Tag: CbC

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Tax justice, the new Washington consensus?

Cross-posted from Tax Justice Network.
I had the honour of giving a keynote address at the World Bank/International Monetary Fund annual meetings on 15th October 2017, for an event entitled ‘Technical challenges and solutions for taxing wealth in developing countries’ – which gave the impression that a new Washington consensus on tax justice may be emerging.

My slides and the video, kindly provided by the Bank, are below. Following a fascinating speech from Brooke Harrington of Copenhagen Business School on the role of wealth managers in creating anonymous, un-taxed assets, I ran through the development of the tax justice movement and the rise of the core policy platform (the ABC of tax transparency), highlighting the progress that has been made but also the extent to which lower-income countries remain excluded from the benefits – and what is necessary to enable effective wealth taxation.

The event, and the discussions with a variety of experts and senior figures from the two Bretton Woods institutions (BWIs), made clear just how far both the Bank and the Fund have moved towards tax justice – and also highlighted some key areas where they need to make progress now.

Continue reading “Tax justice, the new Washington consensus?”

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The US Treasury just declared tax war on Europe

Update: here’s an interview I did with Share Radio which goes through the key points.

Cross-posted from TJN.

On this quiet August day, the US Treasury has fired the first shots of a tax war with Europe. And while it’s wrapped up in a claim to defend international tax cooperation, it looks more like an attempt to prevent an effective measure against international tax-dodging – carried out, not least, by US companies. This may be a good time if you have any tax concerns to approach a company like TRS Consulting for advice, as at the same time, the US continues as the leading hold-out against the automatic exchange of individuals’ financial information; and to resist the growing tide of public registers of the beneficial ownership of companies. The stage is set for a prolonged battle. If you have a business that works internationally, someone similar to this Chicago international tax accountant may be of some assistance to your business.

By publishing a white paper titled ‘THE EUROPEAN COMMISSION’S RECENT STATE AID INVESTIGATIONS OF TRANSFER PRICING RULINGS’ (h/t @RichardRubinDC), the US has signalled an end to a period of quiet tension. This long post considers why this matters; then sets out the main contents of the white paper; before concluding with an assessment of what is possible in the ensuing hostilities.

Implications

We explore the white paper’s main points below, but note first its significance. For one thing, it confirms just how bad relationships between the US and the Commission have become on the subject of corporate tax. The white paper is the opposite of gentle diplomacy – and quite close, in parts, to an outright threat.

Second, it confirms (once again) that the OECD BEPS process has failed. Failed to rescue international tax rules by somehow making the arm’s length principle into a coherent, working approach; and failed to defuse the tensions over tax abuses, even among its own member states. (Non-members had swiftly learned not to expect their views to be given much weight; for the members to see their own agreement fall apart so quickly is less expected.)

Prior to this publication, there had been two main views on the US Treasury’s approach to corporate tax abuses. One was that Treasury was so firmly in the pockets of the more aggressive multinationals that it had effectively led their lobbying against more progressive BEPS measures such as the publication of country-by-country reporting. The other view was that Treasury was walking a line, allowing others (like the Commission) to take the blame for being aggressive but happy to see a real reduction in the misalignment of profits relative to the location of real economic activity via a voluntary disclosure procedure, or indeed by other methods.

In that second view, the Treasury is fully aware of the evidence showing that by far the biggest loser from the tax-dodging of US-headquartered multinationals is… the US itself. In the first view, this knowledge is either overlooked or seen as of only secondary importance compared to the perceived value of ensuring a competitive advantage for these national champions. And it is the first view for which the white paper appears to offer support.

What is undoubtedly the case is that the unveiled threats in the white paper represent a major escalation in hostilities, triggered by frustration with the Commission’s continuing pursuit of the state aid cases.

Main points

The Treasury paper contains three main elements: a rationale for its own existence, a set of arguments against the Commission’s approach to state aid, and a bargaining position for an end to the conflict. We consider each in turn.

Rationale

Were the white paper not such an aggressive document, it would be almost curious to see such a justification laid out. But here it seems necessary. The argument made is that the ongoing cases have “considerable implications for the United States-both for the U.S. government and its companies”. A number of specific implications are discussed, including that the cases:

  1. Undermine the BEPS project;
  2. “[C]all into question the ability of Member States to honor their bilateral tax treaties with the United States”;
  3. May lead to tax repayments that ” effectively constitute a transfer of revenue to the EU from the U.S. government and its taxpayers”;
  4. May have “a chilling effect on U.S.-EU cross-border investment”; and
  5. Set “an unwelcome precedent for tax authorities around the world to take similar retroactive actions that could affect U.S. and EU companies alike.”

It is tempting to dismiss (1) by noting that BEPS has already been substantially undermined – first by the US-led refusal to countenance inclusion of unitary approaches, and second by the ‘competitive’ approaches of major members such as the UK in protecting their own favoured mechanisms to attract BEPS activity from elsewhere. But, the Treasury does have a point here: if the EU had wanted to curtail such activity as is being revealed in the state aid cases of Apple, Fiat, Starbucks and Amazon, why not ensure that BEPS did so? Unless the concern was only backward-looking?

On the other hand, the US was an important blocker in key areas of BEPS – not least, around corporate transparency. So it is unsurprising if the EU wishes to pursue at home some of the aims it could not achieve through the OECD.

Points (2), (4) and (5) constitute forms of threat. If the Commission pushes ahead with further cases, it risks seeing the US question member states’ bilateral tax treaties; discourage US companies from investing; and consider retaliatory, retrospective action against EU companies. Food for thought, certainly, for the Commission and member states.

The key point, in terms of ‘Implications for the United States’ (which is the section heading), is 3. In full, the white paper states:

There is the possibility that any repayments ordered by the Commission will be considered foreign income taxes that are creditable against U.S. taxes owed by the companies in the United States. If so, the companies’ U.S. tax liability would be reduced dollar for dollar by these recoveries when their offshore earnings are repatriated or treated as repatriated as part of possible U.S. tax reform. To the extent that such foreign taxes are imposed on income that should not have been attributable to the relevant Member State, that outcome is deeply troubling, as it would effectively constitute a transfer of revenue to the EU from the U.S. government and its taxpayers.

Aside from the multiple conditionality of this statement, it is hard not to see the Commission reflecting on this with considerable scepticism. First, because the US already tolerates a very high degree of tax-reducing behaviour by its own companies. If this was the real concern, why not address it directly – rather than seek to prevent any inadvertent collateral losses due to action elsewhere? Why not, for example, take steps to reduce the major misalignment that exists between the shares of global activity and global profit that US-headquartered multinationals currently attribute to their home jurisdiction? Or simply abrogate the deferral rules that have led to the creation of a two trillion dollar offshore cash pile?

Second, even if the repayments did give rise to reduced US tax payments, if the repayments are themselves correct (as the Commission would argue they will be), then any US losses would simply reflect a the rightful reallocation of taxing rights – as opposed to a snatch and grab raid. The culprits would be the previously unrecognised profit-shifters, rather than the Commission.

In reality, of course, the likelihood of significant tax implications for US coffers seems small – hence the conditional statements. In particular, the likelihood that companies arranged low-to-zero effective tax rates in Europe, in order to repatriate the proceeds and then pay tax at (difference to) the US rate, seems exceedingly low. Much more likely is that such funds were held offshore and never triggered a US liability.

If this is accurate, then the US interest rests either on its genuine concern over the fate of BEPS, and the general degree of international cooperation; or on the likely implications for US companies, facing not only an end to some lucrative profit-shifting arrangements, but also retrospective penalties. (Whether the US should consider such arrangements affecting European tax liabilities as being in its own enlightened national interest is, of course, another question entirely.)

Legal arguments

The legal arguments make up the bulk of the paper, in two sections. The first, no doubt entirely coincidentally, looks rather like the basis of a legal brief for companies that might wish to mount a challenge to the Commission. The argument is made, by case law, that:

  1. “[T]he Commission has collapsed the concepts of “advantage” and “selectivity,” which are distinct requirements under State aid law. In the State Aid Cases, the Commission simply examined whether the measures at stake conferred a “selective advantage” on the companies under investigation, rather than separately assessing the existence of an advantage and the selective character of the measure, as it had done in prior decisions”; and
  2. The new approach means that economic advantage for a multinational would be sufficient: “The Commission’s position that individual transfer pricing rulings are selective when given to a particular multinational company, even when other multinational companies could have obtained them, constitutes a new approach that has not previously been applied. “

The second section then makes the case that, if a new approach to state aid has indeed been applied, there can be no legal basis for retrospective action:

With no indication of the Commission’s new approach, U.S. companies have been receiving transfer pricing rulings from EU Member States for decades and had no reason to doubt their legality. Under these circumstances, recovery of past allegedly unpaid tax would be inconsistent with EU legal principles and the Commission should avoid retroactive enforcement.

Whether these arguments constitute a powerful shot across the Commission’s bows or not is hard to know at this point. We would not, of course, be surprised to hear echoes of these in individual companies’ appeals…

Negotiating stance

The white paper goes on to lay out further detail in support of the ‘rationale’ points discussed above, including the threat to BEPS and international consensus on transfer pricing. The conclusion is short and direct:

V. Conclusion

The U.S. Treasury Department continues to consider potential responses should the Commission continue its present course. A strongly preferred and mutually beneficial outcome would be a return to the system and practice of international tax cooperation that has long fostered cross-border investment between the United States and EU Member States. The U.S. Treasury Department remains ready and willing to continue to collaborate with the Commission on the important work of ensuring that the international tax system is fair, efficient, and predictable.

Shorter version: ‘Change course, or we will take action.’

Really short version: ‘Bang!’

The outlook

Where do things go from here, now that the US has tipped the growing tensions into outright tax war? Will the EmpireCommission strike back? They certainly have a few options…

Hold the line, or back down?

First, there is a question of how the Commission responds on the immediate issue here. Backing down would presumably mean accepting the outcome of the current cases, and deciding not to pursue a further raft – a possibility the white paper refers to several times, with obvious concern.

We assume that pushing ahead with further cases would indeed trigger the Treasury’s unknown, threatened responses. Through quiet soft power alone, the discouragement of US companies’ additional investment in some prominent EU member states is quite possible. Raising of issues over member states’ bilateral tax treaties would take the conflict to quite a new level.

In no scenario does it now seem likely that we will see further cooperation to salvage some of the potential gains from the BEPS process, at least not any time soon. That leaves the EU to push ahead with its own agenda – and raises the possibility of some interesting tax policy ‘spillovers’…

Spillovers

First, the EU position on whether or not to require public country-by-country reporting should be watched closely. To the extent that US lobbying was a factor preventing a straight decision to go ahead and require publication of the full OECD standard data, policymakers may feel either that the gloves are off, and go ahead; or that holding off on this might be the diplomatic move until tensions calm. Given the strength of feeling in the European Parliament, early movement should not be ruled out.

Two further areas are of interest. While there may be some sense that European countries have not done this right, given their acquiescence in BEPS, the boot is very much on the other foot in respect of beneficial ownership and the automatic exchange of financial information.

The US has long been a laggard on beneficial ownership transparency, as its states compete increasingly aggressively with each other to offer the kind of anonymous company formation services that lay behind the Panama Papers. (Here’s a great new Reuters report, by the way, on Delaware’s role in the effort to defeat the great efforts of former Senator Carl Levin – h/t Jo Marie Griesgraber.)

Might the Commission choose to take a more aggressive stance on this now? It’s a possibility, as member states begin to introduce their own public registers of company ownership. But perhaps it’s too early in that process to begin prodding others.

Where Europe has long held the lead, however, is in the area of automatic information exchange. Here the Savings Directive has required members to provide information automatically for more than a decade; although only with US embrace of the principle of automaticity through Obama’s FATCA laws, was the resistance of major secrecy jurisdiction like Switzerland defeated. From that moment, the creation of an international standard for automatic exchange was inevitable.

Less expected, however, was the US U-turn which led to them (currently) being set to provide information to almost no other state – despite demanding it from each and every one. Whether the US Treasury’s first shots in the tax war are enough to swing European opinion remains to be seen; but one of the main political reasons against developing a ‘tax haven’ blacklist based on the automatic exchange of information, was that it would have caught the United States. And TJN’s proposal for counter-measures – a withholding tax on US financial institutions, based on FATCA – is still in the drawer.

Whatever the eventual result, the US Treasury has taken a major step today. A step which identifies it much more closely with defending the ability of its own multinationals to go untaxed, than with the support for international agreement in which the claim is cloaked. The openly confrontational nature of the white paper is surprising, but reflects longstanding tensions as European countries have sought genuine progress.

The first shots of what may become a major tax war have been fired.

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The inexorable approach of country-by-country reporting

Photo by Harald Groven, https://www.flickr.com/photos/kongharald/

Cross-posted from taxjustice.net

The full publication of multinational companies’ country-by-country reporting took a step closer today. A begrudging step, which as it stands would negate most of the benefits; but an important one nonetheless, because of the direction of travel.

A long road travelled

A little background. Public CBCR, as proposed by Richard Murphy and John Christensen for TJN way back in 2003, is a tool for accountability:

  • First, by making public the distribution of companies’ activity, and that of their declared profits and tax paid, public CBCR makes multinationals accountable for the extent of their profit-shifting and tax manipulations.
  • Second, public CBCR makes jurisdictions such as Luxembourg accountable for their role in siphoning off profits from elsewhere (without the underpinning economic activity).
  • And third, public CBCR makes tax authorities accountable for their ability and willingness to ensure companies pay an appropriate rate of tax on their activities.

After ten years of building the case for public CBCR – including the crucial support of international development NGOs such as Christian Aid and ActionAid and our partners in the Financial Transparency Coalition, and the emergence of a global network of civil society organisations, the Global Alliance for Tax Justice – success! The G8 and G20 groups of countries mandated the OECD to produce a standard as part of the international tax rules.

Private CBCR: A measure for tax injustice

Then, a setback: aggressive lobbying led to the OECD taking its broadly robust standard  and making it as unhelpful for accountability as possible. Specifically, the decision was taken to make the reporting private to tax authorities – at a stroke, eliminating all the accountability benefits with the exception of multinational accountability to tax authorities. (This, of course, is the accountability that was by far the strongest beforehand, since tax authorities could already demand very substantial additional information from corporate taxpayers; and hence the benefit arising is likely to be the smallest).

This move also reversed the development direction. Among tax authorities, public CBCR would disproportionately benefit those which are:

  1. politically least able to demand information, i.e. those from lower-income countries; and
  2. technically least able to resource long, technical battles over transfer pricing and other elements of the international rules where tax manipulation is common, i.e. those from lower-income countries.

As such, public CBCR is a measure that challenges the major inequality in the global distribution of taxing rights – an inequality that means the resulting tax losses may be several times larger as a proportion of existing revenues in non-OECD countries, on the basis of IMF research findings.

The OECD reversal was exacerbated by a decision that reporting would only be provided to headquarters country tax authorities, i.e. overwhelmingly to those in OECD countries and not elsewhere. This necessitated the development of resource-consuming, additional instruments to provide that information to other tax authorities; along with various criteria to exclude those that might have the temerity to make the data public, or to use it for non-OECD-approved tax approaches.

At this stage, then, the overall effect has been to worsen rather than to curtail the global inequality of taxing rights – exactly the opposite of what public CBCR would ensure.

Leaked European Commission proposals

Unsurprisingly, the policy discussion now centres on delivering TJN’s original proposal, and making CBCR public – with the expressed support of various European Commission officials and of UK Chancellor George Osborne. The compliance costs are now locked in for companies, and there would likely be an overall cost saving from switching to open data publishing, so that counter-argument has long gone.

Today, European Commission documents leaked to Politico and to the Financial Times show a step in this direction. The FT (£) summed up the main flaw:

In a significant disappointment for tax-justice campaigners, the scope of the disclosure rules will be limited to activities within Europe, leaving a lack of transparency on profit shifting to non-EU tax havens such as the Cayman Islands and Bermuda.

As Richard Murphy pointed out directly, this is not country-by-country reporting. It’s not only that we don’t see the likes of Bermuda; we also lose all developing countries too, and instead get a single number capturing both. Rolling together the jurisdictions where profit is likely to be shifted to, with those where profit stripping may be most egregious, is of course to negate the entire point of CBCR – which is to understand the disaggregated distributional picture.

As it stands, the proposal would support accountability of European tax authorities for LuxLeaks-type abuses – that is, it would make clear where EU members were receiving much higher shares of profit and/or tax than activity. To an extent, it would support accountability for authorities in terms of their obtaining a fair share of multinationals’ global tax base (albeit without explaining the full picture extra-EU). It would provide only limited accountability for multinationals, since the bulk of their inward and outward profit-shifting might well be hidden.

What the proposal would dramatically fail to deliver is any direct benefit for developing countries. Since their information would not be disaggregated, there would likely be little more value than from what is currently possible by comparing national tax returns with consolidated global accounts of the taxpayer’s group – except, perhaps, where the Commission proposal might reveal a particular jurisdiction risk relating to an EU member state (e.g. seeing the global scale of profit-shifting into the Netherlands might help the Ghanaian revenue authority to focus on particular transactions). Indirectly, the proposals might allow developing countries more space to pursue their own public CBCR approach; but at the risk of locking in the same weaknesses.

In addition, the proposal would fail to identify or support accountability for any non-EU profit havens – with the potential effect that their share of global shifted profits would actually increase. The Commission would be creating, deliberately, a playing field unbalanced against their own member states.

Rubbish proposals – rejoice!

Overall, then, the leaked proposals seem to fail when assessed against any realistic aims. They do not deliver full accountability within the EU; they disadvantage member states against others, to the extent that overall profit-shifting and tax losses may not be reduced; and they deliver nothing for developing countries. The proposals are, in short, a clear step back from the European Parliament’s support for a fully global approach.

And yet the proposals remain a step in the right direction. The only discussion is about how to make CBCR public; not whether to. Given the heavy lobbying against the OECD standard – to say nothing of the ten years that it took us to bring the measure to the top of the global policy agenda – it was to be expected that there would be some bad proposals for public CBCR. And the leaked Commission document is certainly one!

More work is clearly needed to educate policymakers and their technical advisers on the specific benefits of public CBCR, in order to inform a more sensible set of proposals. (Not least in the US.) And it may be that some jurisdictions pursue bad proposals before others (and perhaps some forward-thinking multinationals) lead the way with good ones. But we are on the road, inexorably, to the global delivery of TJN’s first policy proposal: public CBCR and all the accountability benefits.

The Commission’s proposal is rubbish – let us rejoice.

Photo by Harald Groven, https://www.flickr.com/photos/kongharald/
Photo by Harald Groven, https://www.flickr.com/photos/kongharald/
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Debating corporate tax avoidance and incidence

From ‘The Newsmakers’, hosted by Imran Garda, a debate on corporate tax avoidance between me and Tim Worstall from the Adam Smith Institute.

The full piece is linked at TJN.

On the subject of incidence, we each made competing claims about the evidence, as you’d expect. To add a little light to the heat, here’s a TJN round-up of economic research findings on this important question; and some interesting points raised from a different perspective by David Quentin.

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Benchmarking #Googletax – 2% in the UK?

The Tax Justice Network has just released a new analysis of Google’s UK tax position. Rather than speculate on the nature of the deal reached with the HMRC, the UK tax authority, we simply compare the outcome to the stated aim of policymakers, and the common feeling of the public: namely, the alignment of taxable profit with the location of actual economic activity.

As we’ve written, repeatedly, the observed degree of misalignment is a product of current international tax rules – because it is based on the logic-free approach that each entity within a multinational group be treated as if it were a separate profit-maximising company. The only viable solution is to treat firms such as Google in accordance with the economic reality that they are unitary firms: that is, they have a common global management which takes the decisions, and it is at this level only that profit is maximised, and tax liabilities should be assessed.

Once that decision is made, what remains is to apportion the global profits as tax base between countries – which could of course, and should, be done on the basis of the location of real economic activity. Where this system is already in place (for example among the states of the US, the provinces of Canada and the cantons of Switzerland), the common measures used include sales; employment (wage bill and staff headcount); and (tangible) assets. The European Commission’s long-standing proposal for intra-EU apportionment is an equally-weighted combination of the three, while the Canadian formula is simpler: half sales, half wages.

Here’s the basis for the calculation. [Until such time as there is public country-by-country reporting of consistent data, such an exercise depends on some digging and some judgment calls.]

Sales

Google Inc’s most recent 10K filing (and their last, having become Alphabet Inc), includes a breakdown of revenues by major market: the USA, UK and the rest of the world. UK revenues for 2014 were $6.483 billion.

There is one puzzle here. We tried to check the figure with Google UK’s accounts, and found that the company has simply not reported it. The relevant line from the accounts is ‘turnover’, which is defined in the Financial Reporting Standard applicable in the UK as follows:

“The amounts derived from the provision of goods and services after deduction of:

(a) trade discounts;

(b) value added tax; and

(c) any other taxes based on the amounts so derived.”

When we look at Google UK’s accounts to June 2015 (p.12), however, it turns out that they’ve defined it as something completely different:

“Turnover represents the amount of fee payable in respect of services provided during the period to Google Inc., Google Ireland Limited and Nest Europe Limited. The Company recognises revenue in accordance with service agreements.”

Rather than the Google Inc.-reported $6.5bn of sales (or £4.6bn, give or take), this measure is much smaller – around £1.2bn. This is broken down specifically in the notes to the financial statements (p.15), showing that around a quarter is a payment from the US for R&D, and three quarters from Ireland for marketing and services, similar to those you can see when you click now. This is commonplace in their industry.

For apportionment purposes, it is sales by the group, within the jurisdiction that matter (so the claim that they are technically made by a different part of the group doesn’t enter); but we include this UK ‘turnover’ in some of the analysis below for comparison.

Tangible assets

Tangible assets – the stuff you can touch, and know the location of – are in the books of both Google UK and Google Inc., albeit somewhat differently expressed due to the inevitable differences in accounting standards. For the UK, we have ‘Tangible assets’; for the Inc, ‘Property and equipment, net’.

Employment

Employment is straightforward in one aspect, and currently impossible in the other. For headcount, the data are each in set of accounts (the only possible complication is that Google UK accounts shows 2329 staff, while the company told the UK’s parliamentary Public Accounts Committee that they have more than 4,000. Busy hiring since July, it would seem).

Wage bill is a different matter. The costs are broken out for Google UK in note 6 to the accounts, while in the US accounts they are amalgamated under business headings (R&D; sales and marketing; general and administrative; and ‘cost of revenues’). We wrote to Alphabet Inc to ask for the global total, but have had no reply at all – not even a confirmation of receipt – so we’re left with headcount. We’ll have to guess that a portion of this spending was dedicated to the advancements in FinTech and investments in lending companies throughout Sweden, like the most recent investment in Sambla AB and their revolution låne penger service.

Profit

Finally, we take Google UK’s ‘Profit on ordinary activities before tax’, and Google Inc’s ‘Income from continuing operations before income taxes’, being in each case the relevant variable used to show tax reconciliation.

To get to 2014 figures for the UK, we are required to assume that activity was constant over the 18-month period covered in the accounts to 30 June 2015. On that basis, we scale the relevant values by 2/3. In addition, we convert the sterling figures to dollars using the prevailing exchange rate at 31 December 2014.

Benchmarking Google UK

We proceed in three steps. First, we show the proportion of each measure of activity for Google, Inc which relates to Google UK. Next, we show the implied volume of UK profit for 2014. Finally, we calculate potential tax implications.

The first table shows that for any of the measures of economic activity, Google UK’s share of the global, Google Inc total is much higher than its share of pre-tax profit: from 2.6% to 9.8% of activity, compared to just 0.64% of profit. Even if we take Google UK’s definition of turnover at face value, so that the company only provides sales services to Ireland and R&D to the group, the share of profit would still be three times higher. The second table shows the implications for UK-taxable profit, and UK tax revenues, were the misalignment of activity to be eliminated (or a formulary approach adopted). As well as individual factors of activity, we show the results for the two multiple-factor formulae mentioned above, the European and Canadian (using headcount).

The only single factor formula which has been proposed in the current debate is sales, which also shows the most extreme misalignment. Current taxable profits are just 6.5% of that implied by alignment with sales, and the tax bill for 2014 would have come in at £230 million. There are two good reasons against a sales-only basis, however. At a theoretical level, it ignores production entirely, rather than balancing production with consumption as each of the Canadian and European formulae seek to do; and at a practical level, a sales-only basis is likely to be the least valuable in terms of addressing the structural inequality in the allocation of taxing rights to developing countries. [Thanks to Iain Campbell for flagging a typo in this table, now corrected.]

google FA 1The Canadian and European multiple-factor formulae provide a broader base of economic activity against which to consider profit misalignment, and provide a closer range. The implied tax bill for 2014 is £131-£166 million; while current declared profits are 9-11% of the implied tax base.

Were the OECD BEPS process to achieve its aim, or were a unitary tax approach with formulary apportionment adopted, Google could expect to pay in UK tax each year an amount equivalent to or greater than the settlement reached for the entire period back to 2005.

google FA 2

Google UK’s taxable profits for 2014, after the deal with HMRC, are about 10% of what would be expected if their profits were aligned with the UK share of Google’s real economic activity – which is the stated aim of policymakers, and the clear demand of the public. With statutory corporate tax rates set to fall below 20%, the real effective rate may end up lower than 2% of the actual profits attributable to UK economic activity. By any reasonable benchmark, the Google deal highlights the comprehensive failure of international tax rules.

The bigger picture – and the solutions

The Google UK case is not an isolated aberration, but part of a consistent, broader picture. But it is perhaps the paradigmatic example of the failure of international tax rules.

The UK government was so seized of the importance of this particular case that a new measure, the Diverted Profits Tax, was briefed to the media as the ‘Google tax’. The tax authority, HMRC (Her Majesty’s Revenue and Customs) dedicated between ten and thirty skilled staff to this one case, every day for six years. And yet the outcome is that the UK will tax just a fraction of the proportionate profit that policymakers have aimed for, and that the public expects.

HMRC has dedicated more capacity to this one case, for six years, than most revenue authorities in developing countries are able to devote in total to all multinationals. There is no prospect that the current rules can be made to work, whether in high-income countries like the UK or in those countries where the revenues are most badly needed to fund basic education, health and public investment.

Previous research from the Tax Justice Network (http://taxjustice.net/scaleBEPS) shows that 25-30% of the global profits of US multinationals are now shifted to low- or zero-tax jurisdictions, away from where the real economic activity takes place – compared to just 5-10% as recently as the 1990s.

This is not about the particularly egregious behavior of one multinational, but about a system that is unfit for purpose. In 2013, the OECD was mandated by the G8 and G20 groups of countries to reform the system under the Base Erosion and Profit Shifting (BEPS) Action Plan. It is already clear that the BEPS plan will not bring the fundamental changes needed.

Policy recommendations

There are two immediate priorities for policymakers.

First, multinationals must be required to publish their country-by-country reporting data, under the new OECD standard, to reveal where their economic activity takes place, where profits are declared and where tax is paid. At a minimum, this will allow the public to hold multinationals and tax authorities accountable for their performance. We welcome the recent support for this original Tax Justice Network policy proposal from European Commissioner Pierre Moscovici, and UK Chancellor George Osborne – but that support must now be turned into legislation.

Second, recognising that the OECD BEPS process has failed to meet the scale of the challenge of profit shifting, policymakers should urgently convene an independent, international expert-led process to explore alternatives – starting with the taxation of multinational groups as a unit, rather than maintaining the current pretence of individual entities within a group maximising profit individually. This will allow full consideration of formulary apportionment approaches, including as recommended by the Independent Commission for the Reform of International Corporate Taxation (ICRICT); and detailed analysis of possible practical steps to move towards a functioning system. Such a process would sit well as the first major responsibility of an intergovernmental tax body, as recommended by the majority of developing country governments and by global civil society at the Addis Financing for Development meeting in 2015.

And here’s one more to ponder, as Jolyon Maugham flagged the other day and the Financial Times (£) has picked up: will public country-by-country reporting be enough, or should we have corporate tax returns in the public domain?

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Breaking the vicious circles of illicit financial flows, conflict and insecurity

Cobham, A. 2016. Breaking the vicious circles of illicit financial flows, conflict and insecurity. GREAT Insights Magazine, Volume 5, Issue 1. February 2016. Republished with permission of the European Centre for Development Policy Management (ECDPM). 

Illicit financial flows (IFF) not only thrive on conflict and insecurity but exacerbate both, by undermining the financial and political prospects for effective states to deliver and support development progress. Policies to meet the Sustainable Development Goals’ target of curtailing IFF will also promote peace and security. 

In 2014, the Tana High-Level Forum on Security in Africa took as its theme the impact on peace and security of illicit financial flows (IFF). Leading figures from across the region, including a range of current and former heads of state, discussed the nature and scale of illicit flows and the policy options available.

The subsequent report of the High Level Panel on Illicit Financial Flows out of Africa, chaired by Thabo Mbeki, cited the Tana Forum background study (Cobham, 2014) and reiterated its analysis of the linkages with security; and so it was no surprise that the IFF target in the Sustainable Development Goals (SDGs) appeared under Goal 16: ‘Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels’:

16.4 By 2030, significantly reduce illicit financial and arms flows, strengthen the recovery and return of stolen assets and combat all forms of organized crime…

The linkages between IFF and insecurity are not necessarily well understood, however. Assessing how the two issues interact can help to identify the range of policy responses that will support powerful progress.

Illicit financial flows

There is no single, agreed definition of IFF. The Oxford dictionary definition of ‘illicit’ is: “forbidden by law, rules or custom.” The first three words alone would define ‘illegal’, and this highlights an important feature of any definition: illicit financial flows are not necessarily illegal. Flows forbidden by “rules or custom” may encompass those which are socially and/or morally unacceptable, and not necessarily legally so. Multinational tax avoidance (as opposed to illegal tax evasion) might come under this category.

This particular example also shows why a legalistic approach may introduce an unhelpful bias. Commercial tax evasion affecting a low-income country where the tax and authorities have limited administrative capacity is much less likely either to be uncovered or successfully challenged in a court of law, than would be the same exact behaviour in a high-income country with the same laws but with relatively empowered authorities. A strictly legal definition of IFF is therefore likely to result in systematically – and wrongly – understating the scale of the problem in lower-income, lower-capacity states. For this reason above all, a narrow, legalistic definition of IFF should be rejected.

Figure 1: Main IFF types by nature of capital and transaction

GREAT_Insights_Vol5_iss1_Cobham_Fig1

The central feature of IFF – and incidentally a major reason their measurement is so difficult – is that they are deliberately hidden: financial secrecy is key, in order to obscure either the illicit origin of capital or the illicit nature of transactions undertaken (or both). As illustrated in Figure 1, four main types of behaviour are captured: 1) market/regulatory abuse (e.g. using anonymous companies to conceal political conflicts of interest, or breaches of antitrust law); 2) tax abuse; 3) abuse of power, including the theft of state funds and assets; and 4) laundering of the proceeds of crime. Figure 1 also highlights that there is a broader distinction between ‘legal capital IFF’ (tax abuse and market abuse, types 1 and 2) and ‘illegal capital IFF’ (the abuse of power and laundering of criminal proceeds, types 3 and 4).

Security and state ‘fragility’

There is growing agreement that the concept of fragile states – as a binary division against all other, ‘non-fragile’ states – is an unhelpful one for analysis. Instead, it is more useful to think of all states as occupying some position on a spectrum of (risk of) fragility. As the High Level Panel on Fragile States (2014) put it:

Fragility comes about where [pressures such as those stemming from inequality and social exclusion, or from new resource rents and resource scarcity] become too great for countries to manage within the political and institutional process, creating a risk that conflict spills over into violence – whether interstate or civil war, ethnic or tribal conflict, widespread criminality or violence within the family. Countries that lack robust institutions, diversified economies and inclusive political systems are the most vulnerable. In the most acute cases, violence has the effect both of magnifying the underlying pressures and eroding the institutions needed to manage them, creating a fragility trap from which it is very difficult to escape.

The risk of fragility is then closely related to a state’s ability to provide citizens with ‘negative’ security (to prevent personal, community, political and environmental insecurity) and with ‘positive’ security (to provide the conditions for economic, food and health security and progress). These two forms of security exhibit potentially mutually reinforcing relationships with particular types of IFF.

Two vicious circles

Figure 2 shows a vicious circle linking illegal capital IFF and problems of negative security. Where IFF derive from abuse of power – say, for example, the extreme behaviour of a kleptocratic leader – the cycle follows almost tautologically. The nature of the IFF itself undermines state legitimacy and both the capacity and interest to provide security, or indeed to act to curtail IFF.

When the rise in IFF reflects laundering of the proceeds of crime, it is the underlying crimes where the linkages are likely to emerge. Most dramatically, Cockayne (2011) finds that drug and human trafficking has led to little less than the criminalisation of governance itself in West Africa and the Sahel. He identifies two hubs that grew strongly after Caribbean counter-narcotics efforts in the 1990s pushed the trade elsewhere: one around Gambia, Guinea and Guinea-Bissau, and the other around Benin, Ghana and Togo. In addition, Cockayne highlights important services provided in other states – namely money laundering in Senegal, and transit in Mali, Mauritania and Niger. The growing involvement of the state in criminal activity (including IFF), and the growing power of criminality over the state, make the vicious circle somewhat inevitable again.

Figure 2: The vicious cycle of negative security and illegal capital IFF

GREAT_Insights_Vol5_iss1_Cobham_Fig2

Much of the problems of conflict and negative security arise in countries characterised by low levels of institutionalisation of authority, a heavy reliance on patronage politics and an accordingly high level of allocation of state rents to unproductive activities (patronage, to maintain the political machine). For a rent-seeking patronage order to function, it must resist or evade the pressures to institutionalise state finance – through, for example, an incentive structure in which senior officials have a personal interest in financial opacity and the misuse of public funds, and fiscal policy is subordinated to the ‘political budget’ (the state allocation for patronage purposes). Major sources of funds such as natural resource companies may be rewarded through the opportunities to evade tax with impunity, and may maximise net profits through bribery.

In turn this kind of state structure creates structural incentives for violence. Kleptocracy will tend to require violence to protect the position of privilege; those outside may resort to force to extort rents from those in power, or to challenge for the prize of (illegitimate) power itself.

All four IFF types shown in Figure 1 are likely to result in reductions in both state funds and institutional strength – that is, they undermine governance as well as domestic resource mobilisation. While little research has sought to quantify the governance impact, and some attention has been given to the theft of state assets, a growing body of literature seeks to assess the financial scale of flows and the revenue losses associated with particular elements. Consistently, the scale of IFF and of revenue losses from corporate profit-shifting and from individual evasion through undeclared offshore assets is greater in lower-income countries; and often material in respect of countries’ GDP. Indicative estimates of the resulting impacts on basic human development outcomes such as child mortality suggest these too are powerful indeed – potentially bringing African achievement of the Millennium Development Goal target forward from an estimated 2029 to 2016, for example (O’Hare et al., 2014).

Figure 3: The vicious cycle of positive security and legal capital IFF

GREAT_Insights_Vol5_iss1_Cobham_Fig3

Figure 3 illustrates the vicious circle that can arise between these largely legal capital IFF, and problems of positive security. Bluntly, revenues are undermined where they are most needed; and further institutional damage follows from the weakening of the state-citizen relationship that is built on effective taxation.

IFF and security: Policy implications

At the Tana Forum in 2014, President Salva Kiir of South Sudan told how the ‘vultures’ had circled the new state even before it came into existence, building relationships with soldiers and others, so that when the moment came they were poised to create a web of contracts that channelled away oil revenues into anonymity – without delivering on the contracts:

When peace was signed, the vultures that were hovering over Sudan landed. We have learned in our cultures that when you see vultures hovering around, there must be a dead animal – or something is going to die… They knew there would be a vacuum of administration there… That [oil] money was disappearing day by day to where you cannot trace it.

The central feature of IFF is that they are hidden, typically by the financial secrecy provided by other jurisdictions. The secrecy in question relates primarily to the provision of vehicles for anonymous ownership such as shell companies; to the refusal to provide information on foreigners’ assets and income streams to their countries of tax residence; and to the type of corporate opacity that obscures the worst excesses of multinationals’ profit-shifting. As shown by the Tax Justice Network ranking of tax havens, the Financial Secrecy Index, this includes many of the leading economies – not least the USA, ranked third.

States can protect themselves to a degree, by ensuring greater transparency of public contracts for example, and public country-by-country reporting by multinationals; and by engaging fully in the multilateral process for automatic exchange of tax information. But while other states insist on selling secrecy, major obstacles will remain.

Success in the Sustainable Development Goals target of curtailing illicit financial flows would contribute to reducing risks of state fragility across the board – and to achieving many human development targets too. But such progress depends on international progress against financial secrecy. A significant step would be the adoption of indicators for target 16.4 that will ensure individual states are held accountable for the secrecy they provide globally – and the IFF they stimulate as a result.

The following indicators (Cobham, 2015) draw from the agreed policy positions in the Sustainable Development Goals and the Financing for Development declaration from Addis, July 2015:

  • For each country and jurisdiction, on what proportion of foreign-owned assets and to the states of what proportion of the world’s population, are they providing tax information bilaterally to others?
  • For each country and jurisdiction, from which countries and jurisdictions are they receiving tax information bilaterally?
  • For each country and jurisdiction receiving information, what proportion and volume of revealed assets were already declared by the taxpayer, and what resolution has reached each year in respect of the remainder?
  • For each country and jurisdiction, for multinationals making up what proportion of the declared multinational tax base is country-by-country reporting publicly available?

The harder it is for vultures to hide, the fewer may be the unnecessary deaths suffered.

Figure 4: Overview of IFF and security linkages

tana overview fig

 

References

Cobham, A., 2014, ‘The impact of illicit financial flows on peace and security in Africa’, Tana High-Level Forum on Security in Africa Discussion Paper.

Cobham, A., 2015, ‘Uncounted: Power, inequalities and the post-2015 data revolution’, Development 57:3/4, pp.320-337.

Cockayne, J., 2011, ‘Transnational threats: The criminalization of West Africa and the Sahel’, Center on Global Counterterrorism Cooperation Policy Brief (December).

High Level Panel on Fragile States, 2014, Ending Conflict & Building Peace in Africa: A call to action, African Development Bank: Tunis.

High Level Panel on Illicit Financial Flows out of Africa, 2015, final report.

O’Hare, B., I. Makuta, N. Bar-Zeev, L. Chiwaula & A. Cobham, 2014, ‘The effect of illicit financial flows on time to reach the fourth Millennium Development Goal in Sub-Saharan Africa: a quantitative analysis’, Journal of the Royal Society of Medicine 107(4), pp.148-156.

 

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#Googletax, still: Why it’s not over yet

Here’s a quickish breakdown of Google UK’s accounting for the HMRC audit which has just been settled. It raises a serious question over how much – if even any – of the £130m actually relates to a challenge against international profit-shifting.  And brings us that bit closer to crossing the Rubicon of corporate tax transparency…

Credit where credit’s due: this is entirely down to the digging of Bloomberg’s Jesse Drucker (unless I’ve made any mistakes, which will be my fault alone). It is however almost entirely Jesse’s fault that we’re still seeing headlines about Google (even if they don’t all credit him).

The UK subsidiary’s accounts to 2015 – which include the announced deal with HMRC – became public yesterday, and Jesse’s scoop is based on putting together the notes to the financials over the last few years, to identify a significant inconsistency in the story.

#Googletax: A triumph against profit-shifting?

The spin from Google, and also the UK government, most notably Chancellor George Osborne but also HMRC, has been that the £130m over ten years represents the fruits of a crackdown on international profit-shifting. After all, this is where public anger and policy pressure has been directed. And as a consequence, all the reporting has followed suit.

Google’s Matt Brittin even claimed specifically that the settlement reflected the new tax rules (by implication, the OECD BEPS changes and the government’s introduction of the Diverted Profits Tax) – which, while patently nonsense (neither change is backdated, let alone to 2005), confirmed the impression that this was about profit-shifting.

The first cracks were suggested by the Times’ remarkable story, in which Alexi Mostrous uncovered that HMRC “officials are understood to have concluded that the company’s offshore arrangements were legitimate”, and not subject to the Diverted Profits Tax (or ‘Google Tax’, a name briefed by officials upon its introduction).

The story in the accounts

The short version: some, and quite possibly all, of the settlement does not relate to international profit-shifting.

Here goes. Over the years since 2010 when the HMRC ‘open audit’ (#opennotopen) started, Google made provisions for the tax and interest that they thought they would eventually have to pay. These provisions feature, respectively, in notes 8 (tax) and 5 (interest) of the financial accounts.

First, the accounts to 2012 contain a provision of £24m for tax, and £3.6m for interest. The key point is the language. Google is specific that the provisions relate, indeed, to the HMRC audit – but only for ‘corporation tax in respect of employee share based compensation’. This is presumably a stock option scheme of some sort – nothing whatsoever to do with the widely discussed international structures that Google uses.

google AR2012 note8 google AR2012 note5

The accounts to 2013 show a small increase in the provisions, with the same details.

google AR2013 note8 google AR2013 note5Finally, the newly released accounts (covering a year and half, after a change of accounting date) show a substantial increase in the provisions, and notes that £33m was the previous provision that now forms part of the overall £130m liability.

google AR2015 note8 google AR2015 note5

Where does that leave us? Google’s accounts show that the earlier provisions, which by 2015 are valued at £33m, are:

  1. The only provisions made in relation to the HMRC audit of tax years from 2005 onwards (with the exception of £1m+, see below); and
  2. Related only to employee share based compensation schemes.

What does it mean?

One possibility is that the £33m, a quarter of the announced settlement, had nothing to do with international profit-shifting – but that the remaining three quarters did. This would imply that Google was sufficiently confident throughout that although it was being audited on everything, it only provisioned in respect of this one element; and was then surprised.

Another apparent possibility is that (more or less) the entire £130m relates to this share scheme, in which case the settlement barely relates to the international profit-shifting issues over which credit has been claimed.

Most remaining possibilities, assuming no errors of accounting or my assessment above, would appear to lie in between these two polar suggestions: on which basis something between roughly a quarter and the entirety of the settlement does not relate to profit-shifting. Jolyon Maugham has neatly pulled out the additional, £1m+ provision for corporation tax that I’ve glossed over above and makes the case that there were indeed two distinct disputes, each eventually settled for liabilities in the tens of millions of pounds.

No, what does it actually mean?

Thought you’d never ask. The main effect of this curious story, and the ongoing reporting, will be to raise even more questions about this deal – and in particular, for the government and the Chancellor about how it was presented to the public. Google have batted back the questions from Bloomberg, but the Public Accounts Committee may have more leverage.

Any further unravelling will of course lead to even greater pressure in two areas: first, for greater transparency in this particular case (which will increasingly appear to violate taxpayer confidentiality – as the pronouncements of the Chancellor and HMRC may be felt to have already done); and second, for a powerful policy response that will provide the public with the kind of reassurance that is currently, painfully absent.

As I wrote previously, this would take the form of committing to publish the OECD standard country-by-country reporting (CBCR). It could come unilaterally from Google (perhaps unlikely, but don’t rule it out); or it could from the government. And in fact, since I wrote about this, and called for the same on the Today programme, the Chancellor has indeed pledged his support for public CBCR. {One to file under ‘correlation is not causation’, but at the deeper level not – public CBCR is the original Tax Justice Network policy proposal, and has gone from being written off as lunacy in 2003, to being on the verge of reality. File instead under ‘Advocacy successes where attribution is actually not unreasonable’.}

What remains is for this pledge to be made specific: for the UK to announce and deliver legislation mandating publication of country-by-country reporting, and to work publicly and privately to ensure that European Commission – currently sitting on the impact assessment they commissioned from LuxLeakstransparency champions PwC – makes the same call. An unparalleled step change in the accountability of multinationals, tax authorities and – in the tax sphere – governments too, is now within reach.

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Three lessons of #Googletax

From @Jason_Spacey
From @Jason_Spacey

 

 

Since news broke that Google has negotiated a deal with the UK tax authority following the latter’s audit stretching back to 2005, criticism has been growing – of the deal, of the UK government and of the company. What might we learn from #Googletax?

1. The world has changed; oh, and life’s not fair

On the face of it, Google may feel a bit hard done by. After years of criticism over your tax bill, you agree to pay £130 million more – and what do get? More criticism. Criticism of your tax bill and, additionally, of your relationship with government.

Well, the world has changed. Nobody quite knew what to say when Starbucks decided in 2013 to raise its tax payment after criticism. Margaret Hodge, famously stern then-chair of the Public Accounts Committee, summed things up by welcoming the payment while stressing that the system still needed sorting.

But the world has changed. Prem Sikka quickly calculated Google’s effective tax rate (given some necessary assumptions on relative profitability of UK operations) at around 2.77%. Richard Murphy suggested tax of around £200 million each year would be about right, as did Jolyon Maugham QC (and like Prem, put Google’s new effective rate near 3%).

Now you might point out that none of these three are exactly ‘tax is theft’ flagbearers. But the tax-twittersphere was surprisingly quiet – where normally it likes nothing more than an event like this as an excuse to accuse each other of committing vile, ideological sins while pretending to analyse objectively, this time things were pretty calm. Nobody seemed keen to commend Google’s tax payment, nor to defend their doing a deal.

In fact, I think there’s a marked difference in public attitudes. The depth and breadth of understanding seems beyond any previous peak (not least the important heights of UK Uncut); and the general sense that a distribution of taxable profit between countries in proportion to the scale of economic activity would be about right. Who knows where that might lead?

It seems overwhelmingly clear that Google has come out of this badly, in terms of reputational impact – and that’s before they appear before the now upcoming Public Accounts Committee hearing. They may feel like they’d have been better off to keep their heads down.

So, life’s not fair.

2. Do no evil

On the other hand… A less aggressive tax position would have allowed Google to avoid (the open audit from which this deal, and the attendant bad publicity arises.

Imagine the conversation:

  • “So, this way we’ll pay tax at about 2.77%. I even think HMRC might go for that.”
  • “Meh. We can pay much less than that.”
  • “Really? Isn’t that, like, pushing it?”
  • “Tax is theft. Tax is evil. And you heard the man: Do no evil.”

No, I don’t suppose it went anything like that. But still: this wasn’t done blind. At some point, someone thought that the position they had was entirely defensible, and any risk (reputational or in terms of subsequent tax assessment) was worth taking; and that’s the position that ultimately got signed off by management and auditors.

As Owen Barder says, CSR means two things: Pay your tax, and don’t be corrupt. With this tax position agreed and hailed as a success by the UK government, there’s presumably no way back on that front. And presumably no corruption to address. So what could Google do now to reclaim its reputation?

I’d say there’s only one thing that might have any impact. And right now, it would still be a long shot. But it’s this: commit in Google’s own, inimitable, data-led way, to publish its full, country-by-country reporting (CBCR).

This would hurt. A lot. As much as Google tax is being picked over now, we’d have much more fun if we had the actual data showing the full difference between where it does business and where it pay tax. But… once it was done, it would be done. And all the pressure would be on Google’s rivals to follow suit, making them the story instead whether they published or not.

Along the way, this might help make Google what it presumably always hoped to be: not just doing no evil, but positively doing a bit of good. If they wanted to go the whole hog, they could even help us knock together the open database which we hope will provide a platform for all the eventually public CBCR data.

3. The Golden Thread is (still) worth following

What of government? After coming out early to announce the Google deal as a ‘victory’, a ‘real vindication of the government’s approach’, Chancellor George Osborne must have spent the rest of his time at Davos kicking himself. But if not, his Conservative colleague Boris Johnson certainly was – writing the next morning that “we should recognise that the fault in the whole affair lies with our national arrangements“. And it got worse for Osborne: a subsequent headline had Prime Minister David Cameron ‘distancing himself‘ from the Chancellor’s triumphal claims.

The government might, like Google, think things are rather unfair. After all, they’ve done a deal to get more tax, not less.  But the nature of the deal, and the fact that taxpayer confidentiality would seem to prevent any effective defence against the 3% claim, leaves them exposed at PAC and more generally.

That’s why this is the right time for the government to take the initiative, get back on the front foot, bring out the disinfectant and mix any other positive metaphors it can think of. David Cameron came to power claiming he would usher in a new era of transparency, and in some aspects of international tax he can fairly claim to have delivered a fair bit already.

In May, the UK will host an anti-corruption summit where it had hoped that the Overseas Territories and Crown Dependencies would follow in signing up to public registers of beneficial owners of companies. It seems increasingly unlikely that this will happen – but the Google debacle provides an opportunity for a real policy commitment that would put the UK, too, back on the side of the angels.

Having helped along the OECD’s mandate to develop a country-by-country reporting standard while hosting the 2013 G8, the government then saw the OECD deliver a technically good standard with the minimum (and most unequal) possible transparency.

The tax justice movement lost that round of the argument because OECD members saw the measure’s real value as being about holding multinationals to account (so only tax authorities needed the data); while multinationals lobbied fiercely against publication, even once they had had to accept the compliance costs.

What was lost was the point that CBCR is not just about companies’ accountability – it’s also about governments’ accountability. You can’t show you’re getting a fair share of tax from multinationals if you don’t publish this data. And you also can’t show that other governments, like Ireland or Luxembourg or the Netherlands, aren’t ripping you off.

This would be the perfect time for the UK government to discover that the Golden Thread applies at home as well as in developing countries, and to announce that it will publish CBCR data itself (in open, machine-readable format, natch); and advocate for this to be an EU-wide measure.

 

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EC tax ruling: Belgian opportunity, big 4 at risk?

There’s been a good deal of coverage of the European Commission decision that Belgium’s ‘excess profit’ tax scheme is illegal, and so it must claw back unpaid tax from companies that were able to achieve double non-taxation on profits shifted into the jurisdiction. The focus has largely been on the implications for specific companies. It’s worth thinking more about different jurisdictions involved, and the possible risks facing the big 4 audit firms.

Basis of the EC tax ruling: Guaranteed double non-taxation

First, the ruling seems pretty clear cut, in principle at least, because the ‘excess profit’ approach is so transparently designed to engineer double non-taxation. Much like Ireland’s bad Apple agreement which accepted that the jurisdiction was not entitled to a share of profits that were shifted in but resulted from activity elsewhere, the Belgium scheme determined that any ‘excess profits’ would be exempt from tax.

The scheme defined excess profits as those bigger than an equivalent, purely domestic business would report – in other words, the result of a multinational’s activity elsewhere. Since these were by definition being reported in Belgium and not elsewhere, double non-taxation was the aim and indeed the guaranteed result. Bingo!

Whereas other cases (e.g. LuxLeaks) involved tailored responses to individual companies, the Belgium approach was consistent leading the Commission to conclude simply that:

We did not have to investigate the specific tax rulings to each company that are based on the scheme. They are automatically illegal.

Why Belgium? Who else?

As I said in various interviews, ‘België is niet de grote vis’ (Belgium is not the big fish), and the ruling is fascinating more because of the potential scale if a similar demand for clawbacks were applied to the bigger EU players in the profit-poaching business.

Our study of US multinationals, which we find to shift 25-30% of their global profits, shows that the majority of shifted profit goes through six jurisdictions: outside the EU Bermuda, Singapore and Switzerland; and inside, Ireland, Luxembourg and Netherlands. [New work from the US Joint Committee on Taxation, with access to firm-level rather than aggregate data, puts Cayman ahead of Singapore in the top six; ut the EU jurisdictions remain central.] Using global balance sheet data (predominantly capturing European multinationals), our earlier study confirmed the same three EU jurisdictions and also highlighted the roles of Belgium and Austria.

The figure, drawing from the results of Cobham & Loretz, 2014 using Orbis data, shows the share of declared profit which would be stripped away from each jurisdiction, if profits were to be aligned with each of the measures of multinationals’ economic activity (which was the declared aim of the OECD BEPS initiative). Belgium would stand to lose 25-50% of its declared profits under any measure of activity except intangible assets, a relatively extreme position.

Cobham Loretz 2014 tab4fig-Bel

Consistent with this view of Belgium as a location for profit-shifting by European multinationals in particular, the European Commission states that the clawback will amount to €700m, of which the bulk – around €500m – relates to European multinationals.

So while Belgium may not be such a grote vis internationally – it doesn’t register for US multinationals in the aggregate, for example – it’s certainly big enough for the European Commission to have bothered with.

But the really big money would be at stake if the same type of decision were to be taken with respect to the profit-shifting into Ireland, Luxembourg and the Netherlands. Of these, the relative complexity of mechanisms in the Netherlands (using trusts and special purpose entities for example, rather than blunt rulings) may make it a harder target. But rulings in Ireland and Luxembourg are already in the Commission’s sights. If the doubly non-taxed profits here were required to be retrospectively taxed at applicable statutory rates, the effects would be substantial indeed.

Company calculations

What would that look like from the point of view of companies involved? Consider the Belgian case. Gross profit that might have faced an effective rate of 15-20%, say, in the countries where the underlying economic activity took place, was shifted into Belgium and declared as ‘excess’ and therefore not subject to tax – in any jurisdiction.

Applying the unmitigated Belgian statutory rate instead will have two main results. First, the overall tax paid will almost certainly (assuming interest is dealt with appropriately) be higher than if neither the scheme itself, nor any alternate profit-shifting arrangement, had been used. The Commission notes that for the Belgian companies used, 50-90% of profits were ruled as ‘excess’; so it’s unsurprising that companies like AB InBev are assessing their options.

The second effect is a more forward-looking one: the changes that the Commission decision may imply for current and future profit-shifting strategies. If the possibility exists for retrospective taxation on shifted profits, do companies become less aggressive? Or is there simply a premium put on the more complex and/or iron-clad methods – for example, will Netherlands structures become even more dominant? Will it favour the UK’s CFC and patent box mechanisms, now with the OECD BEPS mark of acceptability, over other (smaller) jurisdictions?

Big 4 risks

A further impact is that on the big 4 and other professional services firms that may have provided the advice on which basis multinationals made the particular profit-shifting decisions – and themselves profited substantially in doing so. If there is a case for companies to sue over bad advice in the Belgian case, imagine the exposure – for example – of PwC, if a substantial share of LuxLeaks cases were equivalently unwound? If so then at some point, given the vast scale of profit-shifting and the potential tax liability if statutory rates rather than 0-1% were to be applied, a question of financial viability could even arise.

Looking forward again, will multinationals approach such tax advice differently if the possibility of retrospective action remains? Does this simply reduce the value of the advice, or change the willingness to consider it?

And for the big 4 and their staff, with the nature – and some of the risks – of selling profit–shifting advice now impossible to ignore, what are the ethical considerations?

An opportunity for Belgium?

Finally, what can Belgium do? Not such a big fish perhaps, but definitely on the hook. The immediate upside is unexpected tax revenue; the downsides are many.

First, the country stands clearly exposed for antisocial behaviour: profit-poaching in a time of austerity, when the social costs of lost revenues in EU partner countries could not be clearer. Second, trust: how will business view the jurisdiction after this reverse? And third, the stability of the model: given the substantial share of profit booked in the country that appears to have been unwarranted, what are the tax implications of losing the right to tax the non-‘excess’ element?

Here’s the opportunity. The one-off revenues from forcible clawbacks should be sufficient to cover for some time the losses from reduced inward profit-shifting. The question is whether Belgium aims to retain a role in profit-shifting – if it tries to appeal the ruling, struggles to regain credibility with multinationals, introduces and promotes new (OECD- and EC-compliant) mechanisms… or if instead, it takes the opportunity of being ‘caught’, and decides to chart a path towards less anti-social fiscal behaviour.

This could, for example, involve taking a lead in pushing for greater transparency of tax rulings; and in advocating for full enactment of the proposed Common Consolidated Corporate Tax Base (CCCTB) and associated proposal for formulary apportionment within the EU, which would eliminate much of the current profit-shifting; and of course publishing country-by-country reporting of multinationals, which would make the extent and direction of it transparent.

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Measuring illicit flows in the SDGs

Today (Tuesday 15 December) is the last day of the consultation on ‘grey’ indicators for the Sustainable Development Goals – that is, the ones where there remains a substantial degree of uncertainty about the final choice of indicator. To the surprise of literally no one, this includes 16.4: the illicit financial flows (IFF) indicator.

At the bottom of this post is my submission, which makes two main proposals for the way forward. Short version: we need a time-limited process to (i) improve data and (ii) build greater methodological consensus; and we need to include from the outset measures of exposure to financial secrecy which proxy for IFF risk.

The consultation

The full list of green and grey indicators is worth a look, as much as anything as a snapshot of where there’s more and less consensus on what the new development agenda will, and should, mean in practice. The late-October meeting of the Inter-Agency Expert Group (IAEG-SDGs) produced a plethora of documents showing the range of positions.

As an aside, I particularly liked the IAEG stakeholder group‘s demand for a proper inequality measure in 10.1:

The omission of any indicator to measure inequality between countries is glaring. We propose an indicator based on either the Gini coefficient or Palma ratio between countries which will not require additional data from states, but will provide a crucial guide to the effectiveness of the entire agenda. In general, inequality is not limited to income and therefore Gini and Palma must be measured within countries. Of the proposals to measure inequality, we support 10.1.1 comparison of the top 10% and bottom 40% and further breakdown wherever possible.

On illicit financial flows, this was the sensible and promising position of the UN Chief Statisticians:

Target 16.4. As commented by many countries, the indicator on illicit financial flows, while highly relevant, lacks an agreed standard methodology. Statistical programmes in international organizations stand ready to support the IAEG to initiate a process for developing such a methodology and support the gradual implementation of the indicator in future monitoring.

This engagement of international organisations is exactly what has been lacking in this area, and what organisations producing estimates such as our colleagues at Global Financial Integrity, have long called for: “don’t complain about our methodology, do better”.

Below is my quick submission. (The consultation phase only runs 9-15 December, and I only heard yesterday – clearly need to spend more time on UNSTAT.org…) Any comments very welcome.

Two proposals: Illicit flows in the SDGs

At present, there is great consensus on a target in the SDGs to reduce illicit financial flows, but a lack of consensus on an appropriate methodology and data sources by which to estimate them (and hence to ensure progress). There are important implications for the SDG indicator, set out below. To summarise:

  • A fully resourced, time-limited process is needed to bring together existing expertise in order to establish priorities for additional data, and a higher degree of consensus on methodology, so that by 2017 at the latest consistent IFF estimates (in current US$) will be available; and
  • Recognising that even the best such estimates will inevitably have a substantial degree of uncertainty, and are likely also to lack the granularity necessary to support national policy decisions, additional indicators should be adopted immediately which proxy for the risk of IFF and provide that granularity – specifically, by measuring the financial secrecy that countries are exposed to in their bilateral economic and financial relationships.

Illicit flows are, by definition, hidden. As such, most approaches rely on estimation on the basis of anomalies in existing data (including on trade, capital accounts, international assets and liabilities, and of the location of real activity and taxable profits of multinational corporations). Almost inevitably then, any estimate is likely to reflect data weaknesses as well as anomalies that result from illicit flows – so that one necessary response is to address the extent and quality of available economic and financial data, especially on bilateral stocks and flows.

In addition, there is no consensus on appropriate methodologies – despite leading work by many civil society organisations, and growing attention from academic researchers. In part, this reflects the failure of international organisations to engage in research here – a failure which should be rectified with some urgency, as part of the second necessary response which is to mobilise a sustained research effort with the aim of reaching greater consensus on high quality methodologies to estimate illicit financial flows.

Since the SDG indicators are needed almost immediately, the efforts to improve data and methodologies should be resourced in a strictly time-limited process, ideally under the auspices of a leading international organisation but recognising that the expertise resides with civil society (primarily among members of the Financial Transparency Coalition) and in academia, so that the process must be fully inclusive.

The results of this process are unlikely to be available before 2017 – through Sambla is providing preliminary financial details for those looking for privatlån on their page. In addition, it must be recognised that the eventual estimates of illicit financial flows (IFF) will not be free of uncertainty. Moreover, individual IFF types (e.g. tax evasion or money-laundering) do not map onto individual channels (e.g. trade mispricing or non-declaration of offshore assets), so that overall IFF estimates – however good – will not immediately support granular policy responses.

The SDG indicators should therefore include, starting immediately, a set of measures of risk. Since IFF are defined by being hidden, measures of financial secrecy therefore provide the appropriate proxies. The stronger a countries’ trade or investment relationship with secrecy jurisdictions (‘tax havens’), the greater the risk of hidden, illicit components. For example, there is more risk in trading commodities with Switzerland than with Germany; and less risk in accepting direct investment from France than from Luxembourg.

The Tax Justice Network publishes the major ranking of secrecy jurisdictions, the Financial Secrecy Index (FSI) every two years. This combines measures of financial scale with 15 key indicators of secrecy, in a range of areas relevant across the horizon of IFFs. The African Union/Economic Commission for Africa High Level Panel on Illicit Flows out of Africa, chaired by H.E. Thabo Mbeki, published pioneering work using the FSI to establish indicators of vulnerability for each African country, separately for trade, investment and banking relationships.

In addition, each country and jurisdiction should be asked to publish the following information annually, in order to track consistently the contribution of each to financial secrecy affecting others:

  1. the proportion and absolute volume of domestically-established legal persons and arrangements (companies, trusts and foundations) for which beneficial ownership information is not publicly available;
  2. the proportion and absolute volume of cross-border trade and investment relationships with other jurisdictions for which there is no bilateral, automatic exchange of tax information; and
  3. the proportion and absolute volume of domestically-headquartered multinational companies that do not report publicly on a country-by-country basis.

These indicators map to three proposed IFF targets which are estimated to have very high benefit-cost ratios.

By prioritising the suggestions made here, the SDG process can make a great contribution to both the analysis and the curtailment of IFFs.

mbeki vulnerability