Tax avoidance

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Not to be confused with tax evasion.

Tax avoidance is the legal usage of the tax regime to one's own advantage, to reduce the amount of tax that is payable by means that are within the law. Tax sheltering is very similar, and tax havens are jurisdictions which facilitate reduced taxes. The term tax mitigation is sometimes used; its original use was by tax advisers as an alternative to the pejorative term tax evasion. "Tax aggressive" strategies fall into the grey area between commonplace and well-accepted tax avoidance (such as purchasing municipal bonds in the United States) and evasion. However, the uses of these terms vary.[1]

Laws known as a General Anti-Avoidance Rule (GAAR) statutes which prohibit "tax aggressive" avoidance have been passed in several developed countries including Canada, Australia, New Zealand, South Africa, Norway and Hong Kong.[2] In addition, judicial doctrines have accomplished the similar purpose, notably in the United States through the "business purpose" and "economic substance" doctrines established in Gregory v. Helvering and in the UK through the Ramsay case. Though the specifics may vary according to jurisdiction, these rules invalidate tax avoidance which is technically legal but not for a business purpose or in violation of the spirit of the tax code.[3] Related terms for tax avoidance include tax planning and tax sheltering.

The term avoidance has also been used in the tax regulations [examples and source needed] of some jurisdictions to distinguish tax avoidance foreseen by the legislators from tax avoidance which exploits loopholes in the law such as like-kind exchanges.[4] The United States Supreme Court has stated that "The legal right of an individual to decrease the amount of what would otherwise be his taxes or altogether avoid them, by means which the law permits, cannot be doubted."

Tax evasion, on the other hand, is the general term for efforts by individuals, corporations, trusts and other entities to evade taxes by illegal means. Both tax avoidance and evasion can be viewed as forms of tax noncompliance, as they describe a range of activities that are unfavorable to a state's tax system.[5]

Methods[edit]

Country of residence[edit]

The ratio of German assets in tax havens in relation to the total German GDP. The "Big 7" shown are Hong Kong, Ireland, Lebanon, Liberia, Panama, Singapore, and Switzerland.

A company may choose to avoid taxes by establishing their company or subsidiaries in an offshore jurisdiction (see offshore company and offshore trust). Individuals may also avoid tax by moving their tax residence to a tax haven, such as Monaco, or by becoming a perpetual traveler. They may also reduce their tax by moving to a country with lower tax rates.

However, a small number of countries tax their citizens on their worldwide income regardless of where they reside. As of 2012, only the United States and Eritrea have such a practice, whilst Finland, France, Hungary, Italy and Spain apply it in limited circumstances. In cases such as the US, taxation cannot be avoided by simply transferring assets or moving abroad.[6]

The United States is unlike almost all other countries in that its citizens and permanent residents are subject to U.S. federal income tax on their worldwide income even if they reside temporarily or permanently outside the United States. U.S. citizens therefore cannot avoid U.S. taxes simply by emigrating from the U.S. According to Forbes magazine some citizens choose to give up their United States citizenship rather than be subject to the U.S. tax system;[7] however, U.S. citizens who reside (or spend long periods of time) outside the U.S. may be able to exclude some salaried income earned overseas (but not other types of income unless specified in a bilateral tax treaty) from income in computing the U.S. federal income tax. The 2012 limit on the amount that can be excluded is US$95,100.[8]

Double taxation[edit]

Most countries impose taxes on income earned or gains realized within that country regardless of the country of residence of the person or firm. Most countries have entered into bilateral double taxation treaties with many other countries to avoid taxing nonresidents twice—once where the income is earned and again in the country of residence (and perhaps, for U.S. citizens, taxed yet again in the country of citizenship)—however, there are relatively few double-taxation treaties with countries regarded as tax havens.[9] To avoid tax, it is usually not enough to simply move one's assets to a tax haven. One must also personally move to a tax haven (and, for U.S. citizens, renounce one's citizenship) to avoid tax.

Legal entities[edit]

Without changing country of residence (or, if a U.S. citizen, giving up one's citizenship), personal taxation may be legally avoided by the creation of a separate legal entity to which one's property is donated. The separate legal entity is often a company, trust, or foundation. These may also be located offshore, such as in the case of many private foundations. Assets are transferred to the new company or trust so that gains may be realized, or income earned, within this legal entity rather than earned by the original owner. If assets are later transferred back to an individual, then capital gains taxes would apply on all profits. Also income tax would still be due on any salary or dividend drawn from the legal entity.

For a settlor (creator of a trust) to avoid tax there may be restrictions on the type, purpose and beneficiaries of the trust. For example, the settlor of the trust may not be allowed to be a trustee or even a beneficiary and may thus lose control of the assets transferred and/or may be unable to benefit from them.

Legal vagueness[edit]

Tax results depend on definitions of legal terms which are usually vague. For example, vagueness of the distinction between "business expenses" and "personal expenses" is of much concern for taxpayers and tax authorities. More generally, any term of tax law has a vague penumbra, and is a potential source of tax avoidance.[10]

Tax shelters[edit]

Tax shelters are investments that allow, and purport to allow, a reduction in one's income tax liability. Although things such as home ownership, pension plans, and Individual Retirement Accounts (IRAs) can be broadly considered "tax shelters", insofar as funds in them are not taxed, provided that they are held within the Individual Retirement Account for the required amount of time, the term "tax shelter" was originally used to describe primarily certain investments made in the form of limited partnerships, some of which were deemed by the U.S. Internal Revenue Service to be abusive.

The Internal Revenue Service and the United States Department of Justice have recently teamed up to crack down on abusive tax shelters. In 2003 the Senate's Permanent Subcommittee on Investigations held hearings about tax shelters which are entitled U.S. tax shelter industry: the role of accountants, lawyers, and financial professionals. Many of these tax shelters were designed and provided by accountants at the large American accounting firms.

Examples of U.S. tax shelters include: Foreign Leveraged Investment Program (FLIP) and Offshore Portfolio Investment Strategy (OPIS). Both were devised by partners at the accounting firm, KPMG. These tax shelters were also known as "basis shifts" or "defective redemptions."

Prior to 1987, passive investors in certain limited partnerships (such as oil exploration or real estate investment ventures) were allowed to use the passive losses (if any) of the partnership (i.e., losses generated by partnership operations in which the investor took no material active part) to offset the investors' income, lowering the amount of income tax that otherwise would be owed by the investor. These partnerships could be structured so that an investor in a high tax bracket could obtain a net economic benefit from partnership-generated passive losses.

In the Tax Reform Act of 1986 the U.S. Congress introduced the limitation (under 26 U.S.C. § 469) on the deduction of passive losses and the use of passive activity tax credits. The 1986 Act also changed the "at risk" loss rules of 26 U.S.C. § 465. Coupled with the hobby loss rules (26 U.S.C. § 183), the changes greatly reduced tax avoidance by taxpayers engaged in activities only to generate deductible losses.

Transfer mispricing[edit]

Main article: Transfer mispricing

Fraudulent transfer pricing, sometimes called transfer mispricing, also known as transfer pricing manipulation,[11] refers to trade between related parties at prices meant to manipulate markets or to deceive tax authorities.

For example, if company A, a food grower in Africa, processes its produce through three subsidiaries: X (in Africa), Y (in a tax haven, usually offshore financial centers) and Z (in the United States). Now, Company X sells its product to Company Y at an artificially low price, resulting in a low profit and a low tax for Company X based in Africa. Company Y then sells the product to Company Z at an artificially high price, almost as high as the retail price at which Company Z would sell the final product in the U.S.. Company Z, as a result, would report a low profit and, therefore, a low tax. About 60% of capital flight from Africa is from improper transfer pricing.[12] Such capital flight from the developing world is estimated at ten times the size of aid it receives and twice the debt service it pays.[13][14]

The African Union reports estimates that about 30% of Sub-Saharan Africa's GDP has been moved to tax havens.[15] Solutions include corporate “country-by-country reporting” where corporations disclose activities in each country and thereby prohibit the use of tax havens where real economic activity occurs.[12]

Tax avoiders[edit]

United Kingdom[edit]

Avoiding the window tax in England

One historic example of tax avoidance still evident today was the payment of window tax. It was introduced in England and Wales in 1696 with the aim of imposing tax on the relative prosperity of individuals without the controversy of introducing an income tax.[16] The bigger the house, the more windows it was likely to have, and the more tax the occupants would pay. Nevertheless, the tax was unpopular, because it was seen by some as a "tax on light" and led property owners to block up windows to avoid it.[17] The tax was repealed in 1851.[18]

Other historic examples of tax avoidance were the deliberate destructions of roofs after World War II in order to avoid substantial property taxes. The owners of buildings, like Fetteresso Castle (now restored) and Slains Castle in Scotland, deliberately destroyed their roofs in protest at the new taxes.

In 2011, ActionAid reported that 25% of the FTSE 100 companies avoided taxation by locating their subsidiaries in tax havens. This increased to 98% when using the stricter US Congress definition of tax haven and bank secrecy jurisdictions.[19]

The 2013 United Kingdom budget was for lack of measures limiting transactions seen as the cause of tax avoidance, such as the use of intellectual property holding companies outside the UK where there is no commercial substance to support the transaction. Instead, the UK Government chose to rely on the OECD-led initiative on base erosion and profit shifting.[20]

United States[edit]

An IRS report indicates that, in 2009, 1,470 individuals earning more than $1,000,000 annually faced a net tax liability of zero or less.[21] Also, in 1998 alone, a total of 94 corporations faced a net liability of less than half the full 35% corporate tax rate and the corporations Lyondell Chemical, Texaco, Chevron, CSX, Tosco, PepsiCo, Owens & Minor, Pfizer, JP Morgan, Saks, Goodyear, Ryder, Enron, Colgate-Palmolive, Worldcom, Eaton, Weyerhaeuser, General Motors, El Paso Energy, Westpoint Stevens, MedPartners, Phillips Petroleum, McKesson and Northrup Grumman all had net negative tax liabilities.[22] Additionally, this phenomenon was widely documented regarding General Electric in early 2011.[23]

Furthermore, a Government Accountability Office study found that, from 1998 to 2005, 55 percent of United States companies paid no federal income taxes during at least one year in a seven-year period it studied.[24][25] A review in 2011 by Citizens for Tax Justice and the Institute on Taxation and Economic Policy of companies in the Fortune 500 profitable every year from 2008 through 2010 stated these companies paid an average tax rate of 18.5% and that 30 of these companies actually had a negative income tax due.[26]

In 2012, Hewlett-Packard lost a lawsuit with the IRS over a "foreign tax credit generator" which was engineered by a division of AIG.[27]

As a result of the tax sheltering, the government responded with Treasury in Treasury Department Circular 230. In 2010, the Health Care and Education Reconciliation Act of 2010 codified the "economic substance" rule of Gregory v. Helvering (1935).[28]

Public opinion[edit]

Tax avoidance may be considered to be the dodging of one's duties to society, or alternatively the right of every citizen to structure one's affairs in a manner allowed by law, to pay no more tax than what is required. Attitudes vary from approval through neutrality to outright hostility. Attitudes may vary depending on the steps taken in the avoidance scheme, or the perceived unfairness of the tax being avoided.[29]

In 2008, the charity Christian Aid published a report, Death and taxes: the true toll of tax dodging, which criticised tax exiles and tax avoidance by some of the world's largest companies, linking tax evasion to the deaths of millions of children in developing countries.[30] However the research behind these calculations has been questioned in a 2009 paper prepared for the UK Department for International Development.[31] According to the Financial Times there is a growing trend for charities to prioritise tax avoidance as a key campaigning issue, with policy makers across the world considering changes to make tax avoidance more difficult.[32]

In 2010, tax avoidance became a hot-button issue in the UK. An organisation, UK Uncut, began to encourage people to protest at local high-street shops that were thought to be avoiding tax, such as Vodafone, Topshop and the Arcadia Group.[33]

In 2012, during the Occupy movement, tax avoidance was proposed as a tool of US government protest by the organization TaxKilla.[34]

Prem Sikka, Professor of Accounting at the Essex Business School (University of Essex) and scientific advisor of the Tax Justice Network pointed to a discrepancy between the Corporate Social Responsibility claims of multinational companies and “their internal dynamics aimed at maximising their profits through things like tax avoidance”. He wrote in an article commenting the Lux Leaks publications: “Big corporations and accountancy firms are engaged in organised hypocrisy.”[35]

Government and judicial response[edit]

Tax avoidance reduces government revenue, so governments with a stricter anti avoidance stance seek to prevent tax avoidance or keep it within limits. The obvious way to do this is to frame tax rules so that there is a smaller scope for avoidance. In practice this has not always been achievable and has led to an ongoing battle between governments amending legislation and tax advisors' finding new scope/loopholes for tax avoidance in the amended rules.

To allow prompter response to tax avoidance schemes, the US Tax Disclosure Regulations (2003) require prompter and fuller disclosure than previously required, a tactic which was applied in the UK in 2004.

Some countries such as Canada, Australia, United Kingdom and New Zealand have introduced a statutory General Anti-Avoidance Rule (or General Anti-Abuse Rule, GAAR). Canada also uses Foreign Accrual Property Income rules to obviate certain types of tax avoidance. In the United Kingdom many provisions of the tax legislation (known as "anti-avoidance" provisions) apply to prevent tax avoidance where the main object (or purpose), or one of the main objects (or purposes), of a transaction is to enable tax advantages to be obtained.

In the United States, the Internal Revenue Service distinguishes some schemes as "abusive" and therefore illegal. The Alternative Minimum Tax was developed to reduce the impact of certain tax avoidance schemes.

In the UK, judicial doctrines to prevent tax avoidance began in IRC v Ramsay (1981) followed by Furniss v. Dawson (1984). This approach has been rejected in most commonwealth jurisdictions even in those where UK cases are generally regarded as persuasive. After two decades, there have been numerous decisions, with inconsistent approaches, and both the Revenue authorities and professional advisors remain quite unable to predict outcomes. For this reason this approach can be seen as a failure or at best only partly successful.

In the judiciary, different judges have taken different attitudes. As a generalisation, for example, judges in the United Kingdom before the 1970s regarded tax avoidance with neutrality; but nowadays they may regard aggressive tax avoidance with increasing hostility.

In the UK in 2004, the Labour government announced that it would use retrospective legislation to counteract some tax avoidance schemes, and it has subsequently done so on a few occasions, notably BN66. Initiatives announced in 2010 suggest an increasing willingness on the part of HMRC to use retrospective action to counter avoidance schemes, even when no warning has been given.[36]

See also[edit]

General:

References[edit]

  1. ^ Dyreng SD, Hanlon M, Maydew EL. (2008). Long-run corporate tax avoidance. The Accounting Review.
  2. ^ UK’s general anti-avoidance rule process on schedule. T Magazine.
  3. ^ For example, a Canadian organization describes Canada's law, first passed in 1988 in Section 245 of the Canada's federal income tax act (described here), as invalidating the tax consequences of a tax avoidance transaction if "not conducted for any primary purpose other than to obtain a tax benefit".
  4. ^ David Kocieniewski (January 6, 2013). "Major Companies Push the Limits of a Tax Break". The New York Times. Retrieved January 7, 2013. With hundreds of thousands of transactions a year, it is hard to gauge the true cost of the tax break for so-called like-kind exchanges, like those used by Cendant, General Electric and Wells Fargo. 
  5. ^ Michael Wenzel (2002). "The Impact of Outcome Orientation and Justice Concerns on Tax Compliance". Journal of Applied Psychology. pp. 4–5. When taxpayers try to find loopholes with the intention to pay less tax, even if technically legal, their actions may be against the spirit of the law and in this sense considered noncompliant. The present research will deal with both evasion and avoidance and, based on the premise that either is unfavorable to the tax-system and uncooperative towards the collective, subsume both under the concept of tax non-compliance. 
  6. ^ Moran Harari, Markus Meinzer and Richard Murphy (October 2012) "Financial Secrecy, Banks and the Big 4 Firms of Accountants" Tax Justice Network
  7. ^ "The new refugees. (Americans who give up citizenship to save on taxes)". Forbes. 1994-11-21. Archived from the original on 2006-02-27. Retrieved 2006-12-23. 
  8. ^ "Foreign Earned Income Exclusion", Internal Revenue Service, United States Department of the Treasury.
  9. ^ There are certain well-known exceptions to this: Cyprus has a heavily exploited double taxation relief treaty with Russia; another frequently used treaty is the double taxation relief treaty between Mauritius and India. There are also a number of other less well known and less frequently utilized treaties, such as the one between the British Virgin Islands and Switzerland.
  10. ^ "Pasternak M., and Rico C., Tax Interpretation, Planning, and Avoidance: Some Linguistic Analysis, 23 Akron Tax Journal, 33 (2008).". 
  11. ^ "Transfer Pricing". Tax Justice Network. Taxjustice Network. Retrieved 2012-08-09. 
  12. ^ a b Sharife, Khadija (2011-06-18). "‘Transparency’ hides Zambia’s lost billions". Al-Jazeera. Retrieved 2011-07-26. 
  13. ^ Kristina Froberg and Attiya Waris (2011). "Introduction". Bringing the billions back: How Africa and Europe can end illicit capital flight. Stockholm: Forum Syd Forlag. ISBN 9789189542594. Retrieved 2012-07-26. 
  14. ^ "Africa losing billions in tax evasion". aljazeera.com. 16 January 2012. Retrieved 18 May 2013. 
  15. ^ Mathiason, Nick (2007-01-21). "Western bankers and lawyers 'rob Africa of $150bn every year'". The Guardian (London). Retrieved 2011-07-05. 
  16. ^ Herber, Mark D (1997). Ancestral Trails: The complete guide to British genealogy and family history. Sutton Publishing Ltd. ISBN 0-7509-1418-1.  p.416
  17. ^ Geoff Harley (2002). Roles and perspectives in the law: Essays in honour of Sir Ivor Richardson. p. 338. 
  18. ^ Encyclopædia Britannica (1911), volume 28, page 713.
  19. ^ Lawrence, Felicity (2011-10-11). "Quarter of FTSE 100 subsidiaries located in tax havens". The Guardian (London). 
  20. ^ http://www.cfo-insight.com/reporting-forecasting/tax/2013-has-the-chancellor-delivered-a-budget-for-business/
  21. ^ IRS report containing complete income tax data for FY2009
  22. ^ Corporate Income Taxes in the 1990s
  23. ^ NYTimes article "G.E.’s Strategies Let It Avoid Taxes Altogether"
  24. ^ NYTimes article "U.S. Business Has High Tax Rates but Pays Less"
  25. ^ GAO report "Comparison of the Reported Tax Liabilities of Foreign- and U.S.-Controlled Corporations, 1998-2005"
  26. ^ Riley, Charles (November 3, 2011). "Many companies pay no income taxes, study finds". CNNMoney.com. Retrieved November 3, 2011. 
  27. ^ HP Loses Battle with IRS Over Tax Shelter Designed by AIG. Insurance Journal.
  28. ^ Rose CA. Tax Lawyer’s Dilemma: Recent Developments Heighten Tax Lawyer Responsibilities and Liabilities. Columbia Business Law Review. Volume 2011, Issue 1.
  29. ^ "Jimmy Carr and the morality of tax avoidance". BBC News. 21 June 2012. 
  30. ^ O'grady, Sean (2008-05-12). "Tax evasion 'costs lives of 5.6m children'". The Independent (London). 
  31. ^ Fuest, Clemens; Riedel, Nadine (19 June 2009). "Tax evasion, tax avoidance and tax expenditures in developing countries: A review of the literature". Oxford: Oxford University Centre for Business Taxation. 
  32. ^ Vanessa Houlder (2010-11-08). "Tax claims hit reputation as well as coffers". The Financial Times. Retrieved 2010-11-09. 
  33. ^ Lewis, Paul; Taylor, Matthew; Gabbatt, Adam; Jeffery, Simon (2010-12-03). "UK Uncut protesters spied upon by undercover police". London: The Guardian. Retrieved 2010-12-30. 
  34. ^ Cohn, Emily (6 April 2012). "TaxKilla: Tax Strategy For The 99 Percent, Taken From The 1 Percent". Huffington Post. Retrieved 22 September 2012. 
  35. ^ The conversation, Luxembourg leaks reveal the organised hypocrisy of the modern corporation], 10 November 2014
  36. ^ HMRC goes on £1bn retro warpath, Accountancy Age, 18 Feb 2010

External links[edit]