Westfield’s stoush should shine light on tax paid by property trusts

Westfield Retail Trust’s chairman Richard Warburton deferred a vote on controversial plans to spin off the group. AAP/Dan Himbrechts

Reports of the Westfield Group’s attempts to push through a A$15 billion restructure - complete with a boisterous showdown last Thursday - have mostly concentrated around the effect of the deal on its investors, led mainly by major shareholder, Uni Super.

But the controversial demerger also puts on show the ability of large property landlords like Westfield to legally employ aggressive tax planning to significantly minimise tax, at a time when the federal government has announced that a budget “crisis” requires significant expenditure cuts and the raising of taxes.

As we wrote prior to last week’s vote, our report, commissioned by union United Voice suggests the Westfield Group effectively paid just 8% tax in the seven years to 2013, and its property arm, Westfield Retail Trust (WRT), no tax at all.

This is due to extensive use by the both the Westfield Group and Westfield Retail Trust of trust structures known as Real Estate Investment Trusts (REITs), which it has combined with stapled securities.

REITs allow investors, known as unit holders, to hold unit interests in global property portfolios, with attractive yields and tax considerations (as I’ll discuss further down). In Australia, Westfield Group and Westfield Retail Trust are the largest in what is called A-REITS. Other large A-REITs in the publicly listed real estate sector include Stockland, Goodman and GPT Group.

According to the European Public Real Estate Association’s Global REIT survey 2013:

One of the key tax benefits arising for the investor from a trust structure is that distributions from the trust retain their tax attributes (‘flow through’ entity), making an investment via a fixed trust generally comparable in most respects to a direct interest in the real estate. Unit trusts stapled to company structures are common in Australia.

In comparison to all other firms in the real estate management and development sub-industry, known as A-REITs, the Westfield Group consistently rates in the mid-range of tax aggressiveness.

However, the effective tax rates of its sub-industry as a whole are well below the statutory tax rate, as well as the estimated average effective tax rate of 22% for all ASX200 companies over the past decade. This, together with the widespread use of trust structures, suggests that this industry is fairly tax aggressive.

While the Westfield Group is not more tax aggressive than other companies in the real estate development and management industry, its comparative size creates a much larger impact than most of the other entities.

The magnitude of the estimated tax avoidance by Westfield Group amounts to over A$380 million dollars and the Westfield Retail Trust to A$171 million dollars in the years from 2006 to 2013, based on their calculated effective tax rates and their reported earnings.

Peter Strong, Executive director of the Council of Small Business of Australia (COSBOA), when discussing the upcoming Federal Budget and areas where tax collections could improve, said that:

The area they’ve got to really focus on is the very large businesses that use offshore tax havens, like Westfield. They don’t pay the tax they should pay … if you want to send the right message to the business community in Australia it needs to be that we are going to make sure everyone pays tax, in particular the big businesses.

Despite this there have been no recent reviews by the federal government of the low effective tax rates of companies in the real estate management and development industry, or any other industry for that matter.

An additional issue relates to the disclosure of tax payment information. Finding evidence of tax aggressiveness by corporations is difficult due to the confidentiality of tax documents and assessments, and the minimal disclosure of tax related information in the financial statements.

It is almost impossible to obtain tax payment information of trusts and foundations. This is of most concern with respect to REITs, many of which are large publicly listed entities (such as WRT) that pay no tax at the corporate level.

The use of trusts in the corporate structure of Westfield allows the tax burden to be passed through to the beneficiaries, or unit holders, of the trusts. This advantages unit holders who are able to reduce their tax at an individual level.

Unfortunately, the individual unit holders do not have to disclose the tax paid on the REITs distributions, and therefore, it cannot be established how much tax is actually paid on the profits of Australian REITs.

Furthermore, in Australia companies do not have to report where profits are generated or where tax is paid by tax or geographical jurisdiction. Unlike US firms, Australian firms are not required to split their taxes between local, federal and foreign tax expense.

Further analysis is needed at the firm level into the use of tax planning schemes to determine whether some firms are avoiding taxes. This research supports the drive to include the reporting of income and taxes, including taxes paid, in geographic and jurisdictional segments.

This issue is high on the agenda for the upcoming G20 meetings in Brisbane in November this year. If companies are mandated to disclose detailed information on where profits are made and taxes paid by jurisdiction, the tax avoidance will become more obvious and may thus damage corporate reputations.

The hope is that the greater potential risk to corporate reputations will somewhat deter companies from highly aggressive tax avoidance.