Immovable Property Gambit: Impact on Stakeholders

The above titled article was published in the renowned Blue Chip Journal as an Op-Ed in it’s Oct – Dec 2016 edition.

Link to e-edition of the (Blue Chip) publication

Immovable Property Gambit: Impact on Stakeholders

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By: Omer Zaheer Meer

The recent developments in the Federal Budget and later on in the Finance Act 2016 regarding immovable property shook the realty sector within Pakistan which was taken by surprise. Taxation is not just a mean to fund a Government but also a policy tool to impact the national economy, social behaviors, trends and developing institutions. Unfortunately, in Pakistan the impetus has mostly been on using taxation for filling up the coffers of treasury with seriously negative consequences.

Before proceeding with our topic, this writer will briefly define some of the vital concepts and then move onto the core issue; cover the current taxation regime for the realty sector particularly as governed by the Federal Government before concluding with an analysis of the major impact on key stakeholders including investors, property dealers, general public, traders and the Government.

Key Concepts:

Following are some of the vital concepts which are important to understanding the topic of this write-up:

  • Income Tax – a tax levied on the income of an individual or organization which varies with the level of income and is subject to local laws and regulations.
  • Capital Gains Tax – a tax levied on the gains accumulated on the sale/disposal of capital assets subject to certain conditions
  • Capital Gains – a gain arising on the disposal of a capital asset by a person in a tax year.
  • Depreciable Asset –means any tangible movable property, immovable property (other than unimproved land), or structural improvement to immovable property, owned by a person that —
  • has a normal useful life exceeding one year;
  • is likely to lose value as a result of normal wear and tear, or obsolescence; and
  • is used wholly or partly by the person in deriving income from business chargeable to tax,
  • Filer – a person who has filed his income tax return irrespective of the income and/or tax declared.
  • Non Filer – a person who is not a filer.
  • Capital Assets: – Section 37(5) of Income Tax Ordinance 2001 states:

 “capital asset” means property of any kind held by a person, whether or not connected with a business, but does not include —

  • any stock-in-trade [ ], consumable stores or raw materials held for the purpose of business;]
  • property with respect to which the person is entitled to a depreciation deduction under section 22 or amortisation deduction under section 24; [or]
  • any movable property [excluding capital assets specified in sub-section (5) of section 38] held for personal use by the person or any member of the person’s family dependent on the person[.]

Tax Avoidance Culture:

Unfortunately there is a widespread tax-avoidance culture in Pakistan with people not seeing value or duty in paying due taxes. To put things in perspective, out of a population of 200 million, just over a million taxpayers file returns in Pakistan which comes up to about 0.5% of the population. Even out of this, a large number files Nil tax returns.

Salaried individuals end up paying their due taxes, not by choice but as a result of being bound by the law requiring their employers to deduct the due income tax on their salary in advance.

On the other hand, the rich and powerful segments are either exempt by law (large landowners) or pay miserly taxes as compared to their lifestyles and incomes. This includes influential people from almost all segments of society be it politicians, bureaucrats, journalists, generals, professional or others. This leads to a culture where tax is seen as an unnecessary and avoidable burden instead of a duty and cost of living/doing business.

Reasons for the Prevailing Culture:

There are many reasons for this unfortunate prevailing trend. The key ones are listed below:

  • lack of trust in Government
  • lack of public facilities
  • lack of quality health, education and law and order facilities
  • corruption of Government officials
  • harassment by taxation officials
  • structural issues within the taxation system
  • regressive taxation policies
  • high incidence of taxes on a very low tax base
  • no or minimum tax paying culture by the rich and the powerful
  • culture of law violation
  • perception that it is better and easier to remain outside the documented economy

 

Filer and Non-Filer Differentiation:

To address some of the above issues and in order to entice masses to become part of the documented economy, the FBR and thereby the Government came up with a productive and results-oriented strategy. For the past two years, there’s been a growing policy of differential tax rates for filers and non-filers.

This introduces an incentive for the people to start filing their income tax returns. Moreover, as even a nil return (where no income is reported and/or no tax is due) serves the purpose, this further increases the incentive.

However, due to the issues listed above, a majority of the people believe it to be better to avoid filing returns and becoming part of the system, more so for the fear of harassment by tax officials. So, as outlined many times before, unless structural reforms are carried out within the taxation system, such measures will not achieve the full results they’re aimed at.

The Issue:

Despite the presence of the concept of Fair Market Value in the taxation laws, for too long immovable property has been valued in Pakistan at the rates commonly referred to as the “DC Rates”. These rates are heavily undervalued. For example a property in DHA Lahore maybe selling for PKR 25,000,000 but the DC rates would be around PKR 6,000,000.

As a result of this, the capital gains taxes were either avoided or paid on extremely low values at low rates. This led to the creation of an attractive opportunity for undocumented, untaxed and black money to be “parked” in the realty sector which led to large-scale trading of properties rather than actually building houses and property units despite a serious shortage of over 9 million housing units as per State Bank of Pakistan presenting a huge business opportunity. Although local investors and families did construct housing units but the bulk of the investment went to mere trading to drive up property prices and create non-sustainable profits for the investors.

The size of the black money involved is conservatively estimated at PKR 6 to 7 trillion. Unsurprisingly, due to heavy investments in realty sector, property prices for the past many years sky-rocketed, growing at astronomical but non-sustainable rates, lacking economic fundamentals. This, coupled with the “tax-efficient” black money parking, created a very alluring and largely undocumented investment opportunity as people even started trading “files” without transferring properties in their names to avoid the taxes altogether.

The Initiative:

In view of the issues and strategies discussed above, this year the Federal Government on behest of the FBR decided to move a step further, this time targeting the real estate sector.

Furthermore, with the idea of a massive increase in tax revenues, possibility of bringing part of the seven trillion Rupees wealth within the documented economy and most importantly the pressure for international lenders providing the necessary motivation, the Government decided to take an initiative.

The Finance Act 2016 made an amendment in the Income Tax Ordinance 2001 by introducing the concept of Fair Market Valuation of immovable property by a panel of valuers notified by State Bank of Pakistan, one of the stronger regulators in Pakistan, as taxable value.

Moreover the requisite holding period for Capital Gains Tax exemption was increased from 2 to 5 years and higher rates of Capital Gains Tax were introduced.

Outcry:

This caused severe panic and fear amongst investors, property traders and dealers. Most important for them was the message and the manner in which the new taxation policy was decided without taking them on board. They feared that the intense focus on realty sector would lead to them being asked about their existing wealth and past transactions and consequently they anticipated heavy penalties and tax liabilities on account of the past transactions.

The key issues which made the realty sector anxious were as below:

  • higher taxation
  • hassle and harassment by FBR
  • a valid concern that the valuation by SBP’s valuers would be highly subjective and non-standardized.
  • Section 111 of the Income Tax Ordinance 2001 regarding unexplained income and assets may be invoked regarding past transactions.

This resulted in almost a suspension of property trading and protest preparations across the country.

Capital Flight:

As one would expect, the situation resulted in a capital flight. Besides other destinations, most of the capital flight was destined towards UAE by some of the investors. To put things in perspective, as per Dubai Land Department, Dubai had already seen Pakistanis investing US $ 4.9 billion in last 2.5 years. Now with this increase flight and market panic, the Government feared a melt-down not previously taken into account properly.

Negotiations:

This led to the Government initiating a series of negotiations aiming at reaching a middle ground with the key stakeholders as the consequences seemed to be more than those predicted by the decision makers.

After a series of repeated rounds of negotiations, a compromise was reached between the Government and the key stakeholders, which was implemented by way of an Ordinance.

Settlement:

The compromise reached resulted in the current position which is as below:

  • FBR in consultation with the representatives of various organizations from the realty sector has agreed valuation for major towns. These valuations are above the DC rates but still much below the current market valuations.
  • These FBR valuations will be used as a basis for taxation of immovable property. Where these are not available, the DC rates will continue to be used. FBR will revise these rates from time to time.
  • The holding period for exemption from CGT is reduced from 5 to 3 years with the CGT charged at different rates in three slabs for each of the holding period.
  • A differential treatment has been introduced for immovable property acquired before or on and/or after 1st July 2016.
  • Exemptions from CGT and Advance Income Tax on immovable property, for families of Shahuda and Government officers have been introduced.

Compromise on Fair Market Valuation:

The amendment to introduce State Bank of Pakistan’s approved valuators has been amended in favor of valuations issued by FBR in consultations with key stakeholders and giving FBR the powers to revise these rates in future too.

FBR issued 22 SROs covering valuations for residential and commercial properties in Karachi, Lahore, Islamabad, Gujrat, Jhang, Bahawalpur, Sahiwal, Hyderabad, Jhelum, Rawalpindi, Multan, Sukkur, Quetta, Abbottabad, Peshawar, Sialkot, Mardan, Gujranwala, Sargodha, Gwadar and Faisalabad effective from 31st July 2016.

These have been divided into 3 categories:

  • Residential (including flats)
  • Commercial Area
  • Industrial Area

4 measuring parameters have been used for different areas based on per:

  • Acres
  • Marlas
  • Square Yards
  • Square Feet

Compromise on Holding Period:

The holding period required for exemption from Capital Gains Tax has been reduced from the proposed five (5) years to three (3) years.

Compromise on CGT Rates:

The new table of Capital Gains Tax rates is as below:

Exemptions and Reductions:

For immovable property allotted to the following persons, the CGT would be 0% irrespective of the holding period:

  • A seller, if the seller is dependent of:

(i) a Shaheed belonging to Pakistan Armed Forces; or

(ii) a person who dies while in the service of the Pakistan Armed Forces      or the Federal and Provincial Governments; and

(b) to the first sale of immovable property which has been acquired or allotted as an original allottee, duly certified by the official allotment authority.”

Moreover, Capital Gain Tax have been reduced by 50% in case of first sale of immovable property acquired or allotted to ex-servicemen and serving personnel of Armed Forces, Federal and Provincial Governments, being original allottee of the property and duly certified by the allotment authority.

Calculating CGT:

Gain arising on the disposal of immovable property by a person in a tax year (none after holding for three years), shall be chargeable to tax in that year under the head Capital Gains at the rates specified in Division VIII of Part I of the First Schedule.]

The gain (and thereby the CGT) arising on the disposal of a capital  asset by a person shall be computed in accordance with the following formula, namely:–

(A – B) x T, where

A         is the fair market value as determined under sub-sections (4) or (5) of Section 68 of INCOME TAX ORDINANCE 2001; and

B         is the cost of the asset.

T         is the applicable CGT rate

For the purposes of determining component B (the cost of the asset) of the formula amount shall be included in the cost of a capital asset for any expenditure incurred by a person –

  • that is or may be deducted under another provision of Income Tax Ordinance 2001; or
  • that is referred to in section 21 (Deductions not allowed).

NB: Any selling expenditures and ancillary costs of acquisitions are included in B.

Current Immovable Property Taxation Regime:

Currently both federal and provincial governments have levied their taxes on the realty sector.

The federal taxes (impacted by the changes introduced) are as below:

  • Advance Income Tax (Adjustable) on Buyer (Section 236K of INCOME TAX ORDINANCE 2001)
  • Advance Income Tax (Adjustable) on Seller (Section 236C of INCOME TAX ORDINANCE 2001)
  • CGT (Section 37 & 38 of INCOME TAX ORDINANCE 2001)
  • Fair Market Value (Section 68 of INCOME TAX ORDINANCE 2001)
  • Unexplained Income or Assets (Section 111 of INCOME TAX ORDINANCE 2001)
  • Valuation of Assets (Rule 228 of Income Tax Rules 2002)

The provincial taxes (unaffected by the changes discussed) are as below:

  • CVT (Capital Value Tax)
  • Stamp Duty
  • Property Registration Fee
  • Transfer of Immovable Property Tax (TMA)

Federal vs Provincial Domains:

The matter of levying taxes on realty sector is controversial as post 18th Amendment Capital Gains Tax has effectively fallen in the Provincial domain whereas trading income remains in the Federal domain. However, FBR is of the view that this is well within their domains.

The matter is currently in litigation and decision of the honorable courts will have a serious impact on the future outlook.

Out of Sight Real Issue:

More important than CGT rates or holding period is the classification of income earned from the realty sector. Investors frequently trading properties may find themselves in a tougher spot re taxation as their gains will likely be classified as income from business which is taxed at much higher rates.

Therefore, the classification of the gains from realty should have been taken up as a more important priority than Capital Gains Taxes.

Clearing Misunderstandings:

  • While proceedings cannot be initiated under Section 122 of the Income Tax Ordinance 2001 as per decision of Honorable SCP (2009 PTD 1279), Commissioners Inland Revenue can ask to explain the source of any explained income or asset (investment made in immovable property) on the basis of other information (undisclosed bank account, property, e.t.c.)
  • Hence this section can be applied and is a major concern for those affected.
  • Opportunity to be heard and provide and explanation are given
  • So practically, section 111 of INCOME TAX ORDINANCE 2001 may still be invoked.

Valuations for the Purposes of Section 111 of ITO:

FBR’s valuation tables are to be used for the purposes of Section 111 (Unexplained Income or Assets) of Income Tax Ordinance 2001. Where not notified by FBR, the valuation of Immovable property for the purposes of Section 111 shall be as below:

in the case of open plot, the value determined by the development authority or government agency on the basis of the auction price in respect of similar plots in the area where the plot in question is situated or in case where such value is not determined, the value fixed by the District Officer Revenue or provincial authority authorized in this behalf for the purposes of stamp duty;

in the case of agricultural land, the value equal to the average sale price of the sales recorded in the revenue record of the estate in which the land is situated for the relevant period or time; or

in the case of constructed immovable property, value shall be determined at the fair market value as defined in section 68 or the value fixed by the District Officer (Revenue) whichever is higher.

Income Tax on Builders:

The taxes on builders and developers by FBR are different. A tax is levied on the profits and gains of a person deriving income from the business of construction and sale of residential, commercial or other buildings at the rates  specified  below (Division VIIIA of Part I of the First Schedule):

(A) Karachi, Lahore and Islamabad (B) Hyderabad, Sukkur, Multan, Faisalabad, Rawalpindi, Gujranwala, Sahiwal, Peshawar, Mardan, Abbottabad, Quetta (C) Urban Areas not specified in A and B
For commercial buildings
Rs. 210/ Sq Ft Rs. 210/ Sq Ft Rs. 210/ Sq Ft
For residential buildings
Area in Sq. ft Rate/ Sq. Ft Area in Sq. Ft Rate/ Sq. Ft Area in Sq. Ft Rate/ Sq. Ft
Up to750 Rs. 20 Up to750 Rs. 15 Up to 750 Rs. 10
751 to 1500 Rs. 40 751 to 1500 Rs. 35 751 to 1500 Rs. 25
1501 & more Rs. 70 1501 and more Rs. 55 1501 and more Rs. 35


Income Tax on Developers:

Similarly a fixed tax is levied on the profits and gains of a person deriving income from the business of development and sale of residential, commercial or other plots at the rates below (Division VIIIB of Part I of the First Schedule):

(A) Karachi, Lahore and Islamabad (B) Hyderabad, Sukkur, Multan, Faisalabad, Rawalpindi, Gujranwala, Sahiwal, Peshawar, Mardan, Abbottabad, Quetta (C) Urban Areas not specified in A and B
For commercial Plots
Rs. 210/ Sq Yd Rs. 210/ Sq Yd Rs. 210/ Sq Yd
For residential Plots
Area in Sq. Yd Rate/ Sq. Yd Area in sq. Yd Rate/ Sq. Yd Area in Sq. Yd Rate/ Sq. Yd
Up to 120 Rs. 20 Up to 120 Rs. 15 Up to 120 Rs. 10
121 to 200 Rs. 40 121 to 200 Rs. 35 121 to 200 Rs. 25
201 and more Rs. 70 201 and  more Rs. 55 201 and more Rs. 35


Common themes of Tax on Builders & Developers:

  • It shall be computed by applying the relevant rate of tax to the area of the residential, commercial or other plots for sale.
  • The above tables applies to projects undertaken for development and sale of residential, commercial or other plots initiated and approved after the 1st July, 2016.
  • The aim is to introduce an “incentive” to declare real value of immovable property as the taxes by builders and developers are “fixed” by area, though one can argue as to the attractiveness of this “incentive”.

Major impact on key stakeholders:

As a result of the measures introduced by the Federal Government discussed above, the realty market in Pakistan has become stagnant. There has been capital flight and some correction in prices in a few areas. Let us briefly analyze the impact upon each of the major stakeholder group identified in the beginning:

Investors:

The investors are the one hit hard if not the hardest. They’ve virtually stopped further investments into the realty sector and most are holding onto their existing investments, pursuing a wait and see policy in the hopes of an impending amnesty scheme, expected to ease off the fears and therefore the pressure on the real estate market.

Property Dealers:

The magnitude of the property deals and thereby the business, for property dealers fell significantly. There are still some needs based transactions but not at the levels prior to July 2016.

Moreover, as many property dealers were also acting as investors or partial investors, they’re also negatively impacted in that area too.

General Public:

The impact on general public is more complicated. There are those that were involved in the business of or held immovable properties and are negatively impacted by the current situation.

However, with a shortage of nine million housing units as per SBP and the bulk of realty investment going in trading rather than actual construction, further fuelling the price bubble of property beyond economically justifiable fundamentals, the current pressure on realty sector is viewed with a sense of relief.

The masses hope that if the trend continues, ultimately the trading investors will have to liquidate their investments and move away which can lead to a down-ward correction in the property prices. Furthermore, hopefully atleast part of the investment may end up in the actual construction sector addressing the severe shortage of housing units in the country.

Traders/Businesses:

Ordinary traders are also impacted in more than one ways. Firstly the drop in realty sector’s attractiveness may open up more capital access for other business opportunities.

However, as there is a possibility of a snowball effect in the economy, if not properly managed the negative effects can spillover from the realty sector into other economic areas too.

Last but not the least, many of the traders are themselves invested in the realty sector too which makes them exposed to the same concerns as other investors.

Government:

The Federal Government is hoping to achieve several goals. They believe if there is a proper implementation, their initiatives can lead to the following:

  • down-ward adjustment in immovable property prices making them relatively affordable for masses
  • increased taxation revenue for the Government
  • investment diversion towards more “productive” segments such as construction and other businesses within the country due to the realty sector losing its’ previous attractions and the other sectors becoming more economically viable for investors

Proposal:

In order to achieve the desired purposes of an increase in the tax base and a better documented economy along-with a focus on actual construction of housing units rather than just mere trading of plots, the Federal Government should:

  • bring structural reforms within the taxation regime
  • do away with the overwhelmingly subjective powers of tax officials in favor of objective ones
  • follow volume over margin policy by introducing a single digit tax rate to minimize the cost of tax avoidance
  • introduce tax rebates and a tax-free period for the construction sector
  • address the fears of the stakeholders positively to bring them on board
  • run a campaign to educate masses about the importance of taxation backed by actions to tax the rich and the powerful

Another Amnesty:

There’s been news of another impending amnesty scheme doing rounds in the power corridors. The aim is to address the concern of the property investors re past transactions and unexplained income and assets. The basic structure of such a scheme is proposed to allow whitening of the past wealth by paying a meager single digit tax.

However, it may meet the same fate as the now infamous “Voluntary Tax Compliance Scheme” launched for traders earlier this year if it does not address the key concerns of the realty sector stakeholders. They are currently more in favor of the new law applying to future transactions and blanket amnesty re all past transactions without any cost to them.

How things pan out in the future will depend a lot on this scheme and how things shape up. Only time will tell if the boom in the realty sector is over or the powerful investors and stakeholders in this key sector of economy will be back with a bang!

The author is Managing Partner of Millennium Law & Corporate Company and Director of the think-tank “Millat Thinkers’ Forum”. He is a leading economist, CFA Charterholder, experienced fellow Chartered Certified Accountant and anti-money laundering expert with international exposure and can be reached at ozmeer@mlcc.pk

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Resolving the Banking Transactions’ Tax Crisis

The following article has been published in Daily Nation, dated 3rd August 2015

(E-Paper (Print Edition)http://nation.com.pk/E-Paper/lahore/2015-08-03/page-9)

(Onlinehttp://nation.com.pk/business/03-Aug-2015/resolving-banking-transactions-tax-crisis)

Resolving the Banking Transactions’ Tax Crisis

Prof Dp

By: Omer Zaheer Meer

As discussed on these pages before the controversial decision of levying a withholding tax on all banking transactions for non-filers (0.3% till September and increasing to 0.6% thereafter) with the underlying aim of broadening the tax base has not been able to gain acceptance in the presence of serious flaws within the taxation system along-with prevalent corrupt practices. Even if one ignores the increase in the inflationary pressures in the economy and the penalization of ordinary salaried class, the reservations of traders alone are sufficient to make this highly controversial. The disagreement on this matter has now reached a dead-lock between traders and the incumbent Government. So exactly what are their reservations and how can they be possibly addressed? Is there any possible solution for the same?

First of all the withholding tax introduced is more of a transactional tax then an income tax. But more importantly the issue at hand is one of a lack of trust in the system. Not only do the traders fear to be targeted unfairly once they bring themselves in the system to avoid the transactional tax, they haven’t seen the remedial procedures effectively providing relief in an event of witch-hunting by FBR either. Many economists are of the view that introducing new taxes to compensate for FBR’s failures is simply not the answer to Pakistan’s economic and tax woes. The reasons for FBR’s failures are numerous ranging from dissatisfaction amongst FBR’s employees to structural inefficiencies in the taxation system. They’re however not the topic for today and will be discussed at another time.

For now the issue of the trust deficit particularly in the business community is discussed. Besides very high rates of both direct and indirect taxes, the harassment by FBR and blockade of due refunds are often used as tactics by FBR officials to meet their targets. This actually puts off many genuine businessmen who would otherwise like to contribute their dues to the society. Therefore they claim to resort to the alternate in doing charity and stressing that they evade getting within the ambit of the formal documentation to avoid the horrible experiences many of their fellow traders have endured in their dealings with the FBR. None of these issues are of a nature which cannot be positively addressed. Infact this writer has repeatedly proposed several structural reforms including the ones addressing these very issues.

For example the policy of volume over rates can be pursued. It’d entail reducing all the taxation rates to single digits making it economically prohibitive to evade due to the higher costs of engaging professionals as well as fulfilling the demands of the corrupt officials within the tax apparatus. The focus will be to broaden the tax base using indirect taxes for this purpose while direct taxes can be applied on a progressive basis, increasing with the income brackets. If tunnel vision can be shunned then the positive potential of this can be envisioned. Currently less than 0.5% of the population files a return. The number has declined over past four years despite all the “efforts” for broadening the tax base. If this number can be increased to several millions with a consequential increase in the tax base and tax payers, one can envision the positive impact on tax collections.

It’ll be interesting for the readers to know that the honorable finance minister Mr. Ishaq Dar himself used to be a proponent of this proposal during his days of serving the Lahore Chamber of Commerce and Industry. Surprisingly, now that he’s in a position to actually enforce this much needed reform, he’s shying away from it. Moreover the effective implementation of the relief mechanisms and laws can help assure the tax payer. The time limits for deciding the disagreements should also be enforced. For a change, the tax officials can be trained to respect the tax payer instead of treating them as an assumed criminal. Such measures can go a long way to win over the trust of the taxpayers in the system.

Even in the past negotiations between traders and Government officials, the issue of the undue nuances caused by FBR to genuine businessmen resulting in most businesses staying out of the system to avoid these troubles has been raised. Similarly promises were made with traders to review the exorbitantly high rates of withholding taxes deducted in advance. Some of these taxes are treated as non-adjustable even in case of a loss. Even those that are considered adjustable are extremely hard to recover as the FBR seems to have an unwritten rule regarding refusing even the genuine refunds to loss-making businesses when they need their cash the most. However the same FBR seems content to issue refunds to or defer recovery of tens of millions from influential parties. Such behavior doesn’t instill the trust in the business community.

The latest on this issue is the breakdown of the negotiations between Government and traders resulting in strikes been called and social media campaigns been setup. The reduced rate of 0.3% till September has also been turned down by the business community for the reasons discussed above. A successful strike was already observed with the traders threatening to go all out towards a civil disobedience. Government on the other hand has ordered investigations into the affairs of top leadership of traders.

Possible ramifications of this standoff can be damaging for the national economy and the issue needs to be resolved amicably. One possible solution can involve doing away with this transactional tax and reducing the withholding and sales tax rates immediately pending a review of other structural reforms in return for voluntary registration of a minimum number of businessmen. There are many other possible proposals to this effect too. The ball is now in Governments’ court to decide whether it is serious about introducing reforms to win over the tax payer and broaden the tax base or if it simply believes in coercive measures which may seem beneficial in meeting short-term targets but will surely cause damage in the longer-term.

The author is Director of the think-tank “Millat Thinkers’ Forum”. He is a leading economist, CFA Charterholder, experienced fellow Chartered Certified Accountant and anti-money laundering expert with international exposure who can be reached on Twitter and www.myMFB.com @OmerZaheerMeer or omerzaheermeer@hotmail.co.uk

Minimum & Banking Transactions’ Tax

The following article has been published in Daily Nation, dated 27th July 2015

(E-Paper (Print Edition)http://nation.com.pk/E-Paper/lahore/2015-07-27/page-9)

(Onlinehttp://nation.com.pk/business/27-Jul-2015/minimum-banking-transactions-tax)

Minimum & Banking Transactions’ Tax

By: Omer Zaheer Meer

With the stated aims of supporting the entrepreneurship culture, facilitating businesses and increasing the numbers within the ambit of formally documented economy, one would expect steps by policymakers to incentivize the masses to this effect. Notwithstanding several positive developments, some recent steps have actually served in contradiction of the above aims of the incumbent Government.

Before diving into the specifics let’s briefly discuss some important building blocks. First of all, most of the modern economies have moved away from been solely or greatly based upon agriculture or manufacturing to a greater focus on service sector, then be it financial, IT, educational, telecommunication or other services within this sector. Even those with a large base of agriculture or manufacturing have modernized to include service industry as a significant part of their overall GDP. It is therefore essential for a successful modern economy to promote service sector with the underlying GDP growth and employment opportunities acting as prime motivators. Similarly in a country like ours where, as per some studies, the black monies and illegal economy outweigh the documented formal one, reforms are required to incentivize people to come within the ambit of documented economy.

With the above been clarified let us move onto some extremely important issues with serious ramifications for our economy. First up a minimum tax on service companies has been levied from fiscal year 2015-16. But what does a minimum tax mean? For our tax dilettante readers, it means that the advance tax paid by service companies will not be refunded in the event of them ending up in losses at the financial year end. This is not only unjust but would have serious negative implications for the service sector growth. Moreover it also has the potential to entice this sector towards “creative accounting” to avoid paying any more taxes then the minimum they have to since they will not be getting any refunds due to them in the past in their hour of need.

This “creative accounting” argument was actually floated as an initial reason for attempting to introduce the minimum tax on service sector several years ago under pressure from international lenders. This was done in a controversial manner despite an existing section of the Income Tax Ordinance 2001 already dealing with the minimum tax on companies. The matter led to serious misgivings from the tax payers and after long heated debates the last finance bill included a proposal to restore the original position before the controversial insertion in section 153. The original position was that any tax paid in advance was adjustable against the final tax liability. Unfortunately at the last moment the policy makers again succumbed to certain pressures and instead introduced the minimum tax. In doing so the long term impact on tax net and GDP growth was ignored in favor of the short term cash accumulation to meet annual targets.

Several responsible officials have shared in private that this amendment was based on the underlying assertion that all mobile companies, a sub-sector within the service industry, were preparing falsified accounting records to avoid due tax and thereby causing losses to the national exchequer. Even if we accept the notion, this observation was based upon a sub-sector only and it was therefore inherently unjustified to “punish” an entire sector for that. Moreover this was equal to declaring that since some- murderers are able to deceive with the judicial system therefore all accused from now on would have a body part amputated as a presumed minimum punishment. Not very just, is it?

Instead an overhaul of the system with effective implementation along-with introduction of stringent penal clauses would have served the purpose more effectively. Last but not the least, even the existing audit provision, if implemented properly was sufficient to deal with the problem. We therefore propose and expect the policy makers to review this matter positively with a strategic view of expanding the GDP and broadening the tax-base rather than diminishing it. Volume over margin is the way forward for a progressive taxation regime.

Next up is perhaps the most controversial issue of the imposition of advance tax on banking transactions by non-filers. After a lot of uproar from the business community, the negotiations with finance ministry officials resulted in the concession that the levy of 0.6 percent withholding tax was reduced to 0.3 percent till end of September 2015. Any non-filers after that date would be liable to the rate of 0.6 percent again. However, a section of business community has rejected this and is planning to force a change by strikes and protests.

While the underlying aim seems fairly positive in that the non-filers are incentivized to come within the ambit of documented economy, there are certain qualifications to that. Firstly many individuals particularly salaried ones get their tax deducted at source and as such do not file income tax returns. This is despite them paying more than their due shares of taxes if all the indirect taxes on their consumption are taken into account. A lack of awareness and the bureaucratic difficulties within our taxation apparatus are the biggest reason for this trend. Secondly the lack of trust in the authorities and Governments by the business community is a big barrier.

Some of the concerns leading to the lack of trust are seemingly genuine and warrant corrective actions. A case in point is the undue relief given to influential tax payers while the ordinary one having to waste material resources in order to get their genuine rights like refunds due to them. Moreover the undue nuances caused to even genuine businessmen by certain elements within the taxation apparatus cements the belief that it’s beneficial to stay out of the system to avoid these troubles. Moreover taxing every transaction over Rs. 50,000 at 0.6%, when aggregated, takes the total cost to inexplicable levels making it attractive to avoid banking channels for those not bound to. The crux is that trying to impose a reform like taxing banking transactions without addressing the inherent limitations and problems of the taxation system may not be the most effective way to address the issue of widening the tax-net and should be re-considered.

The author is Director of the think-tank “Millat Thinkers’ Forum”. He is a leading economist, CFA Charterholder, experienced fellow Chartered Certified Accountant and anti-money laundering expert with international exposure who can be reached on Twitter and www.myMFB.com @OmerZaheerMeer or omerzaheermeer@hotmail.co.uk