High earner's tax restriction stunting growth of forestry

William Merivale

October 15 2013 04:02 AM

With Budget 2014 today, forest owners should have been lobbying their TDs and the Department of Finance over the last few weeks in order to secure some much-needed revisions to the current tax rules on forestry income.

For many years now, the relevant section of the Finance Act has decreed that "income arising from the occupation of woodlands managed on a commercial basis and with a view to the realisation of profits is exempt from income tax".

However, this is no longer the full story because, while this wording remains, a "high earner's income restriction" was introduced in the Finance Act of 2006.

With subsequent amendments in the ensuing years, as the law now stands the exemption from forestry is restricted to a limit of €80,000 per annum for an individual where his total income exceeds €125,000.

The rules mean that when a forestry plantation matures (once every 35-40 years), the owner of even a small area of forest will be deemed to be a "high earner".

He will therefore be liable to tax on the profits achieved after many lean years while the crop has been growing. For a great many owners, the final harvest of their forest will be a once in a lifetime event, moreover the prospect of a tax free lump sum was one of the significant attractions of investing in forestry in the first place.

At the very least the doctrine of "legitimate expectation", while not yet tested in the Courts, would appear to apply.

The idea behind the high earner's income restriction was straightforward enough.

It was designed to restrict the extent to which wealthy individuals could invest in forestry to avoid paying tax to the exchequer.

However, it also meant that the income from the occupation of woodlands that had accrued over a long period, and to individuals who would not be regarded normally as high earners, would become taxable.

This was surely an unintended consequence, and one presumably resulting from an inadequate grasp of the unique nature of forestry.

INCOME

The annual growth of a crop of trees is effectively "income" to the owner, it just isn't realised in the form of cash until the crop is harvested. 40 years of growth are compressed into a single tax year.

Moreover, while a farmer may avail of income averaging over three years for his normal agricultural activities, not even this provision is available to his forestry income, even where the two operations are run side by side.

This anomaly is downright bizarre given that income from forestry is still more sporadic and uncertain than that from normal farming, and of course is over a significantly longer time frame.

Equally bizarrely, an internal review of tax schemes conducted by the Department of Finance in 2006 and a Commission on Taxation Report published in 2009 both recommended that the exemptions relating to forestry be continued but the minister at the time rejected the advice.

In late 2012, after concerted lobbying by key industry organisations, the then Minister for Forestry Shane McEntee gave every indication of being in full agreement.

Before his untimely death he appeared to be making some positive progress in bringing the government around to a more equitable way of thinking. His successor Minister Tom Hayes has likewise been fully briefed on the situation and it is to be hoped that he too can convince the cabinet, and in particular Minister Noonan, to accept that forestry is indeed a special case.

The Irish Timber Growers Association (ITGA) has delivered a detailed submission to Minister Noonan outlining the industry's reasons for arguing that the high earner's income restriction.

According to Donal Whelan, Technical Director of the ITGA, in addition to the impact on individual forest owners, there are significant concerns of national importance.

Mr Whelan said the current taxation provisions did not recognise the timing of income from commercial woodlands.

As a result, the application of the 2006 Finance Act to forestry acts as a disincentive for the achievement of national policy objectives.

He maintained that it acted as a disincentive to afforestation and threatened the consistent production of consistent roundwood to the industry.

This would have a knock-on negative effect on employment, exports and Ireland's chances of meeting our renewable energy targets. It would also act a disincentive to achieving future climate change mitigation through forestry.

ITGA points out that the high earner's income restriction inadvertently impacts on ordinary forest owners who are neither high net worth individuals nor high earners.

The association has recommended that Minister Coveney implement the recommendations of the review of tax schemes (Department of Finance, 2006 and the Commission on Taxation Report, 2009).

It also wants forestry income to be excluded from the high earner's income restrictions or, alternatively, extend income averaging, as available to farmers, to forestry and for a longer timeframe.

The average farm forest holding is 8 to 9 hectares. As things stand, the harvest of a forest of this size could potentially bring its owner into the high earner's net so it follows that the current taxation provisions may have an impact on the majority of forest owners.

All owners should be aware of this and add their voices to the growing number lobbying for change.

William Merivale is national secretary of PEFC Ireland and a forestry consultant based in Cork. Email: william@cjandco.net