Each year we are entitled to different lists about tax havens issued by governments or international organisations, but what is the difference between these lists?
In March 2019, the European Union updated its list of non-cooperative tax jurisdictions. The number of countries has tripled compared to last year. However, the list still does not include any European country.
When comparing the issued list to the financial secrecy index biannual report of the Tax Justice Network (TJN) from January 30, 2018, one can notice that some European countries are present (Germany, Luxemburg, Netherlands in the top 20).
The Organisation for Economic Co-operation and Development (OECD) and others also share their lists each year.
As a company/financial institution, you should keep an eye on these lists.
To limit suspicious contacts with clients having accounts in those countries considered as dubious is essential to manage your risk exposure.
What is a tax haven country and how do they operate ?There is no real standard legal definition, but the following elements can help us to gain a better comprehension about tax havens:
This criterion only makes sense when one compares the tax rate with other countries with higher taxes in certain areas/activities. To bring some details, this low taxation could impact only one category of taxpayer, for one category of his income. Therefore, a country may not be systematically regarded as a tax haven for all of its tax rules.
Confidentiality and lack of transparency
Confidentiality in relation to financial transactions and lack of transparency of the tax practices.
Each list of the different organisations is based on specific criteria. It should be clear enough to eliminate as much misunderstanding as possible.
Also, for some, there is not a single list but different lists with different levels. For instance, European Union has two types of lists: the blacklist which includes countries that have not taken the necessary commitments (refusing to co-operate with European Union) and the greylist with countries that have made commitments to change their tax practices or legislation in the coming months.
To avoid being blacklisted, countries had to respect three major criteria:
- Conform to OECD’s automatic data exchange standards;
- Fair tax Competition: Commit to accept the OECD’s guidelines for combating tax evasion by the multinationals;
- OECD’s Base Erosion and Profit Shifting (BEPS) minimum standards Implementation.
The European Union has directly excluded European countries from the blacklist because they are supposed to already be compliant with European law in the fight against evasion and tax fraud.
How to avoid being a blacklisted country by the OECD ?According to OECD ranking standards, to avoid being blacklisted, countries must demonstrate that they meet at least two of the three criteria established by the Global Forum on Transparency and Exchange of Information for Tax Purposes:
- Compliance with the rules of information exchange on demand;
- The commitment to apply the standards of automatic information exchange;
- Be part of a multilateral mutual assistance convention or exchange network large enough to allow on-demand or automatic exchanges).
Therefore, the more accurate and complete ranking would be the one of the Tax Justice Network. We find more a ranking on financial opacity and thus it takes in consideration much more criterion than just the fact that a country has the lowest tax rate (automatic data exchange or not, existence of a register of the beneficiaries of the companies or not, size of the financial sector, banking secrecy impact, ...).
What is the real meaning to be classified as Tax Haven jurisdiction?Generally, we put everyone in the same boat when we talk about tax havens, but the reality is that every situation is different and should be described carefully.
For instance, there is a difference between why Switzerland and Panama are considered tax havens.
The exercise implies to take a step back and put some shading. Such a vast difference brings discredit to certain classifications. Besides, the media do not go further and confuse what is really happening.
To appreciate the "tax haven" character of a country, it is necessary to build knowledge on the topic and to go beyond the ethical and moral aspect. Public opinion must understand that a state could be considered as a tax haven for a specific tax regime impacting a determined type of taxpayer and even for a specific type of his income, and not for the whole tax regime applicable in this country. For example, it could be considered as such for non-taxation of dividends or royalties received abroad from a subsidiary of a group. For another State, it could be for its low taxation on income for companies. Another country for the rulings that the State gives more easily. Even Belgium has been assimilated to those tax haven countries for notional interest regime.
What are the real dangers associated with Tax Haven Countries ?The main concern with tax havens is that most of them harbor an unquantifiable part of assets intended for or generated by the laundering of money resulting from corruption, drug trafficking or even terrorism and other criminal activities.
That is the danger hidden behind the lack of transparency in those countries. Tax havens are not systematically used for illegal reasons, but in terms of transactions, the risk of confusing what is legal and what no longer is extremely increased. As a reminder, within the EU zone, Tax evasion through tax fraud is assimilated to “criminal activities”, such as described in the Fourth Anti-Money Laundering Directive.
What about the economic sanctions lists ?These lists posted lead to no direct penalties. The EU financial market actors are entitled to take extreme coercive measures up to withdrawing financial institution licenses for proven lack of transparency or controls on business transactions occurring with certain countries listed. The European Commission has recently sued countries like Ireland for failing to recover 13 billion euros in back taxes from Apple; or Amazon, which, thanks to the tax advantages granted by Luxembourg, has largely escaped the corporate tax in Europe. A stolen list like the recent scandals (Panama Papers, LuxLeaks) makes more noise than an effective sharing of information.
While there are few sanctions to date, companies must consider the incurred risks: the reputation impact on the company, but also from a financial point of view the cost of non-transparency compliance materialized by the high amounts of the sanctions at stake as mentioned above.
Moreover, reputation is a highly important impact criterion: a transparent business will emit a better picture from which it will benefit directly in its activities and above all will contribute to the transparency and stability of the global financial system.
Putting efficient and robust control processes based on the risk-based approach and effectively executed avoids all these inconveniences. As the regulatory requirements will not decrease, we must strategically take the lead before laws and mandatory procedures are introduced.
Some countries were put under pressure and have made extensive efforts to be compliant as reveals the case of Switzerland that develops growing tax cooperation with Western countries. But concerning emerging countries, that is another matter as we develop towards them double standards. We find ourselves in the approach that the Tax Justice Network nicknamed zebra: "clean, white money, for rich and powerful countries; dirty, black money for vulnerable and developing countries ".
As in the US, we fight firmly against tax havens abroad, but we remain very lax at home like in Delaware... There are more and more pressures and efforts to harmonise and bring transparency. It’s high time to get in order to avoid high-risk exposures.
Tax Haven definition and recent European conclusionsIn conclusion, the label "tax haven" has no official definition from a legal point of view. Each country has the right to decide its level of taxation. The situation lies in the financial shortfall for the countries because of the large-scale tax abuses and a lack of legal harmonisation between countries from the same economic zone, which could lead to the use of these non-transparent regimes to launder and use of dirty money generated from terrorism, drugs trafficking and other illegal activities.
Just think of the HSBC case and the accusation of complicity in money laundering for the benefit of traffickers and terrorists or the assistance offered to its clients for tax evasion, which profoundly impacted its reputation, but also obliged the bank to pay a record amount of fine after their confession of their inability to effectively comply with regulations.