TAXATION (RESIDENTIAL LAND WITHHOLDING TAX, GST ON ONLINE SERVICES, AND STUDENT LOANS) BILL SUBMISSION

26 January 2016 Secretariat Finance and Expenditure Select Committee Select Committee Services Parliament Buildings WELLINGTON By email: select.committees@parliament.govt.nz To Committee Members, TAXATION (RESIDENTIAL LAND WITHHOLDING TAX, GST ON ONLINE SERVICES, AND STUDENT LOANS) BILL SUBMISSION 1. Introduction 1.1 The New Zealand Racing Board ( NZRB ) is writing to submit on the Taxation (Residential Land Withholding Tax, GST on Online Services, and Student Loans) Bill ( the Bill ). We note that our submission only focuses on the proposals relating to GST on online services and does not comment on the other aspects of the Bill. NZRB also previously made a submission on the Government discussion document GST: Cross-border services, intangibles and goods. 1.2 NZRB supports the broad policy proposal to apply GST to the supply of cross-border services by non-resident suppliers, in particular the supply of betting services. We regard this measure as an important part in levelling the playing field with non-resident betting suppliers. The proposal is also supported by the Offshore Racing & Sports Betting Working Group which was established by the Government to develop recommendations for addressing the growing issues with offshore bookmakers. 1.3 We welcome the opportunity to appear before the Committee to present an oral submission. 2. Background 2.1 NZRB is the peak body for racing in New Zealand and is responsible for developing policies to support the growth of the industry and the over 50,000 participants. We also operate New Zealand s official betting agency, the TAB. 2.2 The TAB has more than 165,000 active TAB account-holders and a retail network consisting of more than 670 outlets. The TAB supports betting on more than 68,000 domestic and imported thoroughbred, harness and greyhound races each season, as well as on approximately 29,000 domestic and international sporting events. In addition, NZRB also exports over 10,200 New Zealand races a year worth $20 million in revenue. Further NZRB has betting agreements with a number of New Zealand national sporting organisations allowing it to take bets on 33 sports. 2.3 NZRB is an independent statutory entity established and governed by the Racing Act 2003 which provides that the profits and benefits from betting in New Zealand goes to support the New Zealand racing and sports communities. As such NZRB makes a significant contribution to the development of sports in New Zealand through the commission we pay to national sporting bodies. In addition, our surplus is distributed back to the three New Zealand Racing

Codes New Zealand Thoroughbred Racing, Harness Racing New Zealand and Greyhound Racing New Zealand. 2.4 The racing industry generates substantial economic activity contributing $1.6 billion to GDP and delivers significant exports, with thoroughbred and standardbred exports worth $167 million. The industry supports over 17,000 full time jobs and includes 119 clubs and 64 race courses located across the country. It is also a great contributor to local communities. Racing clubs raise funds for over 250 community organisations and charities including local hospitals and sports clubs. In addition, racecourses provide valued facilities for 417 organisations and a wide range of community events such as markets, trade expos, weddings, sports events and community functions. Finally, for many rural areas, annual race meetings are significant community events which also generate and sustain interest in the sport of racing and support the local economy. 3 New Zealand and Digital Betting 3.1 As with almost every other industry the growth in internet usage, devices and speed have had a marked impact on the betting industry. NZRB turnover from digital channels has grown at a compound annual growth rate of 23% since 2010. 3.2 This trend is reflected internationally with digital gambling growing at double digit rates from 2008 to 2011. Leading international consultancy Global Betting & Gaming Consultants (GBGC) is forecasting digital gambling to continue growing at between 3-5% over coming years. Morgan Stanley recently forecast 21% compound annual growth rate in betting revenue from digital channels in the Australian market compared with 2014. In particular, the growth of betting through smartphones and mobile devices is having a significant impact on the betting industry. Significant operators such as Tabcorp and Paddy Power (Australian operation) reported that mobile devices contributed over 60% of all digital turnover. William Hill report 43% of international online revenues are generated by mobile. One of the consequences of these trends is the increase in cross-border gambling. 4 Impact of Offshore Bookmakers on New Zealand 4.1 The most recent research indicates the number of New Zealanders betting offshore has almost doubled over the past five years. It is estimated New Zealanders are betting $58 million (15% of the total betting expenditure by New Zealander). The New Zealand community receives no benefit from this activity, but does incur any costs associated with problem gambling. Further, we estimate the loss of GST revenue to the Government could be up to $7.7 million. 4.2 Under the New Zealand model, all the benefits from betting are directed back to either racing or sport. If the $58 million currently bet offshore was otherwise bet through the NZTAB, sport organisations would receive an additional $5 million and racing would benefit from additional $39.5 million. 4.3 This trend can in part be addressed by NZRB. There is a clear need for NZRB to respond to shifting customer preferences and expectations and become more competitive. However, there are also several factors beyond NZRB s direct control which contribute to the growing rate and value of offshore betting. GST is one such factor. In this respect NZRB is no different to any other retailer in suffering a competitive disadvantage in being required to charge GST while offshore providers do not.

5 Offshore Betting Working Group Recommendations 5.1 As Committee Members will be aware, the Minister of Racing appointed the Offshore Racing and Sports Betting Working Group ( Working Group ) to consider and recommend practical options for addressing the issues of: New Zealanders betting on racing and sports with offshore providers; and Offshore providers taking bets on New Zealand racing and sports without contributing to the local industry. 5.2 The central recommendation from the Working Group was for introduction of legislation, with explicit extra territorial effect, to require all offshore gambling operators to register with New Zealand authorities and pay a fee whenever they accept bets: on New Zealand racing or sport; and/or from New Zealanders. 5.3 The Working Group also emphasized the need for NZRB to become more competitive. However, critically, the Working Group expressed support for Government proposals to charge Goods and Services Tax (GST) on offshore services, including gambling services. 5.4 In addition, the Working Group recommended a level of cooperation and information sharing between Inland Revenue and Internal Affairs to support the Offshore Bookmaker Fee. 6 Specific Comments Relating to the Bill 6.1 As mentioned above, NZRB supports the overall objective of increasing international competitiveness of New Zealand economy by levelling the playing field with respect to GST. Internationally, normal treatment of gambling is to treat such supplies as exempt for GST. The OECD publication Consumption Tax Trends 2014 contains a table of VAT /GST exemptions which lists common exemptions as applying in 26 of the 33 OECD countries and defines common exemptions as referring to exemptions generally applied in most OECD countries: betting, lotteries and gambling. The extent of these exemptions was illustrated in a discussion document released in March 2015 by the Australian Government. The document notes: The GST applies to most types of goods and services. However, a significant portion of consumption is excluded. Australia is not unique in this regard, as most developed countries also have a range of exemptions to their VATs. The exemptions to Australia s GST mean that it was paid on only 47 per cent (see Chart 8.2) of the consumption of all goods and services in 2012. This was slightly less than the OECD average of 55 per cent and much lower than New Zealand (96 per cent), where almost all goods and services are subject to a consumption tax.

New Zealand (emphasis added) 6.2 This illustrates the effect of New Zealand s broad base low rate GST model and therefore the importance of advancing the proposed changes. 6.3 The following comments relate to specific provisions contained in the Bill. Registration Threshold 6.4 The Bill proposes that an overseas supplier register for NZ GST if the total value of their supplies made in New Zealand exceeds $60,000. While NZRB supports the threshold, we have reservations as it is applied to betting services (proposed section 10(14B). 6.5 Proposed section 10(14B) has the effect of allowing a supplier of remote gambling services who has a 10% take out rate (i.e. margin) to sell $600,000 of bets to New Zealand customers before being required to be registered: resident amount - worldwide prizes x resident amounts worldwide amounts (formula restated to be more useful, in this context, without altering the mathematical logic) 600,000-90% x 600,000 60,000 6.6 NZRB submits the registration threshold should not be determined on a net basis under proposed section 10(14B) but should instead be calculated based on turnover (the resident amount in the above formula) to capture a greater number of operators. Consideration formula 6.7 It should be noted that the proposals in relation to remote gambling rely on the definition of gambling in the Gambling Act 2003. That definition includes bookmaking, but the definition of bookmaking in the Gambling Act 2003 excludes the activities of the New Zealand Racing Board or a racing club under the Racing Act 2003.

6.8 Consideration for the supply of domestic gambling services is determined under section 10(14) as: amounts prizes 6.9 However, as betting services supplied by NZRB are not gambling services (due to the exclusion of NZRB activities from bookmaking in the Gambling Act 2003). Consideration for the supply of betting services by NZRB is determined under section 10(12): The consideration in money for the supply of services for (a) racing betting or sports betting is treated as the amount received by the New Zealand Racing Board or its agents, plus the net return of bets laid off by the Board less the sum of all refunds and winning dividends; 6.10 For the purposes of comparison, this could be represented as a formula as follows: amount received - refunds - winning dividends (+ net return of bets laid off) 6.11 NZRB submits that little should turn on the difference between these two formula in practice. In particular, the practice of laying off bets would usually be expected to occur in relation to the overall position of the service providers book, rather than as a consequence of bets placed by customers of one jurisdiction. Accordingly the net return of bets laid off by an offshore provider are unlikely to be referable to New Zealand and accordingly need not be included within the calculation of consideration for NZ GST purposes. 6.12 On the other hand, a refund may be paid to a New Zealand customer by an offshore betting services provider. Refunds could arise due to an event not proceeding (or a horse being scratched from an event) or as a reward for the quantum bet during a set timeframe (a turnover rebate). These amounts may be directly referable to the New Zealand customer and should, in principle, therefore be allowed as a deduction from the amount of consideration subject to GST. Whether either of these types of refunds would constitute prizes is unclear. 6.13 NZRB submits that the formula proposed may not be sufficient and offshore betting providers would likely seek further clarity of the treatment of refunds. In the same way, offshore betting providers may require assistance to confirm that free-bets provided to a New Zealand customer, where there is no amount received for the bet, are not required to be included in resident amounts. Pro-rata share of prizes 6.14 The correct treatment of a refund becomes less clear when proposed section 10(14B) is considered. The Bill suggests that, rather than having regard to the actual prizes won by a New Zealand customer, consideration should be determined with reference to a pro-rata share of worldwide prizes. The Commentary on the Bill suggests this is aimed at preventing arbitrary results and provides examples (discussed further below). 6.15 If refunds are to be regarded as prizes then the proposed formula is unnecessarily complex. Rather than simply requiring the offshore betting services provider to calculate the player

loss of their New Zealand customers, they are also required to include whole of business data in order to apportion prizes (and refunds) to New Zealand. In order to promote voluntary compliance such unnecessary complication should be avoided. 6.16 The proposed pro-rata treatment of prizes is contrary to the treatment adopted in, at least, each of France, South Africa and the UK (for UK betting duty rather than VAT betting is exempt from VAT in the UK). Each of these countries imposes tax (VAT or UK betting duty) on actual player loss, without introducing pro-rata calculations. 6.17 Completing pro-rata calculations to comply with the tax obligations adds significant complexity, time and costs. Racing and sports betting operators do not offer a single bet type in isolation. Thus to calculate a pro-rata share of worldwide prizes, it would be necessary to consider each bet type separately, and all of the data components of the proposed formula for each bet type. This is a massively more complex exercise compared to simply knowing how much was actually bet (in aggregate) and how much was actually won (in aggregate) by the customers of a particular jurisdiction during a taxable period. 6.18 NZRB recommends consideration of a supplementary example to those shown in the Commentary on the Bill, by substituting South Africa for Australia (as Australia is yet to develop the relevant GST rules): Gambling Co. operates an offshore gambling website. Gambling Co. offers a game of chance to two participants, one in South Africa and the other in New Zealand. The South African resident and the New Zealand resident each make a payment of $100 to participate in the game of chance for a 50 percent chance to win $150. If the South African resident wins, the amount of consideration in New Zealand would be $100 ($100 $0) and the amount of consideration in South Africa will be a $50 loss ($100-$150). Gambling Co. will account for $13.04 (15%) of GST in New Zealand and will be able to carry forward a credit against future VAT in South Africa; If the New Zealand resident wins, the amount of consideration in New Zealand would be a $50 loss ($100 $150) and the amount of consideration in South Africa will be $100 ($100-$0). Gambling Co. will expect a refund or carry forward loss/credit in New Zealand and will account for $12.28 (14%) of South African VAT; If instead, the proposed pro-rata formula is used in New Zealand, then: If the South African resident wins, the amount of consideration in New Zealand would be $25 (pro-rata) and the amount of consideration in South Africa will be a loss of $50 ($100-$150). Gambling Co. will account for $3.26 of GST in New Zealand and be able to carry forward a credit against future VAT in South Africa; If the New Zealand resident wins, the amount of consideration in New Zealand would be $25 (pro-rata) and the amount of consideration in South Africa will be $100 ($100-$0); Gambling Co. would be required to account for $3.26 of GST in New Zealand and $12.28 (14%) of South African VAT;

Accordingly, under the proposed pro-rata formula Gambling Co would suffer GST/VAT in both New Zealand and South Africa if the New Zealand resident wins. 6.19 Issues also arise when the cumulative impact of multiple periods are considered. Example 1 in the Commentary on the Bill suggests that if a New Zealand resident wins then consideration would be Nil (rather than the actual negative amount). Clearly if the proposed pro-rata approach is not adopted it will be necessary for negative consideration to be able to arise (and a carry-forward loss/credit or refund arise to the taxpayer) to offset the future positive consideration (and GST payable) in periods when New Zealand resident customers lose. 6.20 The difficulty with example 1 can also be illustrated where there are two New Zealand customers, one who wins and one who loses. Following the logic of example 1, on the New Zealand resident customers losing bet, Gambling Co. would still calculate consideration of $100 as being subject to GST but would not be able to deduct/offset the $50 loss due to the other New Zealand customers winning. GST of $13.04 would be payable on the $100 instead of only $6.52 on the actual player loss of $50. This is clearly flawed and results in overtaxation. 6.21 It is true that these difficulties are resolved by the pro-rata approach under example 2 i.e. two NZ customers would result in two-times the pro-rata $25 amount being subject to GST such that the $50 player loss would be taxed correctly. However, the pro-rata approach is inconsistent with the international approach, and as discussed above is massively complicated when multiple bet types are considered. For these reasons NZRB submits that actual results should be taxed and a credit/loss carry-forward mechanism developed to address intra-period fluctuations. The suggestion that arbitrary results may occur appears to only be valid if a simple, single period, view is taken rather than considering that the results will likely average out over time. 6.22 Finally, the pro-rata approach would be revenue unfavorable unless New Zealand gamblers win more often than the international average, which may be unlikely. Foreign Currency 6.23 The Commentary on the Bill notes the current requirement to express amounts in New Zealand currency at the time of supply and proposed amendments to address that could cause significant compliance costs for offshore suppliers. 6.24 For supplies of gambling services, the time of supply is deemed to be the first date on which the result is determined (existing section 9(2)(e)). 6.25 Accordingly, in principle, an offshore gambling provider would be required to convert the actual amounts prizes or notional resident amounts pro-rata share of worldwide prizes on the date that the gambling result is determined. This date may bear no correlation to the date that the bet was placed nor the date the prize is paid or credited to the gamblers betting account. 6.26 The Commentary on the Bill suggests that, as a compliance cost saving option, a non-resident supplier of remote services should be able to calculate consideration in foreign currency and convert this to New Zealand dollars on the date the supplier files their return or earlier due date for filing. As a practical matter this would mean that the taxpayer cannot determine their NZD tax obligation until the date the return is completed and filed and cannot

therefore transfer the correct amount of NZD to make payment until that date, at the earliest. With the due date for payment and the due date for filing the return being aligned, the practical implications are obvious, especially where payment may need to be arranged from offshore. 6.27 NZRB submits two alternative options for consideration: That the supplier may elect to convert amounts to NZD on the date the transaction occurs (as is often the normal time of supply for non-gambling transactions). That is, in the case of a gambling provider, the resident amount may be converted to NZD on the date the bet is placed and the prizes (assuming consideration is determined on actual prizes rather than a pro-rata share) may be converted to NZD on the date that the prize is paid/credited to the betting account. It is likely that these actual transactions could be extracted from the financial system/betting records on a periodic basis, aligned to taxable periods and a spot rate of conversion applied to each leg of the betting transaction. This may be a simpler calculation than requiring the taxpayer to determine which amount bet has or has not been resulted and determining whether it can be excluded or not (due to time of supply). This treatment is conservative as GST would be paid early on amounts for which the result of the bet has not yet been determined. This is the process currently applied by NZRB when complying with its tax obligations in South Africa and the UK. Again, further complications arise from requiring a calculation to include a pro-rata allocation of world-wide prizes. Although the time of supply is unchanged, the conversion to NZD would no longer be linked to an actual transaction in the financial system / betting records. That the supplier may elect to convert amounts to NZD on the last day of the taxable period. As this date is prior to the due date for filing the complications discussed above would not arise, allowing the taxpayer to determine their NZD obligations prior to filing and (further) in advance of the due date for payment. In addition, non-resident suppliers should be provided with guidance as to what to do if the date that they must convert the foreign currency amounts is not a business day (such that a spot exchange rate is unavailable on that date) and what sources are acceptable sources from which to obtain a spot exchange rate for these purposes. Although there is existing guidance (determination G6D) even New Zealand taxpayers may struggle to locate this information. As a non-resident supplier cannot be expected to have the same knowledge of how and where to obtain such guidance it should be included in Inland Revenue publications aimed specifically at non-new Zealand suppliers of remote services. Non-double taxation rule 6.28 The Commentary on the Bill explains that proposed section 20(3)(dc) is intended to deal with potential double taxation which could arise under New Zealand s current place of supply rules and the remote services taxing rights of a second country. Thus relief is provided to a New Zealand supplier if that supplier is required to pay foreign VAT and New Zealand GST. 6.29 In order to understand the logic of this proposed solution it is useful to consider the circumstances in which it could arise:

Firstly, the supply must be the supply of a remote service otherwise the foreign jurisdiction would have no right to tax; and Secondly, the New Zealand supplier would need to identify that the recipient is a person usually resident in an offshore jurisdiction that imposes GST on the basis of usual residence. 6.30 In these circumstances the New Zealand supplier is likely to conclude that a remote service has been supplied to a non-resident. As the service is a remote service (with no necessary connection to the physical location of the customer) and the New Zealand supplier holds records indicating that the customer usually resides outside New Zealand, NZRB submits that it is reasonable for the New Zealand supplier to account for VAT in the foreign location but to zero-rate the transaction for New Zealand GST. 6.31 In the context of a remote service, it is entirely conceivable that the New Zealand supplier would have no idea that the customer is temporarily present in New Zealand. Accordingly, rather than a complicated deduction mechanism the better solution to this issue is to ignore the temporary presence in New Zealand and to sanction what is likely to be the current practice, of zero-rating the supply for New Zealand GST purposes. 6.32 The broader proposals suggest that point of consumption rules are to apply, in which case New Zealand should also recognize that in introducing the proposed rules, it should forgo any taxing right in the circumstances outlined a remote service supplied to a non-resident who usually resides outside New Zealand, albeit that they temporarily happen to be within New Zealand (refer to the discussion of the OECD guidelines for determining the place of taxation on page 48 of the Commentary on the Bill). Tax Invoices 6.33 The Commentary suggests that a non-resident supplier will not need to provide a tax invoice in relation to supplies of remote services. However, a non-resident supplier can choose to provide a full tax invoice if the recipient has been inadvertently charged GST and the payment for the supply is NZ$1,000 or less (inclusive of GST). 6.34 In the context of a supply of remote services, it seems quite unclear how a New Zealand resident would be able to determine whether or not New Zealand GST has been inadvertently charged in the absence of being provided a tax invoice. Many remote services would be provided with a minimum of negotiation, or human interaction of any kind, with the GST treatment only becoming apparent from documents such as a tax invoice. Further, once the transaction is completed online the mechanism for contacting a supplier to discuss a past transaction may be very obscure and difficult, such that requesting invoices after the fact may be practically impossible. 6.35 A further difficulty which may arise, in the absence of a requirement upon the foreign supplier to supply a tax invoice, relates to the situation of an employee who purchases remote services for business purposes. An employee, even one fully authorised to make such a purchase, may not know the relevant details to satisfy a foreign supplier that they are making the purchase on behalf of a GST registered business. If the employee then seeks reimbursement from their employer, the employer will face compliance costs to recover the GST suffered by the employee on behalf of the business.

6.36 NZRB acknowledges the Inland Revenue s concern that there is a risk, if tax invoices are supplied, that New Zealand recipients may recover input tax in circumstances where the foreign supplier has failed to account for the GST. However, New Zealand consumers should not be exposed to significant compliance costs to recover GST inadvertently charged. 6.37 The Committee should consider whether it is possible to oblige non-resident suppliers to provide easy to access contact details (email preferably, due to time differences) in order to request a tax invoice, or a refund of incorrectly charged GST, if this proves to be required after the transaction has been completed. Retaining Records 6.38 NZRB agrees with proposals recognising that it may be impractical for a foreign supplier to retain records in English and at a place in New Zealand (when they may have no connection with New Zealand other than having a customer located here). 6.39 However, the current drafting of proposed subsection 75(3F) is unclear. This provides that subsection 3BA does not apply to require a non-resident supplier to keep and retain records in English / at a place in New Zealand. But it is unclear and silent as to whether the non-resident supplier continues to be required to keep and retain the record in a language in which the Commissioner authorises the person under subsection (6) to keep the record or at a place outside New Zealand where the Commissioner authorises the registered person under subsection (6) to keep the record. Arguably, section 75(3F) only makes it clear that the record need not be in English/ at a place in New Zealand, but does not remove the authorisation required for an alternative language or location. 6.40 Compliance with the proposals will be assisted if New Zealand does not follow the South African example which requires a foreign taxpayer to seek a ruling to be allowed to maintain records outside South Africa. 6.41 NZRB submits that either: proposed subsection 75(3F) should be redrafted to deem that the authorisation required by subsection 3BA is automatically provided to a non-resident supplier whose only supplies are supplies of remote services to which section 8(3)(c) applies ; or subsection 75(3BA) should simply be amended by inserting, other than a non-resident supplier whose only supplies are supplies of remote services to which section 8(3)(c) applies, who is after A registered person. Bank Accounts / Tax Agents 6.42 NZRB also agrees that it may be impractical and unnecessary for a foreign supplier to have a New Zealand bank account. Requirements imposed by other countries, such as having a bank account or a tax agent within that country, simply increase compliance costs with the consequence that foreign suppliers may simply choose not to supply services to New Zealand customers.

Thank you for the opportunity to make a submission on the Bill. Contact Rajesh Nahna Head of Government Relations New Zealand Racing Board Jeff Fagg Head of Tax and Treasury New Zealand Racing Board M: 021 226 9915 E: raj.nahna@nzracingboard.co.nz