campaign so vigorously for taxing international corporations on income generated here should campaign with equal vehemence for these domestic entities (e.g. Ngai Tahu “charities”) to pay tax if not adhering to the conditions of their charitable deed. Andrew
This should have been sorted years ago. Mega rich charities are ripping us off. Thomas
I hope the government has the courage to make this change as it irks me that big businesses are calling themselves charities to avoid tax. Jenny
Absolutely the law should be changed. It is ridiculous that mega rich iwi are not paying tax. Gordon
National just needs to do it. Calling it the Michael Cullen rule is a good idea! David
Yes, charities should be taxed and the IRD should have a greater role in ensuring charitable businesses are playing by the rules. it’s like the wild west out there at present! Mike