|Sr. No.||Particulars||Page No.|
|Use of Tax Havens for Money Laundering||1 – 3|
|Tax Avoidance through Tax Havens.||3|
|Shifting Trading Profits = Transfer Pricing.||4|
|Shifting Capital Gains – SPVs.||5 – 8|
|Structuring Legal Systems to be Tax Haven.||8 – 10|
|Games Governments and International Bodies Play.||10 – 11|
|Tax Havens of the world.||11 – 12|
|Need for Offshore Centre.||12 – 13|
|Tax Havens & Double Tax Avoidance Agreements.||13|
|13 – 15|
|Tax Justice Net Work.||15 – 16|
|Can we Eliminate Tax Havens Abuse?||16 – 17|
|At the End ………..||17|
|Ann. I||Transfer Pricing through Tax Havens Presentation||18 – 20|
|Ann. II||Map of Tax Havens around the world||21|
|Ann. III||Delaware. Report by New York Times||22 – 24|
Notes – Some concepts have been explained by giving illustrations. These are purely hypothetical.
All figures have been rounded off for simplicity.
Legal Technicalities & Controversies are avoided, concepts are discussed.
(i) which does not levy any tax / levies very small tax;
(ii) which has no controls on foreign exchange movements;
(iii) which has a legal system that ensures secrecy;
(iv) which permits foreigners to open companies & other entities; and
(v) which makes laws specifically designed to help “financial engineering”, “creative accounting” and “tax avoidance”.
(vi) Which signs DTA with several countries & facilitates Treaty Shopping.
Note: All the above benefits are granted only to foreigners / Non-Residents. People staying within the country are liable to tax & other restrictions – even in Switzerland.
The simple function of a tax haven is to help people with black/criminal money to hide & hold the wealth safely and incognito. Next function is to permit them investing the same in developed countries.
For the tax planners, the issues are – how to transfer the funds outside their country; then how to hold & own the same safely; how to utilise the same!
2. Use of Tax Haven for Money Laundering:
Let us see these tax haven issues one after another by considering a real life illustration of Ex President of Philippines – Late Mr. Marcos.
2.1 Late Mr. Marcos had stolen substantial wealth from the Government funds. Naturally, he could not hold these millions of dollars in his own name. He had to hide the money.
So he opened “Offshore Companies” in tax havens.
The Suppliers of weapons to Philippines; & others who had to give bribes; paid bribes directly into the Swiss bank accounts of the Offshore Companies. In the payer’s records, Marcos’s name would not appear. The receiver would be some company with some strange name.
Quite likely, the payment would not be made by the main weapons supplier. Some agent / associate company would make the payment.
This took care of transfer of money outside the country. The intermediate offshore company also became a screen / veil covering resident Marcos.
2.2 Can someone go to Switzerland and get the names of the company, the shareholders etc.?
Offshore Country laws provide for secrecy. Any person leaking out the secrets is punishable under their law.
Yet, it has happened. There were reports that – the French Government bribed a Swiss bank officer. The officer came to France with entire printed list of names of French citizens having bank accounts with his bank. France gave asylum to the officer. Latest report is about an officer of HSBC bank giving a list of people from all over the world having their bank accounts in the tax haven.
2.3 How do the black money holders hide their names?!
There is a system of “Bearer Shares”. Whoever holds the share certificates, is the owner of the company. The scheme operates as under:
The bankers & solicitors in a country start a new company. They will be the first shareholders / directors of the company. With the Government / company, their names will be registered. Then these professionals will hand over the share certificates to the real owner of the funds – say, President Marcos.
Therefore, even if some petty officer were bribed, the information would not leak.
2.4 President Marcos wanted even more security. So he formed companies in one tax haven – Panama & held them by bearer shares. These companies in turn held a company in Netherlands Antilles (NA). This NA company held immovable properties in New York.
It was extremely difficult for Philippine Government’s lawyers to prove that these New York properties belonged to Ex-President Marcos.
2.5 See a simple chart below.
2.6 Marcos needed still more security. So he funded President Regan’s elections & Imelda Marcos gifted jewellery worth millions to Nancy Reagan.
Ultimately, it was the U.S. Government, which helped Marcos’s overthrow from Presidentship; & it was U.S. President Reagan who protected & gave safe haven – for physical stay to President Marcos.
3. Tax Avoidance through Tax Havens:
Tax havens are used for several purposes. As far as Income-tax is concerned, main use is shifting taxable profits out of a country to a Tax Haven. Different systems are used for this purpose. Main two differences we can see: (i) Shifting of trading profits. This is an ongoing exercise. (ii) Shifting of capital gains. This may be a one time exercise – for sale of large companies, businesses & other assets. Or, it may be an ongoing exercise as in the case of FIIs.
4. Shifting Trading Profits = Transfer Pricing:
4.1 In simple words it involves under invoicing incomes in a taxing country like India; over invoicing expenses & shifting the resultant profits to a tax haven or a tax free entity.
Let us take an illustration to elaborate the concept.
A company in U.S.A. – ABC Ltd. manufactures automobile cars (cars.) It gets rubber from Malaysia, designs from Japan & Steel from India. It opens subsidiaries in Malaysia, Japan & India. Assume that the tax rates in different countries are as under:
The subsidiaries will sell their finished goods at 5% to 10% profit margin (what ever margin is acceptable to their host country tax authorities) to Group’s tax haven companies. Tax haven companies will sell the same goods to the US company at a margin of 100% (what ever price may be acceptable to US tax authorities.) Substantial profits will be retained in tax havens on which no taxes will be paid. US company will pay several different expenses like royalty, interest etc. to group tax haven companies & ultimately will show loss or small profit.
Pricing of products is done in such a manner that the taxable profits are transferred from a taxing country to a tax haven. Main purpose of these price variations is to save taxes.
Group profits as a whole remain the same. Share prices will not be affected.
Profit is transferred away from the high tax country to tax havens.
Group, as a whole, reduces tax.
Since all companies are owned by the same holding company, location of profits & losses does not make any difference.
5.1 Let us see fundamental systems/themes employed for tax avoidance. The following is a mechanism established very well for past several decades: Hold your assets in the host country through a company / SPV. Hold the shares in the SPV, through a tax haven entity. Whenever a transfer is desired, don’t make any transaction in the Host country. Achieve the transfer of interest through the tax haven SPV. Note that the use of Tax Haven & incorporation of SPVs can start even before actual business starts.
In simple words, shift the location/ situs of title documents outside the host country and avoid host country taxes. Judiciary goes by form and not by substance. So it is generally not a hurdle in tax avoidance. Since judiciary wants “documentary evidence”, create as many papers as necessary, and still more.
5.2 To clarify this abstract planning, consider following illustration:
Mr. A from Hongkong wants to invest in a substantial business in India. He may continue the business in India; or if found profitable, he may sell the stake to anyone at the right price. Hence he will form a discretionary trust – “ABC Trust” in a tax haven – say, Cayman Island. This trust will invest in “ABC Pvt. Ltd.” – a company registered in Cayman Island.
ABC Pvt. Ltd. will invest in the shares of the Indian Business company – EFG Ltd. This Indian company will have business and other valuable assets in India. In this illustration, India is the host country.
Please see the chart below.
And then see the explanatory notes below.
5.3 Named Beneficiary Mr. X from Timbuktu
5.4 Explanatory Notes:
5.4.1 The trust is a discretionary trust. The trustees can at their discretion change investments and even beneficiaries.
5.4.2 In the trust deed, name of an unknown person – Mr. X from a harmless country is written. This country will never pose a threat to the tax haven.
5.4.3 Mr. X from Timbuktu will give a “Letter of Wishes” in favour of Mr. A. Effectively A becomes the beneficiary. But his name will not appear in any official records. Letter of Wishes is an unofficial, secret document. Legally, it is not binding. In reality all trustworthy trustees would act as per the letter of wishes.
5.4.4 Let us assume, EFG’s business in India prospers. In ten years, the value of business has gone up ten times.
5.4.5 If shares in EFG are sold, there will be substantial capital gains and substantial tax in India.
5.4.6 To avoid Indian tax, no transfer will be recorded in India.
A has two options.
5.4.7 A will give a Letter of Wishes in favour of the buyer. The buyer will make payment to Mr. A in a tax haven. After this transaction, the trustees will recognise only the buyer and will not recognise Mr. A for this particular structure.
In all official records in Cayman Island, the directors, shareholders, beneficiaries – everyone will remain the same. In India, there will be no transfer at all. But of course, the management will change. Effectively the interest in EFG Ltd. will be sold without paying any taxes in India.
This method can work in private family businesses.
5.4.8 Another option is for the trustees to sell the shares of ABC Pvt. Ltd. to the buyer.
This would mean, the shares of a Cayman company are being sold. Not the shares of an Indian company. In this sale, the seller (Mr. A) and the buyer are non-residents of India. They are transferring a foreign asset – shares in a Cayman Island company. Payment will be made outside India. Hence technically, India has no jurisdiction to tax this transaction.
5.4.9 This entire structure is generally pre-planned. It may last for ten or even twenty years. Probably, the annual cost of the structure will be $ 20,000. If the size of the investment is significant, cost is taken care of.
5.5 Look at the legal principles / concepts utilised here.
5.5.1 One has to “Look At” the legal form and not “Look Through” the paper work. Form prevails over substance.
5.5.2 Every country – how so ever small – is a Sovereign country. One cannot doubt the intent and purpose of the laws that the Government of a country makes.
5.5.3 Every company is a separate legal entity. Company and its shareholders are separate. (Salomon Vs Salomon & Co. Ltd.)
5.5.4 The shareholders of a company do not own the assets of the company.
5.5.5 A company is resident in the country in which it is registered.
5.6 Consultants have taken legal principles which are true in certain circumstances; and then used these principles in totally different set of circumstances.
5.7 In the first paper on Tax Incidence, we have seen the concept of Tax Base. In this paper, we have seen Transfer Pricing (4) and Shifting of Capital Gains (5). These are illustrations of “Erosion of Tax Base”.
6.1 We have heard of Corporate Restructuring. See below how a Country restructures its legal systems to become a tax haven, to facilitate the tax payers of other countries in avoiding other countries’ taxes. It is a big business. More than fifty countries around the world are active in this business.
Consultants love definitions and conditions (see para 1). Once a concept is bound by conditions; it is easy to break any one or more conditions and come out of the disgrace of being named a Tax Haven.
6.2 In 1992 Mauritius decided to change its culture from a “Fishing & agricultural mini country” to a Tax Haven. It invited a British tax consultant to draft its tax law. Its tax law & company law were redesigned to fulfil all of the above referred conditions. Initial Income-tax Act provided that offshore companies registered in Mauritius will have an option to pay tax at a rate from 0% to 30%. So Mauritius claimed, “We have Income-tax. We are not a tax haven”.
6.3 When Indo-Mauritian DTA came up for a challenge before Authority for Advance Ruling, an issue was raised – “There is no liability to tax in Mauritius. An “option” is not a “liability”. Hence the offshore company cannot be held to be a “Resident of Mauritius.” Hence it cannot claim the benefit of Indo-Mauritian DTA.”
6.4 Hence Mauritian Government (MG) changed its tax law and made a compulsory tax rate of 15%. Even OECD considers 15% as a reasonable tax rate. The objection was taken care of.
However, Mauritian Government granted an automatic foreign tax credit amounting to 90% of Mauritian tax. No questions asked. No documents required. Effectively, the SPV would pay only 1.5% tax. This foreign tax credit is now reduced to 80%. So effective tax rate is 3%.
6.5 However, a smart investor will open two companies in Mauritius:
Company A – GBL category I Liable to tax @ 3%.
This Company will get a “Certificate of Residence” from the Mauritian Government. Honourable Supreme Court has said: “you cannot doubt an official certificate issued by a sovereign government.”
Company B – GBL category II Not liable to tax in Mauritius. It does not get Certificate of Residence in Mauritius.
Company A gets a Certificate of Residence in Mauritius. It invests in India and earns, say $ 10,000 from India. It will pay expenses of $ 9,000 to company B. Company A will pay 3% tax on $ 1,000; or 0.3% on its Indian Income.
6.6 Courts will not question – “Why such a low tax?” As long as some tax is payable, the company is “liable” to tax in Mauritius. Since it produces certificate of residence, it must get benefit of Indo-Mauritian DTA.
6.7 Between 1991 & 1993, the Government of India and RBI liberalised NRI investments in India. They were also allowed to invest through Overseas Corporate Bodies – OCBs & Trusts.
This was a built-in system inviting manipulation. Indians having black money simply borrowed the names of a few NRI friends. They opened OCBs in tax havens in the names of NRIs. Transferred their black money by Hawala. Brought in the same black money into India through the OCBs. And made tax free money on the capital markets.
Armed with Indo-Mauritian DTA, they had an open hand in Indian share markets. Billions of rupees with zero tax gave them a licence to manipulate the share market any – which way they liked. They did not need Hawala. They simply made billions of rupees on the stock exchange & officially remitted funds abroad.
6.8 RBI and SEBI have permitted hundreds of Foreign Institutional Investors (FIIs) to invest in India. They are allowed to invest the funds of their ‘account holders’. These account holders can be from any country.
Any foreigner can lend his name to an Indian resident having black money to use it back in India. Ketan Parekh used all these instruments and brought about disaster in the Indian Stock Markets – in the year 2001. In a Knee jerk reaction, RBI banned all investments in the portfolio market through OCBs.
FIIs still have a free run. Participatory Notes are still exempted from all FEMA controls, Indian enquiries & Taxes. Some group with sufficient strength can lobby the politicians and get laws passed suitable to them – despite opposition by CBDT & RBI.
6.9 Mauritius claims that 40% of India’s Foreign Investment comes from Mauritius. Consider the statistics: Mauritius has a population of 1.2 million – less than the population of Borivli or Kandivli or Malad or…any other large city in India. Mauritius GDP is $ 11 billions & total national savings are $ 1.55 billions. India gets a total foreign investment of $ 60 to 70 billions. India’s own savings are above $ 400 billions.
Mauritius’ claim is like Mumbai claiming: “Mumbai exports 40% of India’s exports”. Mumbai is just a transit point, a port & nothing more. Port is important. But its importance is nothing more than that of a port.
Joke is, when ever some Mauritian authority claims that 40% of foreign investment into India comes from Mauritius; all the media publishes this item on front age or at prime time. No one spends 2 minutes to think about the authenticity of the claim.
(Time permitting, discuss Malta tax restructuring.)
Instead of defining, can we describe a Tax Haven as – “one which facilitates tax avoidance; secrecy and/or money laundering”?
7. Games, Governments & International Bodies play:
Organisation for Economic Co-operation & Development (OECD) appointed a special committee to deal with tax havens. US Government strongly supported the committee & actively took part in it. They published a report called “Harmful Tax Competition”. When proposed action appeared to be hurting U.S. interests, they protested & almost scrapped the action. Now the entire action is diluted.
This gives an idea of the size & strength of the problem that law enforcers face.
However, today USA & most countries of Europe are suffering from budgetary deficits. Some politicians are strongly against tax havens. They don’t see any difference between tax evasion & tax avoidance. US candidates for election are proudly advertising that they are supporting the tax department by bringing about harsh tax bills proposing to plug tax loopholes. Then there are other politicians who are simply not bothered whether the country loses tax revenue or not.
- Tax Havens of the World:
8.1 More than 50 countries around the world may fulfill some or all of the above criteria. Yet, if one asks the Governments of these countries – No one may accept that they are tax havens.
They will unequivocally declare that they do not support any crimes & any manipulation. They are simply efficient financial centers encouraging global trade & investment. In fact, if any one calls them Tax Haven, they will scream & shout. Innocent (?) politicians will cow down & agree that they are not tax havens. Some call themselves as Offshore Financial Centers; or Banking Centers.
See Annexure II for a map of Tax Havens around the world.
A fifteen minutes surfing on the internet can give considerable information on tax havens around the world. I have downloaded considerable information on Singapore – because of it being in news in India. A summary & links to the relevant websites is given below.
(i) “Singapore is well known as the Switzerland of Asia.”
(ii) Tax Havens that OECD forgot.
(iii) Look out for several world wide agencies that provide services for opening & maintaining SPVs in several tax havens around the world.
(iv) An Introduction to tax havens of the world.
(v) “Can Singapore Private Banking Replace Swiss Private Banks?”
(vi) Get consultants to incorporate SPVs in Singapore & get all tax haven benefits.
You may refer to the above links Or…
Just surf on the internet with the queries: “Tax Havens of the World”; or “Incorporation of Companies in Singapore”, or “Singapore – Tax Haven” and you will get adequate information to determine whether it is a tax haven or not.
8.3 Switzerland is the mother of all tax havens in the world. U. K. with all its colonies is the largest tax haven in the world. And while President Obama made big noises about British Virgin Island (BVI), Delaware state within USA is more attractive than BVI. U.S. Government itself supports tax haven within USA.
Supporting colonies like Panama as a tax haven is another story. USA deliberately attracts the largest flow of unaccounted funds. If Switzerland & UK are service providers, USA is the beneficiary of the services.
The tax haven system started from a genuine transaction by a Swiss wealthy businessman & a small man named Mr. Rothschild. It was strengthened over the world wars. Switzerland remained neutral in both the World Wars. Both sides to the war used its system. It has been perfected by the Swiss Government & banks; and spread far & wide by the British Government. Used extensively by USA.
- Need for Offshore Center.
Apart from the people who need Tax Havens for Money Laundering, there are other needs of Tax Havens.
9.1 Dictatorial Governments.
There have been; & even today exist several Governments that are – dictatorial, tyrannical and whimsical. Consider Uganda, for sudden take over of assets of non-Africans; & the Nazi Governments for the loot of Jewish assets.
Wealthy people exposed to the whims of such Governments, have to protect their wealth through tax havens. (One is not sure whether the Jews could really save. What they saved from the Nazis, is alleged to have been lost to the Swiss banks.)
9.2 Bureaucratic Red Tape.
In countries like India – too many bureaucratic regulations hinder the quick decision taking. People with even genuine business would prefer companies in tax havens – for their global business.
9.3 Protection from creditors, from “Ambulance Chasers”, from claims on divorce, avoiding estate duty, avoiding laws which force estate succession in certain manner, and so on.
9.4 There are some countries which avoid criminals. They concentrate on providing efficient financial services. They have strong anti-money- laundering provisions. They even regulate their professionals considerably. These countries do not call themselves tax havens. They call themselves “Offshore Financial Centers”.
Yet, there is no tax haven which does not erode the tax base of industrialised countries.
10. Tax Havens & Double Tax Avoidance Agreements:
Tax Havens like BVI are not concerned with DTAs. But Tax havens like Mauritius, Singapore, Cyprus etc. sign DTAs with several gullible countries.
Till 1991, India did not sign any DTA with a tax haven. After 1991, in the liberalisation mood, India signed / continued DTAs with tax havens like – Mauritius, Cyprus & Malta. India amended its existing DTA with Singapore and granted capital gains relief which was not available earlier. This was with knowledge that Singapore permits foreigners to open companies there, levies no capital gains & levies no income-tax on foreign profits. Clearly, a licence given for treaty shopping. Some time back a DTA has been signed with a tax haven Luxembourg ?!?!? India signed DTA with UAE where admittedly there is no income-tax. And then UAE opened several tax haven jurisdictions within the country. The Sheikh of Dubai has given individual fiefdoms to his brothers and cousins. Each Free Trade Zone within Dubai is a corporation owned by a relative of the Sheikh.
The bankers, solicitors and C.A.s with global networks, provide services for quick transfer of wealth from one country to another; & even change of residence of the company from one country to another.
11.1 Traditionally, Indians & others have hidden their black money in gold, real estate and cash. This is fine when someone has a few lakhs of rupees. Imagine a rich NRI staying in Africa. He has total wealth of say, U.S. $ 500 millions. Out of this, he wants to invest $ 200 mn. in gold. He can buy huge quantity of gold. Physical gold will be a threat as well as impossible to shift in times of crisis.
11.2 Now consider the probability that suddenly the Government is overthrown by guerillas. The new dictator starts looting all the wealthy foreigners. How will this NRI take out his gold worth $ 200 mn.? He will be busy taking out his family members. His gold would be lost. To take care of this eventuality he would do the following.
11.3 Hold a company in a tax haven – say, Liberia. That company will subscribe to securities of a Swiss bank which would be denominated in gold ETFs – Gold Bonds. The gold security papers & the Tax Haven company’s bearer share certificates would be kept in a Swiss bank’s locker in its London branch. Or they may be dematerialised and held in electronic form. Now wherever he goes, the security can be encashed.
11.4 What happens if Liberian Government is overthrown by guerillas? Communists hating all the wealthy people come to power. They disclose all the secret details of the companies. Precaution against such events can be planned.
11.4.1 Do not go to tax havens where there is large population, there is multi party democracy and multi-racial population. Go to a country like Jersey or Guernsey, with small population with a vested interest in Tax Haven system.
11.4.2 More precautions.
The NRI’s advisors in London and the bankers in Switzerland will overnight shift the registration of the offshore company from Liberia to British Virgin Islands or Panama. Since shares will be bearer shares, the new communist Government of Liberia will never come to know about the real owners.
And if the asset and the Liberian company have one more intervening company; the Liberian Government would never know about the real value of the assets.
12. Tax Justice Network.
Tax evasion is only one issue. Money Laundering and other massive offences are conducted through global financial institutions and banks. Most reputed banks are now exposed for being active partners in these games.
As a response, several Governments are now taking steps against tax havens. There are global NGOs exposing the games played by tax evaders and campaigning for control over tax evasion. One such NGO is Tax Justice Network.
Country by Country reporting
An extract from the website of this NGO on a campaign that they are running:
The “Tax Justice Network” and the “Publish What You Pay” coalition are leading an international campaign for Country-by-Country (CbC) reporting by multinational corporations (MNCs). The principles are straightforward.
Nearly two thirds of global trade takes place inside MNCs. By shifting profits between subsidiaries in different jurisdictions, they can dump their costs into high-tax jurisdictions, to be deducted against tax, and shift their profits to tax havens, where they pay little or no tax (we explore this more fully on our transfer pricing page, here). These artificial constructions are invisible in their annual reports, however: under current international accounting rules MNCs are allowed to sweep all their results – profits, tax payments, borrowings, and so on – into a single figure or set of regional figures. So you might get a set of results for “Africa” or “Europe” but it is impossible to unpick these numbers to work out what has happened in each country.
Country-by-country reporting would make MNCs break down their results for each country.
Country by Country (CbC) reporting would provide benefits well beyond the arena of tax. Currently, citizens cannot use corporate published accounts to establish even whether an MNC operates in their jurisdictions, let alone what it is doing there. As multinationals grow more complex, the problem is getting worse.
See ten reasons why we want country-by-country reporting, here.
Note: Also see the Holy Wood film “Inside Job”. For a person who is not an economist, it is difficult to understand. Paper on “Currency Wars” may help. See it at:
- Can we Eliminate Tax Havens Abuse?
The enforcement agencies of the world may not be able to eliminate misuse of tax havens because –
13.1 Tax havens are supported by powerful Governments.
U.S.A. – Panama – Noriega; Delaware.
U.K. – Jersey, Guernsey, Bahamas etc.
Indian Government (at political level) protects tax havens & simultaneously makes noises against Tax Havens.
13.2 Within the country, powerful politicians, bureaucrats & businessmen use & shield tax havens. Tax Havens shield politicians. So the mutual help create Chinese walls in front of honest Income-tax Commissioners and judiciary.
13.3 World best professionals are available to help tax havens; to confuse enforcement agencies & judiciary.
13.4 Ultimately, it is a natural human weakness – Greed. It has controlled human minds at all times in history and all places in geography (well, almost ). As long as there are greedy people; and laws which make violations profitable; these tax havens and similar systems may continue. If we can eliminate greed, we can eliminate these systems.
While India cannot eliminate any tax haven, if the relevant tax authorities politicians & judiciary are alert, their misuse can be minimised.
14. At the end………..
Government of India at political level seems to be confused. Or probably, there are other reasons. On the one hand Government goes ahead, signs treaties with tax havens. Then the tax department prosecutes people having balances with tax havens. Before the Supreme Court, Government of India goes ahead & defends DTA with Mauritius. (Azadi Bachao Andolan) Department investigates people investing through Mauritius. Government over rules RBI’s objections & permits FIIs & Participating Notes; promises them protection from investigation by tax department under GAAR. And makes noises about black money before the public & makes promices to Hon. Supreme Court.
In this chaos, who can protect honest tax payers and punish tax offenders?