Cross-posted from the Tax Justice Network, with permission:
We’ve just written a blog about the UK’s nasty, disingenuous and hypocritical patent box regime, and how recent moves announced in a joint UK-agreement to reform it have successfully been spun as a “watering down” of the rules under pressure from Germany.
The blog points out that the joint UK-German announcement, which is quite short, is cryptic. It explicitly states that “IP regimes” (which is what patent boxes are) are out: well and good.
But, as we asked, will some sort of equivalent to or variant of the Patent Box be brought back in through the back door? Sources have alerted us that there seems to be some skulduggery involved here. Read the rest of this entry »
Following the huge Luxembourg Leaks story that’s emerged this morning, I thought I’d post a little reminder of what the tax haven business in Luxembourg actually looks like.
This short one-minute video, from the Treasure Islands website, was created in 2011. The offending Apple Itunes mail box address has since been moved, but we think the video still gives a good indication of just how artificial the whole business is.
(The embed code isn’t working today for some reason; click on the link to see it.)
Go, as they say in the U.S., figure. (Full disclosure: yes, it was filmed on an, er, Apple Iphone)
There’s lots more to say about this. First, recent EU efforts to tackle certain tax deals from the likes of Apple and Fiat are not going to significantly crack down on the problem. This needs much bigger international action.
Second, it is incorrect to say, as many have done, that this concerns ‘perfectly legal’ behaviour. It does not, as the TJN blog explains clearly.
Third, in my view there hasn’t been nearly enough attention paid to PWC, the Big Four accountancy firm at the centre of these revelations. The same TJN blog notes, via Prem Sikka, some recent testimony in front of the UK Public Accounts Committee:
“The committee received evidence from a former senior PwC employee stating that within the firm the policy was that it would sell a tax avoidance scheme which had only a 25% chance of withstanding a legal challenge. As the committee chairperson put it “you are offering schemes to your clients – knowingly marketing these schemes – where you have judged there is a 75% risk of it then being deemed unlawful”.
Fourth, it’s interesting to note that the Luxembourg Prime Minister who oversaw and defended all these nasty schemes for many years – along with a lot of the still more unpleasant secrecy business – was none other than Jean-Claude Juncker, who has just started a new job as . . . President of the European Commission. He has promised not to meddled to defend Luxembourg’s interests, but couldn’t help adding:
“I have some ideas on the topic but I’ll keep my counsel.”
Does that sound like someone who will resolutely not intervene on his country’s behalf? Only time will tell. But we shouldn’t forget these words of his, as reported:
“In this conference he admitted to often have lied in his career to prevent rumors spreading and said that monetary policy was too important to be discussed in public, but should instead be discussed in “dark secret rooms, behind closed doors”. Juncker furthermore stated: “I’m ready to be insulted as being insufficiently democratic, but I want to be serious […] I am for secret, dark debates”.
Some are worried that Luxembourg would suffer from the blowback from this. I quite like the quote from this senior G20 official, via a Guardian story:
“Asked recently if such a crackdown risked damaging the economy of Luxembourg, one senior figure closely involved in the G20 reform programme said: “I don’t care. It is like saying: ‘If you fight drugs there will be no jobs in certain parts of Mexico.’ “
Quite so. There are victims, and then there are victims.
Adapted from the Tax Justice Network (TJN) Blog, with permission
Ten years ago Jeffrey Robinson published a book about tax havens called The Sink, where he quotes a U.S. Customs official as saying of Panama:
“The country is filled with dishonest lawyers, dishonest bankers, dishonest company formation agents and dishonest companies registered there by those dishonest lawyers so that they can deposit dirty money into their dishonest banks. The Free Trade Zone is the black hole through which Panama has become one of the filthiest money laundering sinks in the world.”
“Apple will be accused of prospering from illegal tax deals with the Irish government for more than two decades when Brussels this week unveils details of a probe that could leave the iPhone maker with a record fine of as much as several billions of euros.”
European Commission preliminary findings from the probe into Apple’s Irish tax affairs, where the FT reports it had a rate of less than two percent, reportedly show Apple benefiting from illicit state aid via backroom deals with Irish tax officials. Read the rest of this entry »
The IMF has a major new Policy Paper out entitled Spillovers in International Taxation, looking at the effects that one country’s tax rules and practices can have on others.
Reading between the lines, this report constitutes a major attack on tax havens. “Spillovers” in international tax are all about tax haven activity, particularly when those spillovers are deliberately crafted. It also savages a significant part of the prevailing OECD tax consensus that has dominated international tax for the last century or so.
This is a really important document, and though it focuses on developing countries it has important implications for European countries as they consider the urgent matters of tax reform.
We are delighted to see the IMF convincingly takes the side of developing countries: not only taking sides in big current political fights (such as India vs. Vodafone)
but peppering the report with suggestions how developing countries can fight against all the erosion.
This makes a really refreshing change from the standard (often well-justified) stories about IMF programmes laying waste to developing countries.
The IMF says the aim of this exercise – which, by the way, is clearly written and should be palatable to interested non-experts – is to complement the OECD’s BEPS (Base Erosion and Profit Shifting) project to help countries protect themselves from tax abuses, by looking at the spillovers. However, buried deep in the text are some devastating criticisms of BEPS too – notably that it doesn’t properly address crucial issues of unfairness towards developing countries. The report notes:
“New results reported here confirm that spillover effects on corporate tax bases and rates are significant and sizable. . . . Spillovers are especially marked and important for developing countries. . . . The amounts at stake in a single tax planning case now quite routinely run into tens or hundreds of millions of dollars.”
And, in terms of the tax base (that is, which part of cross-border income that developing countries get to tax), there’s some startling quantification:
“The spillover base effect is largest for developing countries. Compared to OECD countries, the base spillovers from others’ tax rates are two to three times larger, and statistically more significant. . . . The apparent revenue loss from spillovers. . . is also largest for developing countries.”
Our emphasis added. Wow. And we’d agree with the next bit, of course:
“The institutional framework for addressing international tax spillovers is weak. As the strength and pervasiveness of tax spillovers become increasingly apparent, the case for an inclusive and less piecemeal approach to international tax cooperation grows.”
That may be a gentle dig at the OECD, for not being ambitious enough. And there’s plenty more: the IMF notes.
“[a] concern sometimes expressed that the system allocates too little tax base to developing countries”
In other words, considering all the different bits and pieces of income that flow from a cross-border investment from a rich country to a poor one, most of them get taxed by the rich country, leaving relatively little on the table for the poor country. What a surprise. And it notes the harmful effects of tax ‘competition':
“The pervasiveness of the tax incentives that the IMF and others have long stressed as significantly undermining revenue in developing countries may to a large extent be a spillover reaction to policies pursued in other countries: a clear instance of tax competition.”
Tax competition is the widely used term; but Tax Wars is the less economically illiterate term. The IMF also notes that – unlike the global trade system – the tax system is an uncoordinated and pretty disastrous hodge-podge. It contains an interesting statistical nugget: “the increased importance of intra-firm transactions (about 42 percent of the value of U.S. goods trade in 2012″ (consistent with the idea that about half of world trade happens inside multinational corporations)
The IMF report takes a swing or two at the OECD’s BEPS process. For instance, in a section on tax treaties which allocate taxing rights among countries, the IMF notes that not only are the OECD models (that are generally the basis for these treaties) skewed in favour of richer countries, as we and other have often remarked, but it also adds:
“At issue here are deeper notions as to the ‘fair’ international allocation of tax revenue and powers across countries (which current initiatives do not address).”
That is a small sentence buried in the text, but it’s devastating. And the IMF notes that defending the OECD consensus may even end up not serving the self-interest of OECD countries:
“Arrangements that seem to contradict broad perceptions of fairness, even if those are imperfectly articulated, may increasingly give rise to unilateral domestic measures to change them—with a consequent risk of uncoordinated defensive measures even further undermining the coherence of the international tax system.”
Treaty reform, it seems is essential, as it notes in its key messages for developing countries:
The “sign treaties only with considerable caution” reminds us of a recent fiery intervention by Lee Sheppard, in which she urges developing counties not to sign these kinds of tax treaties.
Now here’s something else that’s fascinating. The IMF appears to be taking India’s side in its recent tax tussle with Vodafone. Get a load of this:
“The tax treatment of gains on indirect transfers of interests in assets is a controversial issue—and one of particular importance to many developing countries.”
This is where a multinational has an asset in a developing country, and that asset rises in value. It wants to sell the asset – but if it just sells it straight, it may have to pay capital gains tax on those gains. So instead the multinational sets up a shell company in a tax haven, to own the asset. This time it merely sells the shell company (which owns the asset). The sale is recorded in the tax haven, which doesn’t tax capital gains. Bingo! Wealth is transferred from a poor country to wealthy shareholders of the multinational.
This is exactly the issue in the India-Vodafone fight – which the IMF explicitly mentions, along with billion-dollar cases in Mauritania and Mozambique (p70). And the IMF’s conclusion on this?
“The laws of many developing countries need strengthening if they are to tax gains on such indirect transfers.”
Go get ‘em!
On the crucial issue of the OECD’s Arm’s Length Method (otherwise known as the Arm’s Length Principle, or ALP), which we and many others have criticised extensively, the IMF recognises that it is badly broken though it does not fully endorse a move towards the main alternative, unitary taxation with formula apportionment (FA). Such an approach would tackle many of the existing problems, it argues, but would introduce new difficulties – and would not necessarily shift tax bases towards developing countries. Yet it adds:
“this approach, rather than one based on ALP, is so common at subnational level—indeed there seems to be no subnational CIT that does not use some form of FA—suggests that it has at least some merit in taxing firms operating across highly integrated economies.”
(That bit in bold is our emphasis, because we (or at least today’s TJN blogger) didn’t know that.)
Whether or not developing countries would benefit from application of formula approaches internationally, the IMF notes that it depends on which kind of formula were applied:
The IMF urges ‘closer study’ of partial approaches based on formula apportionment, however, including hybrid approaches and ‘profit split’ methods which involve allocating taxable income between countries on a formula basis, but at a transaction level rather than at the level of the multinational group.
To finish, here’s another little bomblet:
“[it has been argued that] low tax and conduit countries can improve the efficiency with which capital is allocated. These considerations generate heated dispute, but remain essentially uninformed by empirical knowledge.”
It is almost funny how the IMF savages some of the tax havens’ central arguments in their self-defence (see more here). The 2006 paper they cite in this respect (Desai, Foley and Hines) and earlier iteration by Hines in particular have become totemic for tax havens in their defence. “Uninformed by empirical knowledge” is perhaps as damning a statement as you will get from the scrupulously polite IMF.
There is plenty more in this report, but these are probably the main points, tax justice-wise.
To summarise: the IMF seems to be carving out new space in this arena with more time for the interests of developing countries, in some contrast to the OECD – which is, after all, a club of rich countries, and experience shows tends ultimately to bat for the interests of its member states.
A welcome addition to the literature.
Cross-posted with the Tax Justice Blog.
The Swiss Federal Council on Wednesday issued a statement making it all too clear what it thinks “the new global standard for the automatic exchange of information in tax matters” should look like. This concerns the OECD’s ongoing project to create a new framework for international financial transparency, which we’ve written about before: while we found shortcomings, we welcomed the project overall. The OECD is expected to finalise its global standard in June.
The Swiss position is a direct threat to global moves on transparency. A private tax adviser tells TJN:
“My view is that they are trying to wriggle out of it.”
The Swiss statement is yet more evidence of what has been called a “circle the wagons” strategy: when under pressure from a world that’s moving forward, give ground only inch by inch, if at all; hold on to secrecy where possible – and particularly exploit the weaknesses of weaker and more vulnerable countries.
Meanwhile, trumpet to domestic and international media and anyone who will believe them how, ahem, clean, well-regulated and transparent the historic haven for thieves and abusers has suddenly become!
The Swiss statement says, for instance:
- Negotiations on the automatic exchange of information with other selected countries are to be examined. In an initial phase, priority would be given to the introduction of the automatic exchange of information with countries with which there are close economic and political ties and which, if appropriate, provide their taxpayers with sufficient scope for regularisation and which are considered to be important and promising in terms of their market potential for Switzerland’s finance industry.
- The introduction of the automatic exchange of information with foreign countries would be conducted by means of separate bilateral agreements with the partner countries. Moreover, implementing legislation would be required in national law. Existing legislation excludes the automatic exchange of information.”
Our emphasis added (thanks to Koen Roovers for bringing this up). The private adviser notes:
“They are trying to choose who to exchange with, and under what conditions. The OECD system was not set up so that countries can add whatever riders they like onto it. They [the Swiss] want to turn this to their advantage, maybe to even move backwards from where they are now.”
As we have noted, multilateral negotiations with intransigents like Switzerland are always more fruitful, but Switzerland wants to make sure it has maximum leverage over vulnerable developing countries.
The Swiss statement goes further. It insists that:
- the exchanged information should be used solely for the agreed purpose (TJN: that’s an effort to keep the scope of transparency as narrow as possible; only let information be used for tax investigations, but – please! – not for corruption, embezzelement, and so on),
- the information should be reciprocal, i.e. should flow in both directions, (TJN: as we’ve noted, this ‘reciprocity’ is unnecessary and unfair for many poorer countries)
- data protection must be ensured and (TJN: a motherhood-and-apple-pie statement that in itself is fair enough but can be abused to restrict the scope of information exchange drastically)
- the beneficial owners of trusts and other financial constructs should also be identified. (OK, as far as it goes)
- Moreover, the Federal Council stated that, where appropriate, the issues of regularisation of the past and market access are to be incorporated into negotiations on the automatic exchange of information. (playing hardball: hanging on to secrecy for past assets, trying to gain advantage wherever possible.)
Mark Herkenrath of Alliance Sud in Switzerland adds:
“The Swiss government will stick to a bilateral approach to AIE and engage in “cherry picking”. That is, it will try to exclude developing countries from AIE for as long as possible – despite opposition by various NGOs and Left-wing members of parliament and a lively debate within the federal administration (I do not think the Swiss development agency SDC is in favor of excluding developing countries from AIE).
The problem is that the Swiss government is not expecting any external resistance to this strategy of cherry picking. Neither the OECD nor the G20 have made a clear statement in favor of a multilateral approach to AIE. Nor have they asked for the inclusion of developing countries in such a multilateral approach. Nor have LIC/LDC governments made it clear that they wish to be included.”
Koen Roovers of the Financial Transparency Coalition summarises:
“This is the moment where Switzerland, likely with the silent support of other rich nations, show what all this is really about: countries with which there are close economic and political ties will cooperate to not hurt each other economically (or in any case less), but that less fortunate populations of the world won’t benefit from this international drive against large-scale tax evasion.
Meanwhile, they have created great spin and to some extent, were rehabilitated by mainstream media stating that ‘Switzerland (& Singapore) joining the ministerial agreement meant the end of banking secrecy’.
He is quite right: the credulous nature of so many media reports about Switzerland is breathtaking. He adds:
“In April, the Swiss development cooperation agency published a briefing calling for “systemic inclusion of the issue developing countries in Switzerland’s internal strategy work in the field of automatic exchange of information and effective implementation of the multilateral OECD Convention on Mutual Administrative Assistance in Tax Matters.”
It seems that voice hasn’t been taken on board when the federal government communicated its position yesterday.”
Indeed. Switzerland isn’t the only country to lack such joined-up thinking, of course.
Endnote: Switzerland currently holds the top position in our Financial Secrecy Index.
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: