Cross-posted with the Tax Justice Blog:
If there’s one story you read today make it this one, from Politico Magazine. It’s triggered by the crisis in Ukraine, but it’s been a long time coming.
The point of this short story is clear: Western leaders are waking up to the fact that Russia no longer fears or even respects them. Why? Well:
“Russia thinks the West is no longer a crusading alliance. Russia thinks the West is now all about the money.” Read the rest of this entry »
Cross-posted with the new Tax Justice Network blog.
This month a Swiss court fought back against efforts by the United States to tackle criminal activity and tax its wealthy citizens properly. As Worldwide Tax Daily reports:
“A Swiss court on January 6 held that Switzerland’s Federal Tax Administration
(FTA) “unlawfully granted” a U.S. request for client data from private banking group Julius Baer, saying it did not meet the requirements for an administrative assistance request under the Switzerland-U.S. income tax treaty.”
This is the latest episode in a long-running saga which began in 2008 when Swiss bankers were caught red-handed trying to flog tax evasion schemes to wealthy U.S. taxpayers – and the U.S. responded with a crackdown, As a result, the two countries began working on new information-sharing protocols between the two countries that have had the effect of penetrating Swiss banking secrecy – though only up to a point, and only for the U.S.
As this episode unfolds, it’s worth remembering the long-running and fascinating case of Rudolf Elmer, former Chief Operating Officer with the Cayman affilate of the high-society Swiss bank Julius Baer. Elmer became fed up with what he was seeing and was involved in – and blew the whistle, first in 2005. He began by telling the Swiss tax authorities of tax evasion by Swiss taxpayers, and later provided information to Wikileaks and the world’s media.
This is not just yet another story of human rights abuses by a secrecy jurisdiction against someone who would challenge the financial establishment. It touches on deep contradictions at the heart of the Swiss model of offshore finance. As tax expert (and TJN Senior Adviser) Professor Sol Picciotto says:
“His story casts fascinating light into the `offshore’ system, constructed by lawyers and other professionals, which has been central to the emergence of transnational corporate capitalism.”
The main legal charge against Elmer is that he breached Swiss banking secrecy laws which make it a criminal offence to reveal secrets obtained as an official of a bank. The main part of Elmer’s defence is that the information (which he admits he revealed) came from an affiliate of Julius Baer in the Cayman Islands, which is separate from its Swiss parent and therefore not governed by Swiss law.
Switzerland’s efforts to use Swiss laws to go after secrets revealed elsewhere contradicts the underpinnings of Switzerland’s own liberal use of offshore principles to help corporate and other tax cheats. For example, the Swiss tax authorities claim that profits earned by foreign affiliates (such as in the Cayman Islands) cannot be taxed in Switzerland, under the widely used ‘separate entity’ principle. As Picciotto notes:
“That is the essence of Elmer’s case, and is why the prosecutors are finding it hard to nail him.”
Since the first whistleblowing in 2005 he and his family have been hounded by the Swiss judicial authorities – which we would argue are ‘captured’ by the financial services industry: a classic feature of the so-called Finance Curse that afflicts finance-dependent economies. Of Elmer’s 28 encounters with the courts, 27 decisions have gone against him, and he has been imprisoned twice: once for 187 days, and once for 30 days, under an archaic Swiss law that allows lengthy spells of detention for police interrogation. In a twist reminiscent of the Soviet era, Elmer said Zurich prosecutors requested psychological evaluation of him in 2009 and in 2011 but he declined to cooperate – mainly to avoid the risk of ending up in a mental institution. Elmer’s long-suffering wife, would you believe it, is still under investigation for assisting in the breaking of Swiss banking secrecy.
Elmer also argues that the prosecution’s case is full of errors and inconsistencies. He told us, via separate emails, in the past a few days:
“At the moment the judges of the High Court of Zurich have to find me guilty. They have invested too much in the matter and cannot lose face! If I do not win – which is likely – I might have to take the entire case to the European Court of Human Rights.
. . .
We can demonstrate that the law has been bent and stretched, in order to serve the bank and not to lose face. This is about politics in the courtroom, and not about the law of a democratic society.
. . .
The case is an opportunity to show that a secrecy jurisdiction needs a morally corrupt judicial system in order to survive.”
Elmer’s whistleblowing is in its ninth year now, and they still haven’t dropped it. A truly independent judiciary, it seems, would have stopped trying to flog this horse long ago. But they haven’t: the campaign of intimidation continues, and there are still two cases pending against him.
As an aside, Switzerland’s decision to probe another Swiss banker who has provided information to U.S. tax authorities may be, as a recent article noted, designed as:
“a message to bankers: Keep quiet or else.”
It’s not just the Swiss authorities that seem to be in the pocket of the offshore banks. Much of the Swiss media seems substantially ‘captured’ too. While the rest of the world has focused on the big story: the exposure of large-scale criminality by wealthy élites around the world, much of the Swiss media has responded instead by focusing on questioning or smearing the whistleblower, with accusations (among many other things) that he is a ‘thief and a blackmailer“.
But it is the big story that interests us. Here’s the whistleblower support site Liberté Info, with some interesting questions posed in a recent letter to the Zurich High Court:
- Why has the prosecution not performed a criminal investigation of Julius Baer Bank & Co. AG, Zurich on the facts provided by Mr Elmer, information which has been widely published and is publicly available on the internet?
- Why have the judges of the High Court, who do have the lead in this matter, not requested that such a criminal investigation be performed in order to evaluate the entire case and to understand whether Mr Elmer had good reasons to make this information public?
- Why have the assets of (a Mexican drug lord) and other alleged criminals, which have been exposed in this case, not been investigated by Zurich’s authorities?
One can only wonder.
Cross-posted with the Tax Justice Blog:
We have long criticised the Netherlands for being a particularly important European tax haven helping multinational companies escape taxation. As, increasingly, have many others in Europe, the United States, and elsewhere. We recently noted, too, how some developing countries have been kicking back at some of the abuses that have been perpetrated upon them with the help of the Netherlands and other tax havens.
We are now delighted to see a Financial Times interview Netherlands’ deputy finance minister, Frans Weekers, making an admission that his government is uncomfortable with, and perhaps even ashamed of, the Netherlands’ role in this pernicious trade. The Financial Times reports:
“A proposal by the Netherlands to renegotiate its tax treaties with 23 least-developed countries marks a turning point for a country that has until now deflected accusations that it is a key player in tax avoidance by multinational corporations.
The initiative, which comes as the G20 meeting in St. Petersburg is putting tax harmonisation issues high on the agenda, is the most concrete move yet by the Netherlands to address the criticisms. Tax justice advocates say the country’s network of treaties with over 90 countries makes it a nexus for tax avoidance, allowing multinationals to reroute their profits through Dutch “letterbox companies” that do no real business in the Netherlands and exist largely for tax purposes.”
This comes in the context and the spirit of today’s G20 leaders’ declaration, which includes a statement that:
“We call on member countries to examine how our own domestic laws contribute to BEPS [TJN: Base Erosion and Profit Shifting, OECD-speak for corporate tax dodging] and to ensure that international and our own tax rules do not allow or encourage multinational enterprises to reduce overall taxes paid by artificially shifting profits to low-tax jurisdictions.”
There are big lacunae to be addressed in the Dutch plans, however. The FT article describes an official Dutch report presented last week, which seeks to insert new anti-fraud provisions in their tax treaties with the 23 countries; will pass on information to tax authorities in developing countries; and will ‘crack down’ on letterbox companies. In a brief email to TJN, Lee Sheppard of Tax Analysts spoke of the Dutch
“promises to put more ‘substance’ in shell companies MNCs [Multinational Corporations] use. Turns out the “substance” ain’t gonna be much.”
Despite the disappointments in the detail (as is so often the case with shiny-looking tax justice-styled reforms, or world leaders’ statements on these kinds of issues) the broad new public statement by the Dutch authorities is greatly welcome. The headline announcement is of great political significance, and an official admission that the tax justice movement, in the Netherlands and elsewhere, has had a point all along.
Today’s blogger remembers a tax justice meeting in Amsterdam a few years ago when a top Dutch tax official gave a horribly patronising presentation, seeking to pooh-pooh a seminal report by our excellent Dutch NGO colleagues at SOMO. Times, they are a-changin’.
“Over the past 10 years the trend has been for the number of letterbox companies in the Netherlands to keep growing. I want to turn that trend around,” Mr Weekers said. “I see the Netherlands being portrayed in a bad light. I don’t want to be portrayed in a bad light.
The Dutch move stems from a government-commissioned report over the summer which, for the first time, agreed with tax-justice groups that developing countries miss out on substantial tax revenues because of their treaties with the Netherlands.”
Here is a clear and public admission by the Netherlands government that this tax haven activity is causing great harm around the world. Or, to put it more succinctly, Tax Havens Cause Poverty.
Which, of course, immediately raises the next question: why stop at 23 countries? And why stop at these limited measures?
The logic points inexorably in one direction: the Netherlands should work towards rolling up this whole sordid industry and starting to compete on the basis of genuine business activity.
We urge other nations engaged in this shameful trade – such as Ireland, Luxembourg, Switzerland, Belgium, the United Kingdom and others – to take note. We applaud the Netherlands for making what must have been -at least as far as it goes – a politically difficult move.
For those with a Financial Times subscription, there is a whole lot more in the FT story.
From the Tax Justice Network blog, a response to the OECD’s Action Plan on corporate tax avoidance. Now updated, with full commentary below.
The OECD has now published its long-awaited Action Plan on how to deal with corporate tax avoidance. Our response is below. It is broadly in line with a briefing yesterday as a curtain-raiser to this report.
Taxing multinational corporations: OECD chooses a path strewn with obstacles, headed in the wrong direction.
TJN’s Response to the OECD’s Action Plan on “Base Erosion and Profit Shifting”
July 19th, 2013
The OECD this morning published its long-awaited Action Plan to tackle corporate tax avoidance, which has seen the likes of Starbucks, Google, General Electric, Vodafone, Apple, Amazon and many others avoid billions in taxes.
Having carefully examined the Plan, which the OECD sent us under embargo on Wednesday, we have not changed our overall assessment we published on July 17th.
- The Action Plan proposes the design of a series of piecemeal patches. These patches are generally to be welcomed, as immediate remedies to the gaping holes in the broken international tax system.
- After a year’s work, the OECD has only identified the issues on which work is needed; developing actual proposals will be a far more arduous task, and the timetables of up to two years are likely to prove optimistic.
- This approach is fraught with political obstacles. Although many of the envisaged measures are welcome, the overall approach would ultimately entrench the current broken system.
- The OECD’s recommendations are not binding, and would require many governments to reverse their policies, in the face of determined opposition from business, and from the influential armies of accountants and lawyers who greatly benefit from designing tax avoidance schemes.
- If governments did adopt the recommendations, this would intensify tax conflicts as each nation seeks to ‘grab’ as much cross-border income as possible for tax purposes. An already highly complex system will also become still more convoluted. Coordination will be extremely difficult, and the OECD’s ambitious idea for a multilateral convention is more likely to take twenty years than two.
- The OECD should open the door to an approach that many tax experts agree is superior: unitary taxation, where multinationals are taxed not according to the tax haven-friendly, inefficient and distorted economic forms that their accountants and lawyers contort them into – but instead according to the genuine economic substance of what they do and where they do it.
- The OECD experts have for years stubbornly clung to the outdated principles of a system devised 80 years ago, and have sought to close down any debate on this alternative, which would effectively cut tax havens out of the international tax system and restore countries’ abilities to tax multinational corporations. They claim that unitary taxation is not politically feasible.
- We demonstrate below why unitary taxation is more politically feasible than the OECD’s approach, if governments are serious about taxing multinational corporations. It can be introduced gradually, starting with a transparency requirement, then expanded, building on years of accepted practice.
Professor Sol Picciotto, a Senior Adviser to the Tax Justice Network, said:
“The Action Plan contains some ambitious measures, which would produce some benefits if implemented. But its approach is like trying to plug holes in a sieve. The OECD has chosen a road that is strewn with obstacles, and leads in the wrong direction.
The OECD has missed this big opportunity to crack open the door to the big reform that the world’s citizens need. It is still open to countries to adopt their own versions of worldwide taxation of multinationals, and for other organizations such as the United Nations to take a lead in developing an effective worldwide system.”
Part 2: detailed commentary
The section below explores the OECD report in more detail. The OECD Action Plan: the positives.
The Tax Justice Network supports the OECD’s efforts to strengthen international tax rules. The Action Plan is uneven, but in many respects ambitious. Some of its proposals would mean ending tax breaks that we have fought hard against, or introducing measures that we have supported. For example:
- Strengthening so-called Controlled Foreign Corporation (CFC) rules. These have been eviscerated notably by the U.S.’ so-called “check-the-box” and pass-through rules, and by the UK’s move to a ‘territorial’ system in 2012, as a result of lobbying by multinational corporations and their advisers;
- Limiting corporations’ ability to deduct interest and other payments made from affiliates in high-tax jurisdictions to related affiliates in low-tax or no-tax jurisdictions;
- Ending arrangements that facilitate so-called treaty-shopping, such as the ‘Dutch Sandwich’, and other abuses of provisions in tax treaties;
- Reforming the concept of “Permanent Establishment” and of attribution of profits, which are easily avoided by separating related functions.
A path strewn with obstacles, and leading ultimately in the wrong direction
Despite these positive recommendations, which if implemented would provide some relief for citizens who bear the economic brunt of corporate tax avoidance, the OECD report is build on a fatally flawed approach.
The OECD experts could have taken this unique political opportunity – on the back of widespread citizen protests and pressures from cash-strapped governments to tackle corporate tax avoidance – to set the world on the road towards a new and far better system. It does not do this, but instead aims to strengthen existing rules.
The fundamental flaw in the current system is that it tries to tax transnational corporations (TNCs) as if they were loose collections of separate entities operating independently in each country. This is a system built on a fiction: the OECD knows as well as anyone that these firms are not bunches of separate entities – but unified firms under central direction.
A tax system fit for the 21st Century would recognise this economic reality, and seek to tax them using a unitary approach. Most tax experts, even some at the OECD, recognise the clear superiority of the unitary approach.
Their main objection has been that such an approach would require a degree of political cooperation which would not be politically feasible. However, a gradual transition towards such a system is both possible and necessary, as we explained in our previous Briefing, and in a more detailed earlier report.
In our view, on the contrary, the OECD’s piecemeal approach is itself fraught with political obstacles, and is far less politically feasible as an approach, if we are serious about taxing TNCs effectively.
Recommendations are not binding; lobbyists will fight hard
Many of the measures that the OECD proposes to formulate would require states to reverse their international tax strategies, in the face of determined opposition not just from business, but also from the powerful firms of accountants and lawyers who find the current porous and complex system allows them to design highly lucrative tax avoidance schemes.
There will be many who will hope that while the OECD tries to flesh out these ideas into detailed provisions, the economic and political climate might change, fiscal pressures will abate, and press and public will lose interest in tax justice. We think this is unlikely.
More plausibly, cash-strapped governments will want to try to plug some of the holes in the leaky sieve of international taxation. Each will prioritise the measures that they think would least upset their own business lobbies. It will prove hard to persuade governments to repeal tax provisions that they believe attract business, even if these provisions harm other nations’ economies.
A recipe for conflict
To the extent that the OECD does succeed in persuading governments to follow its new recommendations, it faces an enormous task of coordination. If each state prioritises measures that give it a bigger slice of the tax pie, that is a recipe for international tax conflicts between nations. Some issues raised by countries have been ruled to fall outside BEPs project. These would add to the numerous conflicts that already bedevil the system. For example, India and other developing countries remain concerned about the limits current tax rules place on source taxation of foreign-based service providers.
Internet-based services: a growing headache
Many governments would like a quick solution to the problem to taxing internet-based companies. Google, for instance, has avoided large amounts of tax by selling its advertising through its affiliate in the tax haven of Ireland. The OECD is unlikely to deliver a good solution to this. One of the fifteen points in the Action Plan concerns the Digital Economy: it expects to deliver only an analysis in a year’s time, and even this deadline is unlikely to be met.
There are good reasons for this: the digital economy is not a distinct sector, but an important element in all business today, to a greater or lesser extent. Specific ways may be devised to tax some particular activities such as internet sales, but such partial and unilateral methods would produce imbalances and conflicts. In fact, the issues identified by the examples of Google, Apple and Amazon point to the more fundamental systemic flaws of the “separate entity” approach described above, which as we have pointed out the OECD does not propose to tackle head-on.
The OECD’s powers of persuasion
In its very tough task of coordination, the OECD’s only weapons are technical expertise and peer-pressure persuasion.
It proposes to use three methods.
First, at the most voluntaristic level, it will `revamp’ its Forum on `harmful tax practices’. This essentially entails using peer-pressure to persuade countries to remove tax breaks and preferential regimes.
Second, it will draw up revisions mainly of the Commentary to the Model Tax Treaty, and if necessary also to the actual model treaty articles. The treaty articles are legally binding, and the Commentary has significant legal effect in interpreting those provisions. But this effect only works if and when states actually renegotiate their existing bilateral tax treaties. With the best will in the world, this would take years.
Third, the Plan also proposes to formulate a multilateral treaty, which it hopes would override existing treaties. This poses complex legal problems, and a special group of international legal experts will be recruited for this delicate task. But such a multilateral treaty also would only come into force once ratified by individual states, and only among the states which do ratify it. We recall that in 1988 the OECD drew up, in conjunction with the Council of Europe, a multilateral convention on tax co-operation. This took over twenty years to gain more than a handful of ratifications.
Transfer pricing: a deeper and deeper hole
In our view, the OECD has chosen a road that is not only strewn with obstacles, but leads in the wrong direction. This can be seen most clearly, perhaps, with respect to the transfer pricing problem. Here, the OECD has dug itself progressively into a deeper and deeper hole by doggedly pursuing the fiction of “separate entity” and the “arm’s length method’, described above.
The Action Plan suggests that there is the beginning of a realisation of the need for a new approach, in mentioning that `special measures, either within or beyond the arm’s length principle, may be required’. This could potentially be construed as a possible tiny opening. However, it falls well short of the fundamental reorientation of approach that is required.
The OECD experts can be said to have done what could realistically be expected of them, given the political constraints. We had hoped for more, at least as regards transparency.
A road map to true reform
As we have pointed out, moving towards unitary taxation would not entail the sudden shock of a ‘big bang.’ It can be introduced gradually, building on existing practice. It involves three components, each of which can build on elements already existing in the current system.
A first, immediate step towards a unitary approach would be a transparency requirement, to require TNCs to submit to each relevant tax authority a Combined and Country-by-Country Report. This would outline the genuine economic substance of what the TNCs do and where they do it, and build on and enhance the already fast-emerging standard of Country by Country reporting.
This report should include global consolidated accounts, for which the OECD could and should develop a template. Action 13 of the Plan does seem to open up this possibility, and for this we must be grateful.
Second, tax authorities could use this information to apportion the global profits multinationals using appropriate allocation factors reflecting the economic substance of their activities around the world.
This can build on existing practice, in particular the so-called “profit-split” method already accepted by the OECD Transfer Pricing Guidelines, which aggregates the profits of related entities then apportions them according to so-called “allocation keys.” This is a narrower, transaction-level version of apportioning profits by formula.
This approach, as currently used, aggregates profits only at the level of bilateral transacting entities – whereas in reality TNCs use more complex cross-linkages among multiple affiliates. It would not be such a great stretch to extend this practice from the level of transacting entities to the combined whole. Indeed, there is already considerable experience in some sectors in applying formulaic profit apportionment, especially in the finance sector, e.g. where a trading book is transferred between offices in different time-zones over 24 hours. Formula apportionment of such profits has been done for 20 years through Advance Price Agreement (APAs) with banks. If firms such as Apple, Amazon, Google and Starbucks really do want to pay a fair level of taxes wherever they do business, they too could enter into APAs and agree an appropriate apportionment.
The experience of using profit split and APAs could be combined with proper research to determine appropriate apportionment formulae. Some degree of divergence of formulae is likely, but this is acceptable.
Some argue that states would simply aim to weight the factor which produces the biggest ‘tax grab’ for themselves – and that therefore it will be impossible for there ever to be full global agreement on a formula: and so, they argue, the whole approach is politically impossible.
But this is quite wrong, for several reasons.
First, full convergence is not necessary. Differing formulae could certainly lead to some overlaps between different countries’ tax systems – but as explained above this already happens under the current system, and the problem is likely to be less under unitary taxation.
Second, states won’t just go for the biggest possible tax grab – because they need also to consider the effects that this would have on inward investment. This is likely to lead to a more balanced approach towards designing a formula, and to encourage convergence. A balance between production and consumption factors seems best. In the US, the trend among states using unitary taxation has been for convergence (towards emphasising the sales factor.)
Some also argue that firms could still reorganise themselves to minimise their taxes.
This is true but it would happen to a dramatically lesser degree, and in a very different way. It is far harder for a firm to relocate physical assets, workers and sales to other countries than it is for them to shift artificial profits under the current system. And if they chose to divest some operations to truly independent third parties, they would lose the profits of synergy and scale. It is hard to imagine a company like Apple being willing to transfer to a truly independent wholesaler in a low-tax country a significant slice of its profits. Relocation of real activities may well occur, but this is very different from the artificial shifting of profits to largely paper affiliates that happens under current rules.
States would remain free to choose their own marginal tax rates. So countries could compete to attract genuine investment rather than formation of paper entities aimed at subverting the taxes of other countries.
Unitary Tax would therefore eliminate harmful tax competition, while allowing countries to make genuine choices between attracting investment in production and generating revenues from corporate taxation. Such a system would of course not be perfect, but aligning tax rules more closely to the economic reality of integrated firms operating in liberalized world markets would make it simpler and more effective.
The third important element of reform would involve a procedure for resolving disagreements and conflicts between states. Such a system already exists in the OECD’s Mutual Agreement Procedure (MAP) but it could be improved, as explained above, and extended to include negotiation of APAs.
Currently, the MAP is very secretive, and decisions often involving hundreds of millions or even billions of dollars are not published. The secrecy of both MAP processes and APAs greatly increases the power of frequent actors in these processes, i.e. the international tax and accounting firms – to the great detriment of the system as a whole.
Publication of both would be a great step towards a system which could both provide and more importantly be seen to deliver a fair international allocation of tax.
Not just the OECD.
A new approach to international tax in any case should not come from the OECD alone.
Although they propose to include at least seven of the eight non-OECD members of the G20, this still excludes the vast majority especially of developing countries. A more inclusive forum is needed. The United Nations Tax Committee should be the appropriate body – but it is hampered by lack of resources and bureaucratic problems. Nevertheless, if sympathetic governments could supply it with special funding, it could initiate a special project, following up its rewrite of the Transfer Pricing Manual which was published this year.
The IMF’s Tax Policy Department could also play a role, given its expertise. Indeed, the IMF last month recognised that there is considerable interest in a unitary taxation approach:
“such schemes—including their impact on developing countries—deserve a more thorough and realistic assessment.”
We hope that the OECD would also contribute to such a broader initiative to study and develop a new approach, even while it pursues its task of repairing the leaky sieve. The Tax Justice Network will continue its own work, and would be be happy to contribute to any initiatives aimed at restoring the integrity and efficacy of the international tax system.
Please contact Professor Sol Picciotto:
Adapted from the Tax Justice blog.
The Swiss Bankers’ Association has this morning admitted that its UK-Swiss bilateral tax-and-secrecy deal, which we have condemned from the start, has failed. This is of enormous importance, given that Italy is considering (again) the possibility of signing such a deal.
The deal, under a Swiss-designed model sometimes known as “Rubik,” is supposed to take a large capital chunk (and ongoing withholding tax payments) from the untaxed assets of UK residents who have been criminally evading tax via Swiss banks, in exchange for their being allowed to keep their tax affairs secret. Switzerland would pay the UK a one-off upfront payment of SFr 500 million – about £320 million or $500 million, and then, politicians promised, Britain would reap £4-7 billion, mostly from the hefty chunk being taken out of the capital in the Swiss accounts.
We said from the beginning that because of the giant loopholes in the deal — some of them deliberately inserted — they would raise only a small fraction of what they had promised. We sent our analysis to the Swiss Bankers’ Association, to the Swiss and UK tax authorities, and to private practitioners – and apart from this underwhelming response, none of them demonstrated to us how we had got it wrong. For a short discussion of our original analysis and the response from others, see this Guardian story – or the full analysis here.
Now, finally, we have been proved right. A new press release from the SBA says:
“First indications from selected banks in Switzerland show that there are fewer untaxed UK assets in Switzerland than had been previously assumed.
The possibility can therefore not be ruled out that either none or only a small part of the banks’ guarantee payment of CHF 500 million will be recovered.”
That is a devastating confession. This is very far from the £4-7 billion that the UK politicians have been promising.
The Swiss “withholding tax” model is now effectively dead. Dave Hartnett, David Gauke and the government that sanctioned this deal must now hang their heads in shame.
There are, admittedly, a couple of other details in the SBA’s statement today. Notably this paragraph:
“First indications from selected banks in Switzerland show that there are fewer untaxed UK assets in Switzerland than had been previously assumed. This is mainly due to the fact that many clients have resident non-domiciled status. These clients are not liable to taxation in the UK and thus do not fall under the Agreement. Furthermore, numerous UK clients have opted for voluntary disclosure, which comes as no surprise given the latest developments in Switzerland with regard to the announced adoption of a global standard for the automatic exchange of information.”
Now the Swiss Bankers’ Association has a long track record of obfuscation and secrecy, so we need to take this unproved, unsourced assertion with a cupful of salt. This is spin.
And this statement, to be honest, is ridiculous. For one thing, what on earth were those projection-makers in the UK thinking if they did not consider the assets of the so-called non-doms (who are resident in the UK but who don’t pay tax (or even have to report) their non-UK income? Did they somehow “forget” to factor them in? We asked them for the basis for their original projections, and they never provided any kind of detailed analysis. This statement is nonsense. (And if a “non-dom” doesn’t have to report their non-UK sourced income, then we wonder what is the point of then hiding their foreign assets in a Swiss bank?)
The second part of the statement, that some UK “clients” have opted for voluntary disclosure, may contain some truth. They may have transferred assets via the very generous (though technically much tighter) Liechtenstein Disclosure Facility, for instance – but this deal would have had almost no impact on the rate of those voluntary disclosures, because it is, as we demonstrated, child’s play to escape. If people with secret Swiss stashes wanted to disclose voluntarily they were going to do so, perhaps out of moral scruples or whatever. But there was no ‘pressure’ from the UK-Swiss tax deal to do so. Put your Swiss account into an insurance wrapper or discretionary trust or Liechtenstein foundation — or, more dramatically, put it in an account in Singapore – and you are home free.
What they don’t seem to want to admit is that there are “fewer untaxed UK assets in Switzerland” because so many of those assets, which from an economic point of view are assets that UK taxpayers have the power to enjoy, have been shifted outside the scope of the deal through becoming assets that are not, legally speaking, connected to a UK taxpayer. Many if not most of those assets achieved that trick by becoming what one might call ‘ownerless’ assets.
The most obviously egregious provision in the provision in this respect relates to so-called discretionary trusts. For anyone wanting to understand international tax evasion and avoidance, these creatures are worth understanding. Recently we quoted a practitioner in Jersey as saying that:
“Something like 90% of Jersey trusts we draft are fully discretionary ones.”
And we have heard those kinds of figures from other sources too. This is bread-and-butter stuff: see that blog for a brief explanation of how discretionary trusts work. In our original analysis, we noted that Article 2h of the UK-Swiss tax deal said:
“An individual resident in the United Kingdom is not considered to be a relevant person . . . if it is not possible to ascertain the beneficial ownership of such assets, e.g. due to the discretionary nature of the arrangement.”
Our emphasis added. That loophole explicitly carved out for discretionary trusts is a flag planted squarely in the agreement saying ‘escape me here.’ What reason can there be for this kind of deliberately inserted escape route? The only reason we can think of is that it was put there to protect people – not just from prosecution, but also from the inconvenient matter of having to cough up the money. And we know that whistleblowers had provided information on Swiss bank accounts to the UK authorities, so there were undoubtedly people to protect.
This is a truly sordid tale. And now there is a multi-billion dollar hole in the UK’s budget to explain.
Why would the SBA put that particular spin on the reasons for the failure of its deal? We think that the reason is likely to be because of the Amendments to the EU Savings Tax Directive, which does quite effectively tackle the problem of ‘ownerless assets.’ To oversimplify: by saying that the asset is deemed not to have been given away into the structure until a distribution to a beneficiary has happened.) These amendments are powerful tools for tracking down assets, and represent a threat to Swiss banking secrecy; they have been playing long and hard, in alliance with Luxembourg and Austria, to derail the progress of these Amendments. To confess that these kinds of loopholes are the reason for the deal’s failure is tantamount to an admission that the EU’s project, which is a mechanism for delivering automatic information exchange to the 43 jurisdictions covered, is far superior to the Swiss withholding model. (For a look at what is at stake here, take a look at this article by Itai Grinberg last year.)
We will end with an apt tweet from a UK tax expert. It kind of speaks for itself, revealing much about the where power and influence lies.
Also cross-posted with the Tax Justice Network blog.
“In an effort to find out whether American corporations are the kind of “citizens” that believe that they have national obligations, Remapping Debate contacted the representatives of more than 80 corporations.
Most had no comment, a striking finding in and of itself. And among the corporate representatives who did comment, most were unwilling to say that their corporation had any obligations to the United States, let alone to define any such obligations with specificity. “
Although this article focuses on the United States, it seems likely that if similar conclusions would be reached in many other countries. Richard Sylla, economics professor at the Stern School of Business at New York University (NYU), commented on the findings:
“It’s revealing that the benefits they cite are so self-serving. It shows that they think of themselves as opportunistic entities, not participatory members of society.”
Readers of the book The Corporation, by the Canadian law professor Joel Bakan, from which the above image is drawn, would hardly be surprised to hear this. As his book summary notes:
“The corporation lies, steals and kills without remorse and without hesitation when it serves the interests of its shareholders to do so. It obeys the law only when the costs of crime exceed the profits. Corporate social responsibility is impossible except insofar as it is insincere.”
That book, though several years old now, is still well worth reading.
But there is still plenty more to be said.
A box early in the story published by Remapping the Debate, entitled “When obligations went with benefits,” notes that for most relevant history, U.S. corporations were perceived by both the public and by corporate executives themselves as having a broad range of obligations — including national obligations — that competed with the goals of making profit or creating value for shareholders. This is obviously central to any tax justice agenda: a narrow “shareholder value” approach to corporate responsibility would see managers fighting aggressively to dodge taxes and shirk other responsibilities, while a ‘stakeholder value’ approach would see a far more balanced responsible approach.
The article also refers to a 2013 paper by Gomory and Richard Sylla, entitled The American Corporation, which says:
“The most recent era is marked by a shift away from a stakeholder view of corporate interests and purposes to one dominated by profit and shareholder-value maximization.”
Remapping Debate continues:
“The idea that a corporation exists solely to make money is actually quite new,” explained Ralph Gomory, a professor of management at New York University. The broader sense of corporate responsibility was starkly apparent during World War II, when many U.S. companies dramatically changed their operations to aid the war effort, Gomory said, but it also extended through the 1950s, 1960s, and 1970s. “Even in the early ’80s, you would be more likely to hear a CEO talking about his responsibilities to the country or to his employees than his duty to the shareholders.”
Gomory cites main reasons for the erosion in corporate responsibility, starting in the 1970s: the end of the Cold War and the onset of rapid globalization; the alignment of the interests of corporate executives with shareholders through stock-based compensation; and an ideological shift in economics and business schools towards the idea that the purpose of a corporation was the maximize shareholder value. Milton Friedman’s 1970 article in New York magazine, entitled “The Social Responsibility of Business is to Increase its Profits,” reflected the changes that were underway.
“Businessmen [who] speak eloquently about the “social responsibilities of business in a free-enterprise system,” Friedman wrote, “are unwitting puppets of the intellectual forces that have been undermining the basis of a free society these past decades.”
Though experience has revealed Friedman’s arguments to be fatally flawed, his was an influential argument at the time.
But despite the profound ideological shift that took place, our recent blog on this subject confirms, in fact, that corporations do in fact still have official responsibilities to society, beyond a narrow focus on delivering returns for shareholders. It cites Lynn Stout, Distinguished Professor of Corporate and Business Law at Cornell Law School, as saying:
“The ideology of shareholder value maximization lacks any solid foundation in corporate law, corporate economics, or the empirical evidence. Contrary to what many believe, U.S. corporate law does not impose any enforceable legal duty on corporate directors or executives of public corporations to maximize profits or share price.”
More specifically, in the UK, directors are required to have regard to the long-term consequences of their decisions, the interests of employees, relationships with suppliers and customers, the impact of corporate activities on the community and the environment, the company’s reputation for high standards of business conduct and the need for fairness between different members of the company.
Remapping Debate quotes William Lazonick, a leading business thinker at the University of Massachusetts, Lowell.
“Up until the 1980s, CEOs were extremely reluctant to shut down factories and lay off a large number of workers,” Lazonick said. “Mass layoffs were actually seen as a serious abnegation of corporate responsibility. It was understood that the company had a responsibility to it workers, and that if it failed, soci- ety at large would be on the hook for that failure.”
It also cites Margaret Blair, a law professor at Vanderbilt University, who notes that in the period from World War II to the 1980s, it was far less common to see corporate executives lobbying the government for special rights and benefits, including lower taxes.
“It was accepted that, if the United States was going to be a powerful economy and have a high quality of living, then the corporate sector needed to do its part to supply financial resources to the government,” she said. “There was no sense of it being the corporations versus the government. It was much more about everybody being in it together.
And, we hasten to add, that period was one of high, broad-based economic growth. One can see the change in two statements from the U.S. Business Roundtable, cited by Sylla and Gomory. The first, from 1981, states that corporations have a responsibility to “each of the corporations constituents.” It continues:
“Responsibility to all these constituents in toto constitutes responsibility to society…Business and society have a symbiotic relationship: The long term viability of the corporation depends upon its responsibility to the society of which it is a part. And the well-being of society depends upon profit- able and responsible business enterprises.”
By 1997, the Business Roundtable’s position had changed to:
“The principal objective of a business enterprise . . . is to generate economic returns to its owners,” that is, its shareholders.”
This has been accompanied by a rise in corporations’ sense of entitlement, without corresponding obligations: a classic recipe for (among many other things) tax-dodging:
“Sylla said the fact that many American corporations see themselves as entitled to the benefits of citizenship — without incurring reciprocal obligations — is reflective of a fundamental disjunction between how individual and corporate citizenship are perceived.
“We’ve determined that a corporation is legally like a person in lots of ways,” Sylla said. “They have rights, including the right to free speech, and they enjoy an array of benefits. Don’t most of us think that those rights and benefits come attached to obligations? When they say they don’t have any national obligations, it shows we have a double standard.”
Quite so. One for our corporate responsibility page.
I wrote this originally on the Tax Justice Network blog.
This important blog is fairly long, so we preface it with a short summary.
The Wild-West $600 trillion unregulated global market in financial derivatives, implicated in numerous financial disasters before, during and since the hottest phase of the global financial crisis in 2008/9, now potentially faces some welcome (if very belated) new regulation in the U.S., Europe and elsewhere. Last week, for instance, the U.S. became the first country in the world to require mandatory clearing of many derivatives contracts, a crucial protection for citizens.
The U.S. Dodd-Frank financial reform bill of 2010, currently the leader in this particular area, envisages that if a derivatives trade has a “direct and significant connection” to the U.S. economy — in other words, if risky derivatives trading activity could turn around and bite U.S. taxpayers — then the U.S. should be able to regulate it whether it is nominally located in the U.S., in the City of London or in the Cayman Islands. We at TJN fully support that as a generally useful principle, for all regulators worldwide.
But financial lobbyists and others are now battling to stop this, so that transactions by U.S. companies that are conducted overseas are exempted from the rules. They argue that it is ‘burdensome’ for global banks in one jurisdiction to have to comply with regulation emanating from another jurisdiction, and they want to get all foreign transactions exempted from regulation. If they succeed, this would constitute a basic and gigantic offshore escape route which would kill effective regulation of this industry, lead to yet another race to the bottom on financial regulation, and strike at the very foundations of global financial reform. The stakes are high.
Worryingly, Michel Barnier, the European Commissioner for Internal Market and Services, and several European and other finance ministers, appear to have sided with the financial lobbyists, and want financial regulation to stop at national borders.
The core question to consider here is: whose priorities are most important here? Should one put the interests of financial stability and the general public first? Or is it more important to make life more convenient for global banks?
We urge any groups and people interested in financial stability issues to take an interest in these crucial issues.
From the Washington Post on Saturday:
“Pop quiz: What do the following financial crises — AIG, Lehman Brothers, Citigroup off-balance sheet SIVs, Bear Stearns, Long-Term Capital Management, and the “London Whale” of JP Morgan — all have in common?”
One thing they have in common, of course, is that these are names for some of the worst financial disasters that have hit the world in recent years. But there’s something else they have in common too. The article cites Gary Gensler of the U.S. Commodity Futures Trading Commission (CFTC), one of few U.S. regulators to have tenaciously tried to rein in many Wall Street abuses:
“According to a speech given by Gensler earlier this month, they all involved exposures to derivatives across countries.
And, in more detail:
“AIG Financial products was run out of London as a branch of a French-registered bank. The U.S. Lehman Brothers Holdings guaranteed 130,000 outstanding swaps contracts from their London affiliate. Citigroup’s off-balance sheet financial instruments were launched from London and incorporated in the Cayman Islands. The two Bear Stearns hedge funds that collapsed, precipitating the firm’s failure and the taxpayer rescue, were incorporated in the Cayman Islands [TJN: and let's not forget the role of Wild West offshore Ireland in that particular debacle]. Long Term Capital Management’s swaps were booked in a Cayman Islands affiliate (that according to Gensler, who was with Treasury at the time of their 1990s collapse, was basically a P.O. Box). And, as the name stipulates, the London Whale trades of JPMorgan Chase were in London.”
Our emphasis added. We have written about this before.
Some time before the crisis, derivatives were accurately described by Warren Buffett as ‘financial weapons of mass destruction (WMDs)’ – and so it turned out. Key to the mess was Wall Street’s ability to escape regulation it didn’t like by going elsewhere to conduct the trades in jurisdictions (such as London) with laxer regulation.
Our emphasis added, again: those two words ‘escape’ and ‘elsewhere’ are close to being definitional for us at TJN. This is quintessentially offshore business.
This gigantic business is currently putting Europe and the rest of the world at grave financial risk – as if there wasn’t enough to worry about. The Washington Post continues:
“As Marcus Stanley, of Americans for Financial Reform [AFR], notes to Erika Eichelberger of Mother Jones, “Wall Street banks routinely transact more than half their derivatives through foreign subsidiaries. [TJN: Bloomberg analysis last year discovered that 62 percent of Goldman Sachs' and 77 percent of Morgan Stanley's derivatives operations were foreign.]
How big is this issue? Well, according to a recent letter by [tax justice hero] Carl Levin, Elizabeth Warren, Sherrod Brown and three other U.S. senators, the four largest U.S. commercial bank derivatives dealers alone, accounting for 93 percent of the $223 trillion notional value of the U.S. bank derivatives market (note: that is trillion, not billion), had over 3,300 foreign subsidiaries.
Now the U.S. 2010 Dodd-Frank financial reform bill has an excellent and potent ‘extraterritorial’ aspect: a principle that is one of the most powerful generic tools available in global financial regulation. Put simply, Congress granted authority to the CFTC (which regulates around 90 percent of U.S. derivatives markets) to oversee all derivatives transactions if they have a ‘direct and significant connection’ to the U.S. economy — whether those transactions are nominally located in the U.S. or in Cayman or in London. This stands to reason: if derivatives cowboys in London are putting U.S. taxpayers at risk, or vice versa, then the home country should be able to regulate that business, wherever it is.
And of course this is not purely a U.S. matter. Far from it.
For one thing, Wall Street is the biggest part of global markets in financial derivatives, and the financial crisis has shows us that in our interconnected world, one big country’s problems soon become everyone else’s problems. More importantly, there is an essential principle at stake here: that when risky trading activities happen, any country that is seriously at risk from these financial WMDs should not be rendered powerless to regulate to make them safer. The possibility of cross-border regulation is an essential, foundational principle that is worth defending to the last. And, perhaps still more importantly: giving individual countries free rein to regulate as they see fit, without concern for the impacts on other jurisdictions, is a tried and tested recipe for a race to the bottom: where the laxest jurisdictions get the most business, and others then face incentives and pressures to relax their regulation just to keep up in this dangerous race. At TJN we have seen this deadly dynamic again and again and again: on tax, on secrecy, on financial regulation, and otherwise.
So for Dodd-Frank to succeed, this potential for “extraterritorial” reach is absolutely essential: a foundation stone of the whole exercise.
And now comes the problem.
The ‘extraterritorial’ aspect of Dodd-Frank is now under serious threat, from two main quarters. First, Wall Street and assorted hangers-on in the United States are powerfully attacking the principle. As Marcus Stanley of AFR writes in U.S. News:
“On Monday, the U.S. became the first country in the world to require mandatory clearing of many derivatives contracts, a crucial protection in these previously unregulated markets.
But even as this crucial protection takes effect, Wall Street is mobilizing to create a back door escape route. Its goal is to prevent U.S. regulation of derivatives transactions by U.S. companies that are conducted overseas. This loophole could strike at the foundations of financial reform.
. . .
It would create an incentive for global banks to transact their business through whatever jurisdiction has the weakest regulations – a “regulatory haven” to match the tax havens that international corporations already use.
. . .
If they succeed, entities nominally based in foreign countries but active in U.S. derivatives markets will not have to comply with U.S. derivatives rules. This could potentially include foreign subsidiaries of U.S. banks, the numerous U.S. hedge funds incorporated in places like the Cayman Islands and subsidiaries of major foreign banks that are major dealers in the U.S. markets”
But, worryingly and more surprisingly, it’s not just U.S. lobbyists who are trying to undermine this crucial aspect of Dodd-Frank.
We have now seen an unholy alliance formed between Michel Barnier, European Commissioner for internal market and services, and George Osborne, UK Chancellor; Switzerland’s Eveline Widmer-Schlumpf; and several other finance ministers. They, too, want to stop Dodd-Frank at the U.S. borders. In a letter sent to U.S. Treasury Secretary Jacob Lew on April 18th, they stated that:
“we hold the view that as a principle, local regulations should not be extended beyond national borders.”
This is the classic recipe for a race to the bottom. Can we trust Switzerland, one of history’s top racers-to-the-bottom, to ensure that their derivatives regulations do not create enough of loopholes to lure lots of derivatives business? Of course not. London’s history in this respect makes it equally untrustworthy.
While Barnier may have made some useful moves on financial regulation in other areas, this letter goes in exactly, precisely the wrong direction. The justifications that the signatories of the letter for wanting regulation to stop at national borders include:
- If this happens, derivatives markets will recede into localised and “less efficient” structures.
- The simultaneous application of multiple rules to cross-border activity will result in conflicting, inconsistent or duplicative requirements on market participants, constituting “burdensome regulatory conditions.”
- (subtext: who do these Americans think they are?)
Now those complaints will carry a lot of weight especially among those who worry a lot about ‘burdensome’ regulations being applied to this market. For sure, extraterritorial regulation has the potential to make specific regulatory compliance issues more complex. But against this, weigh some other considerations.
First, this is not a story about the United States bullying other jurisdictions, although on the surface it could look that way. This is a case of weary, embattled, outgunned financial regulators facing up to enormously powerful financial interests, under heavy fire, to try and protect their citizens as best they can.
Second, if one is worried about efficiency and complexity, one should consider the complexity and inefficiency (not to mention injustice and disruption) that would result from more gigantic bailouts.
The right approach, of course, is to put financial stability and the fate of ordinary taxpayers around the world at the first order of priority, and the convenience of global banks in complying with regulation after that.
Given this big picture, some important details now need to be taken into account.
Dodd-Frank guidance does envision a role for what is known as ‘substituted compliance’, which would exempt foreign activity from falling under a home country’s rules — just so long as the home country (in this case the U.S.) deems the foreign rules to be good enough and equivalent to its own. In other words, instead of having regulators reaching into other jurisdictions to regulate risky activities, you effectively have regulators handing out certificates of good conduct to other jurisdictions and trusting them to regulate properly.
All this sounds like a good idea in theory – and indeed ‘substituted compliance’ may be a principle worth taking on board, as a co-operative end goal.
But if carried out too early, and in the wrong way, it could be a total disaster.
It is essential that this ‘substituted compliance’ only happens once both the requirements and the enforcement of the foreign regime’s derivatives protections are genuinely equivalent and good enough to be able to hand over to that foreign regulator. This approach, among other things, gives foreign regulators powerful incentives to shape up and put genuinely strong regulation in place, so as to get their hard-earned certificate of good conduct. This is a race-to-the-top incentive. This ‘strong version’ of substituted compliance puts the interests of taxpayers and societies first, and the interests of global banks second.
But a weak version of ‘substituted compliance’ would put the interests of global banks first and protect them from ‘burdensome’ financial regulation, where jurisdictions generally trust each other to regulate at home, as they see fit, and perhaps a few of the most egregious recalcitrants get slapped on the wrist or even have their certificates of trustworthiness temporarily withdrawn. This would be an appalling, race-to-the-bottom outcome.
So what is the approach reflecteded in the April 18th letter sent to U.S. Treasury Secretary Lew by Barnier and the finance ministers?
The letter does accept ‘substituted compliance’ as a general principle, which on the face of it is not necessarily in conflict with Dodd-Frank.
But the question now is: are the ministers angling for a weak version of ‘substituted compliance’, or a strong version? Well, the letter states, in part:
“as a principle, local regulations should not be extended beyond national borders. We expect any deviations from this principle to be narrow, and to exist only where there is a clear and specific justification.”
This looks exactly like the weak version, or something perhaps just as bad: a recipe for waiting until all jurisdictions are up to scratch before anyone does anything at all. That could be a recipe for waiting interminably, while the financial derivatives orgy continues unabated. (And there are other things, highlighted in the FT, that are worrying about the letter.)
We urge all organisations in Europe that have an interest in global financial stability to get up to speed on these crucial issues. A good place to start is here.
Christian Aid and the IF campaign have a very important and topical new report available, entitled Invested interests: the UK’s Overseas Territories’ hidden role in developing countries.
It is becoming increasingly recognised that huge amounts of investment in and out of developing countries is being routed via tax havens. Former UN Secretary-General Kofi Annan has remarked, accurately:
“When foreign investors make extensive use of offshore companies, shell companies and tax havens, they weaken disclosure standards and undermine the efforts of reformers in Africa to promote transparency. Such practices also facilitate tax evasion and, in some countries, corruption, draining Africa of resources that should be deployed against poverty and vulnerability’.”
Many of the world’s most important tax havens – between a third and a half, depending on how it is measured – are British Crown Dependencies or Overseas Territories, partly independent from Britain, but also closely linked to the UK via a web of constitutional links.
The crucial part to know here is that Britain has complete power to disallow the offshore secrecy (and other) legislation that these places put in place. In a very important section entitled The UK’s role, it notes:
“In the most recent White Paper on the BOT [British Overseas Territories] it was confirmed that ‘[As] a matter of constitutional law the UK Parliament has unlimited power to legislate for the territories’.
The UK has hitherto chosen not to intervene, in almost every case – but there are isolated cases, not related to offshore secrecy, where the UK has forced the islands’ hands.
So it is wonderful that influential organisations are now starting, for the first time (spurred in part by long-running work by TJN and by books such as Treasure Islands) to take a long hard look at Britain’s role in development. The new report notes that it:
“attempts, for the first time, to quantify the role that tax havens to which the UK is constitutionally linked play in facilitating the flow of FDI into developing countries, dwarfing that of the BRICS nations.”
Anything like this is, as we have noted in our own research, an exercise in night vision, so precision is hard to get. But this is a very useful piece of new research. And it’s topical too, as the report’s author Joseph Stead notes:
“The UK as G8 chair has never been in a stronger position to end the grave injustices caused by tax havens – if the UK succeeds in putting its own house in order first. The Prime Minister must do everything he can to get UK havens agreed on a tax deal before he arrives in Northern Ireland, so he can push the G8 to end the tax scandal.”
There is an absolute ton of useful information in here. We will merely scratch the surface, and highlight a few fascinating details, such as this one:
Three of 14 British Overseas Territories, in particular the British Virgin Islands (BVI), Cayman Islands and Bermuda emerge as among the biggest global sources of FDI. Together with the Crown Dependencies of Jersey, Guernsey and the Isle of Man, they were in 2011 the largest provider of FDI to the developing world
. . . and this remarkable fact is backed up by an equally remarkable table:
We’ve seen isolated information on this before — such as in this French report, for instance — which was surprising enough, but we’ve never seen the data collated like this.
In short, tax havens are conduits for a large share of foreign direct investment around the world – but the share is much bigger when just developing countries are considered. Nearly half the investment from the highly secretive British Virgin Islands, for instance, goes to developing countries, and outward FDI from the BVI was equivalent to over 860 times (NB, that’s not 860 percent, but 860 times!) the BVI’s GDP. (By comparison, the UK has a ratio of around 1:1 and the US around 0.2:1.) That is astonishing.
The report outlines a number of reasons why the tax havens may be so important, ranging from a desire for a more secure legal environment to the more nefarious round-tripping, tax dodging and corruption. Secrecy automatically facilitates and promotes these.
The report notes that the IMF and others have been woefully lax in collecting data on this; the report’s authors had to go to individual countries to find out the totals. Shame on them. The OECD, it says, has the overwhelming role in designing international the corporate tax system – but this is highly problematic given that while the OECD is a club of rich countries, it is the poorer countries that are disproportionately the victims of this. Much more transparency is obviously needed too.
An extremely useful overall contribution to the literature.
I’m cross-posting this blog I wrote for the Tax Justice Network. It’s for those with more than a passing interest in tax avoidance by multinational corporations.
Update: June 3. Sheppard wrote an article for Tax Analysts entitled How Can Vulnerable Countries Cope With Tax Avoidance? (p410) It covers the issues below more thoroughly, and contains much that is interesting and not covered in the blog below.
We have just come across this video of a presentation in Norway by Lee Sheppard, contributing editor at Tax Notes International, and one of the U.S.’ best known tax experts. Provided by Publish What You Pay Norway, it is fascinating, and in this blog we have transcribed a chunk of her speech, explaining why the OECD has caused so much damage in the arena of international tax.
She introduces her talk, promisingly, like this:
“I am going to talk about what the existing international consensus is, and how the countries that you people represent can defend yourselves against the structural problems.”
First, a few short highlights, either in quotes or in our summary of the quotes. The full text of this section from her presentation is pasted below.
• “Don’t sign OECD model treaties, don’t sign U.N. model treaties!”
• For multinationals, “there are countries for which there is extraction, and countries where there are customers, and these are all countries from which income has got to be stripped. And the rubric that allows this is the international consensus. It is the whole treaty network. The treaties protect multinationals primarily. That’s all they were ever for: to make life comfortable for multinationals”. . . The international consensus is “basically a load of nonsense that protects multinationals.” When you sign onto the international consensus, you sign on to a bunch of deleterious consequences.
• “When you sign an OECD model treaty, you say there is no withholding, or hardly any withholding, on outflows of cash to multinationals. Now why in hell do you want to sign that?
• The OECD primarily protects the interests of the United States and the United Kingdom. Even Germany doesn’t get a look in.
• “South America does not sign OECD model treaties. Because a treaty is a contract. They read the document. They don’t like the terms.”
• When you sign an OECD model treaty you also sign onto a concept called Permanent Establishment. “It is a rather nonsensical concept that says, ‘well, if you, multinational, are operating in a country and making money in a country, but you have any presence that is short of, oh, a full automobile assembly plant, then you are not taxable in that country at the level of the owner of this plant. This thing has a little circle drawn around it, and it cannot be taxed in a normal way. That is a pillar of that treaty. . . . you do not want to sign a document that has got that in it.
• Do not sign tax treaties with tax havens. The United States by and large does not sign treaties with tax havens, though there is a group of “enablers” such as Ireland, the Netherlands, Switzerland which escape the net. “These are members of European organisations in good standing . . but they also do a full-on business as conduits of money out of the market countries: that is all of your countries.”
• The U.S. has treaties with Switzerland, the Netherlands, Luxembourg, all these European enablers – because our businesses want to strip income out of Europe. I don’t know why Europe doesn’t get peeved at us.
• “The US does a lot of business with Brazil. The US has no tax treaty with Brazil. You can do business with a country without a tax treaty. You don’t need one. You do need a bilateral investment treaty.”
• “So what do you do if you have a treaty with the enablers? You want switch-over clauses. . . . if the other party of the treaty doesn’t tax it, then the first party – in this case Norway – gets to tax it. And the OECD model has, in the draft, a switch-over clause that you can just pop into the document.”
The full transcript of this section is below. (The rest of the talk is interesting too.) This section starts at about 3:20 into the presentation. She occasionally refers to a
diagram: it’s here: click to enlarge.
“Don’t sign OECD model treaties, don’t sign U.N. model treaties!
The OECD does not have the interests of small and medium-sized vulnerable countries – and notice that I am not talking about developing and developed countries. As far as these multinationals and their advisers are concerned there is no differentiation: there is only countries for which there is extraction and countries where there are customers, and these are all countries from which income has got to be stripped. And the rubric that allows this is the international consensus. It is the whole treaty network. The treaties protect multinationals primarily. That’s all they were ever for: to make life comfortable for multinationals.
Secondarily, the OECD protects the interests of the United States and the United Kingdom. Germany is the biggest economy in Europe: it doesn’t really even qualify to be listened to at the OECD. There are things that Germany wants to address – this commission arrangement here (on the diagram) – they are not going to get them. They are not a constitutent. If they are not a constituent, is Norway a constituent?
Back to the treaty part: it’s almost an advantage being small: you want to enact specific defensive laws to address the problems that you know you have. If you problems with the pricing of minerals going out of your country, or you have problems with ships being towed out into the ocean and sold, I can write you a two sentence statute that says ‘if you have an oil rig that is licenced to operate in Norwegian waters continuously, and it is sold while under contract, then the sale took place in Norway, no matter where the actual sale took place. That is not a hard statute to draft. You can draft protective stuff and get it in their law and they can’t argue with it. Right now, in some of these situations the treaties are protecting them, and the countries that are harmed are not protecting themselves.
Those of you who are from mineral exporting countries, for heavens’ sakes, the agreements that you sign: this is the point of maximum leverage over the multinational company extracting the minerals: they want the minerals, you have them, you can put the conditions and the tax conditions in the agreements. 6:50 As I understand it, I am told that both sides of the North Sea: both the United Kingdom and Norway signed Production Sharing Agreements (PSAs) – you haven’t been able to get a PSA from Saudi Arabia for 50 years. The country owns the minerals, the multinational just paid to take them out, and then it buys them from the country at the world price, which is a very easy thing to find.
Why not to sign OECD treaties? Professor Christian was talking about the norms: the international consensus. This is basically a load of nonsense that protects multinationals. When you sign onto the international consensus, you sign on to a bunch of consequences that have very deleterious effects on what we call a Source Country: that is, a market country. This is Norway and all the countries that are represented in this room: right here, where the limited risk distributor and the customer are. When you sign an OECD model treaty, you say there is no withholding, or hardly any withholding, on outflows of cash to multinationals. Now why in hell do you want to sign that? 8:30
India, South America, withhold. South America does not sign OECD model treaties. Because a treaty is a contract. They read the document. They don’t like the terms.
You sign on to respecting all these little boxes as real, live corporations that decide their own actions and are separate economic actors: and as we know these are not separate economic actors. On a balance sheet these things don’t exist and the transactions between them don’t exist. You sign onto not only recognising the transactions between them – you sign on to recognising and respecting the self-serving contracts that the multinationals’ lawyers wrote to explain those flows, out of your country, of cash on which there is no withholding.
You also sign onto a concept called Permanent Establishment, and this is one that the Indians are fighting to the wall. Next time you have one of these conferences, invite people from the Indian and Chinese goverments. They have signed a bunch of these treaties and they are fighting this stuff: they are fighting for their own interpretation of this stuff, fighting the Permanent Establishment concept. It is a rather nonsensical concept that says, ‘well, if you multinational are oprating in a country and making money in a country, but you have any presence that is short of, oh, a full automobile assembly plant, you are not taxable in that country at the level of the owner of this plant. This thing has a little circle drawn around it, and it cannot be taxed in a normal way. That is a pillar of that treaty. The treaty allows companies to go in through the internet and sell services to everyone in that country, and not pay tax. That is ridiculous. That is what Permanent Establishment has come to mean: you do not want to sign a document that has got that in it.
What do you do if you have these treaties? Norway has an awful lot of them. The European Commission the other day made some interesting suggestions. A multinational not paying tax anywhere, including in most of Europe, has gotten so bad that even the guys in charge of borderless Europe are starting to notice this, and say ‘you shouldn’t sign treaties with tax havens.’ You shouldn’t. The United States by and large does not sign treaties with tax havens. That is how the US blacklists people: if you don’t have a treaty with the US that means it blacklists you. But they have a kind of narrow definition of tax havens: one of the definitions was that it’s a small jurisdiction, and you have to be small to be a tax haven. Because if you have real responsibilities to people and schools and so on, you kind of have to have taxes to finance that kind of stuff. It also offers special deals to non-residents. That’s like Gibraltar: that’s a very narrow definition. You don’t want to sign treaties with. But also, the other ones you don’t want to sign treaties with are the international enablers: the Netherlands, Switzerland, Ireland, these are members of European organisations in good standing: they are low tax jurisdictions, they have real tax systems, they tax their own people – but they also do a full-on business as conduits of money out of the market countries: that is all of your countries.
When your people are consuming goods and services from big multinationals: all those American products and entertainment that you want to keep your children away from: you are a market country. These are the conduits they use to get the income out of your country after your child has whined and pulled on your leg and you went and bought that product you didn’t want to buy. You don’t really want treaties with them – but these conduits have treaties with everybody, because you can’t run yourself as a holding country without treaties.
You are beginning to see how treaties enable all this.
South America: Brazil is a huge country. The US does a lot of business with Brazil. The US has no tax treaty with Brazil. You can do business with a country without a tax treaty. You don’t need one. You do need a bilateral investment treaty, which says that there has to be arbitration if there is a dispute, you need the rule of law, but you don’t need a tax treaty.15:00
So what do you do if you have a treaty with the enablers?
You want switch-over clauses. This country, Norway, signed a treaty with Ireland in 2000. It is clear that Ireland is one of the enablers. These rulings will defend the multinational’s position in competent authority negotiations: that is a treaty negotiations between the two affected countries. That is part of the services they sell. There is nothing for them to defend if you have a switch-over clause. The Norway-Ireland treaty, I don’t think has a switch-over clause. Here is what that means. Norway is an exemption jurisdiciton: that means foreign active income is exempt from taxation in Norway. Well, if the income is shifted to Ireland, and Ireland doesn’t tax it – then guess what? Ain’t nobody taxes it. A switch-over clause says that if the other party of the treaty doesn’t tax it, then the first party – in this case Norway – gets to tax it. And the OECD model has, in the draft, a switch-over clause that you can just pop into the document.
But your businesses will whine.
- You have to have a treaty with Switzerland.
- We need it for business!
- What business?
- Well, tax evasion, OK advoidance. We need it for tax planning.
And that argument carries, in the United States. The US has treaties with Switzerland, the Netherlands, Luxembourg, all these European enablers – because our businesses want to strip income out of Europe. I don’t know why Europe doesn’t get peeved at us for having this policy.
You have got to have switch-over clauses.”
End of section.
This took up about 17 minutes: the rest of the 38 minute presentation contains much that is of interest. This will be stored permanently on the Tax Justice Network’s Tax Treaties webpage.
This morning I have published a short new book entitled The Finance Curse: how oversized financial centres attack democracy and corrupt economies. Co-authored with John Christensen, the former economic adviser to the UK tax haven of Jersey and director of the Tax Justice Network (TJN), The Finance Curse combines elements of my two previous books, Treasure Islands and Poisoned Wells, and brings a raft of fresh analysis to our understanding of financial centres.
This book emerges from our long-running work on tax havens, and differs from much of the work that we’ve done in the past. Previously I have generally focused on the global impact of tax havens or secrecy jurisdictions: that is, the impact that one haven has on the citizens of other countries, elsewhere. The Finance Curse, by contrast, looks at the domestic impacts of hosting an oversized financial centre: for example, how Britain as a whole has fared as a result of hosting an oversized financial centre.
The book find that finance is (obviously) beneficial to an economy up to a point, but once it grows too large a range of harms start to emerge. Much of the damage, and the underlying processes at work, are similar to those found with a Resource Curse that afflicts many countries that are overly dependent on natural resources.
The graph below (click on it to enlarge it) provides a taster illustrating just one of many aspects of the problem. The press release is pasted below.
The Finance Curse
How oversized financial centres attack democracy and corrupt economies
A resource curse casts a shadow over certain mineral- and oil-rich nations damaging their economic growth and development. Now a new e-book by Nicholas Shaxson, author of the acclaimed Treasure Islands, and John Christensen, Director of the Tax Justice Network, shows that countries with oversized financial services suffer similar fates.
As the resource curse stalks Nigeria, Angola and the Democratic Republic of Congo; so a finance curse has captured the UK, Cyprus and Jersey.
The new work argues oversized finance sectors harm their host countries by, among other things:
- weakening long term growth and development;
- acting like cuckoos crowding out productive, sustainable industrial sectors;
- exaggerating and routinely overstating their economic contribution to gain distorting tax subsidies, lax financial regulation and influence crucial political decisions;
- playing a key role in creating a “spider’s web” of tax havens;
- capturing whole political systems, in some cases leading to authoritarianism; and
- generating and extracting unproductive and harmful economic ‘rents’.
For decades, the expansion of a country’s financial sector was widely thought to benefit its economy. But The Finance Curse presents the first comprehensive analysis of the many harms that flow from hosting oversized financial centres.
Symptoms of the Finance Curse
Despite the trillions flowing into and through the City of London and Wall Street, Britain and the U.S. perform worse in inequality, infant mortality and poverty than Germany, Sweden, Canada and most of their rich peers.
Several new studies from the IMF and Bank for International Settlements show when finance gets too big – such as when credit to the private sector reaches 100% of GDP or more – growth suffers. The U.S Ireland, the UK, Spain and Portugal and Cyprus, all hit hard by the financial crisis, were all close to or above 200%.
Claims that the UK’s finance sector contributes over £63bn in tax annually are wildly exaggerated and disingenuous. The true figure policymakers should reflect on is at most £20bn, and could be as low as £2.7bn.
Likewise, policymakers must disregard claims the UK finance sector employs two million people. The relevant figure is a fraction of that. Against these smaller gross ‘contributions’ are a host of tax losses, not only from the bailouts. The true net tax ‘contribution’ of finance in the UK is negative.
The near total ‘capture’ of politics in small island states lead to authoritarian tendencies that aggressively scapegoat dissenters. The British tax haven of Jersey, as one former minister puts it, is run by a “gangster regime” and a “crypto-feudal oligarchy captured by the international offshore banking industry.” In the UK, critics of the City establishment are subtly ostracised, and financial law enforcement is strongly discouraged.
Finance has severely worsened imbalances between regions in Britain, with the “metropolitanisation of gains and the nationalisation of losses.” The financial lobby’s insistence on new transport infrastructure focused on London means more money is spent lengthening platforms at one London train station than on all the upgrades to Manchester’s rail network and the all-important link to Liverpool.
In Jersey, where finance makes up over 50% of GDP, finance has decimated other industrial sectors and dramatically increased inequality. House prices grew by a stunning 29% annually in the 25 years to 2010. In Cyprus, well over 40% of all student enrolments feed its tax haven sector.
In larger jurisdictions like Britain or the U.S these issues are clouded by background noise from large, complex democracies. But in small financial centres and tax havens like Jersey or the Cayman islands, the Finance Curse is much easier to understand because finance is more dominant, and the issues are easier to spot. Tax havens therefore carry strong lessons – and warnings – for Britain and the United States in particular.
As the well-remunerated finance sector recruits ever more graduates, in technical disciplines in the United States, there has been a steep decline in science, mathematics, engineering and technology – and a reduction in “entrepreneurial intentions” among skilled workers.
The “financialisation” of large parts of the British economy has undermined business stability, productivity and employment prospects for large sections of the workforce, creating an ever-deepening economic trap that will be hard to escape.
John Christensen, director of the Tax Justice Network, said:
“The economic collapse in Cyprus highlighted how the Finance Curse hollows out the domestic economy of small islands and corrupts their entire political systems. I’ve seen exactly the same processes at work in my former home of Jersey.
Alarmingly, the City of London is having similar effects on Britain. The Finance Curse presents a clear and present danger to social and economic development.”
Nicholas Shaxson, author of Treasure Islands, said:
“After spending 14 years living in and studying the Resource Curse in oil-rich countries in Africa, I was astonished to find the very same things happening in rich countries with big financial centres.
Having an oversized financial centre in your neighbourhood is a bit like striking oil. It may well bring lots of money. But it will bring huge problems. And the evidence is overwhelming: too much finance is bad for you. Britain, the United States and many other countries need to shrink their financial centres dramatically.
This goes way beyond the damage caused by the latest global financial and economic crisis. Once our politicians understand this, they will see that they can tax and regulate our financial sectors appropriately, with no loss of ‘competitiveness’ – even if other countries don’t.
When the financiers cry: ‘We will run away to Geneva or Hong Kong’ then that is to be welcomed. For if they do so, the financial sector will shrink and many benefits are likely to ensue.”
For further comments, please contact:
Nicholas Shaxson: +41 79 477 10 70 shaxson (at) gmail.com
John Christensen: + 44 (0) 7979 868 302 john (at) taxjustice.net
Nick Mathiason: +44 (0) 77 99 348 619 nmathiason (at) financialtaskforce.org
For Online News Media – free standalone Finance Curse Podcast
Finance Curse Podcast available for easy download free and reposting to accompany your Finance Curse web coverage here. Produced by the Tax Justice Network’s @Naomi_Fowler
A big finance sector is good for an economy – isn’t it? Actually, no.
In this Tax Justice Network podcast we discuss the Finance Curse – how an oversized financial sector can weaken growth, slow the economy, erode democracy, foster corruption and increase inequality. Produced by @Naomi_Fowler
For monthly Taxcasts go to www.tackletaxhavens.com/taxcast
[i] Nicholas Shaxson is author of Poisoned Wells, a book about the Resource Curse based on 14 years’ research in West Africa; and also author of Treasure Islands, a book about tax havens and financial centres.
John Christensen is the former economic adviser to the British Crown Dependency of Jersey, a pre-eminent British tax haven. He is now the director of the Tax Justice Network.