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Oxfam has organised a letter, signed by over 300 economists, calling for a crack-down on tax avoidance.

But what of Oxfam’s own tax practices?  Some of them look remarkably like tax avoidance.

One of Oxfam’s tax planning vehicles is Oxfam Activities Ltd, which enables it to avoid tax on the profits of its £15 million trading operations.

While it is commonly assumed that charities are exempt from tax, that is not actually the case.  Although they are exempt from tax on certain types of income (from donations, rent or investments), the profits they make on business or “trading” operations are taxable, except in specific circumstances. By setting out the very limited circumstances in which trading profits are exempt (see section 524 of the Income Taxes Act 2007), Parliament made it very clear that it intends charities’ other business income to be taxable.

The reaction of Oxfam, and most of the other charities, has been to run their business operations through a separate company.  That company would be taxable on its profits, but it donates all its profits to its parent charity through the “Gift Aid” scheme, which exempts them from tax.

This fits the standard definition of tax avoidance – an artificial structure (separating out some of the charity’s activities into a separate legal entity) that gives it a tax advantage.

Of course I do not think there is anything wrong with Oxfam doing this; like all good tax avoidance it is perfectly legal and it is an ingenious way to escape a tax liability.  But should Oxfam really be criticising other businesses for avoiding taxes when it does just that with its own?

Oxfam’s second, tax avoidance is its “Tag your Bag” scheme, which its website says allows people to “Gift Aid your donated goods”. Well, it doesn’t. You can’t Gift Aid donated goods; the “Tag your Bag” scheme is actually a sophisticated piece of tax avoidance that allows charities including Oxfam to claim £80 million a year in tax relief from the government.

Gift Aid for donations to charities by individuals allows the charity to claim 25% of the amount of the donation from the government as tax relief, despite the charity not having paid any tax (and it allows the donor to claim extra tax relief if they are higher rate taxpayers).  It is a hugely valuable tax break for charities.  But there is a problem – it only works for cash donations (and a few donations of investments), it doesn’t work for goods donated to a charity shop, neither when they are given (because they aren’t cash) nor when they are sold (because the money then is not a donation, it is to buy the goods).

Again, this is clear in the law – section 416 of the Income Taxes Act makes one of the conditions to claim Gift Aid that “the gift takes the form of a payment of a sum of money.“  Parliament has clearly excluded donations of goods from the Gift Aid scheme.

Despite the law, several major charities have therefore developed schemes to try to make donations of goods look like donations of cash, so that they can claim the Gift Aid tax relief on them.  These work as follows:

  1. the donor does not give the goods to the charity; instead he keeps ownership of them and the charity sells them on his behalf;

  2. once the charity has sold the goods, it contacts the donor to say that they have done so and asks him to donate the money to the charity (i.e. to allow the charity to keep the sale proceeds);

  3. the charity then classes this as a cash donation of the sale proceeds, and claims 25% tax relief on it under the Gift Aid scheme.

Is this legal?  Yes. Is it tax avoidance? Yes, clearly. Let us compare it to what we generally regard as tax avoidance schemes.

First, Oxfam and the other charities are setting up an artificial structure in order to gain a tax advantage. The ‘normal’ transaction would be for the donors to donate goods to Oxfam, so that Oxfam can sell the goods and keep the profit. Changing this so that the goods remain the property of the ‘donor’, with the charity shop selling them on his behalf, is an arrangement entered into purely to allow Oxfam to claim the Gift Aid tax relief.

Second, although the scheme may be legally correct, in many cases it is highly doubtful that the legal structure accurately reflects the commercial activity. Does the ‘donor’ really think that they are keeping ownership of the goods until they are sold, and then making a separate donation? In many cases they probably consider that they have given the goods to Oxfam at the point they hand them over in the shop. This increases the artificial nature of the scheme.

Third, the scheme uses what looks like manipulated pricing to maximise the charity’s Gift Aid claim.  When the goods are sold by the charity, theoretically on behalf of the donor, the charity has to charge a commission. That commission does not qualify for the Gift Aid tax relief, because it is a payment for services rather than a donation. It is therefore in the charity’s interest to minimise that commission, so as to maximise its Gift Aid claim, and Oxfam charges just 3%.  Is 3% a realistic commission?  By way of comparison, ebay charges 10% commission provides only a web platform and makes the seller do most of the work; 3% commission to be able to sell goods through a staffed high street shop is extremely cheap and I find it difficult to imagine that Oxfam would agree to that unless it was pretty certain that it would be allowed to keep all the money, not just the 3% (and it is pretty certain; a study found that over 99.9% of donors using similar schemes allow the charity to keep all the sale proceeds).

This use of artificial transfer pricing to gain a tax advantage is the sort of thing that various charities have condemned when used by commercial businesses; it weakens their position to be using the same techniques themselves.

Fourth, these schemes are strongly marketed by the charity, a feature that can be seen as a sign of aggressive tax avoidance. Oxfam last year advertised for a salaried Head of Tax and Treasury, one of whose functions was to identify “opportunities to increase income” from Gift Aid (according to the job description, the post holder is also responsible for Oxfam’s “tax planning”).

Moreover Oxfam has linked their scheme to Nectar, allowing donors to claim Nectar points on goods but only if done so through its “Tag your Bag” scheme to allow Oxfam to claim Gift Aid tax relief.

Again, all of this is perfectly legal and there is absolutely nothing wrong with legal tax avoidance – or at least so I believe. Just as business done through tax havens is perfectly legal (except perhaps for occasional errors, which those involved carefully seek to eliminate) and there is nothing wrong with it. But that is not Oxfam’s view; it is a strange philosophy that condemns actions in others whilst busily engaging in them oneself.

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