Tax haven

A tax haven is defined as a jurisdiction with very low "effective" rates of taxation ("headline" rates may be higher).[1][2][3][4] In some traditional definitions, a tax haven also offers a degree of secrecy.[5] However, while jurisdictions with high levels of secrecy but also high rates of taxation (e.g. the U.S. and Germany in the Financial Secrecy Index rankings), can feature in some tax haven lists, they are not universally considered as tax havens. In contrast, jurisdictions with low levels of secrecy but also low "effective" rates of taxation (e.g. Ireland, and the U.K. in the FSI rankings), appear in many tax haven lists. (see § Tax haven lists).[6]

Traditional tax havens are open about near-zero rates of taxation (e.g. Cayman Islands, Bermuda, BVI, Jersey and the Isle of Man), but therefore have restricted bilateral tax treaties. In contrast, modern corporate tax havens have non-zero "headline" rates of taxation and high levels of OECD-compliance and thus have some of the broadest networks of bilateral tax treaties. However, evidence that multinationals use them to achieve "effective" tax rates that are nearer to zero, not just in the haven but in all jurisdictions with which the haven has tax treaties, sees them also ranked on § Tax haven lists, and specialist Corporate tax haven lists. According to several studies, the main corporate tax havens are Ireland, the Netherlands, Singapore, and the U.K., while Luxembourg, Hong Kong and Switzerland feature as both traditional tax havens and corporate tax havens. Corporate tax havens often serve as "conduits" to specific traditional tax havens.[7][8][9]

Use of tax havens, whether traditional or corporate, represent a loss of tax revenues to jurisdictions which are not tax havens. Estimates of the scale of taxes lost vary but the most credible have a range of $100–250 billion per annum.[10][11][12] In addition, capital held in tax havens can permanently leave the tax base (base erosion). Estimates of capital held in tax havens also vary with the most credible estimates between $7–10 trillion (up to 10% of global assets).[13] The harmful use of traditional and corporate tax havens has been noted in developing nations, such as Africa, who most need the tax revenues to build their economies.[14]

At least 15% of countries are tax havens.[15][6] Tax havens are mostly successful economies and being a haven has often brought prosperity.[16] The top 10–15 GDP-per-capita jurisdictions, excluding oil & gas nations, are the smaller to mid-sized havens. Because the increase in GDP is artificial (due to accounting flows), havens are prone to over-leverage (international capital misprice the artificial debt-to-GDP). This can lead to severe credit cycles and/or property/banking crisis when international capital flows are repriced. Ireland's Celtic Tiger and the subsequent financial crisis in 2009–13, is an example.[17] Jersey is another.[18]

The focus on combating tax havens (e.g OECD-IMF led projects) has mostly been in the area of common standards, transparency and data-sharing. However, the rise of OECD-compliant corporate tax havens, who now are responsible for most of the quantum of lost tax revenues from base erosion and profit shifting (or BEPS) activities,[12] has led to criticism of this focus, versus net taxes paid.[19] Higher-tax jurisdictions, such as the U.S. and the EU-28, departed from the OCED BEPS Project in 2017–18, to introduce tax regimes targeted at curtailing corporate tax havens (e.g. U.S. GILTI and BEAT tax regimes, and the proposed EU-28 Digital Services Tax regime). Unlike the OECD-IMF compliance approaches, these new regimes are focused on raising net taxes paid by corporations in corporate tax havens.

Definitions

Tax havens
A global map of traditional tax havens, using the list in the proposed 2007 "Stop Tax Haven Abuse Act", U.S. Congress. This does not include the corporate tax havens

The only consensus regarding a definition of what constitutes a tax haven is that it seems there is none. This is the conclusion from major independent NGOs, such as the Tax Justice Network,[20] from U.S. Government Accountability Office investigations,[21] from EU Parliament investigations,[22] and from other leading academic investigations.[23][24]

The issue, however, is material as being labeled a "tax haven" has serious consequences for a jurisdiction and its ability to trade under bilateral tax treaties. When Ireland was "blacklisted" by G20 jurisdiction Brazil in 2016, it restricted trade between the two countries.[25][26] In this regard, a frequently invoked definition is from the OECD in 1998:[27][28]

  1. No or nominal tax on the relevant income; 
  2. Lack of effective exchange of information; 
  3. Lack of transparency; 
  4. No substantial activities (e.g. tolerance of brass plate companies). 

The fourth test was withdrawn after rejections from the U.S. and dropped from the OCED's 2002 report, indicating a political dimension.[6] However, the 1998 OECD tests are still referenced in reports on tax havens, and particularly by corporate tax havens, who are highly OECD-compliant, and want to distance themselves from OECD-type tax haven labels.[23] In 2017, only Trinidad & Tobago violated the 1998 OECD definition,[29] which has led to calls for the 1998 OECD definition to either be updated, or scrapped.[30][31] The Tax Justice Network highlight a political dimension to the 1998 OECD definition and that the non-compliance of the U.S. would be apparent if the OECD definition was split into separate tax-focused and secrecy-focused definitions.[32]

In 2000, the Financial Stability Forum (or FSF), introduced the related concept of an offshore financial centre (or OFC), which the IMF adopted. An OFC is similar to a "tax haven" and the terms are sometimes used interchangeably. The OFC definition is more focused on advanced tax avoidance tools (i.e. BEPS tools), and an understanding that corporate tax havens are different from "individual" tax havens. The 2000 FSF-IMF list of OFCs replicates much of the 1998 OECD tax haven lists, but also included future corporate tax haven leaders such as Ireland, Hong Kong, Luxembourg, and Singapore.[6]

  1. Low or no taxes on business or investment income;
  2. No withholding taxes;
  3. Light and flexible incorporation and licensing regimes;
  4. Light and flexible supervisory regimes;
  5. Flexible use of trusts and other special corporate vehicles;
  6. No need for financial institutions and/or corporate structures to have a physical presence;
  7. An inappropriately high level of client confidentiality based on impenetrable secrecy laws;
  8. Unavailability of similar incentives to residents.

Since the OECD and FSF-IMF definitions, the main proposals in defining a tax haven have been around focusing on low tax as a necessary and sufficient condition to be a tax haven,[1][2][3] and particularly for corporate tax havens.[33] The Tax Justice Network introduced the Financial Secrecy Index in 2009 to split out the secrecy component of the OECD tax haven definition and used the term secrecy jurisdiction,[20] which highlights issues in regard to the U.S and Germany, which have high tax rates and therefore do not appear on any OECD/IMF lists of tax havens or corporate tax havens/OFCs.

Some jurisdictions still invoke, or rely on, the 1998 OECD definition when rebutting accusations of being a tax haven (e.g. see Ireland as a tax haven).

There are now three working definitions of tax haven which are:[22][6]

  1. Traditional tax havens – low tax and secrecy issues (e.g. Bermuda, BVI and the Caymans);
  2. Corporate tax havens – low tax but high OECD-compliance (e.g. Ireland, the Netherlands, Singapore);
  3. Secrecy jurisdictions – can have higher tax but have high levels of secrecy (e.g. U.S. and Germany).

Note that there are jurisdictions that can can be considered to be in more than one of these three groups such as Switzerland, Hong Kong, and Luxembourg, who rank on the top of the Financial Secrecy Index tables, and feature prominently in corporate tax haven lists and traditional § Tax haven lists.

Note that research into tax havens has sought to develop quantitative metrics to identify and rank the various havens. Sometimes these metrics are proposed as tax haven "proxies", or even tax haven/OFC definitions. Any list of tax havens (or corporate tax havens) is usually reconciled with these proxies. Because of the greater availability of corporate data, most of the proxies are corporate tax haven proxies.

Financial effect

Capital held offshore

Global distribution
of net financial assets[34]
Individuals with
financial assets
Total liquid net
worth ($Tr.)
Amount of which
offshore ($Tr.)
> $30MM $16.7 $9.8
$5 – $30MM $10.7 $5.1
$1 – $5MM $17.4 $4.7
All > $1MM $44.8 $19.6
Rest < $1MM $10.3 $1.0
Total $55.1 $20.6

While incomplete, and with the limitations discussed below, the available statistics nonetheless indicate that offshore banking is a very sizable activity. The OECD estimated in 2007 that capital held offshore amounted to between $5 trillion and $7 trillion, making up approximately 6–8% of total global investments under management.[35]

A more recent study by Gabriel Zucman of the London School of Economics estimated the amount of global cross-border wealth held in tax havens (including the Netherlands and Luxembourg as tax havens for this purpose) at US$7.6 trillion, of which US$2.46 trillion was held in Switzerland alone.[13][14] The Tax Justice Network (an anti-tax haven pressure group) estimated in 2012 that capital held offshore amounted to between $21 trillion and $32 trillion (between 24–32% of total global investments),[36][37][38] although those estimates have been challenged.[39]

In 2000, the International Monetary Fund calculated based on Bank for International Settlements data that for selected offshore financial centres, on-balance sheet cross-border assets held in offshore financial centres reached a level of $4.6 trillion at the end of June 1999 (about 50 percent of total cross-border assets). Of that $4.6 trillion, $0.9 trillion was held in the Caribbean, $1 trillion in Asia, and most of the remaining $2.7 trillion accounted for by the major international finance centres (IFCs), namely London, the U.S. IBFs, and the Japanese offshore market.[40] The U.S. Department of Treasury estimated that in 2011 the Caribbean Banking Centers, which include Bahamas, Bermuda, Cayman Islands, Netherlands Antilles and Panama, held almost $2 trillion dollars in United States debt.[41] Of this, approximately US$1.4 trillion is estimated to be held in the Cayman Islands alone.[35]

The Wall Street Journal in a study of 60 large U.S. companies found that they deposited $166 billion in offshore accounts in 2012, sheltering over 40% of their profits from U.S. taxes.[42] Similarly, Desai, Foley and Hines in the Journal of Public Economics found that: "in 1999, 59% of U.S. firms with significant foreign operations had affiliates in tax haven countries", although they did not define "significant" for this purpose.[43] In 2009, the U.S. Government Accountability Office (GAO) reported that 83 of the 100 largest U.S. publicly traded corporations and 63 of the 100 largest contractors for the U.S. federal government were maintaining subsidiaries in countries generally considered havens for avoiding taxes. The GAO did not review the companies' transactions to independently verify that the subsidiaries helped the companies reduce their tax burden, but said only that historically the purpose of such subsidiaries is to cut tax costs.[44]

James Henry, former chief economist at consultants McKinsey & Company, in his report for the Tax Justice Network gives an indication of the amount of money that is sheltered by wealthy individuals in tax havens. The report estimated conservatively that a fortune of $21 trillion is stashed away in off-shore accounts with $9.8 trillion alone by the top tier—less than 100,000 people—who each own financial assets of $30 million or more. The report's author indicated that this hidden money results in a "huge" lost tax revenue—a "black hole" in the economy—and many countries would become creditors instead of being debtors if the money of their tax evaders would be taxed.[36][37][38]

Lost tax revenue

HMRC offshore evasion poster February 2014
Poster issued by the British tax authorities to counter illegal offshore tax evasion.

The Tax Justice Network estimated in 2012 that global tax revenue lost to tax havens was circa $190 to $255 billion per year (assuming a 3% capital gains rate, a 30% capital gains tax rate, and $21 to $32 trillion hidden in tax havens.[45] The Zucman study uses different methodology, but also estimates $190 billion in lost revenue.[13]

The UN Economic Commission for Africa estimates that illegal financial flows cost the continent around $50 billion per year. The OECD estimates that two-thirds ($30 billion) occur from tax avoidance and evasion from non-African firms.[46] The avoidance of taxation by international corporations through legal and illegal methods stifles development in African countries. The Sustainable Development Goals (SDGs) will be difficult to obtain if these losses persist.[47]

In 2016 a massive data leak known as the "Panama Papers" cast some doubt on the size of previous estimates of lost revenue.[48]

However, the tax policy director of the Chartered Institute of Taxation expressed skepticism over the accuracy of the figures.[49] If true, those sums would amount to approximately 5 to 8 times the total amount of currency presently in circulation in the world. Daniel J. Mitchell of the Cato Institute says that the report also assumes, when considering notional lost tax revenue, that 100% money deposited offshore is evading payment of tax.[50]

In October 2009, research commissioned from Deloitte for the Foot Review of British Offshore Financial Centres said that much less tax had been lost to tax havens than previously had been thought. The report indicated "We estimate the total UK corporation tax potentially lost to avoidance activities to be up to £2 billion per annum, although it could be much lower." An earlier report by the U.K. Trades Union Congress, concluded that tax avoidance by the 50 largest companies in the FTSE 100 was depriving the UK Treasury of approximately £11.8 billion.[51] The report also stressed that British Crown Dependencies make a "significant contribution to the liquidity of the UK market". In the second quarter of 2009, they provided net funds to banks in the UK totaling $323 billion (£195 billion), of which $218 billion came from Jersey, $74 billion from Guernsey and $40 billion from the Isle of Man.[51]

The Tax Justice Network reports that this system is "basically designed and operated" by a group of highly paid specialists from the world’s largest private banks (led by UBS, Credit Suisse, and Goldman Sachs), law offices, and accounting firms and tolerated by international organizations such as Bank for International Settlements, the International Monetary Fund, the World Bank, the OECD, and the G20. The amount of money hidden away has significantly increased since 2005, sharpening the divide between the super-rich and the rest of the world.[36][37][38]

Tax haven lists

Types of lists

Three main types of tax haven lists have been produced to date:

  1. Governmental – these are the OCED and IMF lists which have a political dimension, and focus on more extreme cases/hostile non-compliance/overt criminality.[52][53]
  2. Non-governmental, qualitative – these lists use qualitative scoring systems, and the most well-known are the Oxfam Corporate Tax Haven list,[54][55] and the TJN's, Financial Secrecy Index.
  3. Non-governmental, quantitative – these lists follow a quantitative measure of ranking, with two different sub-approaches:
    • Connections – these use the number of legal connections, either Orbis connections, like CORPNET's Conduit and Sink OFCs, or subsidaries, like the ITEP subsidaries list (figure 1, page 11)[56]
    • Quantum – these attempt to estimate the quantum of taxes shielded, and the most well-known are by Gabriel Zucman,[11][57] and the ITEP profits list (figure 4, page 16)[56]

In addition to the above lists, commentators highlight particular proxy indicators, of which the two most prominent are:

  1. U.S. tax inversions – A basic "sense-check" of a tax haven is whether individuals or corporates relocate there to avoid taxes (i.e. why accusations of the U.S. as a tax haven are not considered credible). While individual relocations are hard to track, corporations are easier. The top 3 destinations for all U.S. corporate tax inversions since 1983 are: Ireland (#1), Bermuda (#2) and the U.K. (#3);[58]
  2. GDP-per-capita tables – Another effective "sense-check" of a tax haven is distortion in its GDP/GNP from the IP-based BEPS tools and Debt-based BEPS tools. Excluding the non-oil & gas nations (e.g. Qatar, Norway etc.), and micro jurisdictions, the resulting highest GDP-per-capita jurisdictions are mostly tax havens, led by: Luxembourg (#1), Singapore (#2), and Ireland (#3).

The combined lists generally total at least 29 global non-trivial jurisdictions (i.e. the 5 conduits and 24 sinks), which comprise just under 15% of recognised jurisdictions in the world.

Top 10 tax havens

In terms of scale, the following ten constantly recur in the top-10 tax haven lists, and in particular all lists ranking by scale (i.e. the quantitive lists):

  • Four modern corporate tax havens (have non-zero "headline" tax rates and require "substance"/employment tax, which leads to very broad tax treaty networks):
  1. Ireland
  2. Netherlands
  3. United Kingdom
  4. Singapore
  • Three general tax havens (have non-zero "headline" tax rates but offer some traditional tax haven-type services, which leads to restricted bilateral tax treaties):
  1. Switzerland
  2. Luxembourg
  3. Hong Kong
  • Three very traditional tax havens (open on zero-tax status and no requirement for employment tax/"substance", and thus have limited tax treaties):
  1. Bermuda
  2. Cayman Islands
  3. British Virgin Islands

Note the following in regard to this list:

  1. Four of the ten have financial centres, namely London, Hong Kong, Singapore, and Zurich, that were in 2017 top 10 Global Financial Centres Index (Luxembourg was 15th).
  2. All ten are strongly identified as corporate tax havens, which drives most of the scale in tax avoidance in tax havens.[12]
  3. The United Kingdom, having only transformed into becoming a major corporate tax haven in 2009–13 (see U.K. transformation), is sometimes missing from pre-2017 lists.
  4. CORPNET's Conduit and Sink OFCs study shows how the bottom 5 in this list (major Sink OFCs), rely on the top 5 (major Conduit OFCs), to "route" flows.
  5. Excluding Canada, this list contains the 7 destinations in the world that attracted more than a single U.S. corporate tax inversion since 1983 (see here)[58]
  6. Six of these are in the top 15 GDP-per-capita (the IMF and World Bank does not include the 3 Caribbean islands, so only the U.K. is missing at #21 rank due to size)

Main 20 tax havens

Sovereign jurisdictions that feature as both major corporate tax havens, and major traditional tax havens, include:

Sovereign jurisdictions that feature mainly as major corporate tax havens, are:[60]

List of sink-OFCs, ordered by sink centrality value
"Uncovering Offshore Financial Centers": List of Sink OFCs ordered by value (U.K. dependencies in blue)
British Overseas Territories (at the same geographic scale)
British Overseas Territories (same geographic scale) includes leading traditional and corporate tax global tax havens, including the U.K. itself.

Sovereign (semi-sovereign) jurisdictions that feature mainly as traditional tax havens (but have non-zero tax rates), include:

  • Malta – an emerging tax haven inside the EU,[66][67] which has been a source of wider media scrutiny.[68]
  • Cyprus – damaged its reputation during the financial crisis when the Cypriot banking system nearly collapsed, however reappearing in top 10 lists.[69]
  • Taiwan – major traditional tax haven for APAC, and described by the Tax Justice Network as the "Switzerland" of Asia.[70]

Sub-national jurisdictions that are very traditional tax havens (i.e. explicit 0% rate of tax), include (fuller list on table opposite):

Unusual cases

U.S. dedicated entities that do not feature on global tax haven lists:

Major sovereign jurisdictions which feature on financial secrecy lists (e.g. the Financial Secrecy Index), but not on corporate tax haven or traditional tax haven lists, are:

The U.S. and Germany would fail the basic "sense-check" of a tax haven, which is whether corporates or individuals re-locate there to avoid taxes.

Former tax havens

  • Beirut, Lebanon formerly had a reputation as the only tax haven in the Middle East. However, this changed after the Intra Bank crash of 1966,[87] and the subsequent political and military deterioration of Lebanon dissuaded foreign use of the country as a tax haven.
  • Liberia had a prosperous ship registration industry. The series of violent and bloody civil wars in the 1990s and early 2000s severely damaged confidence in the jurisdiction. The fact that the ship registration business still continues is partly a testament to its early success, and partly a testament to moving the national shipping registry to New York, United States.
  • Tangier had a short existence as a tax haven in the period between the end of effective control by the Spanish in 1945 until it was formally reunited with Morocco in 1956.
  • Some Pacific islands were tax havens but have been curtailed by OECD demands for regulation and transparency in the late 1990s, on the threat of blacklisting. Vanuatu's Financial Services commissioner announced in May 2008 that his country would reform its laws and cease being a tax haven. "We've been associated with this stigma for a long time and we now aim to get away from being a tax haven."[88]

Methodology

The way tax havens operate can be viewed in the following principal contexts:[89]

Personal residency

Since the early 20th century, wealthy individuals from high-tax jurisdictions have sought to relocate themselves in low-tax jurisdictions. In most countries in the world, residence is the primary basis of taxation—see tax residence. The low-tax jurisdictions chosen may levy no, or only very low, income tax and may not levy capital gains tax, or inheritance tax. Individuals are normally unable to return to their previous higher-tax country for more than a few days a year without reverting their tax residence to their former country. They are sometimes referred to as tax exiles.[89]

Corporate residency

Corporations can establish subsidiary corporations and/or regional headquarters in corporate tax havens for tax planning purposes. Where a corporate moves their legal headquarters to a haven, it is known as a corporate tax inversion.[58][90] The rise of intellectual property, or IP, as a major BEPS tax tool, has meant that corporates can achieve much of the benefits of a tax inversion, without needing to move their headquarters. Apple's $300 billion quasi-inversion to Ireland in 2015 (see leprechaun economics) is a good example of this.

Asset holding

Asset holding involves utilizing an offshore trust or offshore company, or a trust owning a company. The company or trust will be formed in one tax haven, and will usually be administered and resident in another. The function is to hold assets, which may consist of a portfolio of investments under management, trading companies or groups, physical assets such as real estate or valuable chattels. The essence of such arrangements is that by changing the ownership of the assets into an entity which is not tax resident in the high-tax jurisdiction, they cease to be taxable in that jurisdiction.[89]

Often the mechanism is employed to avoid a specific tax. For example, a wealthy testator could transfer his house into an offshore company; he can then settle the shares of the company on trust (with himself being a trustee with another trustee, whilst holding the beneficial life estate) for himself for life, and then to his daughter. On his death, the shares will automatically vest in the daughter, who thereby acquires the house, without the house having to go through probate and being assessed with inheritance tax.[91] Most countries assess inheritance tax, and all other taxes, on real estate within their jurisdiction, regardless of the nationality of the owner, so this would not work with a house in most countries. It is more likely to be done with intangible assets.[89]

Trading and other business activity

Many businesses which do not require a specific geographical location or extensive labor are set up in a jurisdiction to minimize tax exposure. Perhaps the best illustration of this is the number of reinsurance companies which have migrated to Bermuda over the years. Other examples include internet-based services and group finance companies. In the 1970s and 1980s corporate groups were known to form offshore entities for the purposes of "reinvoicing". These reinvoicing companies simply made a margin without performing any economic function, but as the margin arose in a tax-free jurisdiction, it allowed the group to "skim" profits from the high-tax jurisdiction. Most sophisticated tax codes now prevent transfer pricing schemes of this nature.[89]

Financial intermediaries

Much of the economic activity in tax havens today consists of professional financial services such as mutual funds, banking, life insurance and pensions. Generally, the funds are deposited with the intermediary in the low-tax jurisdiction, and the intermediary then on-lends or invests the money (often back into a high-tax jurisdiction). Although such systems do not normally avoid tax in the principal customer's jurisdiction, it enables financial service providers to provide multi-jurisdictional products without adding another layer of taxation. This has proved particularly successful in the area of offshore funds. It has been estimated over 75% of the world's hedge funds, probably the riskiest form of collective investment vehicle, are domiciled in the Cayman Islands, with nearly $1.1 trillion US Assets under management[92] although statistics in the hedge fund industry are notoriously speculative.

Anonymity and bearer shares

Bearer shares allow for anonymous ownership, and thus have been criticized for facilitating money laundering and tax evasion; these shares are also available in some OECD countries as well as in the U.S. state of Wyoming.[93]:7 In a 2010 study in which the researcher attempted to set-up anonymous corporations found that 13 of the 17 attempts were successful in OECD countries, such as the United States and the United Kingdom, while only 4 of 28 attempts were successful in countries typically labeled tax havens.[94] The last two states in America permitting bearer shares, Nevada and Delaware made them illegal in 2007. In 2011, an OECD peer review recommended that the United Kingdom improve its bearer share laws.[95] The UK abolished the use of bearer shares in 2015.

In 2012 the Guardian wrote that there are 28 persons as directors for 21,500 companies.[96][97]

Money and exchange control

Most tax havens have a double monetary control system, which distinguish residents from non-resident as well as foreign currency from the domestic, the local currency one. In general, residents are subject to monetary controls, but not non-residents. A company, belonging to a non-resident, when trading overseas is seen as non-resident in terms of exchange control. It is possible for a foreigner to create a company in a tax haven to trade internationally; the company’s operations will not be subject to exchange controls as long as it uses foreign currency to trade outside the tax haven. Tax havens usually have currency easily convertible or linked to an easily convertible currency. Most are convertible to US dollars, euro or to pounds sterling.

Incentives for tax havens

Tax havens, both traditional and corporate, have artificially high GDP-per-capita scores (some commentators suggest high GDP per capita scores as a proxy for tax havens[98]). This is because the haven's national economic statistics are artificially inflated by accounting flows that add to GDP (and even GNP), but are not taxable.[99][100] Smaller traditional and corporate tax havens make up most of the top 10 GDP-per-capita tables, excluding oil and gas nations. This artificial inflation of GDP can attract excess foreign capital (who misprice capital using the Debt-to-GDP metric), and greater leverage in the haven's economy, producing greater prosperity.[16] However, the increased leverage leads to more several credit cycles producing periods of financial stress.[101] Examples being the Irish financial crisis in 2009–2013.[17]

International Monetary Fund (2017) World Bank (2016)[102][103]
Rank Country/Territory Type
1  Qatar Oil & Gas
 Macau Tax haven (Sink OFC)
2  Luxembourg Top 10 Tax haven (Sink OFC)
3  Singapore Top 10 Tax haven (Conduit OFC)
4  Brunei Oil & Gas
5  Ireland Top 10 Tax haven (Conduit OFC)
6  Norway Oil & Gas
7  Kuwait Oil & Gas
8  United Arab Emirates Oil & Gas
9   Switzerland Top 10 Tax Haven (Conduit OFC)
 Hong Kong Top 10 Tax Haven (Sink OFC)
10  San Marino Tax haven (Sink OFC)
11  United States 59,495
12  Saudi Arabia Oil & Gas
13  Netherlands Top 10 Tax Haven (Conduit OFC)
14  Iceland 52,150
15  Bahrain Oil & Gas
Rank Country/Territory Type
1  Qatar Oil & Gas
2  Luxembourg Top 10 Tax haven (Sink OFC)
 Macau Tax haven (Sink OFC)
3  Singapore Top 10 Tax haven (Conduit OFC)
4  Brunei Oil & Gas
5  United Arab Emirates Oil & Gas
6  Ireland Top 10 Tax haven (Conduit OFC)
7   Switzerland Top 10 Tax haven (Conduit OFC)
8  Norway Oil & Gas
 Hong Kong Top 10 Tax haven (Sink OFC)
9  United States 57,467
10  Saudi Arabia Oil & Gas
11  Iceland 51,399
12  Netherlands Top 10 Tax haven (Conduit OFC)
13  Austria 50,078
14  Denmark 49,496
15  Sweden 49,175

Dharmapala and Hines suggested that roughly 15% of the countries in the world are tax havens (which reconciles with the 29 Conduit and Sink OFCs), that these countries tend to be small and affluent. They also suggest that better governed and regulated countries are more likely to become tax havens, and are more likely to be successful if they become tax havens.[15]

Although most offshore financial centers impose no corporate income tax, their governments still financially benefit from having thousands of companies registered in their jurisdiction. That is because tax haven governments typically impose a registration fee on all newly incorporated business entities like companies and partnerships. Also, companies are required to pay a renewal fee each year to still be recognized as an operating company.

There are also additional fees that are imposed on the companies depending on the type of business activity that they engage in. For example, banks, mutual funds and other companies in the financial services business usually need to pay for an annual license to operate in that industry. All of these various fees add up to create a strong source of recurring revenue for tax haven governments. It is estimated that the British Virgin Islands collects over $200 million each year in the form of corporate fees.

— Warren Cassell, "Three Ways Tax Haven Governments Make Money", 1 February 2007[104]

Regulation measures

To avoid tax competition, many high tax jurisdictions have enacted legislation to counter the tax sheltering potential of tax havens. Generally, such legislation tends to operate in one of five ways:

  1. Attributing the income and gains of the company or trust in the tax haven to a taxpayer in the high-tax jurisdiction on an arising basis. Controlled Foreign Corporation legislation is an example of this.
  2. Transfer pricing rules, standardization of which has been greatly helped by the promulgation of OECD guidelines.
  3. Restrictions on deductibility, or imposition of a withholding tax when payments are made to offshore recipients.
  4. Taxation of receipts from the entity in the tax haven, sometimes enhanced by notional interest to reflect the element of deferred payment. The EU withholding tax is probably the best example of this.
  5. Exit charges, or taxing of unrealized capital gains when an individual, trust or company emigrates.

However, many jurisdictions employ blunter rules. For example, in France securities regulations are such that it is not possible to have a public bond issue through a company incorporated in a tax haven.[105]

Also becoming increasingly popular is "forced disclosure" of tax mitigation schemes. Broadly, these involve the revenue authorities compelling tax advisors to reveal details of the scheme, so that the loopholes can be closed during the following tax year, usually by one of the five methods indicated above.[106] Although not specifically aimed at tax havens, given that so many tax mitigation schemes involve the use of offshore structures, the effect is much the same.

Anti-avoidance came to prominence in 2010/2011 as nongovernmental organizations and politicians in the leading economies looked for ways of reducing tax avoidance, which plays a role in forcing unpopular cuts to social and military programs. The International Financial Centres Forum (IFC Forum), a trade organisation for companies located in the British Overseas Territories and Crown Dependencies, has asked for a balanced debate on the issue of tax avoidance and an understanding of the role that the tax neutrality of small international financial centres plays in the global economy.[107]

Modern developments

U.S. Legislation

The Foreign Account Tax Compliance Act (FATCA) was passed by the US Congress to stop the outflow of money from the country into tax haven bank accounts. With the strong backing of the Obama Administration, Congress drafted the FATCA legislation and added it into the Hiring Incentives to Restore Employment Act (HIRE) signed into law by President Obama in March 2010.

FATCA requires foreign financial institutions (FFI) of broad scope – banks, stock brokers, hedge funds, pension funds, insurance companies, trusts – to report directly to the Internal Revenue Service (IRS) all clients who are U.S. persons. Starting January 2014, FATCA requires FFIs to provide annual reports to the IRS on the name and address of each U.S. client, as well as the largest account balance in the year and total debits and credits of any account owned by a U.S. person.[108] If an institution does not comply, the U.S. will impose a 30% withholding tax on all its transactions concerning U.S. securities, including the proceeds of sale of securities.

In addition, FATCA requires any foreign company not listed on a stock exchange or any foreign partnership which has 10% U.S. ownership to report to the IRS the names and tax identification number (TIN) of any U.S. owner. FATCA also requires U.S. citizens and green card holders who have foreign financial assets in excess of $50,000 to complete a new Form 8938 to be filed with the 1040 tax return, starting with fiscal year 2010.[109] The delay is indicative of a controversy over the feasibility of implementing the legislation as evidenced in this paper from the Peterson Institute for International Economics.[110]

An unintended consequence of FATCA and its cost of compliance for non-US banks is that some non-US banks are refusing to serve American investors.[111] Concerns have also been expressed that, because FATCA operates by imposing withholding taxes on U.S. investments, this will drive foreign financial institutions (particularly hedge funds) away from investing in the U.S. and thereby reduce liquidity and capital inflows into the US.[112]

Tax Justice Network Report 2012

A 2012 report by the British Tax Justice Network estimated that between US$21 trillion and $32 trillion is sheltered from taxes in unreported tax havens worldwide.[113] If such wealth earns 3% annually and such capital gains were taxed at 30%, it would generate between $190 billion and $280 billion in tax revenues, more than any other tax shelter.[45] If such hidden offshore assets are considered, many countries with governments nominally in debt are shown to be net creditor nations.[114] However, despite being widely quoted, the methodology used in the calculations has been questioned,[39] and the tax policy director of the Chartered Institute of Taxation also expressed skepticism over the accuracy of the figures.[49] Another recent study estimated the amount of global offshore wealth at the smaller—but still sizable—figure of US$7.6 trillion. This estimate included financial assets only: "My method probably delivers a lower bound, in part because it only captures financial wealth and disregards real assets. After all, high-net-worth individuals can stash works of art, jewelry, and gold in 'freeports,' warehouses that serve as repositories for valuables—Geneva, Luxembourg, and Singapore all have them. High-net-worth individuals also own real estate in foreign countries."[13] A study of 60 large US companies found that they deposited $166 billion in offshore accounts during 2012, sheltering over 40% of their profits from U.S. taxes.[42]

Bank data leak 2013

Details of thousands of owners of offshore companies were published in April 2013 in a joint collaboration between The Guardian and the International Consortium of Investigative Journalists.[115] The data was later published on a publicly accessible website in an attempt to "crowd-source" the data.[116] The publication of the list appeared to be timed to coincide with the 2013 G8 summit chaired by British Prime Minister David Cameron which emphasised tax evasion and transparency.

Liechtenstein banking scandal

Germany announced in February 2008 that it had paid €4.2 million to Heinrich Kieber,[117] a former data archivist of LGT Treuhand, a Liechtenstein bank, for a list of 1,250 customers of the bank and their accounts' details. Investigations and arrests followed relating to charges of illegal tax evasion. The German authorities shared the data with U.S. tax authorities, but the British government paid a further £100,000 for the same data.[118] Other governments, notably Denmark and Sweden, refused to pay for the information regarding it as stolen property.[119] The Liechtenstein authorities subsequently accused the German authorities of espionage.[120]

However, regardless of whether unlawful tax evasion was being engaged in, the incident has fuelled the perception among European governments and the press that tax havens provide facilities shrouded in secrecy designed to facilitate unlawful tax evasion, rather than legitimate tax planning and legal tax mitigation schemes. This in turn has led to a call for "crackdowns" on tax havens.[121] Whether the calls for such a crackdown are mere posturing or lead to more definitive activity by mainstream economies to restrict access to tax havens is yet to be seen. No definitive announcements or proposals have yet been made by the European Union or governments of the member states.

German legislation

Peer Steinbrück, the former German finance minister, announced in January 2009 a plan to amend fiscal laws. New regulations would disallow that payments to companies in certain countries that shield money from disclosure rules to be declared as operational expenses. The effect of this would make banking in such states unattractive and expensive.[122]

UK Foot report

In November 2009, Sir Michael Foot, a former Bank of England official and Bahamas bank inspector, delivered a report on the British Crown Dependencies and Overseas Territories for HM Treasury.[123] The report indicated that while many of the territories "had a good story to tell", others needed to improve their abilities to detect and prevent financial crime. The report also stressed the view that narrow tax bases presented long term strategic risks and that the economies should seek to diversify and broaden their tax bases.[124]

It indicated that tax revenue lost by the UK government appeared to be much smaller than had previously been estimated (see above under Lost tax revenue), and also stressed the importance of the liquidity provided by the territories to the United Kingdom. The Crown Dependencies and Overseas Territories broadly welcomed the report.[124] The pressure group Tax Justice Network, unhappy with the findings, commented that "[a] weak man, born to be an apologist, has delivered a weak report."[125]

G20 tax haven blacklist

At the London G20 summit on 2 April 2009, G20 countries agreed to define a blacklist for tax havens, to be segmented according to a four-tier system, based on compliance with an "internationally agreed tax standard."[126] The list as per 2 April 2009 can be viewed on the OECD website.[127] The four tiers were:

  1. Those that have substantially implemented the standard (includes most countries but China still excludes Hong Kong and Macau).
  2. Tax havens that have committed to – but not yet fully implemented – the standard (includes Montserrat, Nauru, Niue, Panama, and Vanuatu)
  3. Financial centres that have committed to – but not yet fully implemented – the standard (includes Guatemala, Costa Rica and Uruguay).
  4. Those that have not committed to the standard (an empty category)

Those countries in the bottom tier were initially classified as being 'non-cooperative tax havens'. Uruguay was initially classified as being uncooperative. However, upon appeal the OECD stated that it did meet tax transparency rules and thus moved it up. The Philippines took steps to remove itself from the blacklist and Malaysian Prime Minister Najib Razak had suggested earlier that Malaysia should not be in the bottom tier.[128]

In April 2009 the OECD announced through its chief Angel Gurria that Costa Rica, Malaysia, the Philippines and Uruguay have been removed from the blacklist after they had made "a full commitment to exchange information to the OECD standards."[129] Despite calls from the former French President Nicolas Sarkozy for Hong Kong and Macau to be included on the list separately from China, they are as yet not included independently, although it is expected that they will be added at a later date.[126]

Government response to the crackdown has been broadly supportive, although not universal.[130] Luxembourg Prime Minister Jean-Claude Juncker has criticised the list, stating that it has "no credibility", for failing to include various states of the USA which provide incorporation infrastructure which are indistinguishable from the aspects of pure tax havens to which the G20 object.[131] As of 2012, 89 countries have implemented reforms sufficient to be listed on the OECD's white list.[132] According to Transparency International half of the least corrupted countries were tax havens.[133]

EU tax haven blacklist

In December 2017, European Union adopted blacklist of tax havens in a bid to discourage the most aggressive tax dodging practices. It also had a so-called gray list which includes those who have committed to change their rules on tax transparency and cooperation. The 17 blacklisted territories are: American Samoa, Bahrain, Barbados, Grenada, Guam, South Korea, Macau, The Marshall Islands, Mongolia, Namibia, Palau, Panama, Saint Lucia, Samoa, Trinidad and Tobago, Tunisia, United Arab Emirates.[134] Some activists denounced the listing process as a whitewash and had called for the inclusion in the blacklist of some EU countries accused of facilitating tax avoidance, like Luxembourg, Malta, Ireland and the Netherlands.[135]

Common Reporting Standard (CRS)

The Common Reporting Standard is an information standard for the automatic exchange of tax and financial information on a global level developed by the Organisation for Economic Co-operation and Development in 2014. Participating in the CRS from 1 January 2017 onwards are Australia, the Bahamas, Bahrain, Brazil, Brunei Darussalam, Canada, Chile, China, The Cook Islands, Hong Kong, Indonesia, Israel, Japan, Kuwait, Lebanon, Macau, Malaysia, Mauritius, Monaco, New Zealand, Panama, Qatar, Russia, Saudi Arabia, Singapore, Switzerland, Turkey, the United Arab Emirates, Uruguay.[136]

Criticism

Tax havens have been criticized because they often result in the accumulation of idle cash[137] which is expensive and inefficient for companies to repatriate.[138] The tax shelter benefits result in a tax incidence disadvantaging the poor outside the tax haven.[139] Many tax havens are thought to have connections to fraud, money laundering and terrorism.[140] While investigations of illegal tax haven abuse have been ongoing, there have been few convictions.[141][142] Lobbying pertaining to tax havens and associated transfer pricing has also been criticized.[143]

Some politicians, such as magistrate Eva Joly, have begun to stand up against the use of tax havens by large companies. She describes the act of avoiding tax as a threat to democracy.[144] Accountants' opinions on the propriety of tax havens have been evolving,[145] as have the opinions of their corporate users,[146] governments,[147][148] and politicians,[149][150] although their use by Fortune 500 companies[151] and others remains widespread.[152] Reform proposals centering on the Big Four accountancy firms have been advanced.[153] Some governments appear to be using computer spyware to scrutinize some corporations' finances.[154]

Effect of developing countries

Illicit capital flight from the developing world is estimated at ten times the size of aid it receives and twice the debt service it pays.[155] About 60 per cent of illicit capital flight from Africa is from transfer mispricing, where a subsidiary in a developing nation sells to another subsidiary or shell company in a tax haven at an artificially low price to pay less tax.[156] An African Union report estimates that about 30% of sub-Saharan Africa's GDP has been moved to tax havens.[157] One tax analyst believes that if the money were paid, most of the continent would be "developed" by now.[158]

History

The use of differing tax laws between two or more countries to try to mitigate tax liability is probably as old as taxation itself. In Ancient Greece, some of the Greek Islands were used as depositories by the sea traders of the era to place their foreign goods to thus avoid the two-percent tax imposed by the city-state of Athens on imported goods. The practice may have first reached prominence through the avoidance of the Cinque Ports and later the staple ports in the twelfth and fourteenth centuries respectively. In 1721, American colonies traded from Latin America to avoid British taxes.

Various countries claim to be the oldest tax haven in the world. For example, the Channel Islands claim their tax independence dating as far back as Norman Conquest, while the Isle of Man claims to trace its fiscal independence to even earlier times. Nonetheless, the modern concept of a tax haven is generally accepted to have emerged at an uncertain point in the immediate aftermath of World War I.[159] Bermuda sometimes optimistically claims to have been the first tax haven based upon the creation of the first offshore companies legislation in 1935 by the newly created law firm of Conyers Dill & Pearman.[160] However, the Bermudian claim is debatable when compared against the enactment of a Trust Law by Liechtenstein in 1926 to attract offshore capital.[161]

Most economic commentators suggest that the first "true" tax haven was Switzerland, followed closely by Liechtenstein.[89] Swiss banks had long been a capital haven for people fleeing social upheaval in Russia, Germany, South America and elsewhere. However, in the early part of the twentieth century, during the years immediately following World War I, many European governments raised taxes sharply to help pay for reconstruction efforts following the devastation of World War I. By and large, Switzerland, having remained neutral during the Great War, avoided these additional infrastructure costs and was consequently able to maintain a low level of taxes. As a result, there was a considerable influx of capital into the country for tax related reasons. It is difficult, nonetheless, to pinpoint a single event or precise date which clearly identifies the emergence of the modern tax haven.

The use of modern tax havens has gone through several phases of development subsequent to the interwar period. From the 1920s to the 1950s, tax havens were usually referenced as the avoidance of personal taxation. The terminology was often used with reference to countries to which a person could retire and mitigate their post retirement tax position, a usage which was still being echoed to some degree in a 1990 report, which included indications of quality of life in various tax havens which future tax exiles may wish to consider.[162]

From the 1950s onward, there was significant growth in the use of tax havens by corporate groups to mitigate their global tax burden. The strategy generally relied upon there being a double taxation treaty between a large jurisdiction with a high tax burden (that the company would otherwise be subject to), and a smaller jurisdiction with a low tax burden. By structuring the group ownership through the smaller jurisdiction, corporations could take advantage of the double taxation treaty, paying taxes at the much lower rate. Although some of these double tax treaties survive,, for example between Barbados and Japan, between Cyprus and Russia and Mauritius with India, which India sought to renegotiate in 2007,[163] most major countries began repealing their double taxation treaties with micro-states in the 1970s, to prevent corporate tax leakage in this manner.

In the early to mid-1980s, most tax havens changed the focus of their legislation to create corporate vehicles which were "ring-fenced" and exempt from local taxation (although they usually could not trade locally either). These vehicles were usually called "exempt companies" or "international business corporations". However, in the late 1990s and early 2000s, the OECD began a series of initiatives aimed at tax havens to curb the abuse of what the OECD referred to as "unfair tax competition". Under pressure from the OECD, most major tax havens repealed their laws permitting these ring-fenced vehicles to be incorporated, but concurrently they amended their tax laws so that a company which did not actually trade within the jurisdiction would not accrue any local tax liability.[164]

See also

References

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  159. ^ "[T]he tax haven is a creature of the twentieth century, and began to be used extensively because of the high levels of tax which prevailed after the First World War" at para 26.1, Tolley's International Tax Planning (2002), ISBN 0-7545-1339-4
  160. ^ See generally Introduction to Tolley's International Initiatives Affecting Financial Havens (2001), ISBN 0-406-94264-1
  161. ^ The Personen- und Gesellschaftsrecht of 20 January 1926
  162. ^ Tax Havens and Their Uses, The Economist,1990, Special Report No. 1191, ISBN 0 85058 292 X.
  163. ^ Sidhartha India to push for change in tax treaty with Mauritius times of india, 6 January 2007,
  164. ^ For example, the British Virgin Islands repealed the International Business Companies Act (Cap 291) (which had prohibited such companies from trading locally) and enacted the BVI Business Companies Act 2004 (which permitted this) in its place. Contemporaneously it varied its tax laws by amending the Income Tax Act (Cap 206), which amended the rate of income tax for individuals and corporations to zero, along with the Payroll Taxes Act 2004 which imposed a (new) payroll tax on person employed by businesses within the British Virgin Islands.

Further reading

Books
  • Baker, Raymond W. (August 2005). Capitalism's Achilles' Heel: Dirty Money, and How to Renew the Free-Market System. Hoboken, New Jersey: John Wiley & Sons. ISBN 978-0-471-64488-0.
  • Jane G. Gravelle (15 January 2015). "Tax Havens: International Tax Avoidance and Evasion" (PDF). Congressional Research Service. p. 60. Retrieved 7 May 2016.:6
  • Shaxson, Nicholas (April 2011). Treasure Islands: Uncovering the Damage of Offshore Banking and Tax Havens. New York, NY: Palgrave Macmillan. ISBN 978-0-230-10501-0.
  • Gabriel Zucman (2015). The Hidden Wealth of Nations: The Scourge of Tax Havens. ISBN 978-0226245423.
Articles

External links

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