Размышления женщины о геополитике. Татьяна Александровна Югай

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to as:

      – Jurisdictions that have relatively large numbers of financial institutions engaged primarily in business with non-residents;

      – Financial systems with external assets and liabilities out of proportion to domestic financial intermediation designed to finance domestic economies;

      – More popularly, centers which provide some or all of the following services: low or zero taxation; moderate or light financial regulation; banking secrecy and anonymity42.

      The Working Group on Offshore Centres under the Financial Stability Forum presumes that «Offshore financial centers (OFCs) are not easily defined, but they can be characterized as jurisdictions that attract a high level of non-resident activity. Traditionally, the term implies some or all of the following (but not all OFCs operate this way):

      – Low or no taxes on business or investment income;

      – No withholding taxes;

      – Light and flexible incorporation and licensing regimes;

      – Light and flexible supervisory regimes;

      – Flexible use of trusts and other special corporate vehicles;

      – No need for financial institutions and/or corporate structures to have a physical presence;

      – An inappropriately high level of client confidentiality based on impenetrable secrecy laws;

      – Unavailability of similar incentives to residents»43.

      Since the main feature of an offshore is its high secrecy or, better saying, lack of transparency, it is impossible to estimate precisely the scope of offshorization of the world economy. International organizations, governments, scientific community and non-governmental organizations can make evaluations only on the basis of indirect indicators.

      One of the major roles of secret jurisdictions is to facilitate illicit financial flows. According to the UNCTAD, «large proportion of illicit financial flows… goes through offshore financial centres, based in „secrecy jurisdictions“. Approximately 8—15% of the net financial wealth of households is held in tax havens, mostly unrecorded. The resulting loss of public revenue amounts to $190—$290 billion per year, of which $66—$84 billion is lost from developing countries, equivalent to two thirds of annual official development assistance». The UNCTAD states that «the main vehicle for corporate tax avoidance or evasion and capital flight from developing countries is the misuse of „transfer pricing“ (i.e. when international firms price the goods and services provided to different parts of their business to create profit—loss profiles that minimize tax payments). By this means, developing countries may be losing over $160 billion annually, well in excess of the combined aid budgets of developed countries»44.

      The UNCTAD draws a deplorable conclusion. «The international tax architecture has failed, so far, to properly adapt to this reality, thereby allowing a massive hemorrhaging of public revenues. The opacity surrounding tax havens may partly explain the difficulties faced by policymakers in collecting public revenues, but the main obstacle is political: the major providers of financial secrecy are to be found in some of the world’s biggest and wealthiest countries, or in specific areas within these countries. Indeed, offshore financial centres and the secrecy jurisdictions that host them are fully integrated into the global financial system, channelling large shares of trade and capital movements, including FDI»45.

      The Tax Justice Network (TJN) in its report «The Financial Secrecy Index» states that an estimated $21 to $32 trillion of private financial wealth is located, untaxed or lightly taxed, in secrecy jurisdictions around the world46. The Christian Aid’s research has found that FTSE100 companies have created 29,891 subsidiaries. The research also highlights heavy use of tax havens by FTSE100 companies. More than 90 per cent of their subsidiaries are based in places defined as «secrecy jurisdictions’47.

      With minor differences all above mentioned definitions feature three main characteristics of offshore financial centres, namely, 1) low or zero tax rates, 2) high secrecy or lack of transparency and 3) providing these benefits to non-residents. The current anti-offshore crusade is concentrated on cracking down these artificially created advantages, which inflict harmful tax competition. The main battlefields are tackling base erosion and profit shifting, unveiling beneficial ownership and promoting transparency.

      Historic background of the modern international tax law

      First concerns about the role of tax havens in money laundering and tax evasion had been arisen as early as at the beginning of 1920^th. Many national and international rules addressing double taxation of individuals and companies have been originated from the principles developed by the League of Nations in the 1920s. However, it took the international community almost a century to join forces in combating tax avoidance via offshores.

      Initially, international legislative efforts were focused on preventing double taxation in order to promote international investment process. During 1923—1927, a group of international experts under auspices of the League of Nations drafted the Bilateral Convention for the Prevention of Double Taxation in the Special Matter of Direct Taxes dealing with income and property taxes, the Bilateral Convention for the Prevention of Double Taxation in the Special Matter of Succession Duties, the Bilateral Convention on Administrative Assistance in Matters of Taxation and the Bilateral Convention on [Judicial] Assistance in the Collection of Taxes. This work led to drawing up the first Model bilateral convention (1928) and later on the Model Conventions of Mexico (1943) and London (1946). Neither of these Model Conventions, however, was fully and unanimously accepted.

      Specifically, the League of Nations group decided that international tax issues should be addressed not by a multilateral global agreement, but at bilateral level. As a result, since the 1920s countries had signed thousands of bilateral «double-tax treaties» that followed the general League of Nations guidelines of source-based taxation and arm’s length pricing, but differed in a myriad of specific ways. While international trade was governed by a multilateral agreement since 1947, namely, the General Agreement on Tariffs and Trade (GATT), to date no such a multilateral treaty exists for corporate taxes48.

      In 1954, the focus of action in the field of international taxation shifted from the League of Nations to the Organization for European Economic Co-operation and further on to the OECD. On 30 July 1963, the Council of the OECD adopted the Recommendation concerning avoidance of double taxation and published a new Model Convention and Commentaries in 1977.

      According to the OECD, «International juridical double taxation can be generally defined as the imposition of comparable taxes in two (or more) States on the same taxpayer in respect of the same subject matter and for identical periods. Its harmful effects on the exchange of goods and services and movements of capital, technology and persons are so well known that it is scarcely necessary to stress the importance of removing the obstacles that double taxation presents to the development of economic relations between countries». Correspondingly, «the main purpose of the OECD Model Tax Convention on Income and on Capital is to provide «a means of settling on a uniform basis the most common problems that arise in the field of international juridical double taxation»49. Since 1963, the OECD Model Convention has extended its influence far beyond the OECD area serving as a pattern for tax treaties between member and non-member countries and even between non-member countries.

      In the mid-1960s, the United Nations renewed its interest in the problem of double taxation as part of its action to promote flows of foreign investment to developing countries. The UN stated that «The growth of investment

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