Book Review of 'Havens in a Storm: The Struggle for Global Tax Regulation'

Book Review of 'Havens in a Storm: The Struggle for Global Tax Regulation'

Anthony C. Infanti (University of Pittsburgh) posted this essay at U. of Pittsburgh Legal Studies Research Paper No. 2008-16

Here is the Abstract:

This short essay is a review of J.C. Sharman's book Havens in a Storm: The Struggle for Global Tax Regulation. In the essay, I first provide a brief overview of Sharman's book, which approaches the Organisation for Economic Co-operation and Development's struggle with tax havens over harmful tax competition from a political science perspective. I then describe how the book (and, by extension, this review) will be of interest not only to those in the fields of international tax and international relations, but also to those concerned more generally with the dynamics of struggles between the powerful and the weak. I conclude by offering a constructive critique of one aspect of the book.

Available at SSRN: http://ssrn.com/abstract=1118979

The New Global Hunt for Tax Cheats

The New Global Hunt for Tax Cheats
Article published by by Keith Epstein and Mark Scott in Business Week (http://www.businessweek.com/globalbiz/content/may2008/gb20080523_754004_page_2.htm).

By forming multinational investigative teams, the IRS and other tax collectors are cracking down on evaders and giving new meaning to globalization

Government authorities from Australia to the U.S. are hunting big game together. Their prey? Wealthy tax evaders—as well as the asset managers, banks, and accountants who help prosperous people conceal cash in offshore bank accounts. For decades, globalization has afforded an edge to tax cheats. Now it's working for the tax cops, too.

Buoyed by new multinational investigative teams, agreements with banks to open once-secret records, tougher penalties for cheats and third parties, and a thirst for billions of dollars in recoverable revenue, the new globe-spanning tax man has got the world's mega-rich worried they could run afoul of the mounting crackdown.

With so much money at stake, it's no wonder the U.S. Internal Revenue Service, Germany's Bundesministerium der Finanzen, Britain's Her Majesty's Revenue & Customs, and other international colleagues are eager to nab wealthy tax evaders. Almost $6 trillion is estimated to be hidden from tax authorities across the globe—Germany's central bank suggests $775 billion in German assets alone have been secreted out of the country. In the U.S., the IRS reckons $295 billion of potential tax revenue goes uncollected—much of it because of underreported income. With governmental budgets strained everywhere, leaders are eager to mop up those missing payments.

A Collaborative Effort
To close this "tax gap," U.S. investigators and their comrades overseas are cooperating as never before. Since the September 11 terrorist attacks, tracking money movements has become a priority. In response, law enforcement and banks have started to share more information about possible tax evaders. Governments also realize they have a lot to gain from stiffer penalties that return more money to underfilled coffers.

"There's a lot of offshore tax evasion, so governments are trying to find tools to combat that," says Grace Perez-Navarro, deputy director of tax policy and administration at the Paris-based Organisation for Economic Co-operation & Development (OECD). "Governments realized there was greater value in working multilaterally."

Cross-border collaboration has become a buzzword in global law enforcement circles. Under an OECD-negotiated treaty, 19 countries, including states as diverse as the U.S., Italy, and Azerbaijan now can prosecute tax evaders within their jurisdictions on behalf of other signatory countries. The European Union passed a similar law in 2000, while Brazil, India, and South Africa began cooperating with each other to identify suspect transactions in 2006. Their targets typically conceal assets in the roughly 40 nations generally seen as tax havens, which are analyzed routinely by international organizations such as the OECD and the International Monetary Fund.

The IRS Joins Forces
These days, an investigator following a lead need not even cross a border for help from his international colleagues: He or she merely has to walk down the hallway. Since 2004 tax shelter sleuths from five countries—the U.S., Britain, Australia, Japan, and Canada—have shared work space, tactics, and information in a joint office at IRS headquarters in Washington. The success of the operation led to its expansion last year, including the opening of a London-based outpost at Her Majesty's Revenue & Customs.

The physical setup of this so-called Joint International Tax Shelter Information Centre reflects the sensitivity of the work. Each member of the unit—which is physically separated from the rest of the IRS—has a separate, closed office, allowing for confidential communication with counterparts back home, as well as discreet one-on-one conversations with local colleagues and the IRS. "The office space is configured in a manner that reflects the critical need to protect the privacy of taxpayer information," according to an IRS spokesman.

The IRS argues that such cooperation is essential in a world of globalized money flows. "Cross-border migration of capital and people has made this a more integrated world, and the IRS is working closely with other national tax administrators to ensure that we have a global view of our work," says the top tax official in the U.S., IRS Commissioner Douglas Shulman. This close work with other tax authorities, he adds, has allowed the IRS and its equivalents in other nations to achieve "a new level of cooperation in identifying, developing, and sharing leads on abusive tax transactions and schemes."

Such cooperation will only increase as governments clamp down on tax evasion, says Daniel Feingold, senior partner at Britain-based global tax consultancy Strategic Tax Planning. "There's a definite push for this sort of thing," he says.

Squeezing Tax Havens
All of this has put the squeeze on tax havens such as Liechtenstein and Andorra that have long-held traditions and laws supporting no-questions-asked banking for wealthy clients. "The number of countries safe for this activity is dwindling," says Beverly Hills-based tax lawyer Edward Robbins Jr., a former assistant U.S. attorney who oversaw tax prosecutions in California. "There aren't that many left, frankly."

For decades, banks in places such as Switzerland have flourished by offering seemingly ideal havens from the tax man. Switzerland's code of silence, for instance, goes back at least 200 years. And during World War II, Nazis and Jews alike made use of Swiss bankers' discretion. Since then so have corporations and non-governmental organizations—as well as drug traffickers and corrupt dictators.

Yet even this Alpine paradise has conceded to mounting international pressure (BusinessWeek.com, 5/21/08). Most major Swiss banks have signed up with the U.S. to be "qualified intermediaries." The system gives the IRS access to any account containing U.S. securities and requires the filing of tax and other forms with the U.S. that identify clients and balances—not exactly the image of tight-lipped discretion portrayed in movies such as The Spanish Prisoner and The Bourne Identity. Even the Swiss government admits to a disconnect between tradition and current reality. "Swiss banking secrecy is in no way absolute," cautions the Swiss embassy's Web site.

Often under pressure, other tax havens have followed suit. Agreements with traditional ports-of-call for evaders like Malta and Bermuda have aided the IRS and its international counterparts. Now tax collectors don't even have to pick their way through complicated avoidance schemes: They can make a case against alleged tax cheats simply by catching missing or falsified paperwork.

Elaborate Web
Here's how it works. For years, a bank client with any kind of interest in an overseas account valued at more than $10,000 has had to file a special form with the IRS disclosing that fact. But to avoid taxation, he might not file the form, or might underreport the value of the account on his tax return. More deviously, he might conceal transactions in an elaborate web of trusts and holding companies. Now, thanks to more international sharing of data, the IRS may find out about the account anyway—from the bank itself.

The recent high-profile indictment of former UBS (UBS) banker Brad Birkenfeld shows just how tough the authorities are getting. Birkenfeld's wealthy client, Igor Olenicoff, has pleaded guilty to filing false tax returns and agreed to pay $52 million in back taxes. Both Olenicoff and Birkenfeld, who was born in Boston and lives in Switzerland, are believed to be cooperating in a continuing investigation that began with the discovery of $200 million allegedly concealed in European tax havens on behalf of Olenicoff, a Russian émigré-turned-California real estate developer.

As a result of that probe, the extended arm of U.S. law may reach not just other clients of Birkenfeld (and those of an alleged collaborator in Liechtenstein named Mario Staggl, who specializes in the intricacies of tax havens and trusts) but also other employees of UBS. "This is not an isolated incident," says David Schwedel, a Florida entrepreneur who is now an investment partner of Birkenfeld's. "He won't be the last banker called in for questioning. There will be a lot of bankers called into this. They're going after others at UBS and any U.S. individuals involved with the bank."

Alerted About the Risks
Kevin Packman, a Miami lawyer who represents taxpayers running afoul of the IRS, says he's amazed that even sophisticated CPAs with major corporate and individual clients seem unaware of the international push against money held offshore. Tax lawyers around the world tell of clients—often expatriates—who are becoming increasingly worried about being ensnared in the tightening net, thanks to publicity surrounding tax avoidance test cases in Europe and the U.S.

One lawyer tells of trying to alert a client in Argentina about the risks of failing to disclose information to authorities in the client's home country. Even so, the client persisted in wanting to keep income under wraps. But tax lawyers and wealth managers from Basel to Boston say the risks of doing so are rising. "It's obvious that there's a growing intolerance of tax avoidance in the Western world," says Ted Wilson, a senior consultant at Scorpio Partnership, a London-based strategic consultancy to those who advise wealthy clients.

Of course, when the cat is in Zurich or Malta, the mice will find other havens. Asset managers, tax lawyers, and investigators tell BusinessWeek that wealthy evaders are taking a closer look at new frontiers for concealment. One such nation is the Republic of Vanuatu, a tiny, tax-free South Pacific archipelago 1,000 miles from Australia. Local officials even promote their tax haven status to potential clients. "Attractions for the foreign investor" include "extensive secrecy protections," according to a Vanuatu business and taxation guide.

Wealthy individuals looking to evade taxes likely will always find ways to circumvent the law. Yet as enforcement finds new ways to share information, the number of prosecutions is expected to rise. That has put pressure on well-known tax havens, such as Liechtenstein, either to shape up or face the full brunt of global tax authorities. In fact, there are signs things are already changing. Says Strategic Tax Planning's Feingold: These days, "among experienced practitioners, no one would ever use Liechtenstein."

Epstein is a correspondent in BusinessWeek's Washington bureau. Scott is a reporter in BusinessWeek's London bureau .

U.S. States Lead the World in High Corporate Tax Rates

The Tax Foundation has recently published the report U.S. States Lead the World in High Corporate Taxes:

"America's political leadership is finally waking up to the fact that the tax rates businesses face in the U.S. are way out of step with our major economic competitors. Last year, for example, Ways and Means Chairman Charles Rangel proposed cutting the federal corporate tax rate from 35 percent to 30.5 percent. While a 5 percentage point cut in the federal corporate tax rate may sound significant, it may not be sufficient to meaningfully improve the competitiveness of the United States.

Currently, the average combined federal and state corporate tax rate in the U.S. is 39.3 percent, second among OECD countries to Japan's combined rate of 39.5 percent.1 Lowering the federal rate to 30.5 percent would only lower the U.S.'s ranking to fifth highest among industrialized countries.

More recently, other members of Congress—including Sen. John McCain and Congressman Eric Cantor—have released proposals to cut the corporate rate even deeper to 25 percent. While this lower rate would improve the U.S.'s international ranking and competitiveness, that improvement would be mitigated by the high corporate tax rates imposed by many states.
Many states impose state corporate income taxes at rates above the national average of 6.6 percent. Iowa, for example, imposes the highest corporate tax rate of 12 percent, followed by Pennsylvania's 9.99 percent rate and Minnesota's 9.8 percent rate. When added to the federal rate, these states tax their businesses at rates far in excess of all other OECD countries.

When compared to other OECD countries:
24 U.S. states have a combined corporate tax rate higher than top-ranked Japan.
32 states have a combined corporate tax rate higher than third-ranked Germany.
46 states have a combined corporate tax rate higher than fourth-ranked Canada.
All 50 states have a combined corporate tax rate higher than fifth-ranked France.

Thus, if lawmakers are serious about making the U.S. corporate tax system more competitive internationally, corporate tax rates will have to be reduced both in Washington and in state capitals. State officials should be champions of substantial cuts in the federal corporate tax rate because there is only so much they can do to improve their own competitiveness. After all, even corporations that operate in the three states that do not impose a major state-level corporate tax—Nevada, South Dakota, and Wyoming—still shoulder a higher corporate tax rate than fifth-ranked France and 24 other OECD countries because of the 35 percent federal corporate rate.
The U.S. is among eight countries with extra corporate tax rates imposed by state or local levels of government. While the burden of these state-level taxes is somewhat lessened because they can be deducted from federal taxes, they do add a second layer of tax and also add considerable complexity for multi-state and multi-national businesses.

Some 44 states impose a traditional corporate income tax, with rates ranging from a low of 4.63 percent in Colorado to 12 percent in Iowa. Three states—Michigan, Texas, and Washington—impose a variant of a gross receipts tax in which businesses pay tax on their gross sales rather than their net profits.2 Ohio is currently transitioning from a traditional CIT to a gross receipts-style tax but now it has both. And, as mentioned above, three states do not have a state-level corporate tax.

Table 1 shows that when the state rates are combined with the federal rate (and accounting for federal deductibility), states are effectively imposing a corporate tax rate which ranges from 35 percent to 41.6 percent. Indeed, 16 U.S. states impose a combined corporate tax rate of more than 40 percent, which is at least 12 percentage points higher than the OECD average of 27.6 percent.

Assuming that no state cuts its business taxes in the next year, the U.S. federal rate would have to be cut to 20 percent in order to bring the combined federal-state rate down to the middle of the OECD pack. But Washington does not bear the entire blame for America's eroding tax competitiveness, nor does it shoulder the entire responsibility for fixing it. State officials also have to be cognizant of the fact that they are not only competing against each other for investment and jobs, but against the rest of the world. The emerging low-tax countries in Europe and Asia benefit from the U.S. remaining a high-tax country.

In just the past two months, at least six countries have announced plans to cut their corporate tax rates: Canada, Hong Kong, Korea, South Africa, Spain and Taiwan. In an interview in the Korea Times, Choi Kyung-hwan, a member of the new Administration's Presidential Transition Committee, said, "The corporate income tax reduction is not a matter of choice, but a matter of life and death for Korea in an increasingly globalized business environment.''
In a refrain that is equally applicable to the U.S., Choi went on to say, "Hong Kong and Singapore, which impose significantly lower corporate taxes than Korea, have further slashed taxes recently to draw more foreign investors. Also, France currently levies a 34.4 percent corporate income tax but plans to reduce the tax to as low as 20 percent. Unless Korea cuts corporate taxes, we will not be able to win over multinational firms."3

A growing body of academic research indicates that foreign direct investment (FDI) can be quite sensitive to the corporate tax rates imposed by a state or country. One recent study of the effects of corporate income taxes on the location of foreign direct investment (FDI) in the United States found a strong relationship between state corporate tax rates and FDI—for every 1 percent increase in a state's corporate tax rate FDI can be expected to fall by 1 percent.4
A new study of income tax rates in 85 countries by economists at the World Bank and Harvard University found a strong effect of both statutory and effective corporate tax rates on FDI as well as entrepreneurship. For example, the average rate of FDI as a share of GDP is 3.36 percent. But a 10 percentage point increase in the statutory corporate rate can be expected to reduce FDI by nearly 2 percentage points.5

In the end, the key to improving America's business tax competitiveness is a partnership between federal and state lawmakers to work toward the common goal of lowering the overall business tax burden in the U.S. Otherwise, the U.S. will continue to fall behind in the global tax race simply by standing still.

See Table 1

Notes
1. Because of the federal deductibility of state and local taxes, the effective "tax cost" of the average state rate is 35 percent less than 6.6 percent, or 4.3 percent. This rate is then added to the 35 percent federal rate to give an overall rate of 39.3 percent. In the appendix table, each state's rate is reduced by 35 percent before being added to the federal rate.
2. In 2007, Michigan's Single Business Tax rate was 1.9 percent, Texas's Franchise Tax rate was 1 percent, and Washington's B&O Tax rate was 0.484 percent. For the sake of comparison, these gross receipts rates have been converted into an effective corporate income tax rate. We did this by using federal corporate income tax collection data to determine the tax base in the state. Based upon Michigan Department of Revenue statistics, 65 percent of gross receipts taxes are paid by corporations; the remainder is paid by non-corporate businesses. Therefore, to determine the amount of replacement revenue needed to be raised by a corporate income tax, we multiplied the current amount of gross receipts tax collected by each state by 65 percent. This replacement amount was then divided by the base to create an effective CIT rate. These effective CIT rates have not been included in the state average. If they were to be averaged in, the overall state average rate would rise to 7.4 percent, which would give the U.S. an overall rate of 39.8 percent and, thus, higher than Japan.
3. Lee Hyo-sik, "Corporate Tax Cut Key to Economic Recovery," Korea Times, February 11, 2008.
4. Claudio A. Agostini, "The Impact of State Corporate Taxes on FDI Location," Public Finance Review 2007; 35; 335. http://pfr.sagepub.com/content/abstract/35/3/335
5. Sineon Djankov, Tim Ganser, Caralee McLiesh, Rita Ramalho, and Andrei Shleifer, "The Effect of Corporate Taxes on Investment and Entrepreneurship," National Bureau of Economic Research, Working Paper 13756, January 2008. http://www.nber.org/papers/w13756

Attached Files: U.S. States Lead the World in High Corporate Taxes, PDF, 48.8 KB by Scott A. Hodge

Liechtenstein probe likely to boost Singapore

Liechtenstein probe likely to boost Singapore
Article published by John Burton in the Financial Times (www.ft.com) on March 3 2008.

Singapore, the world’s fastest growing private banking centre, could be the main beneficiary from the Liechtenstein tax evasion investigation, according to the global head of Société Générale’s private banking business.

“Because of what happened in Liechtenstein, we will see a higher flow of funds into Singapore,” said Daniel Truchi, who previously headed SG Private Banking’s Asian operations from Singapore. “The momentum is accelerating.”

Liechtenstein lays plans for more transparency - Aug-15The recent events in Liechtenstein are “sort of like an earthquake for European private banking” because “it undermines client confidence” and its effects will be felt in other European wealth management centres, including Switzerland and Luxembourg, Mr Truchi said.

Singapore will attract more money because its bank secrecy and trust laws governing inheritance are among the tightest in the world, Mr Truchi said. Those who break Singapore bank secrecy laws are subject to harsher punishments than applied in Switzerland. Singapore also has no laws against international tax evasion.

Singapore has introduced new rules on bank secrecy and trusts in the past few years in consultation with the global private banking industry as the south-east Asian city-state has identified wealth management as a growth industry.

Singapore could receive a significant boost as money flows from Europe.

“Switzerland’s private banking business is 10 times bigger than Singapore’s but if we see 10 per cent of those funds moving from Switzerland, it will double the amount of assets managed in Singapore,” Mr Truchi said.

However, Singapore is under growing pressure from the European Union to ease its secrecy rules to help catch tax evaders. The issue has emerged as the main stumbling block in a trade pact being negotiated between Singapore and the EU.

“Singapore is not a tax haven. We are a low-tax country but not a tax haven. The situation that arose in Liechtenstein cannot happen here,” said George Yeo, the Singapore foreign minister, after meeting his German counterpart last week to discuss the issue.

Singapore’s bank secrecy laws are “very important” to Singapore’s development as an international finance centre but “we do not condone drug money or terrorism money or money laundering. These are crimes,” Mr Yeo said.

Mr Truchi said that Singapore is unlikely to bow to EU pressure in the near-term as it seeks to expand its ­private banking business.

Transparency and Trust, by Freedman

Judith Freedman (from Oxford University) has posted Financial and Tax Accounting: Transparency and Truth, in Tax and Corporate Governance (Springer, 2008), on SSRN. Here is the abstract:

In the USA there have been calls for greater conformity between the rules producing tax accounts and those used for financial reporting purposes. A number of benefits are claimed for this so-called 'book-tax conformity', including reduced compliance costs and better opportunities for monitoring. In Europe, the debate around use of the financial accounts for tax purposes has arisen from a different conceptual starting point as well as differences in surrounding circumstances. Linkage between tax and financial accounts is common in Europe, although it takes varying forms. This does not result in complete book-tax conformity, however, and recent developments in accounting may be increasing divergence rather than reducing it. Despite the strong arguments in favour of conformity, there are also good reasons for some divergences, meaning that the most likely outcome in any system, whatever the starting point, is partial convergence. The problem with a hybrid outcome of this kind is that, at the point of divergence, there can be conceptual confusion and difficulties in integrating and managing two conceptually very different rule systems. Clarity of the relationship between the rules and improved accounting disclosure requirements might be more important than convergence, and might be achieved with less distortion to either tax or financial accounting. The current UK position is used to illustrate these points.

Tax Havens and the Struggle for Global Tax Regulation

Sharman, J.C.. "Tax Havens and the Struggle for Global Tax Regulation" Paper presented at the annual meeting of the American Political Science Association, Boston Marriott Copley Place, Sheraton Boston & Hynes Convention Center, Boston, Massachusetts, Aug 28, 2002

Abstract: In 1998 the OECD launched a campaign to prevent 'harmful' international tax competition practised by tax havens luring away capital and accompanying tax revenue from large industrialised states. Subsequently the OECD has sought to compel tax havens to eschew this 'tax poaching' in a struggle crucially shaped by normative factors inhibiting the use of economic sanctions and side-payments. The OECD has instead employed a rhetorical strategy of argument and 'naming and shaming' to secure tax havens' compliance, attacking their reputation for financial probity and diminishing their attractiveness as investment destinations. In response, tax havens have sought to appropriate and reverse arguments put into play by the OECD to delegitimate the campaign.

In policy terms, the tax competition initiative exemplifies how core states can set and impose standards regulating the global economy. Theoretically, it provides an explanation based on the interaction of rationalist and normative factors, whilst also advancing our understanding of argument and rhetoric.

The Costs of International Tax Cooperation

Tsilly Dagan (Bar-Ilan University) published this 2002 article at Michigan Law and Economics Research Paper No. 02-007; and U of Michigan Law, Public Law Research Paper No. 13

Here is theAbstract:

This Article discusses the three levels of international tax (the unilateral, the bilateral and the multilateral). It describes the seemingly appealing arguments (based on cooperation) advocating neutrality, double taxation prevention, and harmonization. A closer look at these arguments, however, reveals that pursuing these goals often brings about completely different and sometimes undesirable results. While acknowledging the potential benefits of inter-nation cooperation for some, this article highlights the (sometimes hidden) costs of such cooperation for others. Thus, domestic interest groups tend to win or lose from adopting an (elusive) cooperative strategy as the unilateral mechanisms of their countries; developing countries tend systematically to lose tax revenue when they enter into the (more cooperative and thus seemingly benign) bilateral treaty regime; finally, the emerging multilateral regime, promoted as an all-benefiting cooperative strategy, also creates potential losers both among and within nations.

Based on this analysis, the paper argues that cooperation serves as a useful rhetorical tool that supports a certain contingent policy choice, but obscures other, potentially important, considerations and alternatives. Identifying the winners and losers of cooperative policies is necessary in order to evaluate such polices. Cooperation cannot be and is not the ultimate goal in international tax policy.

Available at SSRN: http://ssrn.com/abstract=315373 or DOI: 10.2139/ssrn.315373