ATO Slugs Gordon Merchant $50 Million
Billabong co-founder Gordon Merchant has been slugged $50 million by the Australian Taxation Office to settle outstanding taxes.
The bill largely represents the tax from a company, Plantic Technology, that Merchant sold for $111 million in 2015. Acting on advice from accounting firm EY, Merchant set up a complex scheme of inter-company borrowings, debt forgiveness, and other transactions that significantly reduced the actual profits earned on the sale of Plantic Technologies.
The ATO later traced the web of deceit, calculating the actual cost, then instigating legal action.
In his Federal Court judgement, Justice Thomas Thawley concluded that, “Mr Merchant’s participation in the [Billabong share sale] transaction was undertaken because it was recommended to him by EY as part of what EY considered desirable for the structure of the anticipated sale of shares in Plantic.”
In particular, because [it] would crystallise a capital loss which could be used against the capital gain which was anticipated to be higher by reason of the proposed forgiveness of the Plantic Loans."
Merchant's tax bill came to $43.5 million, with the Federal Court issuing a $6.8 million fine on top.
It's not the end of the matter, however, with Merchant now suing EY for bad advice.
Along with his then-wife Rena, Gordon Merchant started Billabong in 1973, guiding it through multiple surf booms, onto the sharemarket where it became, for a time, the world's largest surfwear company, before a sudden descent, passing through the hands of venture capitalists, private equity, and ultimately ending up at Boardriders Incproviding a cautionary tale for other aspiring surf brands.
Comments
Love the tagline, I nearly spat my lunch across the room!
Cause I'm the taxman
Yeah I'm the taxman
Kerry saying it like it is.......
Kerry was referring to legally minimizing tax. Obviously this did not apply to Merchant, whose accountant appeared to break the rules, according to the Court.
Ah, ok. Are you telling me Gordon had no interest in minimising his tax? As Kerry said, you'd be mad.
I don't make unsubstantiated allegations against Gordon. I'm not in the business of slander. It is possible Gordon did not know what his tax agent did was illegal. I posted a large post elsewhere. In summary, if the 10 million Billabong shares were sold to a unrelated 3rd party; rather than sold/transferred to one of Gordon's related companies; this problem would have never occurred and Gordon could have LEGALLY minimized his tax by $50 million.
Yeah right and pigs fly......really truly I didn't know...see no evil, hear to evil...turned a blind eye.
I don’t know the guy or any of the specifics but…
I’m not sure he could have had any idea if legal or not. The legislation is way too complex and those accounting firms like EY as crook as they come steal info from the government then give to the multinationals. At the end of the day it should be the accountants at EY the professionals he paid that get slugged.
I don't know Gordon other than to say g'day when I bump into him during a surf check, but I know whenever I submit my tax returns, I sign a form with my accountant basically saying that everything I have provided is true and correct and I understand everything that my agent/accountant is submitting. We talk regularly enough.
This is purely my assumption, but Gordon is a shit tonne wealthier than I am and has run an extremely successful business all his life. Fucken good on him I say. But you can't tell me that over the years he isn't in constant communication with his accountant knowing the the ins and outs of his dealings and that his accountant did the dodgy with the potential of costing him tens of millions without his knowledge. To me, that is just laughable and no doubt the ATO agree.
The accountant has no professional responsibility? Maybe they just sucked at their job?
Fitzroy-21. Hi.. Hope you’re well.
Hard to disagree with KP’s quote , love the last line he said.
Apparently he was a very difficult man to negotiate with on anything.AW
Looks like Gordy got some new chompers with his cashola
Good news he burned a lot of Mums and Dads investors so deserves his come uppence
Billabong was an ASX listed company. Similar to Surf Stitch, Billabong released financial reports to the public every six months. If mums & dads are unable to read & comprehend these financial reports, they should not be investing in the share market. Billabong became fairly overvalued (PE ratio of 22) and those with basic knowledge would have taken their profits. I started investing in shares at the time Billabong reached its peak in share price. I chose to avoid it. Its PE ratio in 2007 was 22, which was fairly expensive; even though at the time BBG forecast 15% growth for the next year. Ultimately, BBG got flogged by the GFC then it appears a change of fashion trends. I doubt Gordon can be blamed for this.
Exactly !
Yep I too concur!
Yeah - fashion more like fad? Just shit from China like everybody else people only keep buying the same crap for so long this was entirely predictable. I went to NY during this time and surf crap was everywhere which I thought was crazy and unsustainable.
I don’t have those money problems lol….
... I’ve taken a vow of surfer poverty….I live in rags but have very nice boards….
…Work to live not live to work….my rich friends spend half their lives guarding their wealth…..I couldn’t be bothered ….just buy a nice little home anywhere and get some good boards.
sounds cool!
& get some good barrels...
@Optimist. Hi mate.
Thats one of the best statements you’ve made all year . Right on the mark, be happy with what you have and don’t be unhappy with what you haven’t got.
Good salient advice. Less is more, I think. AW
Selfish greedy scum!
Lol Nelson....classic.
I can hear him now !
I hope his main claim against EY is that he had to pay the right amount of tax in the end, would be funny to watch
i made a large post elsewhere. The $50M in tax could have actually been legally avoided. This is the irony here.
Post it here so I can read it !
The funny thing about alot of super rich people is they constantly think they are always right.....so funny.
Still Greasy then
So if someone owes the taxman that much, why aren't they in the clink?
Does that mean we can squat at his Angas digs?
I am not sure on the specifics here but seems like everyone is playing the man not the system. Our tax and multinational tax laws are way to complex the number of enormous corporations that do not pay tax is laughable. Maybe that’s why when someone who gets called out gets a visceral response. Vote for parties that are going to change the tax system
He always seems a nice fella to talk to and surf with though. If money is his thing then good for him..Taxman hits hard, I was paying near 50% weekly under Keating working 60 hours a week….some weeks 51%….they took more than I got… woke up to myself…pulled right back….enjoy life …seize the day but don’t bludge.
Well I suppose if we returned some equity to the company tax rates or nationalised our natural resource and utility industries we wouldn't have to pay tax, and education, health care, public transport etc etc would be free. Works quite well in the Nordic nations, but here, ahh, Lab and Libs flogged it all in the name of micro economic bullshit.
100% this
100% this
The Burleigh boys reckon he still has the first dollar he made. Notoriously tight as a fish's arse, unless you're Occy. Time to pay the piper, like most uber-wealthy he's probably paid less tax than the average punter
Brutal scam.......
Without knowing the exact details, my impression is they ended up having to pay the $50M or a large part of it UNNECESSARILY. What appears to have occurred is while Billabong (BBG) shares were at rock bottom (around 58 cent share price; where they remained close to until the eventual Seppo buy out at $1.05) they decided to sell a parcel of shares purchased at a high price (around $6.24 per share; Merchant often bought BBG shares on-market and in capital raisings) crystallizing a capital loss of around $5.66 per share or $56.6 million. If the shares were sold to a 3rd party then Merchant would have crystallized a VALID/LEGAL $56.6M capital loss; which he could have LEGALLY offset against the sale of his shares in Plantic. But, instead of selling the parcel of BBG shares to an unrelated third party, the BBG shares were sold to a related company, I guess with the hope the BBG share price would resurrect in the future; like Jesus Christ resurrecting from the dead. This sale to a related party can be deemed a WASH SALE TRANSACTION under Part IVA and if so is ILLEGAL. The resurrection of the BBG share price never came to fruition and the relevant BBG shares were eventually sold to the eventual final Seppo acquirer for $1.05, making a small/trivial profit/gain of around 47 cents per share or $4.7 million for Merchant; which was a trivial gain compared to the $56.6 million capital loss that was declared to be illegal and thus foregone. As said, if those 10 million BBG shares were sold to a third (unrelated) party thus disposed of forever, Merchant could have kept the $56.6 million capital loss to offset his $85 million in capital gains from the $111 million sale of Plantic Technologies. In addition, there was a "Debt Forgiveness" issue, which I'm not sure what happened here, but the forgiveness of debts owned by Plantic causes the CGT cost base of Plantic to be reduced, meaning the capital gain from the sale of Plantic becomes larger. But the main issue appeared to be the alleged WASH SALE TRANSACTION of BBG shares to Merchant's related company. On the surface, this matter appears very straightforward, if it happened to be as I am describing. Basically every reasonable tax professional knows what Part IVA of the ITAA 1936 is and that SHARE WASH SALES ARE ILLEGAL (even though they are not often enforced by the ATO; which basically every senior tax professional also knows). The 1953 Tax Administration Act says Merchant can sue his tax advisor in a court of law. Obviously Merchant needs to demonstrate he was oblivious to the concept & illegality of SHARE WASH SALES and/or oblivious that the relevant BBG sale transaction to his related company could be a SHARE WASH SALE.
https://en.wikipedia.org/wiki/Paragraph
Brilliant
@ Sprout, I was taught in English to never start a paragraph with and or but or because.
I've known this fact for over thirty years.
Nice one at sprout.
A simple example of a common SHARE WASH SALE is when the average punter has bought some shares, which are later making a loss on market, and the punter sells the shares usually towards 30 June to crystallize a capital loss (for that or future financial years) they can use to offset current or future capital gains. Then soon after, the punter buys back the same amount of the same shares soon after selling them.
https://www.ato.gov.au/media-centre/wash-sales-the-ato-is-cleaning-up-di...
nicely said BarbB definately makes for interesting reading
thanks. I'm glad my post was understood.
Thanks BB, explains why some get greedy & greasy dancing with gray laws in their resorts & courts.
Most of the dirty money is washed offshore... & then flood$ the property market in Oz and elsewhere gray laws allow.
eg Samoa; before 2017
Australia.... today
laundry lint
Plato, 'We can tell how corrupt a State is by the number of laws it has'.
I'm gonna add more here because my mind has had to process this (while doing laps in a pool). While WASH SALE transactions have been deemed to be illegal under a general catch-all legislation called Part IVA, wash sales are not inherently tax avoidance. Wash sales merely postpone tax payable to future financial years. There are many tax provisions that legally allow businesses (Gordon Merchant is not a "business" here) to postpone payments of tax, such as accelerated depreciation provisions the mega companies like BHP use or end of year trading stock valuation provisions for any trading business. While I do not know the exact details, what has probably happened in Gordon Merchant's case is the $56.6M capital loss was disallowed for the 2015 financial year; resulting in Merchant requiring to pay more tax on the sale of/capital gain on Plantic in/for 2015 financial year. However, Gordan Merchant still made a capital loss on the sale of those (assumed) $6.25 shares when they were later sold at $1.05 in the 2018 financial year final sale of all Billabong shares to the Seppos. Therefore, of the $56.6M capital loss disallowed for 2015; $52M of this capital loss would have been available for use in 2018. In other words, I guess the following principle will apply: (i) the $56.6M capital loss is removed from the 2015 tax return; and (ii) a $52M capital loss is applied to the 2018 tax return. While I doubt Merchant made a loss on the sale off all of his remaining shares sold to the Seppos in 2018 (I could work it out using ASX documents but I won't); if there was an overall capital loss for 2018; this capital loss remains in the tax returns in any future years until it is offset by a capital gain and I guess Merchant would have investments to sell that can be offset by the capital loss. In summary, Merchant probably has not greatly avoided tax nor greatly been required to pay extra tax. Dependent on what Merchant lodged in his 2018 tax return, much of this matter is probably simply a "timing" issue. As said, the tax payable for 2015 has now been increased yet any tax payable for 2018 will probably be reduced (by the amendment of the 2018 tax return).
However, how the "Debt Forgiveness" issue affected the tax returns, I cannot speculate on.
Love that call Optimist
How ironic, Australian university accounting faculties are funded by the Commonwealth to train accountants how to instruct corporations to evade and avoid paying Commonwealth taxation revenue. And all the while gladly accepting sponsorship from the big accounting firms.
..................
I guess too much is never enough.
Hard to have sympathy when it becomes "their precious".
$50 mil is hardly going to bankrupt the bloke though.
He's still worth a lot more than that isn't he?
Still going to sting a bit, I've heard he is a bit of a tight bugger.
Suing EY sounds very expensive, so if he does that, I'm assuming he believed everything was above board at the time.
he's worth half a billion I reckon, @ts, so, 10% of his wealth..
Once you have the big houses,all the cars, trips overseas,what's the point of it all?seems like a headache managing all that money.
We are all getting screwed here in this country if you are a wages & salary earner by the ATO. However if you are a multinational mining or gas company you pay NO TAX & get govt. assistance to the tune of BILLIONS of $$$. Last year alone the gas companies made 93 billion$$$ off our resources in exports & didn't pay 1cent in TAX! Once this non renewable resource is gone it's gone & we the people are getting nothing in return. WTF is going on??? We should be one of the wealthiest nations in the world with the amount of natural resouces we have, instead both major parties allow us & our children to suffer, paying ridiculous prices for child care, higher education, housing, energy, etc, etc, etc! The time for change has come, lets get rid of these organised criminals in Govt. & get a system that is for the people not for corrupt politicians on the take from these blood sucking fossil fuel multinationals. As for Gordon, you reap what you sew!
It's been going on here for a very, very long time Greg.
https://en.wikipedia.org/wiki/New_South_Wales_Corps
Too right.
We all got sucked in that we are the "Lucky Country" but in fact we are the "Dumbest Country" for letting this happen
Nah Rocky, dumb maybe but what I saw and experienced in the last two weeks, Oz is still the lucky country.
For how much longer I guess is the real question.
Your probably right
my last 2 weeks has been awesome too as has my last 60 years but how good a country would we be if we used our natural resources as a safety net for those who havent been so lucky.
The Scandys do a good job of it.
Can't argue with that mate. I still reckon being born Aussie is a winning lottery ticket.
I'm kinda of the mindset to not bring people down but to raise people up. That's where the Scandanavians excel.
Very much so, Zen. We’re doing our best to throw it away but still incredibly lucky.
A lucky country run mainly by second rate people who share its luck.
If you are getting your info from The Greens, I personally wouldn't trust it. During the 2023 financial year, BHP paid $10 billion in tax & royalties in relation to $65 billion in revenue and $33 billion in profit before tax. Similarly, Woodside (oil & gas) paid $1.5 billion in tax on $17 billion in revenue and $3.3 billion profit before tax. Take care with The Greens and anyone that pushed the fake vaxx narrative.
Woodside annual report: https://announcements.asx.com.au/asxpdf/20240227/pdf/060vnzhhc6whv1.pdf
BHP annual report: https://announcements.asx.com.au/asxpdf/20230822/pdf/05sw6qdr7hxk4n.pdf
"What we have is a handful of the largest, most powerful multinational companies in the world operating in Australia in a manner in which they've arranged their tax affairs simply to minimise their tax income in this country."
Senate report to Lib Govt in 2015 had 18 recommendations including
"The worst tax offenders should be named and shamed,"
reference
https://www.abc.net.au/news/2015-08-17/multinational-tax-avoiders-could-...
In 2016, ATO Commissioner put large corporates and their advisers on notice. ATO get additional funding to focus of big business tax avoidance schemes
https://www.anao.gov.au/work/performance-audit/tax-avoidance-taskforce-m...
In 2023, ATO 'negotiated' tax settlements are increasing.. & admits
"in the global tax landscape, the minimum tax rate under the rules is only 15%, half the rate faced by large corporates in Australia. With various forms of concessions permitted under the regime to encourage local business activity, even that 15% may not be payable. "
https://www.ato.gov.au/media-centre/navigating-economic-uncertainty---fi...
2018; BHP finally coughs up 15 years of unpaid taxes
https://www.abc.net.au/news/2018-11-19/bhp-settles-ato-dispute-for-$529-million-without-admitting-fault/10511924
It’s not about BHP, Barbb. They are genuine taxpayers.
Greens are on to it. You’d be a fool to dismiss their stuff just because it came from the greens.
Woodside, Glencore, Santos and a host of other companies have ripped $100B’s paying minimal or no tax.
Look no further than your own figures. A company generates $17B in revenue and declares $3.3B in profit.
That is one shit business. If you believe annual reports reflect what is going on rather than what they can get away with then swallowing what the Greens put out is a piece of cake.
Might want to ask yourself why they are paying more than the 30% company tax rate too. Also based on your figures above.
I'll have a look later but its all obviously legal. I'm sitting in a hospital ward. There are generally advanced depreciation provisions that allow them to deduct capital expenses in a greater quantum earlier. I don't necessarily agree with these advanced depreciation rules. But in essence they are postponing tax rather than avoiding tax. The problem is they keep investing in new projects thus the depreciation deductions look never ending.
Oh, I know more than the average Green about tax and most things.
Firstly, BHP are in different industries to Woodside; where the profit margins are different. For example, BHP dig up iron ore for around $20 per tonne and sell it depending on the fluctuating prices for $90 to $200 per tonne. Its in the annual report if you look or do the math. I doubt oil & gas have the same profit margins as iron core, coal & copper.
If we start with depreciation, BHP claimed $5 billion vs Woodside $4 billion. Therefore, even though the Woodwide revenue was 50% of BHP, the depreciation was nearly the same. This shows BHP are producing from older assets or lower cost assets and Woodside are producing for newer or higher cost assets. Obviously digging up, sorting & shipping iron ore is lower capital intensity than building offshore oil & gas platforms and all the piping and LNG processing. Woodside are obviously in newer industries, such as LNG and their massive plants up in NW WA.
In addition, Woodside had $2 billion in impairments vs BHP close to zero. Again, BHP using old reliable assets and Woodside having to write off loss in value in some new investment that has not worked out optimally,
Example of WA Iron Ore BHP. Produced 252Mt of iron ore, revenue US$25 billion and EBITDA US$17B. This equates to revenue of US$99/t and total operating costs of US$32/t. Gross profit margin of 200%.
.......
....
The Greens give the impression of picking on Woodside & Santos because these companies are oil & gas producers. The Greens don't pick on BHP because they want their iron ore & copper & nickel luxuries.
Woodside paid $3 billion in income tax in 2023 for the previous year and paid $1.2 billion for the year before that. Woodside are paying tax. Its in the financial statements, particularly the cash flow report.
The biggest companies in the world laugh at Australia. They only pay tax on less than 5% of their revenue. Last year 2023 google had revenue of $2 billion in Australia paid tax of $97 million. Yeah niiice
https://amp.smh.com.au/politics/federal/some-tech-giants-claim-as-little...
Democracy or mediocrity, its our choice... in Oz
"Each democracy is unique and works in different ways. In Australia, citizens choose representatives to make decisions on their behalf (this is called a ‘representative democracy’)."
"What are the values of democracy?"
"There are five key values of democracy:
Respect for individuals and their right to make their own choices.
Tolerance of differences and opposing ideas. +$
Equity—valuing all people and supporting them to reach their full potential. <$
Each person has freedom of speech, association, movement and freedom of belief. <$
Justice—treating everyone fairly in society ......and in court" : ) ?,,?,,? !,!,! +$+$+$ !!!......wtf!!!
reference
https://www.aph.gov.au/About_Parliament/House_of_Representatives/About_t...
I worked for Gordon on one of his houses on Oahu on and off over a couple of years . Always very stoic but full of good advice and had life sorted out pretty well the way I saw it . He always made sure he was getting his moneys worth , even doing the site clean ups himself ( making sure nothing was wasted) ,good bloke in general, still very much a surfer at heart . Sick quiver room full of eric arakawas and dahlbergs. I had offstreet parking for himalayas and lanis area thanks to that job (onya Steinke!) and still cant believe how lucky i was. Dont know about his business side of life other than creating billabong but if everyone here pays all their tax I.d be very surprised .
Maybe this will make him re think his Yamba development ?
Then he might be allowed to Surf the point again!
Sometimes enough is enough!
That judge is a tax specialist, so don't love his chances on appeal. That's a big chunk of cash.
Looking beyond the present issue, surfing has been changed, and surfers 'groomed', for decades by the big surfwear brands, increasingly since the early 1980s when the goldrush really began. That includes Billabong - the mass commercialization they engendered to sell product has helped create the millions of surfers now crowding many breaks, particularly those popularized by media, globally. It has also, because of the reliance on petrochemicals, created a pollution 'paradox' for our 'clean green 100% pure' (borrowed from NZ's spindoctors) image. It's difficult to imagine any other trajectory, but thinking about other recent swellnet posts, I wonder how many of those 'searchers' out there living the dream on charter boats and surf camps / luxury resorts realize, while enjoying an evening bintang, that their wastes are ending up, either directly or indirectly, in the very ocean they love? And thence, via microplastics and other vectors, back into their own bodies and those of future generations. I'm guessing more people every day as our collective dilemma becomes ever more clear. Of course the surf media (not finger-pointing at swellnet here) have been complicit in selling the dream. The crazed over-development of Bali's Bukit is just another example, not entirely attributable to surfers, but we played a seminal role. Of course it's not just surfing. Indeed the surfwear playbook was borrowed from other professional sports, and our human footprint here on earth is far far greater than that of surfers, although we do 'punch above our weight'. But back to Billabong, several previous posts have considered how our tax system 'works' or doesn't for average punters, among other related social and environmental justice issues. It's good to see these issues being discussed on a surf website.
Lots of views in there Lindo, mostly pretty gloomy and I like them! Personally I think first-world moneyed surf tourism and all that's associated with it, and all that's come from it, stinks. It was also inevitable.
If it wasn't surfing it would've been something else that eventually fcked over so many beautiful islands and low key local economies. That's humans for ya! Just think, it we got such a rush from say ten pin bowling (random) and surfing was ho hum blah, all of Indo would be trashed by now with indoor bowling centres. Mountain bowling retreats, floating bowling retreats... Russian chicks bowling everywhere..
PS: I don't like bowling, that was just first thing to mind.
Cheers Greebs, I'm a realist with an incurable optimist streak, and take the very long term view. Channeling my inner chauvinist, I'd enjoy seeing Russian chicks bowling, although I doubt they'd top these guys:
For a minute there I thought Vic Local was back .
Us nice guys reassure there is no room in here for swellnet chauvinist's long term views...
[ factcheck ] Hot Eccentric Sporty Russian Chix write-off Bowling Lane Art Galleries in their Basements.
Official ATP Umpire's Overrule clearly states...
Can't keep Ball Boys locked up in yer basement so ya can legitimately claim for a ball return Art Gallery!
[0:07] Taxman is Auditing her shit hot $Gazillion Vintage KASEBERGA Skateboard...OMG! Quit drooling!
I can reduce any share price ! I buy shares they crash sure as shit ..Im like the opposite to Renai Rivkin ..Maybe i could ring the company and suggest it would be benificial for your company to pay me to not buy shares ..
“Mr Merchant’s participation in the [Billabong share sale] transaction was undertaken because it was recommended to him by EY..."
Yes its good to make sure you're not paying tax you dont need to...but seriously?
I cant stand it. Ask the mob if they like paying tax - the mob cries "NO!!!!"
Ask them do they like nice shiny new hospitals and police that turn up to stop crime, and good roads - the mob cries 'YES!!!! That's our RIGHT!!!!"
Simple logic - you cant have both. A functioning tax system is a bedrock of a civil society. Those fleecing the system are just fuelling the tragedy of the commons.