the true story of a global failure

tax us ifyou cantax us ifyou can

Introduction to the Tax Justice Network

The Tax Justice Network (TJN) brings together organisations, social movements and individuals working for international tax co-operation and against tax evasion and tax competition. In an era of globalisation, the Tax Justice Network is committed to a sociallyjust, democratic and progressive system of taxation. TJN campaigns from an internationalist perspective for a tax system which is favourable for poor people in developing and developed countries, and finances public goods and taxes public bads suchas pollution and unacceptable inequality. Our objectives and demands are detailed in theTJN declaration (www.taxjustice.net).

Our network grew out of the global social forum process and the international Attacmovement. TJN is a pluralistic, diversified, non-governmental, non-party and multilingualnetwork. Local, regional and national civil society and social movement organisations aswell as tax justice campaigners, researchers, journalists, development specialists, tradeunionists, concerned business people, tax professionals, politicians and public servants aremembers and supporters of the network.

TJN is campaigning for social change through public debate and education. Public understanding of tax matters is the precondition for international tax justice. The network makes information available through mass media as well as through conferencesand seminars, the internet, newsletters, publications in print, symbolic actions, demonstrations and advocacy. We base our activities on expertise and sound research.

TJN facilitates co-operation, communication and information sharing between its members. Our network organises international exchange and policy debates in order toharmonise the views and concerns of our members. This process forms the basis for powerful global campaigns in international tax policy.

TJN is run by its member organisations as well as individual supporters. The network functions on the principles of participatory democracy, empowerment, transparency,accountability and equal opportunity. TJN encourages and where necessary supportsmember organisations and individuals to participate in the decision making. The networksupports the building of national TJN campaigns in particular in developing countries. Aninternational secretariat coordinates the network's activities.

www.taxjustice.net

tax us if you can

A Tax Justice Network Briefing paperSeptember 2005

Comments on this briefing paper should be addressed to:

Tax Justice Network International Secretariat, c/o New Economics Foundation, 3 Jonathan Street, London SE11 5NH, Great Britain

or by email to the contact authors:

Richard Murphy - rjm@fulcrum-UK.comJohn Christensen - christensen.tjn@neweconomics.org Jenny Kimmis - info@taxjustice.net

Design, layout and artwork by Karl Rodgers:-Fandango Graphics - karlosfandango@tesco.net

World map design by Ianiv Wainberg:-iwainberg@hotmail.com

The Tax Justice Network would like to acknowledge the support of Christian Aid in preparing and producing this briefing paper, which is also available in Finnish, French, German, Portuguese and Spanish.

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CONTENTS

Foreword 1

Introduction 3

1. Tax Justice: An Overview 81.1 What is a tax?1.2 The concept of tax justice1.3 What is a just tax?1.4 Why tax justice matters1.5 How to test for tax justice1.6 Conclusions

2. Causes of Tax Injustice 222.1 Onshore is important2.2 Comprehensive taxation systems are crucial2.3 Regressive taxes should be avoided2.4 The challenges posed by international income2.5 How tax administrations might fail to ensure tax justice2.6 Tax havens are a root cause of tax injustice

3. Key Players in Tax Injustice 283.1 The origins of the tax avoidance industry3.2 The accountants3.3 The lawyers3.4 The banks3.5 The transnational companies3.6 Tax haven jurisdictions3.7 Tax payers

4. Agencies Addressing Global Tax Issues 394.1 The OECD4.2 The European Union4.3 The United Nations4.4 Governments4.5 Civil Society

5. Towards Tax Justice 435.1 Corporate social responsibility5.2 Automatic information exchange5.3 Citizenship and personal taxation5.4 Corporate taxation5.5 Country level actions to improve personal and corporate taxation5.6 General anti-avoidance principle5.7 World Tax Authority 5.8 Tax assistance for developing countries5.9 Holding governments to account5.10 Publish who you are5.11 Trusts5.12 The national agenda

6. Glossary 58

Page

This is an excellent study ona very important subject,on which both research andpolicy action has been extremelylimited as well as clearly insufficient.

When most economic activity wasdomestic, national tax authoritiescovered the majority of relevanteconomic units. In the era ofglobalisation, capital, as well as thewealth of rich individuals, hasbecome highly mobile. This mobility has been furtherenhanced by capital account liberalisation and technologicaladvances. As tax authorities continue to be mainly limited topowers within their own countries, the result has been amassive loss of tax revenue.Indeed, tax us if you can estimatesthat as much as US$255 billion islost every year to governmentsaround the world because of theno or low taxation of funds in offshore centres.

With so much tax revenue lostdue to international evasion andavoidance, governments are forcedto either reduce public spendingand/or increase taxation on lessmobile small companies or poorerindividuals. This outcome is particularly harmful in developingcountries where governmentspending is essential to financesustainable development andpoverty reduction; spending on

health, education and infrastructure, subsidies for housing for the very poor andsocial safety nets are amongst keycategories of such essential spending. Cutbacks in publicspending are often extremely damaging and inequitable, as isincreasing taxation on the lesswell-off and less mobile.

This state of affairs is by no meansinevitable. Strengthening international tax coordinationbetween governments in order toreduce international tax evasion isa very valuable first step. In thelonger-term, a single world taxframework may be necessary todeal with some aspects of international tax policy as well asdesirable to address large-scaleglobal tax evasion. Steps in thisdirection by tax authorities suchas those outlined in this study would make a major contributionto a world economy that would bemore equitable, efficient and modern. Above all, those whohave so little could potentially gainso much, whilst those who have somuch would lose only a little.

Professor Stephany Griffith-JonesInstitute of Development StudiesSussex University

FOREWORD'You see things; and you say "Why?" But I dream things that never

were; and I say "Why not?"' George Bernard Shaw

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The associated problems ofcapital flight, tax avoidance and tax competition are emerging as thenext major global issue requiringattention. As public concernsabout the widening dividebetween rich and poor escalate,and the international communitycomes under increasing pressureto eradicate poverty, civilsociety is paying far greaterattention to the rising share ofglobal wealth that is now held intax havens beyond the reach ofnational tax authorities.

Tax havens are part of a muchdeeper problem facing the globalised economy. As a resultof technological change and capital market liberalisation, richindividuals and transnational corporations (TNCs) can movetheir money freely around theworld. Many have chosen tolocate their wealth and theirprofits in offshore jurisdictionsthat offer minimal or zero taxrates. This has created problems because in a world ofglobalised markets, tax regimesremain largely based on nationallaws and attempts to improveinternational cooperation in taxmatters have been underminedby intense lobbying.

The scale of capital flight to theoffshore economy is immense.In March 2005 the Tax JusticeNetwork (TJN) publishedresearch findings showing thatUS$11.5 trillion of personal

wealth was held offshore by richindividuals. A large proportionof this wealth is managed fromapproximately 70 tax havens inorder to either minimise tax oravoid paying tax altogether. Ifthe income from this wealth wascharged to tax in the countrieswhere those rich individualswere resident or derived theirwealth, the additional tax revenue available to fund publicservices and investment aroundthe world would be in theregion of US$255 billion annually. Importantly, this estimate of revenue loss doesnot include tax avoidance bytransnational corporations orthe lowering of revenue incomecaused by tax competition.

To put this figure into perspective, the UN MillenniumProject report stated that atripling of the global aid budgetto US$195 billion a year by 2015would be enough to halve worldpoverty within a decade andprevent millions of unnecessarydeaths in poor countries.

Until quite recently international initiatives to tacklethe problems posed by offshorefinance and tax havens, themajority of which are directly orindirectly connected to financialcentres in OECD countries,have paid insufficient attentionto the position of developingcountries. This situationchanged in June 2000 when amajor development NGO

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INTRODUCTION

Over 50 per cent ofthe total holdings of

cash and listed securities of rich

individuals in LatinAmerica is reckonedto be held offshore.

This figure rises to 70per cent in the case of

the Middle East.

published a report drawingattention to the harmful impactof tax havens on developingcountries and identifying whytheir negative impacts are feltmost forcefully in the South.

Tax havens impact upon developing countries in fourmajor ways.

First, secret bank accounts andoffshore trusts encouragewealthy individuals and companies to escape payingtaxes. Studies of offshorewealth holdings have shown thatrich individuals in the South holda far larger proportion of theirwealth in offshore tax havensthan their North American andEuropean counterparts. Forexample, over 50 per cent ofthe total holdings of cash andlisted securities of rich individuals in Latin America isreckoned to be held offshore.This figure rises to 70 per centin the case of the Middle East.

Second, the ability of transnational corporations tostructure their trade and investment flows through papersubsidiaries in tax havens provides them with a significant tax advantage overtheir nationally based competitors. In practice thisbiased tax treatment favours thelarge business over the smallone, the international businessover the national one, and thelong-established business over

the start-up. It follows, simplybecause most businesses in thedeveloping world are smallerand newer than those in thedeveloped world and typicallymore domestically focussed, thatthis inbuilt bias in the tax systemgenerally favours multinationalbusinesses from the North overtheir domestic competitors inthe developing countries.

Third, banking secrecy and trustservices provided by globalfinancial institutions operatingoffshore provide a secure coverfor laundering the proceeds ofpolitical corruption, fraud,embezzlement, illicit arms trading, and the global drugtrade. The lack of transparencyin international financial marketscontributes to the spread ofglobalised crime, terrorism,bribery of under-paid officials bywestern businesses, and theplunder of resources by businessand political elites. Corruptionclearly threatens development,and it is tax havens that facilitatethe money laundering of theproceeds of corruption and alltypes of illicit commercial transactions.

Fourth, the offshore economyhas contributed to the risingincidence of financial marketinstability that can destroy livelihoods in poor countries.Offshore financial centres(OFCs) are used as conduits forrapid transfers of portfolio capital in to and out of national

Proponents of taxcompetition havenever answered thecrucial question ofhow far it should beallowed to go beforeit compromises thefunctioning of a viableand equitable taxregime.

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economies which can have ahighly destabilising effect onfinancial market operations.Many developing countries arerequired to hold large hard currency reserves to protecttheir economies from financialinstability. These reserve holdings are an expense that fewdeveloping countries can affordbut, in the absence of international agreement onother more effective measuresto reduce market volatility, theyhave little choice.

Faced with the pressures of theglobalisation of capital movements and the threat thatcompanies will relocate unlessgiven concessions on lower regulation and lower taxes, governments have responded byengaging in tax competition toattract and retain investmentcapital. Some states with limitedeconomic options have made taxcompetition a central part oftheir development strategy. Thisinevitably undermines thegrowth prospects of other countries, as they attract investments away from them,and has stimulated a race to thebottom. The role of tax competition as a sustainabledevelopment strategy is considered further in section1ofthis report, but a recent empirically based study in theUnited States has found:

There is little evidence thatstate and local tax cuts

when paid for by reducingpublic services stimulateeconomic activity or createjobs. There is evidence,however, that increases intaxes, when used to expandthe quantity and quality ofpublic services, can promoteeconomic development andemployment growth.i

If this conclusion applies to arelatively high tax economy likethe United States, it is evenmore applicable to economies insouth Asia and sub-SaharanAfrica, where social and economic development is heldback by under-investment ininfrastructure, education andhealth services. Proponents oftax competition have neveranswered the crucial question ofhow far it should be allowed togo before it compromises thefunctioning of a viable and equitable tax regime. Taken toits logical extreme, unregulatedtax competition will inevitablylead to a race to the bottom,meaning that governments willbe forced to cut tax rates oncorporate profits to zero andsubsidise those companieschoosing to invest in their countries. This is already happening in some jurisdictions.The implications of this for taxregimes and democratic formsof government around the world are dire.

The problems that capital flight,tax avoidance and tax

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competition pose for poorercountries have been exacerbatedby what appears to have been afailure on the part of the multilateral institutions to paysufficient attention to the implications for the tax regimesof developing countries whenpromoting trade liberalisationpolicies. Political pressure fromthe World Trade Organisation(WTO) and the InternationalMonetary Fund (IMF) to liberalise trade regimes has ledto a dwindling of revenues fromtrade taxes such as taxes onimports and exports. Unable toincrease the relatively low revenue yields from direct taxation because of capital flightand tax avoidance, poorer countries have switched the taxburden on to consumersthrough sales taxes. This trendhas become increasingly pronounced over the past 30years and is widely agreed to beregressive since lower incomehouseholds spend a higher proportion of their income onconsumption. Unfortunately thisissue has not been adequatelyaddressed by the multilateraldevelopment agencies.

The problems outlined abovewere also discussed in thereport of the United NationsInternational Conference onFinancing for Developmentwhich called on developingcountries to mobilise resources,especially domestic resources,for development.

The Monterrey Consensusincluded a call for:

Strengthening internationaltax cooperation... andgreater coordination of thework between the multilateral bodies involvedand relevant regional organizations, giving specialattention to the needs ofdeveloping countries andcountries with economies in transition. ii

Strengthening international taxcooperation is a crucial part ofremedying the current imbalancebetween globalised businessesand nationally based tax regimes.This does not have to meancommon tax rates, but it doesrequire agreement on a set ofuniversal ground rules that willenable countries to reduce thescope for tax avoidance and illicit activities. If developingcountries are to benefit fromglobalisation, governments mustregain the capacity to tax theircitizens as well as businessesoperating within their borders,and to use the revenues tofinance infrastructure, essentialpublic services and necessarywealth redistribution.

In their joint report onDeveloping the InternationalDialogue on Taxation,ii the IMF,OECD and World Bank havereferred to providing technicalassistance to improve the effectiveness of tax

If developing countries are to benefit fromglobalisation, governments must regain the capacity totax their citizens aswell as businessesoperating within their borders,and to use therevenues to financeinfrastructure, essential publicservices and necessary wealthredistribution.

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administrations in developingcountries. What their reportdid not make clear, however, ishow developing countries can effectively tackle the much morepressing issue of how to preventcapital flight to tax havens, themajority of which are closelylinked both politically and economically to OECD countries. Nor are there currently any global initiativesunder way to abolish bankingsecrecy in tax matters, whetherde jure or de facto in the caseof offshore companies andtrusts, or to implement a globalframework for automatic information exchange of relevanttax information.

The absence of a global policyframework for discouraging capital flight and aggressive taxavoidance by TNCs has leftnationally based tax regimesfloundering. The legions of taxplanners who operate throughhavens are able to run circlesaround officials in developingcountries who are constantlyhampered by the lack of transparency and cooperationfrom the financial services industry. Lawyers, accountantsand bankers abuse their professional status to facilitateharmful and anti-social behaviourpurely for the sake of the highfees that they can earn by working in tax havens. Theirattitude towards democracy and

society in general was perfectlysummed-up by a British accountant who told the pressin 2003 no matter what legislation is in place, theaccountants and lawyers will finda way around it. Rules arerules, but rules are meant to bebroken.iv This attitude is unacceptable in any context, butis particularly inexcusable whenthe victims of this predatory culture are the poorest andmost vulnerable people on the planet.

The aim of this briefing paper isto help readers understand theissues underlying the global campaign for tax justice. Thepaper begins, in section one, byexploring the meaning of tax justice before moving on toexamine why tax justice matters particularly for poorer countries. Section two sets outthe key systemic causes of taxinjustice, and section threebuilds on this discussion bylooking at the key players of thetax avoidance industry. Theroles of the principal agenciesthat are trying to tackle globaltax injustice are discussed insection four, and a range ofoptions that TJN believe wouldhelp address the problems areoutlined in section five. Finally,a glossary of terms is includedto help with understanding thelanguage of tax.

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Tax justice means differentthings to different people.Some people think it meanspaying little or no tax. Othersthink it means that each personpays the same tax, either inabsolute amount, or more likely,at the same fixed percentage ratewhatever their income. Andsome people think it means thattaxes should only be paid on alimited range of things, such asincome from employment or consumption, whilst othersources of income, usuallyderived from investments, areuntaxed. None of these optionsoffer a system that most peoplewould regard as socially just orfair. This diversity of view doeshowever demonstrate the needto be clear about

what a tax is what tax justice is what duties these create in

combination for governments, individuals, corporations and other tax payers

1.1 What is a tax?

A tax is any payment made to agovernment for which no directbenefit is provided in exchange,for example a payment based ona percentage of income earnedfrom an employment is a tax.Conversely, the payment of alicence fee to a government, forexample, to enable a person touse a car on the highway, is not a tax.

1.2 The concept of taxjustice

Tax justice is like an elephantbecause you recognise it whenyou see it but its hard to define.That may be one reason why theissue has taken so long to comeon to the agenda of civil society.

Tax justice has three components:

the duty of the taxpayer the duty of the state international obligations

The taxpayerFor the taxpayer, tax justicemeans that they accept theirduty to the states in which theyreside to declare all theirincome fairly and openly and topay the taxes they owe asdefined by the spirit of the lawof that country or countries.This means that:

they never evade their taxes they do not seek to avoid

their taxes, whether aggressively or not

they seek to comply with the taxation law of the states that applies to them

The state The state has to create a system of taxation that:

Requires each person (whether a real person or a corporate entity or trust) topay tax according to their means;

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1. TAX JUSTICE: AN OVERVIEW

Where there is anincome tax, the justman will pay moreand the unjust less onthe same income.

Plato

Imposes no undue cost on them to comply with that law;

Provides them with reasonable certainty as to what is due;

Provides a system of access to information and arbitrationwhen the law is not clear;

Imposes a duty to ensure thattaxes are applied impartially, meaning that: administration of tax has

to be and be seen to be free of corruption;

collection of tax has to be enforced, but within the spirit of the law;

taxes received are openly and transparentlyaccounted for, as is their use;

State expenses are budgeted and accounted for through democratic and transparent processes.

In addition a state has to avoidthe following:

Regressive tax systems that charge people on lower incomes to a higher proportional rate of tax than those on higher incomes.

Oppressive tax systems which charge a source of income to tax more than once.

Inconsistent tax systems which charge similar types of income in different ways or at substantially different rates.Examples include taxing identical income at different

rates when received by individuals or the corporations they own and the ring fenced tax regimesof most tax havens, which mean that different tax regimes are offered to companies and trusts owned by non- resident people whencompared to those available to people resident in the tax haven.

Incomplete tax systems that are either not comprehensivein their scope or allow income to fall through loopholes. Both encourage aggressive tax avoidance and non-compliant tax behaviour.

The international dimensionThere is an international dimension to the affairs of astate which requires that the following are avoided:

Creating competing tax systems. Nation states are not in competition with each other in the way that the economic theory suggests should give rise to optimal economic behaviour. As a result competing tax systems can give rise to seriously sub-optimal behaviour on thepart of governments. For example, as research referredto in this report shows, governments in tax havens that seek to attract capital totheir financial services industries by offering low or no taxes on the income

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By eroding the revenue base, tax

competition canbecome too much of

a good thing. Biddingwars between countries can

undermine the collective revenue

base. This increasesthe tax burden on theless mobile industries

and on labour, relativeto capital.'

Financial Times

derived from those sources are denying substantial taxation revenues to both developed and developing nations. Since those governments need revenues to relieve poverty and fund healthcare, education and other social services, competing tax systems cannotbe beneficial.

Offering its sovereign space to the citizens and legal entities of other states so that they can avoid any obligation to the state in which they reside or to any other state in which they trade. To do so is an act that undermines the right of other governments to exercise their own sovereign will.

This report seeks to exploreways in which taxpayers andstates can act in accordancewith these principles of tax justice.

1.3 What is a just tax?

A just tax is:

Part of a system of taxes thatmeets the overall objective oftax justice. This means a variety of taxes are bound to be needed. Taxes are appliedto populations made up of different people with a wide variety of incomes, values, preferences and consumption

and savings choices. In such real world circumstances governments should not rely on one tax to meet all or even most of their needs.

Comprehensive on the source of revenue that it is supposed to charge. Income taxes that let some income be untaxed, sales taxes that ignore some sales, and tax systems that ignore income flows derived from the sale ofcapital assets all provide the perfect opportunity for abusebecause they are not comprehensive. Importantly, however, this comprehensiveness has also to take into account exemptions and reliefs in support of social policy.

Progressive when viewed as part of the whole system of taxes. This means that overall, taking all taxes into account and having regard to those who they are likely to affect taxes start at low overall rates and with low absolute amounts due for those on low income and both the absolute amount of tax due and the absolute percentage rate at which it is paid increase with income. Atax system that derives a highpercentage of the total tax revenue from indirect taxes disadvantages poor people as they pay a higher proportion of their incomes in sales taxes than those who are wealthier.

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Taxes have to beplanned as part of asystem which includeswelfare benefits andnot in isolation, andthey have to coverthe broad scope ofeconomic activity. Intax terms this meansa just tax system hasto have what is calleda broad tax base.

Not significantly different in rate from other taxes on the nearest equivalent form of income operated by the samestate. Charging substantially different rates of tax on earned and unearned income,or on corporations and individuals will inevitably provide opportunities for what tax professionals call tax planning.

This means that taxes have tobe planned as part of a system(which includes welfare benefits)and not in isolation, and theyhave to cover the broad scopeof economic activity. In taxterms this means a just tax system has to have what iscalled a broad tax base.

1.4 Why tax justicematters

Tax justice matters because thesustainability of any moderneconomy requires that the state

has sufficient revenue to fundthe physical and social infrastructure essential to economic welfare, and also toenable a degree of wealth distribution between rich andpoor in order to promote equity and security. Significantissues of social and economicconcern are also affected by thetax systems, including:

income inequality inequality of treatment gender equity international relationships the international

trading regime sound investment

management sustainable development

Box 1 provides a startling indication of the scale of globalwealth that escapes taxation andthe losses, in terms of tax revenue, that are involved. Thisindicates just how far we arefrom achieving tax justice at present.

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ContinentTotal wealth(US$ trillions)

Probable amount offshore(US$ trillions)

North AmericaEuropeMid East and AsiaLatin AmericaTotal

16.210.310.21.3 38.0

1.62.64.10.79.0

Value (US$ trillions) Per cent of total

Asset type

Quoted equitiesPrivate bondsGovt bondsBank depositsTotal

32302035118

27261730100

Box 1: The value of wealth held offshore

Data on the value of wealth held offshore is hard to come by since neither governmentsnor the international financial institutions seems either able or willing to research the global picture.

The Bank for International Settlements (BIS) records bank deposits by country.According to their estimates, in June 2004 out of US$14.4 trillion total bank deposits,some US$2.7 trillion were held offshore. This means that approximately one-fifth of alldeposits are held offshore. However, this figure relates solely to cash. It excludesallother financial assets such as stocks, shares and bonds, and the value of tangible assetssuch as real estate, gold and even yachts held offshore as well as shares in private companies. These assets are typically controlled through offshore companies, foundations and trusts, the latter not even being registered let alone required to furnishannual statements of account. The value of these assets is therefore unknown and harder to determine.

In 1998, Merrill Lynch / Cap Geminis World Wealth Report estimated that one third ofthe wealth of the worlds high net-worth individuals (HNWIs) is held offshore.According to their most recent wealth report, the value of assets held by HNWIs withliquid financial assets of US$1 million or more was US$27.2 trillion in 2002/3, of whichUS$8.5 trillion (31%) was held offshore. This figure is increasing by approximatelyUS$600 billion annually, which brings the current figure to about US$9.7 trillion.

A slightly lower estimate was published by the Boston Consulting Group (BCG) in theirGlobal Wealth Report for 2003. BCG estimated the total holdings of cash deposits and listed securities of HNWIs at US$38 trillion, which is broken down by geographicalregion of origin as follows:

These figures exclude real estate, non-financial assets and privately owned businesses.

There is a third way of estimating the value of liquid assets held offshore. Data published in a report by the research arm of the global consulting groupMcKinsey & Company, shows that the total global financial capital amounted to US$118 trillion in 2003. This was split by asset type as follows:

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Whilst it might appear hard to reconcile the McKinsey figure for deposits with that ofthe BIS, it should be noted that McKinseys figure apparently includes the balances banksowe to each other which are not included in the BIS data quoted earlier. This means thatthe BIS data is a reflection of the sums held by individuals, non-banking corporations andtrusts and is therefore more accurate for these purposes.

The ratio of cash to total financial assets has, according to McKinseys, ranged frombetween 3.3 to 3.85 over the past 4 years. An average of 3.5 would seem reasonable.Applying this average to the BIS offshore holdings yields a figure for total financial assetsheld offshore amounting to US$9.45 trillion. This provides a third estimate within therange US$9 to US$10 trillion. However, this estimate does not include real estate andother tangible assets, the ownership of private businesses held offshore, or other intangible assets such as the rights to receive royalties and licence fees. No one can besure of the precise value of these assets, so they use a modest estimate that would addno more than US$2 trillion to the value of offshore holdings (which in view of the valueof real estate may well be very modest indeed).This provides the basis for our estimatethat the value of assets held offshore lies in the range of between US$11and US$12 trillion. We consider this to be a conservative estimate.

Income from offshore wealthAccording to the various wealth reports already referred to, wealth holders currentlyexpect their assets to grow at between seven and eight per cent annually. An averagerate of return of 7.5 per cent would therefore seem appropriate. US$11.5 trillioninvested at 7.5 per cent yields a return of about US$860 billion a year. This is a reasonable measure of the offshore investment income each year.

Tax lost on offshore incomeThe tax loss arising from US$860 billion being held offshore is estimated as follows. In2003 Cap Gemini stated that 7.7 million people around the world held more than US$1million in financial asset wealth. Normally these high net-worth individuals would be paying the highest rates of personal tax. Forbes magazine in 2004 stated that the averagemarginal tax rate for a person earning e100,000 that year was 37.5 per cent. However,this figure would be too high an estimate of overall tax losses since some assets held offshore will have been invested in ways that involve taxes being withheld rom paymentsmade. We estimate that the average withholding on a portfolio of the type Cap Geminirefers to would be in the region of 7.5 per cent, On this basis we use an average taxrate of 30 per cent to calculate the overall tax loss.

US$860 billion at 30 per cent yields an annual tax loss of approximately US$255 billionresulting from wealthy individuals holding their assets offshore. This estimate does notinclude tax losses arising from: tax competition corporate profit-laundering

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Tax justice and inequalitiesof incomeGlobal tax systems have becomeincreasingly regressive over thelast 25 years. In the developedworld this has been caused by apolicy shift away from taxingbusiness towards taxes on consumption and labour, such asVAT and payroll taxes. In contrast, the IMF and WorldBank have required many developing countries to dropmany of their tariffs on importsand to introduce taxes like VATon consumption in their place.In many cases the new taxeshave not raised as much asthose they have replaced. Thishas resulted in less spending oneducation, health and other crucial services. This in turn hasled to increased unemployment.

These changes have been regressive because businessprofits and capital income arelargely earned by the rich, manyof whom are concentrated indeveloped countries, whereaspoor households spend proportionately far more oftheir disposable income on consumption and have been paying more of their income intax as a result. The pooresthouseholds are in developingcountries. This trend towardsmore regressive tax systemspartly explains why income andwealth inequality has increasedin many regions of the world.

At the same time the rise in theuse of tax havens by wealthypeople and corporations hascaused a significant shift in thedistribution of the tax burden,with a very large number ofsuper-rich people being able tosimply avoid paying tax or beinggiven differential treatment. Taxhavens are justified by their proponents on the grounds thatthey offer a legitimate way forpeople and companies to avoidunfair tax burdens and regulation, but this assumes thatall citizens and companies areequally mobile, which is not thecase, and ignores the free-riderproblem.

Promoting equity throughthe tax systemJustice requires that people betreated alike if their circumstances are similar. Manyof the worlds current taxationsystems do however encouragedissimilar treatment of peoplewho should be treated alike.Examples include:

Not all income is subject to tax. If people on similar income derive it in different ways and some income is taxed and some (for example,from capital gains) is not, then they will have different tax bills.

Different tax structures are taxed in different ways e.g. in

The subjects of everystate ought to contribute toward thesupport of government, as nearlyas possible, in proportion to theirrespective abilities;that is, in proportionto the revenue whichthey respectivelyenjoy under the protection of thestate.

Adam Smith

some countries self-employedincome received through private corporations is taxed more favourably than that received directly by the taxpayer.

Unclear law allows different tax deductions to different people. If the law is badly drafted or poorly administered it may be possible for some people to claim deductions against theirincome which others cannot secure.

Corruption is a fact of life in many parts of the world. Some people may have to

bribe tax officials to agree their affairs when others do not.

Advantages are given to foreigners. Many tax systems, especially in tax havens, provide benefits to people temporarily resident in a country which are not available to those born in it.

Those with different consumption patterns pay significantly differing amounts of sales tax.

Issues such as these can be aserious cause of political tensionand even conflict within society.

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The rich pay less and the poor pay more: Cardosos tax legacy in Brazil

During the years of Cardosos presidency of Brazil the

employees income tax rate rose by 14 per cent and

social security contributions by 75 per cent. Tax on

profits, however, were reduced by 8 per cent over

the same period.

The regressive nature of Brazils tax regime has been

magnified by a value added tax regime that biases the tax

burden towards lower income households, which pay

approximately 26.5 per cent of their disposable income

on VAT whilst high income households pay 7.3 per cent

of their disposable income on VAT.

Source: Assessoria Economica de lUnafisco, Brazil, 2004

The gender implications oftax justiceTax injustices impact on individual welfare throughoutthe world, but especially onpoor and lower income households, many of which areheaded by women. Inequality oftax treatment matters to suchpeople in particular because:

people need to be able to liveon their after-tax income;

income is unfairly distributed around the world; 2.7 billionpeople live on less than US$2a day;

the distribution of tax as wellas the distribution of income has an impact on welfare;

some taxes, and especially those on consumption, can have a higher impact on welfare than others.

These issues are of particularimportance to women. Womentypically earn less than men, butthe bulk of the responsibility forchildcare falls on women in mostsocieties and, in many cases, theeconomic burden of bringing upchildren also falls on mothers.This means women are oftenparticularly vulnerable economically. Many taxation systems exacerbate this in several ways:

Sales and consumption taxes are particularly penal on women and children who

often suffer the lowest levels of income in society. This happens because sales taxes are charged on expenditure by all consumers even when the level of income of a household is below the threshold at which income tax becomes payable.

The shift towards greater useof sales taxes has arisen in response to increased tax competition. Because businesses are mobile they can exploit opportunities for tax competition which consumers and normal citizens cannot. As a result corporation tax rates have been falling steadily and the shortfall in government income is often made up by increasing sales taxes or by cutting state expenditure.

Women and children almost always suffer first when thereare cuts in government spending. Both use more healthcare than men, and children need education, which is expensive.

Benefit systems are often poorly designed and badly integrated within the tax system resulting in many women and children being effectively trapped into patterns of poverty. This occurs even in wealthy countries because the effective rates of tax they suffer as they start to work

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Women and childrenalmost always sufferfirst when there arecuts in governmentspending.

are punitive due to the combination of tax being charged and benefits being withdrawn.

The insidious impact of taxcompetitionMany in business and pro-business political actorsargue that nations should compete with one another toattract inward investment frominternational business by offering:

lower tax rates on profits tax holidays accelerated tax allowances

for spending on capital assets subsidies relaxation of regulations; the absence of withholding

taxes other forms of tax

inducement

This process, called tax competition, has been widelyadopted across the world andhas become a key element inshaping world-wide investmentflows. The IMF, World Bank andEU have all, in varying ways,encouraged developing countriesto compete in this way forresources. Tax competition is,however, fundamentally flawedas a development strategybecause it limits the control anycountry can have over taxationpolicies and creates harmful distortions.

Nations do not compete witheach other for the loyalty oftheir citizens. Nor do theycompete in the provision ofservices. The vast majority ofpeople must use the services ofthe state in which they live andthe concept of introducing competition between statesmakes no sense in terms of promoting meaningful choice forusers of public services. Instead,by creating downward pressureon tax rates, tax competitionreduces the capacity of states tofinance public services effectively.

In addition, tax competitiondoes not, contrary to the argument of those who supportit, exert competitive pressureon governments to be more efficient. Governments are notprofit-maximisers in the economic sense of that term anddo not collude with one anotherto raise tax levels in the waythat businesses frequently collude to raise price levels. Ina democratic system governments are accountable totheir electorate, who are highlyconscious of tax levels and mustbe allowed to decide betweenhigh tax / high spend and lowtax / low spend governments.Seeking to create an artificialcompetition between differentstates undermines the ability ofelectorates to choose between

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these options and is fundamentally anti-democratic.

Distorting the internationaltrading systemIn addition to being fundamentally anti-democratic,tax competition is also harmfulto the functioning of global tradein two ways. First, tax competition distorts investmentflows by diverting investment toterritories where, in many cases,it is inefficiently used. That inefficiency is only compensatedby the tax subsidies the investment attracts. The onlywinners in such a process arethe mobile businesses that canplay one government off againstanother in order to secure tax advantages and subsidies. This iswhy the rise of tax competitionhas been so closely related tothe growth of globalised business.

Second, poor taxation systemscan affect the international trading regime because:

Most tax systems are biased towards larger companies which can: Set up offshore companies

without question in cases where individuals or small companies cannot.

afford complex legal adviceto make it appear they acted in accordance with the law.

Most tax systems are biased towards older companies which have frequently been set up using structures that are now illegal, but which remain unchanged since the time they were created. Thisoften allows them to operate offshore when new companies cannot.

Tax systems are biased towards transnational companies: TNCs find it much easier

to abuse transfer pricing rules since these require at least two countries to be involved.

TNCs are more able to lower their tax rates usinglicensing and thin capitalisation arrangements.

TNCs can exploit tax arbitrage techniques.

Very often all three characteristics combine so thatlarge, old, international companies obtain many taxadvantages that small, new andnationally based companies donot, which undermines any possibility of there being a levelplaying field in trade taxation.As a result the start-up businesses are placed at a disadvantage and additionally suffer the greatest tax compliance costs in proportionto their trade.

This tax distortion is to befound around the world in

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Large, old, international companies obtainmany tax advantagesthat small, new andnationally based companies do not,which undermines anypossibility of therebeing a level playingfield in trade taxation.

countries large and small, developed and developing, taxhaven or not. Since the worldeconomy is driven as much bysmall businesses as large ones,tax injustice is clearly a significant impediment to businesses around the world aswell as to a more just international trading system.

Small investors are disadvantagedOrdinary stock marketinvestors, not all of whom arewealthy, can also be prejudicedby current taxation practices.Much of the wealth invested inthe stock exchanges around theworld is controlled by pensionfunds and life assurance companies. Many of those whosave through such institutionsare on relatively modestincomes.

Tax justice concerns arise formany ordinary people becausetheir savings are being investedin companies that are not beingtransparent about the taxationrisks they face. Recent researchsuggests at least 75 per cent ofthe largest UK quoted companies do not pay tax at thenotional tax rate of 30 per centthat applies to them. Some payless than half this rate.

Those who manage these companies suggest that taxshould be treated as another

cost to be minimised in order tomaximise shareholder value.But this assertion is wrong on anumber of counts:

First, shareholders benefit from tax paid by corporations. That tax provides health, education, welfare, the maintenance of peace and stability and other benefits on which communities depend. Whilst brokers, analysts and company directors might argue for tax minimisation this does not necessarily reflect the views of the real shareholders, who are seldom if ever consulted on this matter.

Second, because corporationshave to make very little disclosure about the taxes they pay in most countries there is no way of knowing whether the tax figure they declare to be due is sustainable or not. If the figure is not sustainable a current under-declaration willlead to an overvaluation of shares because companies tend to be valued on post-taxearnings. If companies are overvalued those with long-term savings, such as people saving for retirement, tend to lose out.

Third, the possibility for inflating share prices by reducing tax charges

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encourages senior management to aggressively avoid tax because their share options are triggered by increases in the stock value. This puts their interests in direct conflict with those of shareholders seeking long-term rates of return on their investment. This led to many of the problems of corporate abuse of the tax system seen in the US, in particular in the late 1990s, which imposed a heavy price on many shareholders in the subsequent collapse of the stock market.

Fourth, investors might want to invest in companies that are managed on an ethical basis. Many aggressive tax avoidance practices would beconsidered ethically unacceptable, but without greater disclosure investors do not know which companies are engaging in such practices.

Sustainable developmentdepends on tax justiceTax policy is an essential element of the sustainable development agenda and taxinjustice represents an important obstacle to povertyreduction.

Tax competition is imposing adirect cost on developing countries. In 2000 a major

development NGO estimatedthis cost to be US$35 billion a year. That is the money lost because developing countries cannot charge the tax rates they would wish because corporations refuse to pay them or they negotiate special rates, or the countriesare told to offer reduced rates by the IMF or World Bank as a condition of obtaining financial support.

US researcher, Raymond Baker, reported in the Financial Times in 2004 that up to US$500 billion of capital flight funds flow out ofdeveloping countries each year. He has suggested this figure has three components: US$50 billion of funds

flowing from corrupt practices

up to US$200 billion arising from commercial exploitation of taxation weaknesses within the developing world e.g. extraction of profits by way of transfer pricing abuses

US$250 billion of capital flight money arising from criminal activity

Most of this ends up in taxhavens where it can be heldanonymously.v

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1.5 How to test tax justice

It is important to have testsavailable that will help to assessthe tax justice of an action.Two such tests are needed.

The test for a taxpayer is thatthey should ask the question:If any government knew of whatI am doing is it likely that theywould either:

think it illegal, or think it was legal, but they

would want to change the law to prevent others acting in the same way in the future?

The test for anyone in government considering theirtaxation system is also in twoparts and is:

1. Is our tax law just, taking all its components into consideration?

2. If another government

behaved as we do would we consider their actions a threat to the welfare of our state or its taxation revenues?

1.6 Conclusions

Unjust tax practices incur costswhich fall most heavily on poorpeople. They also threaten thefabric of our society and undermine the commercial trustthat is the basis of the marketeconomy system.

These are costs the world cannot afford. But there arewinners in this process and it isto these that we now turn ourattention and ask fundamentalquestions such as:

Who created unjust taxation practices?

What exactly do these practices consist of?

Who now promotes unjust taxation practices?

What can be done about it?

In combination, taxcompetition,

aggressive tax avoidance, tax evasion

and the associatedillicit capital flight to

offshore finance centres imposes a

massive cost on developing countries.This cost exceeds aid

flows by a considerable order of

magnitude and alsodistorts investment

patterns to the extentthat it undermines

growth in developingcountries whilst also

stimulating asset market bubbles in

developed and developing countries.

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Tax injustice is widespread.The figures we refer toabove makes that clear.But tax injustices happen forspecific reasons, all of whicharise from human interventions.So who are the people that benefit from tax injustice andhow have they shaped tax policies to obtain their goals?Before we consider this question we need to identify inbroad terms the reasons whytax injustices occur.

The most common roots of taxinjustice are:

the failure to promote comprehensive tax systems

the promotion of regressive taxes

the failure to charge all income to tax

failures of tax administration the promotion of tax havens

to hide income from tax and to shelter criminal practices

lack of taxation on natural resource use

The outcome of these failureshas been the creation of thegaps, spaces and loopholes inwhich abuse occurs. The entiretax avoidance industry is basedon exploiting these gaps, spacesand loopholes. Sustainabledevelopment is not possiblewithout their removal.

2.1 Onshore is important

The most obvious thing to say

about this list is that more of itrelates to what happens withinstates than what happens offshore or in the internationalarena. Tax justice is both adomestic and an internationalissue. The two are related, butit is important to remember thatmost people in the world neverleave the country in which theywere born. This means that formost people tax is a domesticissue determined by their place of birth.

2.2 Comprehensivetaxation systems arecrucial

Tax is the ultimate political battleground. Conflicting interests need to be resolvedequitably if justice is to beachieved. It is important that nogovernment is allowed to preserve systems of tax injusticewhich could be amendedbecause they can argue, withoutfear of challenge that there isno alterative. There are alwaysalternatives in tax.

Any government seeking to pursue the cause of tax justicewould promote the following:

Income tax, probably split between federal (or national) and local levels and charged on income from: employment self-employment any form of trade

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2. CAUSES OF TAX INJUSTICE

The outcome of thesefailures has been thecreation of the gaps,spaces and loopholesin which abuse occurs. The entire tax avoidance industry isbased on exploitingthese gaps, spaces andloopholes. Sustainable development is notpossible without theirremoval.

investment income rent profits not taxed by other

taxes A corporation tax on

company profits if not covered by income tax.

A capital transaction tax or Tobin tax.

Capital gains tax. Inheritance or gift tax. A sales tax (although with

specific exemptions for essential items such as food, housing, heat and light, education, health, and basic clothing, at least for children).

Environmental taxes, including and especially energy taxation.

Withholding taxes on incomepaid abroad.

Stamp duty.

Payroll taxes may discourageemployment, but in many casesthey can raise substantial revenue. If it is necessary toensure overall tax rates are keptat a reasonable level, then a payroll tax may also be added to the list.

Nine or ten taxes do not makefor a simple tax system, and thesituation is further complicatedby the fact that any taxation system must be integrated withstate benefits. This integrationis essential to ensure very hightax rates are not created whenbenefits are withdrawn as earnings increase. There are,however, good reasons why

such comprehensiveness isessential:

With a broad range of taxes no single tax is overly important in the income of the government. That meanseach tax can be charged at a reasonable level, so reducing the incentive to avoid or evade it.

With a comprehensive range of taxes if one tax is avoided there is a high probability that another catches the income instead. For example,income which a tax payer seeks to reclassify as a capitalgain is caught by a capital gains tax. But in the absence of a capital gains tax the temptation to wrongly describe income in an attempt to avoid tax rises substantially.

These taxes address differentsections of the economy, andin combination achieve an even spread of taxation across the economy. This increases the chance that taxes are equitable in that each contributes in a progressive way.

Some taxes are included less for their contribution to revenues (this is probably true of most gift and inheritance taxes and, at present, many environmental taxes) but more because the chance of avoidance is much higher without them because the information they provide

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gives an overview of a taxpayers affairs and therefore helps to ascertain whether other tax liabilities are being fairly assessed.

In principle the base for each taxshould be:

as broad as possible subject to as few exemptions

and incentive deductions as possible to prevent loopholesbeing created, subject always to the need for those allowances needed for the implementation of social policy

2.3 Regressive taxesshould be avoided

All comprehensive tax systemsinclude some regressive taxes.Sales and carbon taxes, forexample, may well be regressive,but, if they form part of a comprehensive system of taxesand benefits, regressive outcomes can be mitigatedthrough other parts of the taxation system.

It is important that argumentsput forward in favour of havingjust one or two simple (typically flat rate) taxes areresisted. Almost invariably suchtaxes are promoted by thosewith wealth, or those who actfor the wealthy, and are rarelyaccompanied by any analysis ofhow the government to whom

the proposal is made will raiseits income, and what tax rateswill be required to enable it todo so. A flat rate tax system islikely to result in a considerableoverall shift of the tax burdenon to people with lowerincomes.

2.4 The challengesposed by internationalincome

Even when a country has established fair taxation withinits boundaries there remains arisk that the resulting systemcould be unjust because it maynot charge international incometo tax appropriately. This mightarise for two reasons:

First, it may fail to charge to tax income arising within its territory but which belongs to people resident elsewhere,or;

Second, it may fail to charge to tax income belonging to people who are resident in itsterritory where that income is earned elsewhere.

Both these failings are commonplace, and both give riseto considerable tax injustice. Itis obviously contrary to theprinciple of fairness that peopleshould be treated differentlyfrom each other on similarsources of income becauseeither:

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Much of the workundertaken on taxhavens, and a largepart of the tax planning industry,involves exploitinglegal loopholes for taxplanning purposes,which ultimatelyinvolves tens, andmaybe hundreds, ofthousands of trainedaccountants, lawyers,and bankers in anactivity that is whollyunproductive and anti-social.

They live in different places which happen to be divided by an international border even though the income in question is earned in the same place.

They can shift the source of their income outside the country in which they live butit is otherwise similar in all respects to an income which would have been taxed withinthat country if it had been earned in it.

For this reason countries haveto adopt rules to tackle theseissues. No one rule can tacklethis problem comprehensively:just as a range of taxes areneeded to ensure tax is fair, so arange of rules are needed toensure different sorts of incomeare taxed fairly when international issues are takeninto account. What this meansis that a country cannot rely onjust a source or residence basisof taxation. A combination ofboth is needed. Even then, afurther set of provisions arerequired to capture those whomight exploit any remaininggaps. This might require a citizenship basis for individualsand a unitary basis for companies, both needing to beused when the tax payer orcompany has a substantial international dimension to theirtaxation affairs. It is onlythrough a layering approach totaxation that the problems oftax injustice can effectively be tackled.

Tax systems can also fail tocharge all income to tax evenwhen a government has soughtto be comprehensive internallyand in its international dimension because the tax lawof the country has loopholesand flaws within it which can beexploited by people who aim toabuse the spirit of the laws.This process, called aggressivetax avoidance, occurs when people and companies undertaketransactions which fall within theloopholes in the law in order toavoid tax on the transactions.Much of the work undertakenon tax havens, and a large partof the tax planning industry,involves exploiting legal loopholes for tax planning purposes, which ultimatelyinvolves tens, and maybe hundreds, of thousands oftrained accountants, lawyers,and bankers in an activity that iswholly unproductive and anti-social.

2.5 How tax administrations mightfail to ensure tax justice

Tax administrations can fail atnumerous levels:

Tax law is not clearly written. Tax law is not readily

available to everyone who wants it.

It is not fairly applied. There are few or excessively

expensive means of appeal

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against decisions made by taxation authorities.

Tax is not collected in an even-handed manner.

Tax authorities fail to coordinate with each other, either within a country or internationally to ensure fair taxation is applied to a source of income either within, or from outside, the country.

Tax administrations do not have the resources they needto undertake their work properly.

The burden of tax administration is passed to the private sector without clear guidance being given, but with penalties being imposed for failure to complywith the law. There is particular risk of this in the administration of payroll taxes, taxes on employed income and all forms of sales tax.

The tax administration is corrupt.

These are serious issues. If a taxsystem is not backed by fair lawit cannot result in tax justice.Whilst the tax administrations ofmany developed countries are generally good, those in manydeveloping countries are not.This is not, it should bestressed, down to corruption,rather it is the scarcity ofresources to tackle the problems of raising tax insidethose territories. It is probably

for this reason that no Africancountry has raised a successfulattack on a transfer pricingarrangement although it isknown that transfer pricingabuse is rife within that continent.

Tax justice requires that theseadministrations get theresources they need to fulfil thetask asked of them by their citizens. It is not possible tohave flourishing, corruption freestates in the developing worldwithout strong administrationsto provide them with the revenues they need to fulfil thereasonable expectations of theirpeoples. Strengthening tax systems in developing countriesshould therefore become a highpriority. Funding and technicalassistance is urgently needed tomake this possible.

2.6 Tax havens are aroot cause of tax injustice

There is little that has contributed more to tax injustice than the promotion oftax havens. Tax havens are, inmany senses, fictional spaces.Of course there is a physicalreality that bears their name,but the tax haven operationsthey promote have in mostcases an unusual common characteristic: although a company might be registered ina tax haven, under the terms of

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It is not possible tohave flourishing, corruption free statesin the developingworld without strongadministrations toprovide them with therevenues they need tofulfil the reasonableexpectations of theirpeoples.

Strengthening tax systems in developingcountries shouldtherefore become ahigh priority.

its constitution it is not allowedto trade there. The pretence ismade that they trade somewhere else, whether that isthe case or not.

In addition, although a companymight be registered in a taxhaven territory almost no information about it needs to berecorded with the governmentof that tax haven. Even if thenames and addresses of theshareholders and directors mustbe reported, it is almost neverrequired that these be on publicrecord, and nominee names areallowed. A nominee name is aperson who is paid a small feeto say they are a director of atax haven company when in factthey have no real involvement inits operation.

To add to this air of secrecy andartificiality, many tax haven companies are owned by trusts.These trusts are themselves setup offshore, but often in a different territory from that inwhich the company they own isregistered. The trustees of thattrust (who will, almost certainly,also be nominees) will typicallybe located in a third tax haventerritory. Within the tax planning industry it is generallythought that involving three taxhaven territories in such a structure will make it very difficult for outside authoritiesto investigate what is really happening, and who is benefitingfrom it.

There is a further benefit in theeyes of the person who sets upsuch an arrangement. Officiallythe company, trust and trusteesmight each be located in a different territory, but equallyeach of them might suggest thattheir activities do not take placein the country in which they arelocated. The outcome is thatthe tax haven activity appears totake place nowhere. Whichmeans it is accountable to noone, pays tax to no one, and hasno duty to report anythingbecause it can deny it is anywhere.

In the secretive, parallel universe of tax havens, structures can be set up tocarry out real functions in thereal world but without anyrequirement for a transparentlegal presence that confirmstheir existence or the nature oftheir activities. This creates theopportunity for all sorts of illicitactivities by:

allowing tax evasion to take place largely undetected

facilitating capital flight allowing other crimes such as

money laundering, drug trafficking, people trafficking and so on to take place largely undetected

All these things underminecivilised society. The offshoreeconomy of tax havens is a massive cause of tax and socialinjustice.

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In the secretive, parallel universe of

tax havens, structurescan be set up to carry

out real functions inthe real world but

without any requirement for atransparent legal

presence to confirmtheir existence or the

nature of their activities. This

creates the opportunity for all

sorts of illicit activities.

Tax injustice does not happen by chance. It typically happens as aresult of careful and deliberateplanning, especially in the case ofthe aggressive tax avoidanceindustry. Huge resources aredevoted to this industry becausethe profitability of tax avoidanceis far higher than that of mostother types of financial services activity.

The following are the main players who promote tax injustice:

accountants lawyers banks transnational companies tax haven governments tax avoiders and tax evaders

The following are trying to tackle the problem:

the Organisation for Economic Cooperation and Development

the United Nations the European Union tax authorities who are losing

revenue as a result of the abuse

civil society

At present those who promotetax injustice have the upperhand in this battle because globalisation and technologicalchange has made it easier for

the rich and for businesses toavoid paying taxes. It is for thisreason that civil society hasdecided to tackle this issue inorder to counteract the trendtowards greater tax injustice.By raising the issue on the international agenda, civil societyaims to generate the politicalwill to tackle abusive tax practices.

3.1 The origins of thetax avoidance industry

It is important to understandsome of the historical background to the current situation.

The offshore phenomenon probably began in the US whenstates such as New Jersey andDelaware realised that theycould lure businesses from more prosperous states by offering taxadvantages on condition thatthey register in their states.Incredibly, this practice began inthe late nineteenth century butwas similar to many modern taxhaven practices.

The first real cases of international tax planningoccurred in the British Empire inthe early twentieth centurywhen wealthy people started touse offshore trusts established inplaces like the British ChannelIslands to exploit the curious

3. KEY PLAYERS IN TAX INJUSTICE

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British phenomenon of the separation of taxation residenceand domicile.

In the 1920s the UK added newways for the internationallymobile person to avoid tax.This happened when a UK courtruled that a company incorporated in the UK was notsubject to UK tax if its board ofdirectors met in another country and it undertook all itsbusiness overseas. At a stroke,the concept of the separation ofthe place of incorporation of acompany and its obligation topay tax had been created. Thisconcept survived in UK law untilthe 1990s, by which time it hadbecome the basis for the operation of most tax havencorporations throughout the world.

The idea of splitting the duty topay tax from the concept of taxation residence was finallysevered for individuals in the1930s, when Switzerland beganto offer internationally mobilepeople residence in that countryand only required them to pay afixed amount of tax a year,agreed in advance and not varying with income, details ofwhich did not need to bedisclosed. This concept hasbeen widely copied.

The other major Swiss contribution to tax injustice is

banking secrecy, a conceptwhich they developed at thetime of the French Revolution(for the benefit of the Frencharistocracy) but which becameenshrined in Swiss law in the1930s. The Swiss believed atthe time that it provided themwith a competitive advantage asa small, land-locked state in a hostile European environment.

None of these things happenedby chance. They were thoughtup by lawyers and accountantsand were exploited by them andtheir bankers for commercial gain.

3.2 The accountants

Accountants have played thelargest part in promoting taxinjustice. Much of the planningthat has created the currentenvironment of tax injusticetook place within the Britishcommercial and legal environment in which accountants rather than lawyerstend to be at the forefront oftax advice. Accountants haveincreasingly organised themselves into transnationalcompanies or partnerships,largely driven by the need to beable to audit their transnationalclient companies under thestatutes of most developedcountries.

After many consolidations,

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Enron declared profitsof US$2.3 billion

between 1996 and1999 but paid no tax.

It employed a network of up to

3,500 companies toachieve this aim, atleast 440 of these

being registered in theCayman Islands alone.

mergers and the failure ofArthur Andersen, there are nowjust four large firms of accountants in the world. Theyare (in current order of size):

PricewaterhouseCoopers (PWC)

Deloitte Touche Tohmatsu KPMG Ernst & Young

These firms have combined annual revenues of US$55 billion. Each operates in at least139 countries. KPMG hadoffices in more than 30 of thestates identified as offering unacceptable tax practices bythe OECD in 1998, although ithas closed or renamed a few ofthose offices since then. Allhave offices in all the major taxhavens of the world.

Each has been heavily involved inpromoting tax haven activities.PWC, Ernst & Young and mostparticularly KPMG were heavilycriticised for promoting the salein the US of what the US SenatePermanent Subcommittee onInvestigation called tax products in 2003.vi That committee found that some ofthese products were almost certainly illegal. They found thatKPMG may have made at leastUS$180 million from the sale ofsome such schemes and that collectively the schemes theysold had probably cost the US

Treasury up to US$85 billion inlost revenue.

Deloittes and Andersen (a firmit has now substantiallyabsorbed) were criticised forthe work they did for Enron bythe US Senate in its report onthe failure of that company.Enron declared profits of US$2.3billion between 1996 and 1999but paid no tax. It employed anetwork of up to 3,500 companies to achieve this aim,at least 440 of these being registered in the Cayman Islandsalone.

KPMG was heavily criticised bythe US Bankruptcy Court for itsrole in creating tax savingschemes which lacked economicsubstance on behalf ofWorldCom before it failed.These schemes were designedto save it billions in tax throughwhat were subsequently considered entirely artificialarrangements involving the licensing of what KPMG calledmanagement foresight. Giventhe spectacular failure of thatcompany it is not hard to seethat this management foresighthad little real worth.

In addition, the evidence of theinappropriate behaviour of thesefirms does not come from theUS alone. In 2005 the EuropeanCourt of Justice offered an opinion on a KPMG promoted

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scheme for avoiding the UK'ssales tax, or VAT. In their salespromotional literature for thescheme KPMG admitted thatthey knew that the UK taxationauthorities would consider thescheme to be unacceptable taxavoidance. They nonethelesspromoted it as a tax product topeople who were not previouslyclients of their firm. The courtopinion concluded that KPMGstax shelter was an improperattempt to avoid VAT. Ofcourse these firms are not alonein promoting a culture of tax avoidance, or in suggesting theuse of tax havens. But theyhave a particular responsibilityto bear for a number of reasons:

Their size means they dominate the world-wide accounting profession.

They are so big that another failure would now effectively mean that the world-wide audit market would collapse for lack of choice of firms to undertake the work. They plead special privileges for themselves because of this, but appear not to recognise their duty to society in return.

They heavily promote the cause of corporate social responsibility, no doubt because they see an opportunity to make money from it, but do not appear to recognise the critical role

they appear to play in promoting corporate social irresponsibility in tax avoidance.

Although they no doubt avoiddealing with the more sordid and more criminal end of the offshore taxation and accounting market, the respectability their presence bestows on many of the world's tax havens means that these are provided with an apparent legitimacy that they do not deserve.

These firms wish to appear to be bastions of society, frequently promoting the arts, academic chairs, and even institutes of ethics, but appear not to wish to have the critical eye of scrutiny passed over their own activities. For example, KPMG is operated from a secretive Swiss base whilst PWC's international operations are hidden behind an obscure company in London which claims to have no income but does operate its global web site. Although the firms do publish accounts,this has been a very reluctantmove which has only happened in the last two years in the case of PWC andthe data supplied is by no means that needed to understand and scrutinise commercial operations of their size;

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These firms use their privileged positions as government advisers to promote their own and their clients special interests. For example, in 2004 partners from KPMG and PWC in Jersey lent their names to a paper supporting the introduction of a regressive sales tax but lobbied for theirown exemption from this tax in order to protect their competitive position. It is clear that these firms are politically active in creating the taxation structures that cause much of the taxation injustice in the world.

Because of this, these firmshave a special responsibility to:

abandon their support for taxhaven practices

stop all forms of taxation planning that are not tax compliant

cease promoting taxation policies that increase tax injustice

They have a further duty. Their members dominate the administration of the most ofthe professional institutes of accountants around the world.These professional bodies promote ethical codes of conduct. TJN research suggeststhat none of these ethical codesof conduct condemns the use of

tax havens, aggressive tax planning or the promotion ofnon-compliant taxation behaviour by its members. Inview of their privileged position,accountants have a duty to support a change in the ethics ofthe accountancy profession sothat all these activities arebanned.

3.3 The lawyers

Lawyers have undertaken the following critical roles in creating tax injustice:

they have written the laws that have allowed much of it to take place

they have sought to enforce those rules

they have created a climate of fear in which it is believed that a person must act in tax non-compliant ways if they are to act in

accordance with the law (although that is not true)

they are to meet shareholders expectations (although shareholders arenot asked if that is true)

they are not to breach thesecrecy rules that lawyers have themselves drafted inmany of the tax haven territories

they write the commercial contracts which incorporate the use of offshore and other

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None of the ethicalcodes of conduct promoted by the professional bodies ofaccountants condemns the use oftax havens, aggressivetax planning or thepromotion of non-compliant taxation behaviour byits members.

steps that seek to use the secrecy space of the offshoreworld

they usually create the trust deeds and other documents that allow the abuse that these types of structure allow

they act as nominee directorsand shareholders, or arrange the services of those who do

As is the case with many accountants, there are lawyerswho prefer to avoid using the offshore and tax haven world.But unfortunately that is nottrue of the profession as awhole, and many of the larger,more commercial firms areheavily involved in promotingpractices which use offshorestructures.

3.4 The banks

The world of offshore finance,and the tax abuse that goes withit, is dependent upon the presence of mainstream banks inthe offshore territories.

The banks tend to cluster inhavens that are geographicallylocated close to the regions inwhich they operate. Thus theCayman Islands attract SouthAmerican banks, for example,whilst Bermuda and the Bahamashave a large presence of USbanks, the Channel Islands havestrong British and European

representation and the Pacificterritories see more Australianand New Zealand banks. Butnowhere does a territories banking service operate in isolation.

People bank offshore becausethey recognise and trust thenames of the banks to whomthey give their funds. Withoutthese banks operating in this waythe offshore world could notexist. And without the bankingsecrecy which all these bankssupport, the administration ofthe worlds tax system would besubstantially cheaper and moreeffective. For this reason theleading transnational banks, without exception, play a majorrole in the offshore world.

They also play a substantial rolein the world of aggressive taxavoidance and evasion. In theofficial reports in the US thathave criticised the roles of mostof the major firms of accountants in supplying abusivetax products many major bankswere named for knowingly providing the funding to facilitatethese transactions. Thosenamed included Deutsche Bankwhich knowingly financed taxproducts produced by KPMG. JP Morgan Chase and Citigroupwere also criticised in variousways for their role in the Enrondebacle, including providingfinance through offshore vehicles.

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Without bankingsecrecy the

administration of theworlds tax system

would be substantiallycheaper and more

effective.

3.5 The transnational companies

Transnational companiesdeserve special mention amongstthose who promote tax injustice. They are, of course, taxpayers, but their role can behighlighted for several reasons:

they are, or should be, the largest taxpayers

they have greater opportunityto abuse the worlds tax systems within the letter of the law than any other taxpayer

when they transgress it is eventually very obvious, and imposes costs on a great many people

This gives transnational corporations a special responsibility to ensure thatthey pay the taxes they owe inthe countries in which theymake profits. There is however overwhelming evidence that thisis not what they do. Instead inalmost every case TNCs argue that:

tax is a cost costs must be minimised their duty to their

shareholders requires them to do this

they must in consequence avoid tax wherever possible

This is a disingenuous argument.

First, tax is not a cost andaccountants demonstrate thiswhen they declare a pre-tax profit in the profit and lossaccount and subsequently showtwo distributions from that figure. The first distributionbeing tax and the second beingdividends paid to shareholders.The tax due on a companysprofits is not described as a costin any accepted accounting standard. Like dividends, it is areturn to a stakeholder out ofthe surplus made by the company.

In that case it cannot follow thatthere is an obligation to minimise the tax cost in a company because tax is not acost. This statement is consis-tent with company law in mostcountries in the world. Thatlaw says, in most cases, that acompany must be run for thebenefit of the shareholders. Inmany cases that obligation isalso qualified by a requirementto take the interests of otherstakeholders into account.What is certain, however, is thatcompany law does not require acompany to:

operate outside the spirit of the law

take the risk of breaking the law

hide what it does from view (including that of the shareholders)

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undermine the tax systems which support the societies inwhich its stakeholders live byfailing to make appropriate payment towards them

Nor, unfortunately, is there evidence that TNCs or their taxadvisers have consulted shareholder views on this matter. It is fair to assume thatmany shareholders in pensionfunds, mutual funds and structured savings schemes, whoown - albeit indirectly - theshares in most transnational corporations, would not want acompany to minimise its tax bill.They most certainly would notwant it to do so if that involvedrisk of:

illegal action, as much tax planning does

underpayment to developing countries, as much transfer pricing does

the creation of artificially inflated short-term share prices which the understatement of current tax liabilities usually will

higher taxes being paid by all other members of the community

3.6 Tax haven jurisdictions

The tax havens and microstateslisted in Box 2 carry a burden of

responsibility for the problem oftax injustice. All have contributed in some waytowards creating a system whichcontributes to the imbalance ofwealth distribution in the world,which hinders sustainable development.

Some of these microstates seeno way out of the dilemmawhich they have created forthemselves. In places likeCayman and Jersey more than50 per cent of the economy is dependent upon the financialservices industry. If tax havenactivities were to stop the economy of the country wouldcollapse in the short-term.However, these places are smalland the cost of providing themwith economic support during atransition to the creation of amore gainful economy is miniscule in proportion to thecosts they currently imposeupon the world economy.

For countries such asSwitzerland, the UK andLuxembourg, all major taxhavens, the problem is one ofpolitical will. The OECD hastried to take action against someof the smaller states who haveabused the world tax systemthrough the use of harmful taxpractices, including classic taxhaven activities. The OECD andthe EU have been less successfulat bringing their own membersto book when they have undertaken the same activities.

The OECD has triedto take action against

some of the smallerstates who have

abused the world taxsystem through theuse of harmful taxpractices, including

classic tax haven activities. The OECDand the EU have been

less successful atbringing their ownmembers to book

when they haveundertaken the same

activities.

www.taxjustice.net35

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The Caribbean and Americas

Box 2. Tax Havens of the World

AnguillaAntigua and Barbuda *Aruba *The BahamasBarbadosBelizeBermudaBritish Virgin IslandsCayman IslandsCosta RicaDominica *Grenada

Montserrat *Netherland AntillesNew YorkPanamaSaint Lucia *St Kitts & Nevis *Saint Vincent and theGrenadines *Turks and Caicos IslandsUruguay *US Virgin Islands *

Africa

LiberiaMauritiusMelilla *The Seychelles *

So Tom e Prncipe *Somalia *South Africa *

Middle East and Asia

BahrainDubai *Hong KongLabuanLebanon

Macau *SingaporeTel Aviv *Taipei *

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Source: Economist Intelligence Unit, OECD, John Christensen and Mark Hampton (UK academics working in this field)

Note: This list of 73 countries and territories excludes territories which have some taxhaven features but are not commonly used as such, e.g. New Zealand. Those 34 territories marked with an asterisk have developed their activities in the last 25 yearsaccording to Christensen and Hampton, representing almost a doubling in the numberof tax haven territories during that period.

Europe

Alderney *AndorraBelgium *Campione dItalia *City of LondonCyprusFrankfurtGibraltarGuernseyHungary *Iceland *Ireland (Dublin) *Ingushetia *

Isle of ManJersey Liechtenstein LuxembourgMadeira *Malta *MonacoNetherlandsSarkSwitzerlandTrieste *Turkish Republic of Northern Cyprus *

Indian and Pacific Oceans

The Cook IslandsThe Maldives *The MarianasMarshall IslandsNauru *

Niue *Samoa *Tonga *Vanuatu

There is an urgent need to create consistency in theapproach towards harmful taxpractices including low tax rates,the failure to apply withholdingtaxes for non-residents and therefusal to exchange tax databetween countries. All havens,large and small, developed anddeveloping, share this responsibility without exception,but the richer nations have thegreater responsibility becausethey maintain their systems atthe cost of imposing a direct burden upon the poor of the world.

3.7 Tax payers

Of course, tax injustices of thetype we have described above

would not occur without individuals who want to exploitthe system. In a just world onemight hope that an appeal to reason and the common goodwould discourage those who usetax havens and other aggressivetax planning practices. In reality,however, where an opportunityexists some will exploit it.

That is why we concentrate the recommendations we make laterin this report upon:

stopping the supply of these services

making it harder to benefit from them

ensuring the penalties from seeking to exploit such activities are sufficient to discourage those considering doing so

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4. AGENCIES ADDRESSING GLOBALTAX ISSUES

The problem of tax injusticeis rising on the agendas ofmany organisations andcivil society groups. The principalagencies tackling tax injustice are:

4.1 The OECD

The Organisation for EconomicCooperation and Development(OECD) issued its report calledHarmful Tax Competition in 1998.It defined the factors to be usedin identifying these harmful taxpractices, many of which it associated with tax havens andmade wide-ranging recommendations to counteractsuch practices. In doing so theOECD added its voice to that ofthe Financial Action Task Force,which has been criticising taxhavens for their role in moneylaundering since 1989. Theywere joined in this mutual critique of havens in 1999 by theFinancial Stability Forum which concentrated on internationalfinancial stability through information exchange and international cooperation in financial supervision and surveillance.

The OECD approach has been toseek to eliminate harmful practices, and it largely sought todo this by obtaining mutual undertakings to do so, conditionalupon agreement between all theparticipating jurisdictions by 2005.

That deadline is now approachingand it is clear that whilst

progress has been made, muchremains to be done. That islargely because of conflictsbetween the tax havens that theOECD had targeted and the inability of the OECD to stopsome of it principal memberstates from pursuing the verypractices the OECD hasdescribed as harmful.

Nonetheless, the progress thathas been made is to be welcomed. The environment inwhich tax havens operate haschanged because of the OECDinitiative.

4.2 The EuropeanUnion

The European Union (EU) alsoidentified problems of harmful taxpractices within its borders during the 1990s. It made littlesense for the EU to promote asingle market between its members if they were competingwith each other on tax.

The