Tax Justice Blog

New multilateral instrument to limit damage done by tax treaties

June 7, 2017   Blog, Tax Treaties

Today sees the signing ceremony of a new multilateral instrument (MLI) to limit the extent to which bilateral tax treaties create the conditions for large-scale multinational tax avoidance. The OECD’s Pascal Saint-Amans told the Financial Times (£) that “treaty shopping will be killed”. Treaty shopping describes the practice of multi-national companies in comparing and selecting which jurisdictions offer them treaties with the greatest possibilities for minimising their tax bills and maximising other sweeteners, thereby pitting one nation against another, driving a race to the bottom that harms everyone. It allows them to route investments through third countries to acquire the protection of investment treaties that investors would not otherwise have in their home state jurisdiction.

Deloitte’s Bill Dodwell called this new multilateral instrument “a big deal”, predicting that companies would see tax rises of 8-10%. The Financial Times article quotes our Alex Cobham who welcomes it while expressing some caution. Here’s the full statement:

Women’s Rights and Tax Justice: Conference in Bogotá, Colombia

Panaromic view of Bogota

On June 13th, 14th, and 15th, 2017 the Tax Justice Network will be taking part in an important conference of people coming together in Bogotá to discuss the little-understood and under-reported impacts of political decisions on taxation and financial secrecy on women and girls around the world.

Tax justice and gender is a key and developing research and campaigning area for the Tax Justice Network. Our head of tax, human rights and gender Liz Nelson will report back on this fascinating line-up (detailed below) with her take on the event and future steps to protect the futures of half of the world’s population from the damage done to them in environments that are delivering poorly on tax justice.

You can find the details of the conference in Spanish here and it will be livestreamed via this link here.

The conference hashtags are: #TaxJustice4Women17 and #JusticiaFiscalParaMujeres17

Public country-by-country reporting: it’s not about costs or trade secrets

Matti Ylönen

Matti Ylönen

A guest blog authored by Matti Ylonen [University of Helsinki and Aalto University Business School].

The European Parliament is currently debating a proposal for public country-by-country reporting (CBCR), and the vote was recently postponed to later in June. Under the original proposal of the European Commission, the reporting requirement would be restricted only for Multinational Enterprises (MNEs) with an annual turnover of 750 million euros or more.  This would leave out some 85–90 percent of MNEs – a major problem that would also treat MNEs differentially.

One key argument against public CBCR has been that it would endanger confidential business, industrial, commercial or trade secrets to competitors. The Association of European Chambers of Commerce and Industry, for one, has claimed that public CBCR “would allow foreign companies to draw conclusions on trade secrets and the potential of market exploitations of their competitors.”

This argument does not hold water. Some of the reasons for this were elaborated in a Q&A published in 2016 by the Financial Transparency coalition. Moreover, as Arthur J. Cockfield and Carl D. MacArthur have explained in their 2015 article in the Canadian Tax Journal:

“none of the financial information mandated by CBCR, in either the maximalist or the minimalist version, would constitute a trade, business or other secret as defined by the OECD in the commentary on the model [tax] treaty”.

In addition to these arguments, one often omitted fact is that financial accounts can already be purchased from most of the key countries where MNEs conduct actual business (in contrast with especially smaller tax havens that are more often used primarily for financing and holding arrangements). One problem is however that conducting these kinds of analyses is very costly. Furthermore, analysing financial accounts is time consuming and requires specialized expertise.

Together, these hindrances makes the information contained in these national accounts effectively inaccessible to most investors, politicians and the members of the public. There is one group, however, that does have the capacity for these kinds of investigations; the big MNEs themselves. They can easily hire a Big 4 tax advisory company to perform an analysis of their competitors’ business models, or conduct a similar study in-house.

Of course, this kind of analysis would still have gaps that public CBCR would ultimately address. As for example, there can be some differences between national reporting requirements and those covered by CBCR. Moreover, many developing countries would not be covered, and more crucially, financial accounts from most of the secrecy jurisdictions would be inaccessible.

However, these secrecy jurisdictions are mostly used for internal financing structures, which are well known in the industry and therefore do not qualify as a trade, business, commercial or industrial secrets. As a matter of fact, these financing arrangements are hardly secrets anyway, since the Big 4 tax advisory firms design most of these structures and market them actively to any major MNE showing interest.

Combining the arguments put forward here and by Cockfield and MacArthur, is is easy to conclude that the trade secrecy argument is severely flawed.

How about the other central argument, namely the EU-level commitment to reduce the administrative burden of MNEs? This argument does not hold either. According to the European Commission:

Administrative costs mean the costs incurred by enterprises, the voluntary sector, public authorities and citizens in meeting legal obligations to provide information on their activities (or production), either to public authorities or to private parties. They are different from compliance costs which stem from the generic requirements of the legislation, such as costs induced by the development of new products, or processes that meet new social and environmental standards.

An important distinction must be made between information that would be collected by businesses even in the absence of the legislation and information that would not be collected without the legal provisions. The former are called administrative costs; the latter administrative burdens. The Commission’s Better regulation strategy is aimed at measuring administrative costs and reducing administrative burdens.

The great majority of the information contained in CBCR reports would be collected in any case by MNEs – therefore, they are administrative costs and not administrative burdens. Hence, this argument is not valid either. To further emphasise this, whatever IT costs would incur would be negligible compared to the size and resources of the MNEs that the directive would cover. This was also highlighted by assessments quoted in the aforementioned study by the Financial Transparency Coalition.

How Global Audit Firms Are Using Their Lobbying Clout to Dilute Sarbanes-Oxley Reforms

xThe dirty world of tax evasion and avoidance involves all sorts of unpleasant and anti-social characters, none more so than the professional enablers who devise avoidance schemes, market these schemes to their clients, lobby governments for special treatments and permissive laws, and generally play the role for tax dodgers that Tom Hagen played for The Godfather.

Whistleblower Ruedi Elmer vs. the Swiss ‘Justice’ System

June 2, 2017   Blog, Tax Havens, Tax Havens

We’ve regularly covered the battles of whistleblower Rudolf Elmer against the Swiss “justice” system. As we’ve said before, and as has so often been the case with those brave enough to risk all to challenge injustice and corruption, the bank was the criminal, not Rudolf Elmer. He wrote a guest blog for us here on how Switzerland corrupted its courts to nail him. We’d like to bring you up to date on his heroic struggles.

Rudolf-Elmer_m

Tax Justice Network warns at the UN against subversion of Sustainable Development Goals

Last week the Tax Justice Network director Alex Cobham was invited to the United Nations in New York to address the ECOSOC Financing for Development Forum. Here are his remarks, which highlight a major threat to the Sustainable Development Goals target to reduce illicit financial flows. And what’s that threat? A concerted effort to remove multinational tax avoidance from the scope. In fact, there’s been some very active lobbying in order to exempt corporate tax dodging from the ‘illicit financial flows’ definition.

This is life and death stuff.

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Technology and online beneficial ownership registries: 21st century transparency

At the Global Tax Transparency Summit meeting held in London in December 2016, a senior official from the tax haven of Jersey claimed that one of the reasons for not making their registry of company ownership available to public scrutiny was the lack of a global standard for public company registries.  TJN’s John Christensen, himself a former senior official of Jersey’s government, offered to fill that gap, arguing that civil society could provide a standard that serves as a benchmark of good practice.  In this cooperative spirit, TJN’s Andres Knobel, based in Buenos Aires, has drafted a new brief on how technology can be harnessed to provide a secure, transparent platform for an online public company registry. Transparency, 21st century-style.

As he so rightly says,

“the technology already exists but commercial registers are hardly taking advantage of it. Where does that leave the fight against corruption? …credit cards use big data to detect fraud, Netflix can suggest targeted movies, Amazon does the same with books, Facebook is developing tools to prevent “false news” and “false amplification” (fake users and coordinated massive ‘comments’, ‘likes’ and ‘shares’) and Israel checks social media in order to identify potential terrorists. All this, and yet meanwhile the creation of ‘legal fictions’ (companies) that are involved in all of these technologies, is still mainly done on paper.

His report is titled: Technology and online beneficial ownership registries: easier to create companies and better at preventing financial crimes. You can download the full report here.

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