The OECD’s Common Reporting Standard (CRS) for automatic exchange of banking information leaves the door wide open for fraud. The OECD has recently made available a form to report potential avoidance schemes of the CRS. While this form is a first useful step – we’ve been sharing with them the loopholes and risks we’ve identified, and a suggestion on how to assess countries compliance with the CRS. However, we haven’t seen anything get fixed yet…
While the lack of access to automatic banking information by developing countries is our major concern with the CRS (all as a consequence of the OECD’s arbitrary conditions, such as the need for reciprocity or to be chosen in return through the ‘dating system’), for those countries that will manage to exchange information with each other, other risks prevail. Most notably, the need to (effectively) determine the residency of each account holder.
Civil society and allies are pushing for real (and useful) transparency when it comes to disclosing the beneficial owners (BOs) of companies, meaning the individuals who ultimately own and control the companies that operate in our economies, and that could be involved in illegal activities (e.g. tax evasion, corruption, money laundering, etc.).
After many scandals, including the Panama Papers, the international community is moving in that direction, with the G20, the OECD, the Global Forum, the EU and many countries starting to regulate and require beneficial ownership registration.
It’s said that if you’re not at the table, you’re on the menu. Well, the OECD has just made available the list of activated relationships to automatically exchange country-by-country reports between countries. They use big figures like 700 relationships, but don’t get fooled by those numbers – simply look at the image below to see who really has access to CbCR.
Oh, by the way, there’s nothing wrong with your eye-sight. Developing countries are just not there…
Source: Rasmus Christensen (https://twitter.com/phdskat/status/860093952992608256?s=09), by kind permission
The problem is that instead of requiring a fully multilateral approach, the OECD has allowed bilateral relationships to the automatic exchange of CbCR. This makes it harder for more jurisdictions to exchange CbCR, and more costly to arrange – and in practice results in the exclusion of nearly all lower-income countries:
Some jurisdictions also continue to work towards agreeing bilateral competent authority agreements for the automatic exchange of CbC Reports with specific partners under Double Tax Conventions or Tax Information Exchange Agreements
Now, think of a major country that doesn’t appear on the image and is definitely choosing the bilateral approach when it comes to non-OECD countries. Hint 1: its very many multinationals (MNEs) have aggressively pursued profit shifting, so that the misalignment of their global profits away from the locations of their real economic activity has gone from just 5% in the 1990s to more than 25% now. Hint 2: this country won’t be joining the CRS (the global framework for automatic exchange of banking information) either.
The following blog by TJN’s Nicholas Shaxson (currently on a book writing sabbatical) was originally posted on the SPERI blog and is re-posted here with permission.
In debates about tax policy we need to de-emphasise the role of economics and measurement and rekindle the politics
Foreword. The Tax Justice Network is a non partisan network of experts working towards transparency, so we do not take any position about countries’ territorial and political claims.
However, we do expect countries with a de jure (legal) or de facto (in practice) influence over other territories, to take responsibility for their power. We point fingers at the UK for the secrecy of the overseas territories and Crown dependencies (Cayman Islands, BVI, etc.), against the U.S. about the U.S. Virgin Islands and Puerto Rico, and now it’s time for China, its related territories and Taiwan.
Hong Kong, Macao and Taiwan are becoming great risks for global transparency, especially when it comes to automatic exchange of bank account information. (It is not clear how much power China has to influence Taiwan’s laws or what role it has played in keeping Taiwan out of the relevant international agreements. Regardless of who is to blame, participation in global automatic exchange should be ensured for any country accepting deposits and investments from non-residents).
This former British colony under the current control of China was ranked 2nd in TJN’s Financial Secrecy Index 2015. While it has committed to implement the OECD’s Common Reporting Standard (CRS) for automatic exchange of banking information in 2018, it has also decided to make it harder for other countries to obtain information from Hong Kong banks. Instead of signing the Multilateral Competent Agreement (MCAA) – that would have facilitated the automatic exchange of information with over 85 signatory jurisdictions – Hong Kong has chosen the bilateral route. Any country willing to obtain information from Hong Kong will have to manage to sign a bilateral agreement with it.
So far only the UK and Japan have come to such agreements with Hong Kong. However, in view of the potential sanctions by a future blacklist of the European Union (EU) and the OECD, Hong Kong is now considering signing (bilateral) agreements with other countries, especially with EU countries. Apparently signing the MCAA is also under consideration.
On top of the current bilateral approach to implement automatic exchange of information, Hong Kong is choosing “voluntary secrecy”. Others like Cayman Islands are also choosing “voluntary secrecy”, but at least they have signed the multilateral competent authority agreement (MCAA), so other countries should find it easier to obtain information from them.
“Voluntary secrecy” consists of countries choosing to send banking information to other countries, but refusing to receive it. This voluntary secrecy makes obviously very little sense in a new transparency initiative like automatic exchange of information because these countries could simply receive the information and then do nothing with it or simply throw it away. Instead, they want to legally ensure secrecy, either to promote their “fake” residency certificates in exchange for money (to allow foreigners to acquire their residency certificates and then lie to their banks about where the actually live) or to prove that they are not interested in either tax collection or the combat against money laundering and corruption. The OECD contemplates this “voluntary secrecy” by allowing countries that signed the MCAA to choose to be listed under Annex A. However, they are likely so ashamed of it – or they want to protect tax havens that chose this – that the OECD does not simply list the countries that chose voluntary secrecy. Instead, anyone interested in finding out who chose not to receive information has to look into the specific list of “activated exchange of information relationships” of each of the +100 countries that committed to the CRS. On each country’s list, one would have to compare (i) the countries from which each jurisdiction is receiving information, to (ii) the countries that each jurisdiction is sending information to. In the case of Hong Kong, its list of activated Exchange of information relationships shows that Hong Kong will send information to the UK and Japan, but will receive information from no country (not even from the UK and Japan). This proves it chose “voluntary secrecy”.
Macao was ranked 11th in the FSI 2015 edition. It has also committed to implement the OECD’s CRS for automatic exchange of information in 2018, but so far it hasn’t either signed the multilateral competent authority agreement (MCAA) to implement the CRS nor started to sign bilateral agreements (like Hong Kong did). It is still uncertain what route Macao will take (including “voluntary secrecy”), so we will give it the benefit of the doubt.
China was ranked 20th in the FSI 2015 edition. While its secrecy score is not as bad (as opaque) as that of Hong Kong and Macao, it still has room for improvement. China is now a party to the OECD Multilateral Tax Convention on Administrative Assistance in Tax Matters which serves as the legal basis to implement the OECD’s CRS for automatic exchange of information. China also signed the Multilateral Competent Authority Agreement (MCAA) to implement the CRS. However, it has not extended the coverage of either treaty to Hong Kong or Macao. This means that without pressure, Macao may follow Hong Kong and sign bilateral treaties to exchange information automatically.
After news about Taiwan becoming a tax haven, TJN started assessing its legal framework in the 2015 edition of the FSI. Given the lack of external assessments of Taiwan’s legal framework, Taiwan could not be ranked in the FSI, although its range of potential “secrecy score” (how secretive its legal framework is) is among the worst secrecy jurisdictions (or “tax havens”).
Taiwan has not even committed to implement the OECD’s CRS for automatic exchange of banking information let alone signed the multilateral competent authority agreement to implement it. On top of everything, Taiwan is exploiting this voluntary self-exclusion to promote itself as a tax haven. An email sent to the Tax Justice Network by a Taiwan Company told us the following
“almost all the countries will participate in this international reporting system in 2017 or 2018 but Taiwan will not, so we can provide the client a clever way to perfectly hide their asset in Taiwan. We search online recently the websites about offshore tax haven and read about your article about un-noticed tax haven—Taiwan (…)
The world famous tax havens such as Cayman and the Virgin Islands are the first countries to sign CRS, January 1, 2017 from the implementation, and promised to complete the first exchange in 2017; even the tax evasion protagonist Panama, for fear of G20 countries on its economic sanctions, and therefore on April 17 to join, with China, Hong Kong, Singapore, have become the second batch of signatories, starting next year. In the future there will be a third wave, the fourth wave of countries have joined, but Taiwan has not heard any relevant discussion, customers in Mainland China, Japan, Hong Kong, Singapore have noticed that Taiwan has not yet joined.”
The OECD should address this urgently.
Automatic exchange of information is a clear improvement towards transparency, in spite of all of its loopholes (especially lack of access by developing countries). However, if major financial centres like the U.S. and now also China, its related territories and Taiwan are off the hook, it is uncertain whether it will have any impact at all. Sanctions seem to be the only way to encourage global participation.
Now, do you understand why TJN (sadly) laughed at OECD’s comments about the “end of banking secrecy”?
Photo credit: Barbara Willi on Flickr under a creative commons license.