Deputy Director of Income Tax,
Shri Abhishek Anand is an Indian Revenue Service (IRS) officer of 2011 batch. He has completed his bachelor’s degree from Indian Institute of Technology, Delhi. He is one of the first officers in the Income Tax Department to work on taxation risk assessment and has handled several projects in this field. He was appointed the 1st Initiating officer of Delhi Investigation Wing for Benami Prohibition and has been part of the team to establish basic protocols in this area. He is a regular faculty with DTRTI in the areas of Risk Assessment, Data Analytics and Data Mining. Currently he is a Li Ka Shing Fellow at Lee Kuan Yew School of Public Policy, National University of Singapore.
Tax havens create huge challenges before countries in terms of shifting of profits, flight of capital, hiding of unaccounted wealth & other assets of tax residents of countries and providing a safe haven for parking corruption proceeds from where it is ultimately laundered back into source countries. Developing countries due to their limited tax base, less capacity of private taxation and dependence on corporate taxes for infrastructural needs are more impacted by activities in tax havens as compared to developed countries. New frameworks like BEPS have tried to address the concerns of developing countries but this issue still poses a lot of policy challenges before policymakers in Developing Countries.
Direct taxation of Income is a significant revenue source for developing countries having limited resources to finance their infrastructural needs. In a normal scenario, investment,income and tax revenue patterns do follow each other. However, normal patterns fail when some tax jurisdictions do follow disruptive policies which results in shifting of income of corporates and high net worth individuals to these jurisdictions artificially without income getting accrued or value being created in these jurisdictions.
This disruption of normal taxation cycle through tax havens results in a loss of tax revenues to countries which themselves are not tax havens and where value is created or income is accrued.
As per estimates made by several sources, annually US$100–250 billion1 2 taxes are evaded through tax havens. Since most of the countries tax this evaded profit if they are brought back from tax havens to their jurisdictions, capital held in tax havens by these companies or HNIs can permanently leave the tax base (base erosion). Rough estimate of capital held in tax havens is estimated between US$7–10 trillion (up to 10% of global assets)3. The harm of traditional and corporate tax havens has been particularly noted in developing nations, where the tax revenues are needed to build infrastructure4.
While tax losses have been significant for developed countries5, offshore tax evasion impacts developing and emerging economies disproportionately. Compared to just 2% of US household wealth managed offshore, the estimate for Latin America is more than one quarter and for all Middle Eastern and African countries, it is one third (The Boston Consulting Group, 2013)6. The extent to which economies of developing countries are bleeding due to such tax base erosion is disproportionately higher than developed countries. A 2015 International Monetary Fund (IMF) study of 173 countries over 33 years found that Corporate Income Tax (CIT) revenue loss due to profit shifting and base erosion of MNEs are three times larger in developing countries than in member Countries of the Organisation for Economic Co-operation and Development (OECD). Developing countries are estimated to lose $100 billion annually, being one third of their total CIT base, due to aggressive tax avoidance using tax havens (UNCTAD, 2015, p.200)7. Since corporate taxes represent a larger share of total tax revenue in developing countries compared to their developed counterparts (IMF, 2014)8, the cost of tax dodging by MNEs is roughly 30% higher in developing countries than in OECD countries (Action Aid, 2015)9.
Thus, challenges for policy makers in developing countries are multifold. On one hand, they have to attract foreign investment to accelerate growth cycle, on the other hand they have to provide a tax administration which offers competitive income tax/ corporate tax rates to reduce the risk of capital flight and base erosion. Simultaneously, enforcement of transfer pricing laws and information exchange through multilateral agreement is needed to stop the profit shifting and tax avoidance. There are additional challenges in identifying the national assets which are lying in foreign jurisdictions through profit shifting, corruption or other ways. In recent years, several scandals like Panama Tax Scandal10, HSBC Leaks11and similar incidents had rocked the tax administrations in developing countries. In many countries, important leaders in governments have to resign after the disclosure of information received from these sources. Thus, in a post BEPS regime, readiness of tax administrations of developing countries is crucial for safeguarding economic interests & tax revenues of their countries. The crucial factor in this is strategizing customized policies for different kinds of tax havens, rationalizing corporate income tax rates, documenting the value chain in different segments, implementing intellectual property rights reforms and leveraging action items of new BEPS regime proposed by OECD especially related to information exchange between countries so that it becomes very difficult for tax havens to attract tax base erosion despite having near zero taxation rates.
Aprroximately 15% of countries in the world can be identified as tax haven s12. These are not failed states like terrorist states but mostly successful and well-governed economies. Another noticeable fact is that these countries have fairly high GDP per capita and thus being a tax haven has brought prosperity to these countries13 14. In fact, top 10– 15 GDP-per-capita countries, excluding oil and gas exporters, are tax havens15.
Effective Rate of Taxation for foreign investors is the most important parameter in classification of a tax haven. Thus,a tax haven can be defined as a country or place with very low “effective” rates of taxation for foreign investors. Many corporate–focused tax havens have high nominal rates of taxation (e.g. Netherlands at 25%, United Kingdom at 19%, Singapore at 17%, and Ireland at 12.5%), but maintain a tax regime that excludes sufficient items from taxable income to bring the effective rates of taxation closer to zero. Other important Parameter of classification is financial secrecy laws of the countries which provide a cover against enforcement to their investors. A country with a large number of bilateral and multilateral tax treaties has become an important criteria for modern corporates and HNIs for making an investment decision due to worldwide pressure of compliance. Therefore, in today’s post BEPS/FATF regime, this can also be taken as a parameter in deciding tax havens. Thus, a combination of one of more of these parameters decides modern Tax Havens. The broad classification of Tax Havens can therefore be as follows:
Traditional Tax Havens like Jersey, Mauritius and British Virgin Islands have about zero rates of taxation making them attractive destinations of profit shifting. However, in post BEPS regime, these countries have limited bilateral tax treaties due to compliance issues which has limited their utility as Tax Havens. Still, these Tax Havens account for huge capital parked in offshore destinations.
Financial Secrecy Based Tax Havens: Several countries in the world have disproportionate size of financial services industry as compared to their economy. Thus, there are strong incentives for government and politicians in these countries to create secrecy laws to safeguard the interest of their investor s16. Switzerland used to be a classical example of such kind of Tax Havens. However, in post FATF, Post BEPS information exchange compliance regime, the importance of financial secrecy based tax havens have reduced. The financial secrecy parameter is ranked in Financial Secrecy Index for the countries across the world17. It is interesting to note that some countries like the United States and Germany have high levels of secrecy as per this index, they are not universally considered as tax havens because of their high rates of taxation. Similarly, countries like Ireland with lower levels of secrecy are universally considered as Tax Haven due to low “effective” rates of taxation.
As per OECD compliance guidelines of BEPS regime, there has to be rationalization in corporate tax rates to eliminate the benefit of profit shifting. Thus, countries which can be termed as Modern corporate tax havens have non-zero “headline” rates of taxation and high levels of OECD-compliance. This enables them to create large networks of bilateral tax treaties. However, these countries employ several Base erosion and profit shifting tools to reduce their “effective” tax rates to zero not just in tax haven but in all countries with which the haven has tax treaties. According to modern studies, the Top 10 tax havens include corporate-focused havens like the Netherlands, Singapore, Ireland and the U.K., while Luxembourg, Hong Kong, the Caribbean (the Caymans, Bermuda, and the British Virgin Islands) and Switzerland feature as both major traditional tax havens and major corporate tax havens. Corporate tax havens often serve as “conduits” to traditional tax haven s18 19.
Tax havens create an artificial economic ecosystem highly unfavorable to developing countries. As an estimate, Illicit capital flows from developing countries are estimated at USD 641- 941 billion20. This capital outflows from developing countries is 10 times the development assistance given to them by developed countries.
Tax havens encroach heavily on the sovereignty of developing countries making them dependent on international aid and loans for their infrastructure development needs despite creation of sufficient value and accrual of income in their own countries. Tax havens seriously harm the efficiency of financial markets in developing countries by disrupting the natural capital flows and creation of huge financial services industries in tax havens. Tax havens also undermine national tax systems and increase the costs of taxation in developing countries. They are serious threats and constant challenge before tax administration. Tax havens also reduce the efficiency of resource allocation in developing countries by disturbing the redistribution of income & resources through taxation systems.
Tax havens make it more profitable and less risky to engage in economic and other crimes and thus opening floodgates of corruption and money laundering in economies of developing countries. Tax havens also hurt private income in developing countries as lack of adequate corporate tax forces tax administrations to increase the tax burden on individual taxpayers thus decreasing private Income 21. All these factors combine to hurt the governance and democratic system of developing countries in the longer run.
OECD base erosion and profit shifting (BEPS) package (BEPS) refers to tax avoidance strategies that exploit loopholes in tax rules to artificially shift profits to low or no-tax locations. The BEPS Action plan, agreed by the G20 finance ministers in 2015, identified 15 key areas to be addressed. The plan was developed and agreed in just two years and involved the G20 and OECD countries as well as more than 80 developing countries and non- OECD/non G20 economies. It also involved civil society groups, academics and accountancy firms22.
The OECD plan is structured around three fundamental pillars:
The measures aimed to provide governments with solutions to close the gaps in the international tax rules that allow profit shifting. The OECD has now moved into the implementation phase of the process. However, BEPS Package fails to address some basic issues concerning developing countries regarding profit shift of MNEs to Tax Havens. Some of these issues are as follows:
The introduction of country-by-country reporting (CbCr) in BEPS package provides information about the revenue companies are making and the tax being paid across different countries where the company operates, to respective tax authorities. However, there are obstacles to the success of this new requirement. The framework for CbCr has high thresholds, reciprocity and secrecy clauses making it difficult to use by developing countries. Without lower thresholds, more meaningful to the size of the economies of developing countries and the MNEs active in its jurisdiction, the underlying applications of CbCr – transparency and disclosure to arrest base erosion and profit shifting cannot be implemented by developing countries.23
Also, BEPS does not envisage MNEs to put their jurisdiction wise revenue data in public. By failing to make the resulting data public, the tax system is denied the transparency it requires. This would be particularly beneficial in developing countries where the revenue agencies may not have the capacity to ask for and use the relevant data they need to secure tax revenues from global companies. Public transparency rather than the sharing of information between relevant authorities is a vital prerequisite for ensuring confidence in the fairness of the tax system. Further, the use of indirect domestic secrecy laws by some Tax Haven countries abusing the spirit of the information exchange agreement is also an issue. An example is when data provided by whistle blowers in Panama and HSBC were requested by some developing countries from some Tax Havens, it was denied on the basis of illicit source of data. This creates a major problem for tax authorities in developing countries to tackle base erosion even in BEPS provided automatic exchange of information regime.
BEPS package implementation poses the threat of low tax rate competition amongst member countries to attract capital. This will, in the longer run, adversely impact the economies of developing countries which will have to forego a large share of corporate tax. Thus, even after implementation of BEPS package, Tax Havens pose a threat of base erosion because of tax rate differential as compared to developing countries.
It has been observed that MNEs are indulging in profit shifting through tax incentives that do not violate the BEPS agreements. New tools allowed in BEPS package like Patent boxes and other R&D tax incentives are clear cut examples through which Tax Havens are still encouraging profit Shifting from developing countries by MNEs through legal mechanism available in BEPS agreement.24
To enforce the compliance of BEPS multilateral agreement, European Commission had published black list and grey list of countries based on their level of compliance. Most of the tax havens who are under BEPS regime are part of this list. Presence in the list clearly indicates that Tax Havens are still engaging in preferential regimes and zero tax rates to encourage profit shifting from developing countries. Even though,they have been told to comply “ Fair Taxation Practices”, non-objectivity in deciding the “ Fair Taxation Practices” in BEPS agreement has still not resolved the threat of profit shifting from Developing countries to Tax Havens.
BEPS did not question the basic concepts of residence and source, the principles that determine where profits are earned. The current rules underpinning the allocation rights for tax between ‘source’ (where the income is earned) and ‘resident’ (where the person who earned it is based) needs to be revisited especially for taxing gradually increasing “ Digital Economy” in which it is difficult to allocate the value addition and profit in different tax jurisdictions. Also, BEPS package employs the “arm’s length principle”, whereby all parties to a transaction are treated as independent and on an equal footing. It’s supposed to guard against related companies artificially distorting the price at which a trade is recorded, but in practice is often ineffective. It still gives multinationals too much leeway to decide where in the world to shift their profits to Tax Havens.25
Many of the BEPS actions require considerable tax administrative capacity, which presents significant challenges to developing countries that lack the necessary institutions. In absence of adequate data and capacity to enforce taxation on MNEs, developing countries will struggle to stop profit shifting by MNEs to Tax Havens.
IMF points out in its Spillovers paper of 2014 that “tax treaties significantly restrict the rights of countries to tax activities where they take place, ‘at source’. This reduces the corporate tax base of capital-importing states, which are mostly developing countries”. For instance, BEPS ‘Action 7 focuses on changes to the definition of Permanent Establishment (PE) to “prevent the artificial avoidance of PE status.”. Developing countries,however, are concerned with the appropriateness of the PE definition and the extent to which it unduly restricts source-based taxation of activities that involve substantial economic activity in the domestic jurisdiction. In fact IMF’s diplomatically-worded advice is that developing countries should exercise ‘considerable caution’ before signing any multilateral treaty.
Thus, it is clear that despite having a very wide framework and detailed instructions, BEPS agreement/Package has not been fully able to address the problems faced by developing countries from Profit Shifting and base erosion to Tax Havens.
As per the discussions made above, Developing countries face a range of Policy challenges for safeguarding their economic interests, restricting profit shifting, stopping tax base erosion, increasing the voluntary tax compliance, attracting the capital investment as well as working together with other countries in a multilateral tax ecosystem. Some of the policy challenges are discussed as below:
Bilateral Tax Avoidance and Economic Cooperation Treaties: As discussed in the 1st part of this article, Modern Tax Havens do engage into lot of Treaties which make them attractive destinations for investment. For a developing country, a mix of economic, strategic and political needs require them to engage into bilateral tax avoidance and economic cooperation treaties with several countries including tax havens. However, it is extremely challenging for developing countries to draft such a treaty which will not only be in accordance with the interests of both countries but also restricts MNEs and HNIs to do treaty shopping for avoiding their tax payments. A typical example in this regard was India-Mauritius Double Tax Avoidance Treaty as per which capital gains tax was not applicable to investment from Mauritius which is made in India. In due course, MNEs and HNIs started using this route to restrict their Tax payments and thus denying a lot of legitimate tax to Indian tax administration. In recent years, India has also made bilateral information exchange treaties with several Tax Havens. Policy wise, the externalities created by bilateral treaties must be analyzed well in the best interest of the signing countries. Once a treaty is done, it is not very easy to withdraw it in between, so bilateral treaties pose a huge policy challenge before policymakers. A balance needs to be struck when considering a treaty with any tax haven country so that treaty shopping is not started by other parties.
Multilateral Treaties like OECD-BEPS, FATF, Automatic Information Exchange etc. do pose another level of policy challenge to policy makers. On one hand a country needs to engage with other countries to reap the benefits of the network effect and combined wisdom, on the other hand it has to accept many provisions which may not be the best tools for safeguarding it against Tax Havens or from countries which abuse the multilateral treaties. For example, there are several provisions in OECD-BEPS actions which are not suited to the requirements of developing countries in saving their interest against Tax Havens. It includes very high thresholds for information exchange, non- inclusion of consumption/sales based taxation, restrictions on source based taxation and non- effective criteria for profit shifting through non- headline tools like IPRs, interest payments etc. Also, the tax administrations of developing countries do not have the capacity to effectively implement the provisions thus providing a lot of loopholes to MNEs and HNIs to abuse the treaty provisions and getting into base erosion and profit shifting activities towards Tax Havens. It is also to be mentioned here that most of these multilateral treaties are designed by developed nations which have different needs and hence do not cater the best interest of developing countries. For example, BEPS package was designed for members of OECD which have much higher GDP/ Capita and institutional mechanism as compared to developing countries. Thus, as written in para G of section 4 above, the IMF advises that developing countries should exercise ‘considerable caution’ before signing any multilateral treaty. It is a tough challenge before policy makers whether or not engage into a multilateral treaty and if the provisions of the treaty are in the best interest of the country.
Tax Policy Challenge: Addressing avoidance by MNEs can discourage investment but the revenue concern is often paramount in developing countries. To the extent that tax avoidance opportunities in a developing country reduces firms’ cost of capital, it tends to make investment more attractive in that country and, conversely, measures to reduce avoidance opportunities by that country make it less so. Other factors like infrastructure and labor costs in developing economies may often matter more than tax avoidance and can neutralize the tax avoidance attraction for MNEs. So, if impact on investment in any particular country will be less, the wider will be anti-avoidance measures by that country 26. Hence Challenges before tax policymakers in developing countries are manifolds. Firstly, they need to find an optimum rate of corporate taxes without entering into Tax Rate competition with Tax Havens which will in turn eat away their corporate taxes volume. Similarly, Many tax administrations had tried to tackle the problem of base erosion and unaccounted wealth parked in tax havens through enactment of criminal laws. For example, India enacted Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 which Criminalized such practices. However, still full disclosures did not come and detailed information is not available due to secrecy laws in Tax Havens. Thus, this still remains a challenge before tax policymakers. The other challenge before tax administrations of developing countries is to optimize their enforcement cost in new multilateral treaties like BEPS as most of them do not have the institutional mechanism for handling so detailed actions. While designing a tax policy, the policymakers do have a lot of challenges to decide the appropriate resource allocation, creating legal framework and enforcement mechanisms to address the problems of Base Erosion and profit shifting towards Tax Havens. A clear cut policy towards profit shifting through intangible assets like IPRs and innovative value chains in digital economy needs to be framed by developing countries to safeguard their interest against Tax Havens.
Tax evasion and avoidance in developing countries are deliberate business strategies of multinationals and wealthy individuals, supported by a network of enablers such as banks, audit firms, legal advisors and Tax Havens. Therefore, Tax havens may be seen as an outcome of demand for tax avoidance and evasion. Developing countries need to address this basic problem and find out the best solutions to eliminate the demand of tax evasion/avoidance itself. Finding a global solution to global tax evasion and avoidance will undoubtedly be a difficult, messy and protracted process. No multilateral treaty can resolve all the concerns of developing countries and hence even though fighting the effects due to the existence of Tax Havens is a combined global concern, the solutions are more individual to the developing countries.
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