Corporate Tax Avoidance and Transparency

  • 14 Pages
  • Published On: 21-12-2023

One of the significant issues brought to public attention by the 2008 financial crisis brought was the issue of corporate tax avoidance. This has led to calls for tax reform and increased regulation, with transparency being one of the core concerns. In the UK, there is a requirement for publication of tax strategies by MNEs and large corporations so that the tax strategies adopted by them are in the public domain. It is also notable that there has been a discourse around tax avoidance that seeks to link tax avoidance with moral duties as was reflected in the 2012 budget speech of UK Chancellor George Osborne who said that tax evasion and aggressive tax avoidance is “morally repugnant”. However, this statement seeks to equate tax avoidance with tax evasion while the two are not synonymous. The difference is that while tax evasion is the act of evading tax illegally, tax avoidance is positioned by companies as a permissible activity which sees the individual or the corporation take advantage of the allowances and reliefs allowed under law. It is notable that there is no statutory definition for tax avoidance, which complicates the problem for regulating it and differentiating it from tax evasion.

There is considerable confusion between tax evasion and tax avoidance. In general, there is more consensus on tax evasion being an illegal activity that tax payers use to evade taxes by illegal means whereas even some forms of tax avoidance can be seen as a form of tax noncompliance. However, the distinction between tax avoidance that is permissible and other forms of tax avoidance that is to be considered as non compliance with tas law is not clear. The lack of clarity was demonstrated most clearly in the Mayes cases which is discussed later in this essay. At this point it may be noted that the lack of clarity in the tax law allowed the tax payer in the case to take advantage of an artificial structure to avoid taxes. On the other hand, the same lack of clarity in the tax statutes led the court to not look at a tax planning structure favourably although it involved a genuine loss to the tax payer which he sought to offset with a tax plan in IRC v Bumrah.

It is also notable that apart from the tax saving or planning schemes that companies may legitimately have under statutes, there is also access to certain tax shelters as a type of tax avoidance, as well as tax havens in other jurisdictions that facilitate reduced taxes, which companies can take advantage of; this is more relevant to multinational companies that operate in different tax jurisdictions and have intricate financial management systems that can take advantage of such systems.

Tax statutes

UK tax law is considered for its most part (historically) to be a law that seeks to specifically target rather than take a purposive approach to addressing the exploitation of loopholes in the law. Therefore, the general approach of governments to tax avoidance has been to legislate against avoidance schemes that come to notice rather than adopting a more purposive approach to tax avoidance. The problem with this approach is that as and when legislation responds to some new tax avoidance scheme, there is a response in creation of new schemes to circumvent the law, which then prompts more legislation, which then prompty is responded through other schemes. This process has been termed as an ‘arms race’ between the revenue authorities and Parliamentary counsel on one side, and taxpayers on the other side who are also abetted by the legal and accountancy profession. The Disclosure of Tax Avoidance Schemes regime (DOTAS), the General Anti-Abuse Rule (GAAR), and system of follower notices & accelerated payments notices has been a response to this problem by the parliament and the revenue authorities and has sought to provide a means by which the corporations and tax payers can be incentivised to report and disclose their tax arrangements which can then be assessed by the revenue authorities for its legality. Despite these changes however, there is a tax gap as reported by the HMRC which relates to the failure of the authorities to recover taxes that are rightfully due to them. This suggests that despite the actions taken by the legislation, there are still loopholes that allow corporations to evade tax or avoid tax through means that are not allowed by legislation.

The Financial Services Act 2012 has created the regulatory mechanism for controlling corporate crimes. The Prudential Regulation Authority is responsible for keeping a check on the banks, investment firms and building societies. There are other more pertinent laws that have direct bearing on the tax avoidance structures that may be adopted by the tax payers. However, before these statutes are considered, a general criticism of the tax legislation in the UK is that it has not been able to effectively counter tax avoidance “despite the introduction of tax simplification, the body of tax legislation has increased significantly in recent years and this is a development much to be regretted.” It has been argued that the Parliament needs to urgently address the volume and complexity of tax legislation. The Parliament has taken steps to address the issue of tax avoidance, predominantly through the DOTAS and GAAR requirements, but there is a suggestion that such measures have failed to effectively produce results in lowered tax avoidance; one of the areas of concern may be that the parliament has still not made legislation to counter tax avoidance in general. A general anti-avoidance rule’ is suggested as a way by which there can be increased certainty for tax authorities as well as tax payers.

Intention of parliament behind making the laws suggests that there is a difference drawn between tax avoidance and tax planning, with the former being looked at as “bending the rules of the tax system to gain a tax advantage that Parliament never intended” through the use of the artificial transactions that serve only the purpose of producing a tax advantage.On the other hand, tax planning is considered to be a legitimate exercise by which tax reliefs for the purpose for which they were intended, can be used by the tax payers to gain some relief with respect to the payment of the tax. Even with respect to tax planning, the parliament and the HMRC do not accept that such reliefs be used excessively or aggressively, that go beyond the intention of Parliament because the tax system must be fair and perceived to be fair. This is an important distinction that can be used to understand the GAAR as well as DOTAS schemes that have been implemented for purpose of tax avoidance so that what is being done is to prevent the tax payers from taking undue advantage of the loopholes in the tax legislation or use schemes that allow them to avoid more tax than intended by the Parliament. Or conversely, the Parliament does not intend that the tax payer has no recourse to tax reliefs. The difficulty then arises with defining what is acceptable tax avoidance and what is not. In this respect, the GAAR does provide some direction.

General Anti-Avoidance Rule (GAAR) statutes are laws that prohibit "aggressive" tax avoidance, and many states around the world have enacted these statutes, including the United Kingdom. The General Anti-Abuse Rule was introduced in the UK in 2013, and it is a scheme which provides that unless there is commercial justification for schemes other than reducing tax liability then it should not be allowed. At the same time, it has been noted that although GAAR seeks to plug loopholes in the tax avoidance legislation and may generally be helpful to deter abuse of unintended loopholes, but firms may react to these rules by bypassing them in other legal ways.

In the UK, the public interest in GAAR has grown with more public reporting of major corporations avoiding payment of taxes in the UK. Beginning the late 1990s, there have been consultations on GAAR and in its 2004 Budget the Labour Government announced a new "disclosure regime" as an alternative, whereby tax avoidance schemes would be required to be disclosed to the revenue departments. There is a policy objective behind the GAAR, which is to “provide a deterrence to taxpayers from entering tax arrangements that might be found later to be “abusive” and, equally, to provide a deterrence to the introduction and marketing of such arrangements.” A tax avoidance arrangement will only be covered under the GAAR if judged abusive. The GAAR legislation is premised on the principle that even though the taxpayer may have several courses of action with tax implications, not every such arrangement is reasonable while those that are reasonable arrangements will fall under GAAR. The difficulty that may affect the effectiveness of the GAAR is that there is lack of clarity in what may be reasonable and what is not in terms of the tax arrangements that the tax payer may devise. The direction that may be used to ascertain what is reasonable is the “presumptive” ban on tax avoidance which allows tax avoidance for some commercial justification other than for reducing tax liability.

Disclosures schemes are also being used to regulate tax avoidance. In the UK, there are three disclosure regimes related to tax avoidance, these being VAT disclosure regime (VADR); Disclosure of Tax Avoidance Schemes: VAT and other indirect taxes (DASVOIT); and Direct taxes (including Apprenticeship Levy) and National Insurance contributions (DOTAS). VADR applies to arrangements entered into before 1 January 2018 because those that are entered into after 1 January 2018 come under the DASVOIT. Therefore, there is a difference between those tax arrangements that were entered prior to 1 January 2018 and post that date. Under the DASCOIT regime, the duty to inform the HMRC about the tax avoidance scheme adopted falls on the promoter of the scheme. A range of taxes and duties fall under this scheme and includes but does not limit to VAT, Insurance Premium Tax, Air Passenger Duty, Hydrocarbon Oils Duty, Tobacco Products Duty, Aggregates Levy, Landfill Tax, and Climate Change Levy, to name a few. Failure to disclose the tax avoidance schemes adopted can expose the promoter to penalties under the DASVOIT regime. The DOTAS regime is applicable to Income Tax, Corporation Tax, Capital Gains Tax, and Stamp Duty Land Tax (SDLT), to name a few. The duty to disclose the scheme arises if there are arrangements made expected to provide a tax advantage, and getting a tax advantage is one of the main benefits derived from such arrangements.

Disclosure and transparency is one of the key features of the anti-tax avoidance regime in the UK; but one of the criticisms of this feature noted in literature is the failure to consider the limits of transparency initiatives which can lead to the additional costs for the HMRC in providing and processing additional information, increased disputes as new information generates new misinterpretations, and uncertainty in determining the final tax position. The DOTAS rules were introduced by the HMRC to ensure that the promoters of avoidance schemes disclose these schemes to the HMRC so that the latter can determine whether such schemes are allowed or whether these are prohibited by the legislation. There is a dual reporting requirement under the DOTAS whereby the schemes for tax avoidance are to be registered with HMRC to which the latter allocates a scheme reference number and the users the scheme must also report this reference number in their tax return. The promoters must also report which of their clients have purchased each of their schemes. This is the dual reporting requirement which may improve the compliance with the disclosure rules by ensuring that the nondisclosure by one party could be discovered from the disclosure made by the other party because the promoter as well as the purchaser have to report the scheme.

The follower notices & accelerated payments notices system is another way by which the HMRC seeks to reduce incidence of tax avoidance by tax payers. Follower notice is issued by the HMRC when someone is in dispute over their assessment due to use of avoidance scheme that is either the same or has similar arrangements to one that HMRC has successfully challenged in court. The follower notice system allowed the HMRC to collect nearly £4 billion in penalty from tax payers till July 2017.

The question is whether the DOTAS, GAAR and follower notice systems have been effective with respect to multinational companies like Google and Amazon. The challenge that comes before the HMRC and the Parliament to regulate the tax avoidance schemes adopted by such multinational companies is these companies operate in multiple jurisdictions and have recourse to intricate and complex devises for tax planning that it may be challenging for any one country to address these challenges through its law. Therefore, one suggestion that is made with respect to tax avoidance legislation in context of such major corporations is to establish and enforce international business laws that can be more efficient in controlling such tax avoidance behaviour of major corporations. An example can be seen in the Organisation for Economic Co-operation and Development Model Tax Convention which provides some clarity on the issue of extended use of transfer pricing and the “arm’s length” principle. The arm’s length principle relates to the transfer pricing standard that the member countries of OECD have agreed to, so as to substantiate the prices in intra-group transactions. This can allow for the correction of distortions arising from prices not reflecting market values, and maintenance of fairness between corporate entities as defined in Article 9 of the OECD Model Tax Convention. Thus, as per the principle agreed to in the Model Tax Convention, if there is a transaction between companies within the same group, it is permitted if subsequent profits are equivalent to the profits that would be obtained by independent parties, if they carried out similar transactions under the same circumstances.

The current law of the UK has not been able to respond effectively to the issue of tax avoidance by multinational corporations as noted in literature as well. For example, Google has used a strategy of billing UK customers in Ireland so as to avoid relevant taxes in the UK. This has been done through ‘Double Irish Dutch Sandwich’ scheme, which Ireland permitted but then had to ban in 2014 after pressure from the European Commission. The bigger point however is that the UK government was not able to address this problem through its own laws and was provided a relief only once the Irish system changed to ban this scheme which was taken advantage of by Google for so many years. In 2016, Google was fined £130 million as a compensation for underpaying its UK taxes, but this has been considered to be an inadequate payment to the UK considering the amount of taxes it was able to avoid for more than a decade.

The EU measures for tax avoidance are contained in the Anti Tax Avoidance Directive, which proposes six legally-binding anti-abuse measures. Another measure is the Administrative Directive, which contain five anti-abuse measures. This directive also requires the country-by-country reporting between tax authorities of member states on key tax-related information on multinationals operating in the EU. The measures come after the BEPS (Base Erosion and Project Shifting) system has come into some criticism for not being able to prevent tax avoidance. More importantly, the recent anti-tax avoidance package of the EU is an admittance of the fact that it is not possible to tackle tax avoidance by multinational corporations unless regional, international and national measures are taken. There are also concerns that the reporting system does not deter tax avoidance.

Ramsay principle

In the UK, the Ramsay principle is relevant to tax law and it was laid down in two cases: Ramsay v. IRC and IRC v. Burmah Oil Co. Ltd. Ramsay v IRC was an appeal by the appellant related to a "chargeable gain" for the purposes of corporation tax by a sale-leaseback transaction. The firm wanted to establish an allowable loss to get the advantage of the tax rebate. The scheme applied by the firm involved the purchase of a ‘ready-made scheme’ that will allow the creation of a neutral situation where one of two assets purchased would decrease in value for the benefit of the other and would be sold and the gain would be exempt from tax as a debt due to loss suffered on the other asset. In this situation the two assets purchased by the appellant were two loans of equal amounts, the rate of interest of one being reduced, and another increased by the same amount. The House of Lords did not allow the company to take advantage of this scheme. In his decision, Lord Wilberforce explained that the task of the court is to ascertain the “legal nature of any transaction to which it is sought to attach a tax or a tax consequence and if that emerges from a series or combination of transactions intended to operate as such, it is the series or combination which may be regarded.” This was explained by Lord Nicholls as follows: when a firm seeks to attach a tax consequence to a transaction, the courts are required to ascertain the legal nature of the transaction and in this regard, if the court finds that there is combination of transactions intended to operate as such, then the courts must consider the scheme as a whole.

In IRC v. Burmah Oil Co. Ltd., the respondent Burmah Oil group had suffered a loss on the sale of an investment, but the statute did not provide for the deduction of such loss for tax purposes. The company devised a plan to "crystalise" the loss into a deductible form through a series of inter-group transactions, which allowed the company to then come to a deductible capital loss by liquidating a group subsidiary. Nevertheless, the court used the Ramsay principle to decide against the Burmah Oil group even though it did note that had it not been for this decision, the court would have decided in favour of the respondent. The principle that applied to deny the Burmah Group the benefit of the deductible is that the series of the transactions undertaken by the company have to be taken into account as a whole.

There has been some concern that the approach of the courts to the tax planning schemes has not been consistent with the court sometimes adopting a literal approach to give benefit to the taxpayer, whereas there are some cases where the courts have taken a different approach. Regard may be had to the Court of Appeal decision in HMRC v Mayes, which decision not only demonstrates the way in which a tax payer has been able to take advantage of the law in a way that Burmah was not able to despite the court believing that they would have decided in favour of the latter had it not been for Ramsay; the decision also demonstrates the gaps in the existing laws on tax avoidance. The facts of the Mayes case may be noted briefly first. In this case, Mayes had structured a scheme for tax arrangements called SHIPS 2 which included 7 transactions or steps of transactions, steps 3 and 4 of which were self-cancelling and involved the payments of premiums followed by partial surrender of a number of life policies. Mr Mayes claimed a deduction of £1.8 million against his taxable income for 2003/2004 and a capital loss on the basis that he paid much more for the assignment of the bonds at step 6 than he received for their surrender at step 7.

The Court of Appeal allowed taxpayer's claim for an income tax deduction under section 549 Income and Corporation Taxes Act 1988 (ICTA) for losses arising in relation to second-hand life insurance policies. The High Court upheld this decision, and the Supreme Court refused HMRC's application for permission to appeal. The interesting aspect of this decision is that although there are a series of transactions that were designed to allow Mr Mayes to claim a deductible loss, which the Ramsay principle ought to have disallowed (and was relied on unsuccessfully by the HMRC), the Court of Appeal refused to apply Ramsay to the case. The Court of Appeal held that the Ramsay principle is a general principle of purposive and contextual construction and does not provide a special doctrine of revenue law striking down tax avoidance schemes on the grounds that they are artificial composite transactions. The court also held that the steps 3 and 4 of the scheme could not be negated just because they were self-cancelling and commercially unreal. The more notable point is that the Court of Appeal was candid in its observation that it did not like the structure adopted by Mr Mayes, just as the court had admitted that they could have looked on Burmah’s position more favourably had it not been for Ramsay. Then why did the court not use Ramsay in Mayes? Toulson LJ has noted in his judgment that the court cannot use Ramsay as a cure-all for overcomplicated and artificial legislation and that the Parliament has the task to simplify the legislation into a more workable form. What this also can be used to infer is that there is lack of simplicity in the tax legislation which allows the tax payers to design complex and artificial means for arriving at tax deductibles. In other words, there is a problem with the tax legislation which the Ramsay principle cannot be used to cure because the principle cannot be allowed to become the all enduring cure for artificial legislation. Therefore, it can be argued that the real problem in so far as can be seen with the result of the Mayes case, is in the legislation itself.

Tax Havens

There are several reports in the recent period that relate to the tax avoidance done by major corporations through the use of tax havens in other jurisdictions, and this has led to more tightening of the tax law to close loopholes that allow companies to use tax havens. An example is TESCO, which was reported to have utilized offshore holding companies in Luxembourg and partnership agreements to reduce corporation tax liability by up to £50 million a year as well as used schemes that saw it depositing £1 billion in a Swiss partnership, and then using the same money to loan to overseas Tesco stores; this profit was transferred indirectly through interest payments and cost the UK exchequer up to £20 million a year in corporation tax. More public attention was attracted to corporate tax avoidance in 2012 when the MPs criticised Google, Amazon, and Starbucks for diverting hundreds of millions of pounds in UK profits to secretive tax havens. This led to the boycotts of these companies.

Interestingly, Amazon and Google defended their tax avoidance as being within the law which allows tax planning for the purpose of avoiding tax. With regard to Starbucks, despite operating in the UK market for 15 years, the company paid UK corporate income taxes only once and instead took advantage of the legal tax avoidance practices like transfer prices, royalty payments, and interest expense. Google on the other hand, has used arrangements like 'Double Irish',’ Dutch Sandwich’ and ‘Bermuda Black Hole’ tax avoidance schemes to avoid paying taxes in the UK. Amazon also is known to have taken recourse to tax avoidance schemes leading to the EU ordering Amazon to repay €250 million in illegal state aid to Luxembourg after a deal allowed it to artificially reduce its tax bill. These are not the only corporations that have used these schemes to escape their tax liability and others like Facebook and Microsoft and Twitter have also used similar schemes to avoid paying taxes in the UK. The other factor to be noted that countries including the UK do take steps incentivise compliance with the UK law on taxation. These steps are taken under the DOTAS scheme and the GAAR requirements.

Possible solutions: Strengthening the role of HMRC, regulating tax advisors, and doctrine of corporate social responsibility

The HM Revenue and Customs (HMRC) is the UK tax collection agency. It is responsible for collection of taxes in the UK. HMRC publishes its statistics on tax gaps each year which is the “calculated net of compliance yield” and reflect the tax gap remaining after HMRC compliance activity. In its 2020 edition, the HMRC has discussed the avoidance tax gap. This is based on ‘disclosed’ and ‘undisclosed’ schemes. Disclosed schemes are arrangements that provide the user with a tax advantage and must be disclosed to HMRC under the tax legislation. Undisclosed schemes are arrangements identified by HMRC, but not disclosed under DOTAS legislation.

The High Risk Corporates Programme (HRCP) is also a relevant body with regard to the tax avoidance schemes of the major corporations. The HRCP was established in 2006 and it is involved in the highest risk cases. The aims of the HRCP are to resolve the tax issues of large businesses through use of agreement or litigation, reduce the scale of future risk, and improve the relationship between HMRC and its large business customers. The HRCP also seeks to encourage Board-to-Board engagement to create a link between the HRCP board and the boards of the companies.

Coming back to the HMRC, this is still the principal body that is responsible for the management and control of large-scale avoidance of taxation. The task of the HMRC is made complex by the fact that there are many products in the financial services sector that are not clearly illegal contravention of the regulations but certainly do bypass the regulations. The HMRC has introduced two new policies to deter “abusive” tax avoidance measures, these being the 2004 disclosure rules or the Disclosure of Avoidance Schemes (DOTAS), and the 2013 General Anti-Abuse Rule (GAAR).

There is a need to strengthen and clarify the law so as to strengthen the role of the HMRC and the other bodies to help them avoid the results of the failed litigation against tax evaders and avoiders in courts. This can be done by clarifying further what kinds of schemes are permissible under the GAAR and what are not. At this point, the only direction is that the scheme should not be for the sole purpose of tax avoidance and should also have some commercial purpose other than tax avoidance. This leaves some grey area where schemes can be devised with ostensible commercial purpose but ultimate purpose remains tax avoidance.

The role played by tax advisors and even legal professionals in innovating new schemes for tax avoidance by targeting tax law loopholes cannot be stressed on enough. Although there are in place DOTAS requirements, which require the accountants, financial advisers and other ‘promoters’ to notify tax authorities of new schemes, there is always a likelihood that this expertise of understanding the law can also provide insight into loopholes that can be taken advantage of by the professionals to devise new schemes that allow them to bypass tax laws. There is a need to consider this issue and respond to it adequately through professional ethics or laws.

The concept of corporate social responsibility has come to be recognised as a concept that links the responsibility of the business enterprise to social service. The idea that business enterprise is not only concerned with the making of profits but also owes some duties to the society, is the premise for the corporate social responsibility construct. In this context, it has been noted that communities do contribute to the profitability of firms (through social capital), and so the firms also should “contribute to the welfare of communities and their production of social goods.” This is the basis for the principle of corporate social responsibility. The principle may play a role in the reducing of tax avoidance by corporates.

It is argued that fair tax obligations can be made a part of the corporate social responsibility. In the UK, a study based on link between corporate social responsibility and tax avoidance does provide evidence that firms with a higher level of social responsibility are better positioned to obtain more transparency through reducing tax avoidance. Using a sample of 300 UK and 200 French firms in years 2005 to 2017, the study found that there CSR fully mediated the relationship between corporate governance and tax avoidance in UK firms.

Corporate tax avoidance, particularly in the context of multinational corporations like Google and Amazon, is an area that has proved difficult for the legislation and policy to regulate. Suggestions to counter tax avoidance by such major corporations include a focus on the international law which can help govern this area better and more efficiently as multinational corporations operate across different jurisdictions. Another suggestion is to use corporate social responsibility to mediate the relationship between corporate governance and tax avoidance. Take a deeper dive into The Dilemma of Distinguishing Between Revenue and Capital with our additional resources.



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