Review of Section 481 Film Relief. Department of Finance Consultation Paper

Transcription

1 Review of Section 481 Film Relief Department of Finance Consultation Paper May 2012 Tax Policy Unit Department of Finance Government Buildings, Upper Merrion Street, Dublin 2 Ireland Tel: Fax: Filmtaxconsult2012@finance.gov.ie Website:

2 Table of Contents 1. Introduction Background and Context Preliminary Economic Analysis Next Steps Department of Finance ii

3 1. Introduction 1.1 The purpose of this paper is to initiate a consultation with interested parties as part of an economic impact assessment of the operation, status and future of the Section 481 tax relief otherwise known as film relief. 1.2 The impact assessment will enable the Department to better understand the benefits that may accrue to the exchequer in terms of additional tax yield as well as consequences for investors, the audiovisual industry, and the wider economy arising from possible changes to the film relief. 1.3 Finance Act 2011 provided for an extension of the scheme to the end of It is now deemed appropriate to review the scheme in the context of making timely decisions regarding the future of the scheme after The Department s preliminary analysis has benefited from data provided by the Revenue Commissioners on claims for film relief approval for the years The results of the Department s preliminary analysis of the data are presented in this paper. Based on these results a number of emerging issues and consultation questions arise. 1.5 The Department is keen to minimise the long term exposure of the exchequer to the costs associated with Section 481 relief whilst at the same time maximising the effectiveness of its expenditure, through tax or otherwise, in this sector. 1.6 The terms of reference for this Review, which will involve the evaluation of the tax expenditure scheme in broad socio-economic and fiscal terms, and the determination of the extent to which the scheme justifies its continuation, are summarised in the Box below. Examination of the costs and benefits of the existing scheme, taking into account displacement/deadweight impacts, and the interplay between this and other tax reliefs The identification of value for money of the scheme to the economy overall Examination of the international competitiveness context within which the sector operates Recommendations, where and if necessary, for changes that could be made to enhance / maximise the value for money to the tax payer and sustainable job creation and taking digital production and technological advances into account Box 1: Terms of Reference 1.7 The Department welcomes a full engagement with interested parties. Parties are invited to respond to this consultation paper with regard to the following questions. The consultation questions emerge from the preliminary analysis presented in this paper. Department of Finance 1

4 1. Is the exchequer s support to the film and TV sector in Ireland through Section 481 relief an efficient use of scarce resources and if so why? 2. Is the current scheme maximising the potential economic benefits to Ireland in terms of stimulating activity in the film and TV sector? If not, why not? 3. What are the economic arguments for restricting or terminating the scheme? 4. What possible changes to the existing scheme, if any, should be considered and why? 5. Do interested parties agree that there is merit in extending Section 481 Film Relief Tax incentive scheme beyond 2015? If yes, why? If no, why not? 6. How does the scheme interact with other enterprise tax incentives such as the BES/EII? Box 2: Consultation Questions 1.8 The period of public consultation will run from 25 May to 31 July Submissions can be made by to: Filmtaxconsult2012@finance.gov.ie 1.9 Submissions can also be made by post to: Film Tax Relief Consultation, Department of Finance, Government Buildings, Upper Merrion Street, Dublin 2. Department of Finance 2

5 2. Background and Context 2.1 Section 481 of the Taxes Consolidation Act, 1997 otherwise known as film relief is one of the longest running sector specific tax reliefs and has been in place under various formats since The scheme is intended to contribute to the development and sustainability of the Irish film/screen industry which supports a significant number of jobs in the domestic economy, a strategic cultural industry and the tourism sector in Ireland. 2.2 The estimated amount of tax foregone by the Exchequer in respect of film relief for the years 2010 and 2011 is 66 million and 49 million respectively. According to the Revenue Commissioners, in 2011 a total of 57 projects were approved for Section 481 funding with an eligible Irish spend of 114m. These 57 projects supported employment for crew, cast and extras of over 15,000 individuals. 2.3 The film industry exists in a competitive international environment. Ireland competes with other countries and locations for productions. Many countries in Europe and internationally support their film industry. How Section 481 Operates 2.4 Tax relief is provided for an investment made in a qualifying company. In order to comply with the requirements of Section 481 TCA a qualifying company must be set up for the purposes only of the production of one qualifying film. 2.5 Tax relief is allowed at an individual s or company s marginal income tax rate. Tax relief on amounts invested is not allowed until principal photography of the film project has commenced. If an application is made after principle photography has commenced, then the application is void. 2.6 The production company must be an Irish incorporated and resident company, or a company incorporated in or resident outside the State but which is carrying on a trade in the State through a branch or agency. The production company must also be established for the production and distribution of only one qualifying film. 2.7 The maximum amount that a company can raise under Section 481 is limited to 80% of the total budget. Amendments in the Finance Acts in 2008 introduced a number of changes in the way the scheme operates: The overall ceiling on qualifying expenditure was increased from 35 million to 50 million; The cap on investments by individual investors wishing to finance investment in film in Ireland was increased to 50,000 per annum from the previous limit of 31,750; and, The relief on investments by investors was increased to 100% of total investment from a cap of 80%. 2.8 Finance Act 2011 provided for a further extension of the scheme to the end of This was on top of the extension granted in 2008 to the end of A number of amendments were introduced in Finance Act 2012 to encourage enhanced compliance by qualifying companies with the reporting requirements of the scheme to the Revenue Commissioners. The measures allow Revenue to pursue the directors and/or secretary for a monetary penalty. Department of Finance 3

6 The Indecon Review 2.10 Section 481 relief was most recently reviewed in 2007 by Indecon economic consultants. Indecon conducted a full cost benefit analysis applying a framework set out in the Department of Finance s Guidelines. 1 Indecon s analysis indicated that while total tax and other benefits exceeded the costs of the scheme, when account was taken of even relatively low levels of opportunity costs, the benefits of the scheme to the Irish economy were found to be low and declining Indecon noted at the time that for every 100 raised under Section 481, the exchequer cost was 34 but that only 19 accrued as a subsidy to the producers with the balance being returned to investors or accounted for in administration costs. Investors received back on average 76% of their investment and thus their return was entirely due to the tax benefit of their investment (at the investor s marginal rate) Given the changes in the labour market in Ireland post-2008 and the changes made to the scheme in recent Finance Acts it seems timely to re-examine the costs and benefits to the economy of the Section 481 relief Indecon also made a number of specific proposals to support the future development of the Irish audiovisual sector: 1. The Section 481 scheme should remain for the next 3-5 year period but should be subject to review in advance of the expiry date 2. No change should be made to incentives for television production 3. Enhancements should be made to the incentives for film production 4. An enhanced grant scheme should be provided by the Irish film board as an optional incentive conditional on such projects not also obtaining Section 481 relief 5. The Irish film board should prepare a 10 year strategic plan to address the sustainability of the industry and its vulnerability to tax incentives in other countries and to enhance its net economic contribution Box 3: Indecon recommendations Source: Review of Section 481 Film Relief, Indecon International Consultants The Commission on Taxation 2.14 The Commission on Taxation (2009) recommended that film relief should be continued but should be subject to regular review in accordance with the principles set out in their report The Commission noted that the structure of the relief and the manner in which it may be used raised a question of equity with those lower down the income scale less likely to have the initial capital to leverage a loan in order to avail of the relief. 1 Department of Finance Guidelines on the Appraisal and Management of Capital Expenditure Proposals in the Public Sector, Department of Finance, February The Commission on Taxation report is available on the Department of Finance s tax policy website: Department of Finance 4

7 2.16 The Commission recognised the competitive international environment which exists in the film industry and also the role the sector plays in supporting a significant number of jobs in the economy It concluded that the relief should be continued but subject to regular review in accordance with the following principles: Where a tax expenditure is proposed or an existing expenditure extended, the following questions should be asked: 1. Does the tax expenditure correct a market failure, attract mobile investment, or offset shortcomings in other areas of public policy? 2. If so, does the proposal adhere to the principles of efficiency, stability and simplicity; and, 3. If so, can the departure from the equity principle, which the tax expenditure invariably necessitates, be justified? A tax expenditure should only be introduced or extended if it answers affirmatively to each of these questions Box 4: Commission on Taxation principles for introducing or extending tax expenditures Source: Commission on Taxation Report 2009 Audiovisual Federation Review The IBEC Audiovisual Federation, a business sector within IBEC, produces an annual review of film and television production in Ireland. Its most recent report in 2011 relates to feature films, independent TV production (including major TV dramas) and animation projects where the majority of the work was carried out in The 2011 report estimated the benefits to the exchequer in 2010 from tax receipts as well as the Section 481 costs. The gross tax gain to the State was estimated at 70.3m taking account of PAYE, PRSI, Schedule D and Corporation tax receipts as well as indirect benefits from other forms of tax including VAT and excise. It estimated the cost at 61.7m with an overall net gain to the exchequer of 8.6m. It is not clear if the analysis takes account of deadweight, displacement or opportunity costs The report also estimated an increase in employment in terms of placements from 14,198 in 2009 to 15,111 in 2010 which in terms of full time equivalents represented an increase from 1,368 in 2009 to 1,695 in Creative Capital Report 2.21 Following the presentation of a report by PWC to the Department of Arts, Heritage and the Gaeltacht, an audiovisual strategic review steering group was established to examine and recommend new enterprise policies to maintain and develop the industry s growth. Its report, titled Creative Capital, identifies the Irish audiovisual sector as a pillar of Ireland s creative industries and a major opportunity to deliver growth and jobs to the Irish economy over the next five years The report acknowledged that the recent extension of Section 481 will be an important cornerstone for further growth. However it added that long term growth 3 The Report is available at the following address: Department of Finance 5

8 of inward investment for international production is likely to require a longer term horizon and thus recommended the extension of Section 481 relief to It also made two further recommendations that relate to other tax expenditures, namely the extension of the R&D tax credit to include content development and the extension of the employment and investment incentive ( EII, formerly the Business Expansion Scheme) to include audiovisual content production companies. 1. Extend Section 481 to Extend Research and Development Tax Credit to include content development 3. Extend Employment and Investment Incentive Scheme to include audiovisual content production companies. Box 5: Creative Capital Report: tax recommendations Source: Creative Capital, Building Ireland s Audiovisual Economy Department of Finance 6

9 3. Preliminary Economic Analysis 3.1 This section presents an analysis of claims and income data provided by Revenue pertaining to Section 481 film relief. The data has also been supplemented with that from IBEC s Audiovisual Federation Review Since 2005 the cost to the State of the Section 481 relief has grown from just under 15m to almost 50m in Following a reduction in cost in 2007 the total cost peaked at 66m in When the number of projects undertaken is compared with the cost of the scheme it can be seen that there is a correlation between the scheme s costs and the level of activity in the sector. In 2005 just 19 projects availed of Section 481 relief compared with 57 in 2010 and Tax cost (,m) LHS Total Projects Figure 1: Total tax cost and number of Section 481 projects, Source: Revenue data, Department of Finance calculations Notes: Tax Cost assumes marginal rate of 41% 3.4 Over the period film productions have accounted for the greatest share of projects with a share between 40-50% recorded throughout the period with the 2011 share at the lower bound of this range. The share of nondocumentary domestic TV production has declined from 42% to 25% with a relatively consistent amount of non-documentary foreign TV production benefiting from the relief with just over 20% of all productions in 2011 accounted for by this category. Documentary productions have increased in share of Section 481 relief from a very small base to just over 15% of productions in Department of Finance 7

10 Documentary Foreign TV Domestic TV Films 100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% Figure 2: Number and percentage of productions by type of production Source: Revenue data, Department of Finance calculations 3.5 It is informative to examine the trend in expenditure over the period by TV and film productions. The data in Figure 3 below which is taken from IBEC s Audiovisual Federation Review 2011 indicates modest or declining growth in Irish expenditure during with a near 50m increase in Irish expenditure in Overall the balance of expenditure by productions is incurred outside of Ireland. Data provided by Revenue indicates that close to 160m of expenditure in 2010 was eligible for Section 481 relief Total Irish Expenditure Total Expenditure Figure 3: Expenditure on film and TV production on Section 481 projects Source: IBEC Audiovisual Federation Review Proponents of the relief have argued that it is essential for employment in the sector and that the sector plays an important role in employment in the economy. Data from the 2011 IBEC report presented below in Figure 4 indicates the direct employment impact of the sector. It is useful to look at the total number of employees as well as the level of full time equivalents. 3.7 It can be seen that employment levels declined dramatically in 2007 with a 16% reduction recorded in total employment. This recovered by 2009 and a significant increase was recorded in 2010 with year on year growth of over 50%. Department of Finance 8

11 3.8 In terms of Irish employment, a reduction was recorded in total Irish employees in 2007 but this fall off had recovered by However on a full time equivalent basis the level in 2010 was still below the 2007 level. It may be regarded as disappointing that the levels have not fully recovered given the growth in expenditure and tax cost during the period. 3.9 The increase in employment recorded in 2010 was largely accounted for by non- Irish employees. Employment Total Employed Irish Employed Non-Irish Irish Full Time Employed Equivalent Jobs ,476 15,143 2,333 1, ,711 12,727 1,984 1, ,147 12,660 2,487 1, ,013 14,198 2,815 1, ,537 15,111 11,426 1,695 Figure 4: Employment in TV and film production Source: IBEC Audiovisual Federation Review 2011 Cost Benefit Analysis 3.10 In terms of assessing the economic impact of a scheme from the State s perspective, the usual approach is to conduct a cost-benefit analysis. In its report in 2007 Indecon identified three main costs from the scheme at that time, the foregone tax revenues, the cost of the Irish film board financing of Section 481 and the administrative costs of the scheme. Against this a number of benefits were identified, namely incremental tax revenues, social welfare savings and wider benefits such as tourism and the development of human capital and Irish culture The tax benefits to the State include income tax on Section 481 employee earnings, the net VAT on purchases in relation to Section 481 production expenditures, the corporation tax receipts from Section 481 company profits, the capital duties that are levied on Section 481 production company share issues, and the additional tax revenues arising from the multiplier impact on the Irish economy of Section 481 production company Irish expenditure. Against this it is also important to take account of opportunity costs of labour, displacement effects and deadweight costs. Opportunity Cost 3.12 The opportunity cost of labour adjusts gross estimates of employment related taxes to reflect the possibility that if the Section 481 productions had not taken place, many of their employees would have found employment elsewhere in the economy. Deadweight 3.13 The level of activity that would have occurred in the absence of a support or incentive is an economic deadweight to society. This reflects the taxation distortion on economic activity that took place to fund activity that would have taken place in any event. In assessing the net overall impact of Section 481 in terms of stimulating production activity in the sector, an important issue therefore concerns the likely pattern of outcomes within the sector in the absence of the incentive. Department of Finance 9

12 3.14 As an input to ascertaining the potential extent of economic deadweight, in its 2007 review Indecon sought the views of Irish film/tv producers on this issue. The findings from the Indecon survey suggested that the level of production activity in Ireland would have been substantially lower than the actual outcome in the absence of Section 481. Accounting for the level of international competitions from competitor countries Indecon assumed a low level of deadweight of 10% for the period Parties are invited to comment on how the Department might assess the level of deadweight of the Section 481 scheme today. Displacement 3.16 Displacement refers to a situation where an intervention by the State displaces other economic activity. For example, incentives to one project could result in business being displaced from an existing operator. The net benefit arising from a project should be adjusted for the estimated level of displaced activity. Economics of Investing 3.17 From discussions with Revenue it appears that on average investors receive back 72% of their investment from the producers. This is a lower amount than that identified by Indecon in its 2007 review. However, all of the investor s investment can now be used as a tax relief at the investor s marginal rate compared with 80% at the time of the Indecon review. The balance of the investor s remuneration is accounted for through the tax relief. A simplified and stylised example of the financing structure is set out in the diagram below. Commissioning Body (Pay 72) 72 Content Production Company (SPV) Defeasance Account (pays 72) Exchequer Investors 72 (Tax loss of 41) (Pay 100) Figure 5: Stylised financing structure Source: Department of Finance 3.18 In the stylised example above investors provide 100 in financing to the production company. Once approval has been received from Revenue the commissioning body, for example a TV network, deposits 72 in an account for remuneration of the investors. The 72 is ultimately returned to the investors who also received a tax incentive of 41 from the Exchequer. This results in a total return to investors of 113 or a return of 13% (less administration costs and other expenses). Department of Finance 10

13 3.19 Investors are typically remunerated over a 12 month period. Thus the return to an investor is 13% in one year thereby overcoming inflation risk. Investors may have ongoing financing costs, which will reduce the net return The return to the investor is not dependent on the commercial success of the production. However if no production takes place an investor would suffer total loss of capital. However there has only been one instance of a failed production, thus indicating the very low risk of such investments. It appears that relative to other low risk investments such as sovereign bonds or deposit accounts, investors receive a relatively high return Potential 'crowding out' effects that the seemingly low risk and high return of the film relief could cause for other tax incentives - e.g. BES / EII - and for other State investments generally may need to be considered It is worth noting that in the financing model described above the funding gap to the production company is the difference between what is raised from investors and what the commissioning company pays for the production, namely 28 for every 100 invested. However in order for the company to make up the funding gap the State contributes 41 through a tax relief to investors. Thus the 13 earned by investors exceeds what is necessary to finance the production Alternative forms of intervention by the State, either through a lower tax relief, or the use of a credit based system may achieve the same outcome for the production company but at a lower cost to the State. Parties are invited to consider alternative funding structures that might result in a lower cost to the exchequer. Department of Finance 11

14 4. Next Steps 4.1 The Department of Finance would like to hear the views of interested parties in relation to the issues discussed in this consultation paper. Respondents are asked to support any views and comments expressed in submissions with relevant evidence. Parties may be asked to supply calculations and other material to support their submissions. This may include spreadsheet models. 4.2 The full set of consultation questions is summarised below. 1. Is the exchequer s supports to the film and TV sector in Ireland through Section 481 relief an efficient use of scarce resources and if so why? 2. Is the current Scheme maximising the potential economic benefits to Ireland in terms of stimulating activity in the film and TV sector? If not, why not? 3. What are the economic arguments for restricting or terminating the scheme? 4. What possible changes to the existing scheme, if any, should be considered and why? 5. Do interested parties agree that there is merit in extending Section 481 Film Relief Tax incentive scheme beyond 2015? If yes, why? If no, why not? 6. How does the scheme interact with other enterprise tax incentives such as the BES/EII? Box 6: Consultation Questions 4.3 Responses to this consultation paper should be titled Response to Review of Section 481 Film Relief and should be received no later than 31 July 2012 and should be sent by to Filmtaxconsult2012@finance.gov.ie Submissions can also be made by post to: Film Tax Relief Consultation, Department of Finance, Government Buildings, Upper Merrion Street, Dublin Respondents should be aware that the Department is subject to the provisions of Freedom of Information legislation. 4.5 The Department may include the information contained in submissions in forthcoming reports and elsewhere as required. Any party submitting information to the Department shall have sole responsibility for the contents of such information. If submissions contain confidential material, it should be clearly marked as confidential, and a version of the submission should be provided which can be used for publication. Department of Finance 12