A Simple Fix For Negative Gearing

There is a simple way to remove the taxpayer subsidised market distortions of negative gearing of property investments: allow losses to be carried forward, but not offset against other income, such as wages.

For example, suppose someone has an investment property which earns $25,000 pa rent and has interest costs of $30,000 pa, plus other costs of $5,000 pa. The investment is making an accounting loss of $10,000 pa. The current law allows the investor to deduct this $10,000 loss from their salary (or other) income in their yearly tax return. For high income earners ie. those earning above $180,000, this $10,000 deduction saves $4,900 in tax.

The alternative is that the $10,000 would not be allowed to be deducted from salary or other income. Rather, it could be carried forward to future years and only deducted from future property investment income. A modification would be to class all income producing investments eg. property, bonds, equities as being of the same type and allow income and expenses (including interest) to be combined within this class. This effectively allows investment property to be negatively geared only against profit generating investments in that class.

This is not an unusual or radical solution: in fact it is the current norm in tax law.

The underlying principle is that losses can only be claimed as deductions if a business intends to make a profit. It is understood that businesses may have several years of losses in their start up phase, or in difficult market conditions. However, the goal of the business should be to grow revenue and eventually become profitable.

The Australian Tax Office does not allow “non-commercial losses” to be offset against other income. That means a business activity must be structured with the intent of being, or at least becoming profitable. Deductions for losses derived from “hobby businesses” or structures designed to run at a loss through cross invoicing, transfer pricing or similar are disallowed. The circumstances and tests for allowable deductions are listed on the ATO website.

The rules around offsetting losses from one business activity against profits from another are part of Division 35 of the Income Tax Assessment Act. They essentially boil down to whether or not the business activities are deemed separate or substantially similar. For example, a winery with its own restaurant would be considered similar business activities, so if the restaurant made a loss, that could be deducted from winery profits. A car repair business which bought a florist could not offset losses of the florist against profits of the other, because those would be considered separate business activities.

In the latter example, the losses of the florist would be carried forward and only offset against future profits of the florist business.

This is exactly the rule I am proposing for property investment. Investing in property (and other tradable financial instruments) is clearly a separate business activity from most people’s wage generating employment. Thus, it should be treated according to the existing tax rules for separate business activities.

The problem with negative gearing is that the property investment is deliberately structured to make a loss. When the current portfolio begins to generate positive cash flow, more property is purchased to re-establish the negative gearing. Thus, those deliberately generated losses should be carried forward and offset against future investment profits, not deducted from salary income and subsidised by the taxpayer.

A meaningful effect of this change in policy would be to force property investors to pursue strategies designed to eventually return significant profits, or else the losses carried forward will not be able to be used. Note that this does not prevent investors from negative gearing: it requires them to make investment profits to deduct those losses. After becoming cash flow positive, an investor could add another negatively geared property into the portfolio, reducing profits or even creating an accounting loss, which would be carried forward to future financial years.

This simple change in policy brings the tax treatment of property investment into line with that of other asset classes. Disallowing negative gearing against salary income will cause some investors to have a lower price ceiling, however those with existing, cash flow positive portfolios will not have their strategies or price ceilings materially affected.

Contrary to self serving, dishonest and hysterical claims that restricting negative gearing could cause property prices to crash, the downward pressure on prices through decrease in demand will be modest, certainly smaller that the effect of a couple of interest rate hikes, when they eventually happen. There will not be waves of forced sales because there will not be waves of investor defaults. After the lessons of the GFC, banks will certainly not do any forcing based on lower debt coverage ratios alone.

With the property market severely overheated in most capital cities due to chronic undersupply, interest rates at historic lows and forward rates expecting further falls, this is probably the best time we’ll get to make sensible changes to negative gearing.

Coupled with the gradual, longer term effect of more investment in public housing, this change to negative gearing will help control the excessive growth of Australian capital city property prices, which has been fuelled by low interest rates, undersupply and high immigration of money. Additionally, after causing initial hardship to those currently in negatively geared positions, it will lead to decreased risk in investors’ positions and thus lower credit risk and capital charges for lenders.