Tracey Epps, the lawyer who provided the National Party with the legal advice regarding their controversial tax scheme on foreign house buyers is a former Chapman Tripp and Foreign Affairs international tax expert.
Based in Wellington with her own firm, Epps has expertise spanning trade and investment matters including treaty negotiations and agreements.
The National tax plan has given rise to intense scrutiny and criticism over the apparent lack of transparency over its veracity, but on the TVNZ Q&A show, National finance spokesperson Nicola Willis showed the letter from Epps, which provided the legal advice on the tax plan’s legal compliance.
Epps comes with high credibility with her career spanning government, private practice, and academic work, which are detailed on her firm website.
She holds an LLM and SJD from the University of Toronto, as well as a BA/LLB(Hons) from the University of Auckland. She taught trade and international investment law at Otago University and commenced her advisory career in healthcare consulting through PriceWaterhouseCoopers and with IBM in Canada.
Her international trade experience was developed through her work as legal counsel during the Trans-Pacific Partnership (TPP) negotiations from 2010 to 2016.
She handles arbitration, educational, consultancy and advisory work in the trade arena, including recently working with the New Zealand dairy industry on the CPTPP dispute brought by New Zealand against Canada regarding Canada’s administration of dairy tariff rate quotas.
From 2016 to 2021 she helmed the International Trade Law Practice at Chapman Tripp.
Labour’s View
According to Attorney General David Parker, the advice provided to National wrongly focused upon international trade agreements, rather than tax treaties.
“It could put us in breach of both our trade agreements, and our agreements in respect of double tax agreements,” he told Radio New Zealand.
He specifically singled out China, saying a non-discrimination article in the double tax agreement between New Zealand and China would exclude China from taxes of every kind and description, making National’s income projections meaningless.
National trade spokesperson Todd McClay had sought advice from Epps, who looked at the AANZFTA, RCEP, CPTPP, EU, China, Korea, and UK Free Trade Agreements to see whether there was justification for charging the tax (or a ‘fee’) and her advice was that there was “policy space” within many of the FTAs to justify such charges.
“New Zealand should not be criticised by its trading partners for imposing the fee, although the prospect cannot be ruled out completely,” Epps said.
She argued the move would actually be liberalising by allowing the investment, albeit with the tax, due to partially removing the ban.
Her advice acknowledged China could apply the most-favoured-nation clause in the FTA to argue it was entitled to better treatment New Zealand provides to investors from other countries in FTAs signed after the signing of the China FTA.
“However… New Zealand will not be obliged to exempt any investors from payment of the proposed fee, other than Singaporeans and Australians. More favourable treatment for Singaporeans and Australians pre-dates the China FTA, which means that there is no qualifying [better] treatment to accord to Chinese investors,” she said.
