Sydney Law Review
The objective of this lecture is to give you an insight into the work that I and others are doing on women and tax and hopefully demonstrate to you the contribution this feminist work can make to our understanding of tax policy. This work is international in scope with scholars from many jurisdictions involved. Obviously my work takes place in the Canadian context but both the Australian and Canadian tax systems share similar basic underlying principles and I shall place my analysis at the level of principles rather than a detailed analysis of the specific tax rules that do vary from jurisdiction to jurisdiction.
I shall proceed in the following manner. First, I shall explain what I mean by taking a feminist perspective in tax policy analysis and demonstrate how such an approach builds on the more traditional tools of tax policy analysis. Then I shall move to a discussion of four particular aspects of our tax systems and demonstrate the insights that the feminist critique brings and indeed, how women are disadvantaged in comparison to men by tax laws. The four specific areas I plan to look at are:
While these principles are a very important foundation of our system, one element is missing from this kind of tax policy analysis, that is, equality among particular groups in society. Such an analysis requires an examination of the impact of the rules on particular groups in society that have been historically disadvantaged to determine if they are treated in a prejudicial manner. The group that I shall focus on today is women, although it is important to note that they are women with differing social identities. Those different identities are the result of the social relations of race, ethnicity, age, sexuality, class, (dis)ability and so on. My focus today is primarily gender and class but this is not to imply that the other issues I have mentioned are not of vital importance as well. A second fundamental point is that by equality I do not mean mere formal equality, which would treat all individuals the same regardless of the differences between them. Rather the analysis must also encompass the concept of substantive equality which recognises that in order to achieve equality, different groups in society may require different treatment. It has been put this way by Mr Justice McIntyre of the Supreme Court of Canada in Andrews v The Law Society of British Columbia:
In simple terms, ... it may be said that a law which treats all identically and which provides equality of treatment between A and B might well cause inequality for C, depending on the differences in personal characteristics and situations. To approach the ideal of full equality before and under the law and in human affairs .... the main consideration must be the impact of the law on the individual or group concerned.
An example of formal equality in the tax context is the gender neutrality of tax legislation. Each provision applies to both men and women and yet, as I shall discuss, women suffer significant inequalities when compared to men in terms of the impact of the tax system on them.
It is also important to note that any analysis of the impact of tax policies on women cannot take place in a vacuum. The socio-economic realities in which women live their lives today must provide the background for this analysis. Some of these realities include the following. Women tend to earn less than men and they tend to be less wealthy than men. More women are participating in the paid labour force than ever before, although many of these women are employed in part-time labour. Womens work in the home remains undervalued, and is not considered to be productive work. Women remain the primary caregivers for children. A disproportionate number of single mothers live below the poverty line. More women than ever are living alone and fewer women are living in relationships with men. This is the context in which we must evaluate the impact of our tax system on women. I now turn to my first issue, the tax unit.
The choice of unit in a personal income tax system is usually described as being a choice between the individual, the spousal unit or the family unit. In Canada and Australia the unit is the individual, although in both countries the integrity of the individual as the unit is compromised by many provisions that recognise spousal relationships for different purposes. Indeed, as Patricia Apps has documented, while the individual as the unit is the policy in Australia, a distinct shift towards partial joint taxation of spouses is taking place. Examples that she cites include the proposed increased rebates for children (the Family Tax Benefit) which is means tested on joint income and increased rebates for the dependent spouse which are income tested on the spouses own earnings from market sector employment. Today I shall focus on two tax policies that treat spouses (whether married or de facto) as one for tax purposes and discuss why these policies are problematic for many women. First I shall consider the dependent spouse rebate and then I shall discuss income splitting.
Feminists and others have long critiqued provisions such as the dependent spouse rebate which provides a tax rebate to a person who supports a spouse, with entitlement to the rebate declining as the spouses income increases. As Canadian tax expert Neil Brooks so succinctly put it, provisions such as this perniciously deny the autonomy of women, treat them as dependents, assume they always share the economic interests of their husbands, ignore their social realities and reinforce their role as caregivers. Let me elaborate on the gender impact of a rule of this nature.
Because more women than men work in the home and not in the paid labour force it is mainly men who claim this rebate. Provisions such as the dependent spouse rebate affirm that womens dependency on men deserves tax relief, which in turn undermines the autonomy of women. Furthermore the tax rebate is delivered to the economically dominant person in the relationship (usually the man) and not the dependent who needs it. This manner of delivery assumes that income is pooled and wealth redistributed equitably in the relationship. Studies have shown that this assumption is simply false and that, in reality, such pooling and redistribution of income and wealth does not occur in the majority of relationships. Many women do not have access to or control over income earned by their spouses and predicating tax policies on the assumption that they do is unfair.
A significant difference between Canadian and Australian tax policy is that in Australia the splitting of property income (otherwise known as investment income) between spouses is permitted. In Canada we have rules that stop (or try to stop) this kind of activity. The advantage of income splitting is of course that in a system that applies progressively higher tax rates as ones income increases, the ability to shift income to a person who has little or no income and who therefore will pay tax at a lower rate can result in a significant financial advantage. On the face of it, one could say that income splitting should be to the advantage of women with less income than their spouses because the splitting for tax purposes of that income means that there is more after tax income to be enjoyed by the couple, and one might assume that women will benefit from this after tax income as well as receiving and having control over the transferred income. But, this is not necessarily so. Far from giving her control over the income or indeed the capital that generates the income, the structuring of income splitting transactions is frequently one that ensures that control remains with the economically dominant person in the relationship. Indeed, the rule that an assignment to a right to income is ineffective if it is for a period of less than seven years only serves to reinforce that these arrangements will continue for extended periods, a period during which the economically dependant woman must continue to be dependent on her spouse. As for the reduction in the tax burden of the couple, again one cannot assume that she will benefit directly from this.
As mentioned earlier, there are signs of a movement towards partial joint taxation of spouses in this country. Perhaps the most compelling reason for not moving towards partial or full joint taxation of spouses is that there is clear evidence that the living arrangements of taxpayers have changed considerably since the introduction of provisions such as the dependent spouse rebate. The number of people living in families is declining, more women than ever are either living alone or with their children, and the vast majority of lone parent families are headed by women. In Australia the figure is 90 per cent. Furthermore lone parent families are twice as common among Aboriginal and Torres Strait Islanders as in the population at large. The concept of a couple as a life-long economic unit with joint income, wealth, and expenses may no longer be appropriate, if it ever was, given changing family structures, increasing divorce rates, and falling marriage rates. Tax provisions that look to the traditional family unit consisting of heterosexual spouses and in which the wife works in the home and the husband is the breadwinner are outdated.
The current tax systems in both Canada and Australia continue to act as a disincentive to womens participation in the paid labour force. In so doing they reinforce the sexual division of labour where women mainly occupy the private domestic sphere and men mainly operate in the public work sphere. The tax system does this in several ways. For example, the policies I have just discussed that are based on dependency play a major role in this regard. When tax costs such as the loss of the dependent spouse rebate and the inability to split property income because of a womans increased income are taken into account, there is a real disincentive for women in spousal relationships to enter the paid labour force. The disincentive is exacerbated by other tax and non-tax costs incurred by women who choose to work outside the home. From a tax perspective the absence of a tax deduction for child care costs in Australia together with the lack of a tax rebate for costs associated with resuming work after an interruption related to the birth of child, all contribute to the significant economic cost to women who choose to work in the paid labour force. Indeed, when one considers that many women are the secondary earners in their relationships and that they work for relatively low wages, the combination of these factors and the tax disincentives has a particularly detrimental effect on a womans choice to work outside the home.
There is an important related issue that also creates a disincentive to womens participation in the paid labour force and that is the non-recognition and nonvaluation of household production by the tax system. Household production includes activities such as cooking, cleaning, performing household chores and child care. The issue is that the value of womens labour in the home is earned income in kind, a form of imputed income, and one that gives a personal benefit either to the person who performs it or to other members of the family. Ignoring its value for tax purposes is problematic. Unless the tax system recognises the value of household production by either taxing it or giving tax relief to women who work outside the home in the paid labour force, those women are at a disadvantage when compared to women who work exclusively in the home. In effect, women who work outside the home have to purchase household services or forego leisure time in order to provide for themselves and their families.
The gender dynamic of the non-recognition of household production is clear. While men are contributing more to household labour than in the past, women still provide more household labour than men. For example, studies show that in two earner families it is women who predominantly perform the household labour in addition to their work outside the home. This tax disincentive to participation in the paid labour force is exacerbated by the low wages many women receive in the paid labour force. Of course there are many women who choose to work in the home, but the point is that this choice should not be fettered or indeed influenced by the tax system. One way to remedy the problem is to give a tax rebate to women who work outside the home in recognition of the cost to them of so doing.
Tax systems are not merely revenue raising instruments. They are in fact massive spending programs and should be evaluated as such. Tax expenditure theory tells us that any measures such as income exemptions, deductions, deferrals or tax rebates which depart from the normative tax system are tax expenditures. That is, rather than delivering a subsidy for a particular activity or endeavour by way of, for example, a direct grant, the government delivers the subsidy through the tax system. Indeed in both Canada and Australia the governments recognise the importance of this mode of analysis by preparing tax expenditure accounts. Working with these accounts and other tax statistics one can begin to answer several important questions, including how funds expended through the tax system are allocated. Who benefits from these expenditures? And, perhaps more importantly, who does not benefit from them?
In considering this issue, I shall focus on three groups of women, namely women with low incomes, mothers and elderly women, although I recognise that any form of categorisation in this manner is problematic. Many women may fall into more than one of the categories I am employing and their experience is complicated by that fact. Consequently the picture is often more complex than the one that is illustrated by my three examples. Nevertheless, such an approach is a starting point for consideration of womens unequal access to tax subsidies.
Women tend to earn less than men. In Canada in 1997 women with full-time paid jobs earned only 73.4 per cent of what men earned and in Australia the figure was slightly higher at 78 per cent. While women form the majority of those with low incomes in Canada and Australia, it is single mothers and their children who are the poorest of the poor in both Canada and Australia. I believe that both the Canadian and Australian tax systems exacerbate the problem of womens poverty by making tax expenditures, which are apparently gender neutral in their application, either unavailable or inadequate in amount to many women, often by reason of womens poverty.
One general problem is the use of tax deductions or exemptions from income as a mode by which to deliver tax subsidies. To the extent that the tax system provides subsidies in this manner rather than as tax rebates or credits, it discriminates against low income taxpayers. This is because the value of a deduction or exemption is tied to the rate at which the taxpayer is taxed. In other words, a deduction or exemption is worth more in terms of tax dollars saved to the taxpayer who pays tax at a high rate than it is to one who has less income and pays tax at a lower rate. A tax rebate, by contrast, is generally worth the same amount of money to all taxpayers with taxable or assessable income. Tax subsidies delivered as deductions in Australia include, for example, deductions for business and employment related expenses and a myriad of other items including certain education expenses. Women are receiving fewer of these subsidies by reason of their low incomes and yet in many cases they need the subsidy more than those who have higher incomes.
One example of a tax expenditure that affects women differently than men by reason of womens lack of wealth is the preferential tax treatment given to any gain on the disposition of a main residence, such as the family home. This preferential treatment is a huge tax expenditure in both countries and the problem that arises is that more men than women own their own homes and therefore benefit from the main residence exemption. It has been estimated in Canada that only 42 per cent of women owned the dwelling in which they resided compared with 70 per cent of men. The picture is a similar one in Australia. The result is that men benefit more than women from the tax subsidies related to the ownership of ones home. What is especially incongruous about this subsidy is that it goes to the home-owner and there is no subsidy for the renter. Therefore the main residence exemption has an upside down effect. It gives the tax break to the individual who is likely in the stronger economic position; that is, the taxpayer who can afford their own home as opposed to the taxpayer who cannot afford to buy a home and as I have mentioned, women form the majority of that latter group.
Finally, expenses are deductible to the extent that they are incurred in gaining or producing assessable income. But some expenses of particular importance to women are not deductible. One, of course, is the cost of child care. Other expenses that are not deductible are retraining expenses incurred, for example, by women who wish to return to the paid labour force after an absence to have a child. We have the anomalous situation where, for example, a female computer operator who has taken time out of the paid labour force to have a child and who needs to take a course to update her skills in that fast changing environment in order to apply for employment, receives no tax subsidy for that expense. The reason is that her expenses have not been incurred while in an employment situation, even though without the retraining she may not be able to secure a job. Meanwhile an employee who, for example, goes overseas to do a postgraduate degree can deduct not only the cost of the air fares and tuition fees, but may also in some circumstances deduct living expenses. Examples such as these indicate that entitlement to tax subsidies of this nature needs to be rethought.
One of the major problems facing elderly women is the increasing privatisation of the pension or superannuation schemes in both Canada and Australia. Increasingly, in both countries, there is less political pressure to maintain or increase the universal age pension while the trend is towards the granting of greater incentives to save for retirement through occupational and personal pension/superannuation plans. This policy has a particularly adverse impact on women, who rely on the age pension to a greater extent than men (in Australia 2/3 of those who receive the means tested age pension are women) and who, as I shall discuss, have less access to occupational and personal superannuation plans. The result is increasing poverty in old age for many women.
The Canadian Advisory Council on the Status of Women painted a bleak picture of the financial future for women currently in the 45-54 age range in a 1998 report. Their conclusion was that the benefits provided by the two main government pension programs in Canada, the Old Age Security (our equivalent of the Australian Age Pension) and the Canada Pension Plan (a compulsory earnings related plan administered by the government), are inadequate and increasingly women will have to rely on private sources of retirement income such as occupational pension plans, personal pension plans and their personal savings. From what I have read a similar picture is unfolding in Australia with an increasing reliance on the Superannuation Guarantee Charge and other contributions made to occupational super schemes.
While the technical details of the pension system in Canada and the superannuation system in Australia vary somewhat I shall discuss the issues for concern in a general manner and focus on occupational retirement saving, which in Australia encompasses the Superannuation Guarantee Charge and any other contributions that employers may make for their employees to an occupational super plan and in Canada is comprised of the Registered Pension Plan.
What is the tax connection? In both countries the tax system is complicit in the privatisation of retirement saving because significant tax concessions are granted, especially through the vehicle of occupational pension or superannuation plans. That means that income security in retirement is increasingly becoming dependent on participation in the paid labour force. In Canada employers and employees may deduct their contributions to an occupational pension plan and the income earned by funds in the plan is not taxable. For 1998 it is estimated that the value of this preferential tax treatment will be over $12 billion. Taken together with the subsidy for personal pension plans we have the single largest tax expenditure in Canada. In Australia the tax subsidy is given by way of a deduction to employers for contributions to occupational pension plans, the low rate of tax (15 per cent) on the earnings in the plan and the 15 per cent tax rebate to superannuated employees. While the total value of this expenditure is less than the Canadian expenditure it is still significant, running at over $7 billion a year.
The problem that arises from subsidising retirement saving through the tax system is that many are excluded from entitlement and therefore do not benefit from the expenditure. In Canada, only those who work for relatively large employers that are economically able to provide a pension plan will benefit from the preferential tax treatment; those who work part-time, in non-unionised jobs, or for small employers unable to finance these plans, or those who are self-employed or unemployed, do not benefit. In Australia, while mandatory contributions are required by employers, there are still many excluded from the scheme including, among others, those who earn less than $900 a month and those who are employed in the domestic or private sphere, such as nannies. Women are disproportionately represented in the group unable to take advantage of the tax benefits in both countries. For example, women in Canada represent about 70 per cent of part-time workers and in Australia 42 per cent of women in the paid labour force work part time. While women have been entering the workforce in increasing numbers, almost 42 per cent of Canadian women do not participate at all in the paid labour force and in Australia the figure is about 48 per cent. Targeting tax subsidies to participation in the paid labour force in this manner benefits men more than women. Even within the workplace, there are equality issues. A decline in defined benefit schemes in Australia has led to a two tier superannuation system, with employers offering those in management positions more generous super schemes than those available to other workers for whom the minimum 7 per cent contribution has become the benchmark. Again, there is a gender dimension to this issue with twice as many men than women in management positions and therefore receiving greater lump sum payments on retirement, lump sums that have attracted over time a significant tax subsidy.
Neither occupational nor other private pension or superannuation plans are likely to be of any benefit to women who work only in the home and do not participate in the paid labour force. These women do not have access to employment related plans and, with no income, are unlikely to be able to contribute to a personal pension plan in Canada. Both the Canadian and Australian tax systems recognise this problem and attempt to redress it partially by including special rules that apply to spouses. For example, occupational super plans may provide spousal benefits to the spouse of a deceased employee. Similarly, an individual may contribute to a personal pension/super plan in their spouses name.
However, this rule and the provision of survivor spousal benefits are not a total solution to the problems facing women. Tax benefits are being provided to individuals solely on the basis that they are in a particular defined relationship with another person. Single persons and same-sex couples are excluded. Given that there is clear evidence that more women than ever are living alone and fewer women are living in relationships with men, predicating access to subsidised retirement savings on being in a relationship with a man does not do much to alleviate the poverty that many women can expect to experience in old age. To conclude, women are not benefiting to the same extent as men from these tax expenditures and given the increasing need to rely on these tax subsidised occupational pension/super plans because of the decreasing role of the age pension, the future for women is rather bleak unless changes are made.
My final group for consideration with respect to the allocation of tax subsidies is mothers. The non-deductibility of child care expenses in the computation of assessable income has been the subject of much debate in Australia. Technically such expenses are not deductible because they are viewed as private or domestic, and not expenses incurred in gaining or producing assessable income. Before moving on to an analysis of some of the provisions that do give tax relief for child care expenses it is worth noting that for many women, child care expenses are inextricably linked to the production of income. Put simply, without child care they would not be able to participate in the paid labour force.
The deductibility of child care expenses in the computation of business income has been the subject of recent litigation in Canada (Symes v The Queen) where by a majority of 5-2 the Supreme Court of Canada held that these expenses were not deductible as business expenses. Of interest in that case is that the court split on gender lines with all the men sitting on the case finding they were not deductible and the only 2 women on the court holding that they were deductible because, in the words of LHeureux-Dube J, the interpretation of what is a business expense is one that is wrought with male perspective and subjectivity and the concept of business expense should be interpreted in a way that takes into account the realities of businesswomens expenses in relation to child care. Unfortunately I dont have time to discuss this fascinating case in detail but I should add that personally I do not favour a tax deduction for these expenses, and would argue that if tax relief is provided it be by way of a refundable tax credit or rebate.
To return to the Australian scenario. The current tax rules are designed to target employers who either provide child care on the premises or who pay for child care for the children of their employees at an eligible child care centre. These employers receive an exemption from the Fringe Benefits Tax. There are several problems with making this the primary tax relief for child care. First, in the context of the employment relationship, the relief goes to the employer rather than the employee. The theory is that directing tax relief to the employer will be an incentive that will persuade employers to either provide or pay for child care for the children of their employees but, as Stan Ross and Phillip Burgess have pointed out, this incentive has been a notable failure, with only a handful of employers having taken advantage of it.
Another problem is that there is a class dimension to this exemption. As an exemption it is worth more to employers who pay tax at higher rates than others. Therefore the wealthier the employer, the greater the share of the tax subsidy she or he receives. From a practical perspective, giving the tax preference to the employer means that the individual employee must negotiate for this fringe benefit, rather than receive it as of right. Again it is more likely that women who work in management or who have good union representation may benefit. Women who work part time are unlikely to benefit, and women who are self employed and, of course, women who work in the home cannot benefit.
So what is the solution? I would suggest that if we are going to use the tax system to enhance the availability and accessibility of child care, it could be done in a far more effective manner. For example, the Federal Governments Economic and Planning Advisory Committee, Child Care Task Force has recommended a significant reconfiguring of the FBT rules and the introduction of a means tested Child Care Benefit. I would suggest that if the tax system is to be used to subsidise child care that in addition to incentives for employers to provide this service, the subsidy should also be directed to those who need child care. They are the primary caregivers of children which tends to be women and I would argue that the tax relief be in the form of a tax rebate which is worth the same in terms of tax dollars saved to all taxpayers. Furthermore those women who have such low incomes that they do not pay tax should be compensated in a more direct manner or by way of a refundable tax rebate.
That concludes my analysis of womens inadequate access to tax expenditures and I now turn to my final issue, the GST.
What will the impact of the proposed GST be on women and will they be disadvantaged in comparison to men? A lot of numbers have been thrown around during this debate. It is becoming increasingly clear that, despite the early claims by proponents of this tax that no-one would be worse off, this is simply not true. For example ACOSS now argues that a million low income earners will be worse off under the GST, the report by Professors Ann Harding and Neil Warren demonstrates that up to 31 groups will be worse off under the new tax package, with single pensioners and low to middle income families with children being the worst off. Rather than getting into a debate about numbers I want to talk more at the conceptual level. Given that GSTs do not get repealed, the Australian GST is a long term proposition and has to be evaluated as such.
To start with the obvious, a flat rate consumption tax such as the GST is a regressive tax. That is, unlike an income tax, the GST is not based on ability to pay. All consumers pay at the same rate of tax regardless of their income. This means that the cost of a particular transaction is more burdensome for the taxpayer with the low income than the taxpayer with the high income, if that burden is measured by the percentage of income spent on the transaction. Put simply if I earn $20 000 a year and you earn $100 000 a year and we both spend $5000 on a necessity such as groceries and therefore pay $500 in tax, then I have spent 2.5 per cent of my income on the tax while you have only spent 0.5 per cent of your income. Now of course the point is often made that in terms of dollars contributed as tax the wealthy pay more because they spend more, but if we are talking about the impact of the tax in terms of how it may affect the quality of life of an individual, then it is important to note that at the end of the day the burden is greater on low income individuals. As I have already discussed, women tend to earn less and have less capital than men and therefore the cost to them is greater when evaluated by the measure I have just given.
Much has been made of the cuts in personal income tax and how they in fact will compensate for the burden of the GST. I take issue with tax cuts, at least cuts executed in the manner that is proposed in the legislation, as a method of compensation and would prefer to see a refundable tax credit such as we have in Canada. One problem with the proposed tax cuts is that by replacing the 34 and 43 per cent tax rates with a 30 per cent rate and increasing the amount of income that can be earned before the top rate of 47 per cent takes effect, you are in fact flattening the effective tax rates and thereby reducing the progressivity of the tax system, a move which again has a more negative impact on those with middle to low incomes. Even though the introduction of the GST in Canada was not accompanied by income tax cuts, these have occurred since the introduction of the tax, partly because the GST generated more revenue than the government expected. The result is that the Canadian tax mix has shifted inexorably towards more reliance on the flat rate GST rather than progressive income taxes, and I would speculate that the same will happen here. Changing the tax mix in this manner will, for the reasons I mentioned earlier, have an especially negative impact on those with low incomes, the majority of whom are women. A few words about a couple of specific issues in the proposed GST package.
First, rent is to be what is described as an input taxed activity rather than a GST free service and that will be particularly detrimental for women who form the majority of renters. An input taxed service is often referred to as an exempt activity although the term exempt is a bit of a misnomer. Such a transaction does not bear the GST itself, but the provider of the service is not entitled to an input tax credit for the GST she or he has paid prior to the provision of that service. So in the rental context, while renters will not be required to pay GST on their rent, at the same time their landlords will not be able to claim back the tax that they have paid for goods and services related to the renting of the property. What this means is that landlords will merely pass the tax they have paid on to renters in the form of a higher rent. Certainly that has been the Canadian experience with respect to exempt or input taxed activities. A preferable system which would be welcomed by women especially would be to zero rate rent and thereby make it completely GST free.
I now turn to the debate about whether or not to tax basic groceries. In Canada we do not tax basic groceries and that system appears to work well. While there are anomalies around what qualifies for zero rating (or GST free status) from an administrative and practical perspective the system runs smoothly. As time goes by what is taxed what is not taxed becomes clear and computers take care of the administrative issues around the anomalies. Certainly I agree with the many commentators who have illustrated how taxing food adds to the regressive impact of the GST which will particularly disadvantage those with low incomes.
In conclusion, I have tried today to give you some insights into the impact of our current tax policies on women. I think you can see that our respective governments need to think more carefully about the consequences of tax policy. Instead of merely focussing on the tax system as a revenue raising instrument we need to view the system as a tool by which income is redistributed and, perhaps most importantly, as one of the primary instruments we use to fund our social and economic programs. Once we do that, then we can ask the important questions of whether it is accomplishing these tasks in a fair manner. My underlying theme tonight has been equality, and an examination of how our current tax systems violate that concept. As my colleague Joel Bakan puts it, equality entails the elimination of major disparities in peoples material resources, well-being, opportunities, and political and social power. Unfortunately, as I have demonstrated tonight, our tax systems currently contribute to and reinforce many of those disparities for women.