Corporate tax transparency: Australia's work in progress

Australia is working on transparency and information sharing, and is seeking feedback by April 24 (this Wednesday):

On 4 February 2013, the Assistant Treasurer announced the Government’s intention to improve the transparency of Australia’s business tax system and that the Government would consider the views of the community in assessing what changes are appropriate. 

The Government seeks your feedback and comments on the issues outlined in this discussion paper. As this paper provides details about how these proposals could be legislated, you may wish to comment on law design as well as policy design issues in your submission. It would assist the consultation process if those stakeholders who have any concerns with the proposals could provide practical examples in their submissions demonstrating the implications of these proposals and how any alternative approaches could operate.

Highlights from the discussion paper:

On 4 February 2013, the Assistant Treasurer announced the Government’s intention to improve the transparency of Australia’s business tax system with a view to introducing necessary legislation later this year. ... 

This paper outlines three proposals that could give effect to this announcement. ...These proposals could complement existing corporate disclosure requirements and enhance the administration and regulation of Australia’s tax system and capital markets. ...

• Transparency of tax payable by large and multinational businesses. 

– The objective of this proposal is to enable the public to better understand the corporate tax system and engage in tax policy debates, as well as to discourage aggressive tax minimisation practices by large corporate entities. 

• Publishing aggregate collections for each Commonwealth tax. 

– The objective of this proposal is to enable better public disclosure of aggregate tax revenue collections, even when the identity of particular entities could potentially be deduced. 

• Enhanced information sharing between Government agencies. 

– The objective of this proposal is to build on existing information sharing arrangements and enable greater information sharing between the Australian Taxation Office (ATO) and the Department of the Treasury with respect to foreign acquisition and investment decisions affecting Australia.

Australia's Treasury seeks to consider views from "the community"--not defined so no reason that can't mean the global community.  Address written submissions to: 

General Manager
Tax System Division
The Treasury
Langton Crescent
PARKES ACT 2600

TaxTransparency@treasury.gov.au

Thanks to Miranda Stewart for passing this along.

Anti-austerity Protestors in Portugal: "Screw the troika, we want our lives back"

Austerity is spreading across the globe like a bad virus, despite the vehement opposition of the general population. In Portugal, thousands of demonstrators have held marches across the country in protest. From Al Jazeera:

Tens of thousands of people filled a Lisbon boulevard during Saturday's protests and headed to the finance ministry carrying placards saying "Screw the troika, we want our lives back". 

The troika is a reference to the European Commission, the International Monetary Fund and the European Central Bank, the lenders behind the country's financial bailout. 

Many protesters were singing a 40-year-old song linked to a 1974 popular uprising known as the Carnation Revolution. 

Portugal is expected to suffer a third straight year of recession in 2013, with a two percent contraction. The overall jobless rate has grown to a record 17.6 percent. The marches were powered mostly by young people among whom unemployment is close to 40 percent.

 ...After several years of tax increases and welfare cuts, austerity is poised to deepen as the government looks for another $5.2bn to cut over the next two years. The national health service, education, pensioners and government workers are likely to be the hardest hit. The government is locked into debt-cutting measures in return for the $102bn financial rescue set up in 2011.  

More tax hikes and spending cuts are on the way for Portugal: when it comes to the IMF, you must pay your debts regardless of the consequences. That was always the IMF way of course, but when austerity plus regressive taxation was being imposed on impoverished countries with disastrous social and economic results, the global North didn't seem too bothered by it. One protestor in Lisbon is quoted as saying, "This government has left the people on bread and water, selling off state assets for peanuts to pay back debts that were contracted by corrupt politicians to benefit bankers." That scenario is lifted straight out of the IMF's playbook throughout Africa in the 1990s.

Taxcast: opening the black box on who makes global tax policy and how they do it

I'm pleased to have been part of the February 2013 Taxcast from Naomi Fowler and the Tax Justice Network  In this edition of the taxcast Naomi looks at current trends in transparency and taxing the digital economy and then delves into the question of global tax reform, asking whether we should expect real progress from the OECD, a rich country thinktank/inter-governmental organization/lobbyists network.

Readers here will not be surprised that I am critical of norm-making from the OECD, given its essential character as a forum for back-room dealmaking between business interests and government. NGOs have been trying to gain greater access, but it is a slow and arduous process, as we saw recently with an informed citizen trying to gain access to something the OECD advertised as a "public" meeting. In the taxcast Richard Murphy is cautiously optimistic that the pressures being brought to bear on the OECD will bear fruit--that governments are starting to see that they have to be responsive to constituents beyond the business community, and they will have to make real changes at some point.

I am less optimistic given the institutional structure in place but I am hopeful because at least the right questions are being asked: good policy is a product of good process, and the converse is also true.  That means that who is in the room is of vital importance when it comes to developing norms. If NGOs, watchdog groups and citizens are paying attention they will pester the OECD if it tries to develop global transparency standards on tax from inside its own black box.

What an OECD "public briefing" teaches about the rule of law.

The ACA representative who attended the OECD public briefing on FATCA posted a comprehensive description here. The substance of the briefing is important of course and it is well explained in the post, but I note that we can also learn a little more about the OECD and about international tax lawmaking from this participation, and these are things worth noticing for anyone interested in how the rule of law develops in taxation.

• There were no other members of civil society present (non-government, non-business), and there were empty seats, even though Victoria was initially denied entry because space had to be reserved for business interests. So the OECD is still an epistemic community talking with itself. That is important in terms of framing public discourse about what matters and what doesn't for taxation, as well as what questions ought to be answered and what the answers ought to be.
• The issues are all cast as technical compliance ones, as if the politics and policies are all resolved. They are not, but casting things as merely technical in nature makes it easier to turn aspiration into law; it's a common modus operandi for tax regimes, and the OECD has used it consistently over its lifespan.
• Treaty competent authorities will be working out the technical details on how automatic information sharing is going to take place, including registering FFIs and sending info through the IRS portal.  So more and more international tax will get worked out through these obscure, opaque, non-law making diplomatic channels, and there will be less and less law to work with as a result.

These are notable phenomena in the context of simultaneous calls for transparency and accountability in governance, including from the OECD itself.

Protesters Confront "Fix the Debt" Leader over Corporate Tax Breaks

And they do it with a big sign:

The protestors are calling themselves "Flip the Debt."  From truth-out:

While speaking at a Fix the Debt conference on Monday, Honeywell International Inc. CEO David Cote [he of "union busting for dummies" fame] was interrupted several times by Flip the Debt protesters over tax loopholes that allow companies like Honeywell and General Electric to pay far less taxes than ordinary Americans. 

Three minutes into Cote's keynote address, the first heckler trumpeted: 

...Fix the Debt is nothing more than a CEO lobby whose real objective is huge corporate tax breaks and drastic cuts in Social Security, Medicare and Medicaid. David Cote and his CEO friends receive a lot from government: In 2011, Honeywell received $725 million in government deals, making it the 35th largest federal contractor. However, Honeywell and other companies pay next to nothing in taxes. Honeywell's tax rate from 2008-2011 was 2 percent. Does anyone in this room pay 2 percent?"

 The crowd applauded, but Cote only laughed nervously.

So, he neither confirmed nor denied whether he paid 2%.  An interesting nod to the UK, similar to the spread of the "Uncut" movement across the atlantic:

Gan Golan, cofounder of Flip the Debt, laid out his group's goals. "We will disrupt Fix the Debt meetings across the country to elevate our message that the biggest corporations in the country aren't paying taxes, and now they want the rest of us to pay for it. Sustained public pressure against corporate tax dodgers in the UK has put the issue at the top of the agenda there, and we hope to do the same."

The article mentions the Sanders bill to end deferral, and ends on the connection between tax dodging by multinationals and the dismantling of the welfare state:

Charlie Balban, president of the Alliance for Retired Americans-New Hampshire, grilled Cote during a question-and-answer period. "We should do something about the debt, but we don't need to cut programs that people depend on. Instead of reducing the deficit on the backs of working Americans, corporations should pay taxes like the rest of us."

It can't be too much longer before someone draws up a menu of welfare state expenditures in the US and then ties each item to a specific company and what they might have paid in taxes had they incurred the statutory rate on their income for the year.  If you see such a thing, please send me a link.

Corporate tax: why disclosure is the key to reform

Two columns of interest emerged today on the issue of corporate tax disclosure, plus another interesting public hearing in the UK, this time with the big four in the hot seat.  Put all of this together and we can see very clearly the intense connection between tax reform and public understanding of the status quo.  With the latter as to corporate tax being woefully inadequate and relevant information intentionally hidden from public view, the former can be neither informed nor meaningful.  The answer is corporate tax transparency, particularly for multinationals, i.e., on the order of country-by-country reporting for listed companies.  First, on the columns, both from the FT.

In this one, John Gapper says "Companies are complying with laws that governments could change if they wished," and then explains:

Starbucks’ supposed immoral act is not to pay UK corporation tax that it does not owe, and would not owe even if it did not license its brand from the Netherlands. It obeys both the letter and the spirit of global tax law, which governments could reform if they wished.

That's 100% correct. And if you think there is some "spirit" in the transfer pricing law that isn't being acknowledged, then you are forgetting that the transfer pricing rules were effectively written by the industry they are meant to police. So I think the spirit is pretty much being well given its due. Gapper also nicely illustrates what I call the mercenary tendency of the tax state in an economically integrated world: agree with whatever seems politically expedient in principle, defect in practice:

I look forward to Mr Cameron naming and shaming companies such as Google (also a target of British politicians) if they are drawn from Ireland to the UK by his tax arbitrage. 

...Governments must decide which regime is fair, and companies and individuals must comply. 

... most companies that place operations or intellectual property in low-tax countries – or even in tax havens such as Bermuda – are not breaching the spirit of global tax law. They comply with a structure established under the League of Nations in the 1920s. 

This allows – indeed, encourages – multinationals to split their operations among countries, paying taxes as if they were separate entities, in order to avoid double taxation. They have to make transactions at “arm’s length” – as they would deal with others. 

It worked for a long time but is under strain because of the growing value of brands, intellectual property and intangibles to global corporations. “Ideas are their biggest asset, and what generate profits, and it is far easier to shift intangibles than factories,” says Jeffrey Owens, of the Institute for Austrian and International Tax Law.

Well, this is mostly right, at least close enough for its purposes. However, I am just not sure what principles we should expect to emerge when reporters turn, as they too often do, to Mr. Owens, former director of the OECD's tax arm and the man who presided over the demise of the corporate tax on a global scale under the nurturing constancy of the OECD's business-driven tax policy making machine, a person moreover who has publicly called for governments to "avoid like hell" any taxes on corporations. He would seem to be the last person you would ask about how to make a corporate tax system function, again, unless we are talking about that movie.  Gapper concludes:

Politicians thus have the choice of indulging in easy rhetoric against companies that obey the laws they have passed or struggling to reform the tax regime for little reward, with lots of disruption. In their position, I might posture too.

If that's not an argument for greater public accountability of how transfer pricing works out in practice, I am not sure what is.

That brings me to the second column of the day from the FT which illustrates why the public ought to know more about how these regimes work in practice, this one by Bruce Bartlett in which he asks, can publicity curb corporate tax avoidance? He lays out the case nicely for the runaway corporate tax base and he concludes:

[L]ittle in the way of real economic activity, such as jobs or tangible investment, has shifted anywhere. All that has shifted is the tax base. 

...This makes the international tax regime a ripe target for reformers.

... With reports of low domestic taxes paid by large profitable corporations such as Starbucks in the UK, the time may also be ripe for an international agreement to curb tax shifting. The US has recently implemented a law called the Extractive Industries Transparency Initiative that requires companies to disclose their payments to governments from oil, gas and mining assets. Allison Christians of McGill University argues that the expansion of such information reporting to the transfer pricing of all multinationals is the first step towards capturing the revenue now lost to the shifting of business costs to high-tax jurisdictions and revenues to low-tax jurisdictions. 

There is growing evidence that corporations are sensitive to the public outcry when they are caught avoiding taxation excessively. Starbucks, for example, recently agreed to pay more taxes in the UK than legally required to quell the controversy over its virtually nonexistent tax bill. The same shaming technique may have broader application to multinationals generally. 

As Justice Louis Brandeis of the US Supreme Court once put it, “publicity is justly recommended as the remedy for social and industrial diseases”.

First, thank you for the shout out, Mr. Bartlett! Second, this column demonstrates clearly the strong connection between tax reform and public understanding of the status quo, as I suggested above.  Tax reform is not going to come from the only party that has all the info it needs right now, namely, the IRS. Tax reform comes from public expression.  Right now, observers of tax policy need more information in order to offer meaningful reform proposals, and that information is being hidden because governments do not require it to be disclosed, plain and simple.  That is a matter of regulatory choice, and these columns show the choice is bad for policy analysis.

That then brings us to the UK's hearings today in which the public accounts committee taking on the big four accounting firms, trying to suss out what the letter and the spirit of the law is with respect to corporate tax on multinationals.  What emerges is the "perfectly legal" nature of all of this tax avoidance, again confirming the editorials by Gapper and Bartlett.  Here is the BBC's take on the hearings, worth reading in full.  Richard Murphy declares it a win for the PAC but the question is whether that translates to a win for those who do in fact pay taxes in the UK and elsewhere.

That question will be answered affirmatively if instead of killing EITI, which is currently apparently a high priority for many, we expand it to cover all listed companies.

Pledge to HMRC notwithstanding, Starbucks sit-in is on

Check out the logo. It juxtaposes the austerity-driven dismantling of the welfare state against an apparent cause: high-profile taxpayers with available wealth who are withholding it from society.

I don't know if it works for an uninformed passerby--could it not rather convey something about Starbucks' giving nature, Starbucks aligned in the cause? Hey, Starbucks is giving HMRC £20m, that more than covers the £5.6m that "is being directly cut from domestic violence services," per the activists! Sure, we're all in this together!

Not so fast, says UKUncut:

Offering to pay some tax if and when it suits you doesn’t stop you being a tax dodger. Starbucks have been avoiding tax for over a decade and continue to deny that it paid too little tax in the past. Today’s announcement is just a desperate attempt to deflect public pressure. There’s no money yet, and hollow promises on press releases don’t fund women’s refuges or child benefits.

 As a result, UK Uncut is planning 40 'actions' across the UK: "People will be transforming Starbucks stores into refuges, crèches and other services which the government are cutting with their unjust and unnecessary austerity plans.”

Also, isn't Starbucks' decision in conflict with it's duty to maximize shareholder profits? Maybe this an opportunity to bring a lawsuit charging breach, arguing that Starbucks' duty is to pay the lowest amount of taxes it possibly can under the law. If the suit fails (debatable--in the US anyway), it might help lay to rest the fiction that the shareholder is the only relevant stakeholder in the scope of managers' fiduciary duties.

New Paper on Global Civil Society

John S. Dryzek has published "Global Civil Society: The Progress of Post-Westphalian Politics," in the Annual Review of Political Science.  Abstract:

Despite lingering ambiguity surrounding the concept, global civil society is acclaimed by those who think they belong to it, and validated by international governmental organizations seeking legitimation for their activities. Its enthusiasts believe global civil society presages a more congenial kind of politics that transcends the system of sovereign states. Its critics deride its unrepresentativeness and complicity in established power relations. The critics can be answered by more subtle accounts of representation and by highlighting contestatory practices. Appreciation of the promise and perils of global civil society requires moving beyond preconceptions rooted in dated ideas about civil society and democracy as they allegedly function within states. Irrespective of the sophistication of such post-Westphalian moves, global civil society remains contested terrain, involving interconnected political and intellectual disputes. International relations theory proves less useful than it should be in clarifying what is at stake. Democratic theory can be brought to bear, and this encounter sheds new light on what democracy itself can entail.

This is important in the context of thinking about occupy wall street, the uncut movement, and global tax activism more generally, against the broader backdrop of how individuals and institutions work to gain influence over tax policy nationally and internationally.

Uk Uncut vs HMRC in Goldman Sachs giveaway

I'm not sure how they can do this...the Guardian reports that UK Uncut is suing UK Revenue over backroom dealings in which it gave Goldman Sachs a pass on unpaid taxes of up to £20m.  From the story:

The agreement between HMRC and Goldman Sachs reached in 2010 could be quashed after the high court allowed a preliminary permission hearing to take place on 13 June following court filings made by the activist group UK Uncut Legal Action.

I'm not sure how they are doing that--no sovereign immunity? Is there taxpayer standing?  This is not an area I know anything about.  But I don't think the US Uncut group could similarly sue the IRS if it found out they did something similar.    The Guardian links to the UKUncut Legal Action Group's website, where they are asking for donations to support the cause.  What I would like to see is the court filings and briefs/factum if any, but I don't see much useful on the site.  It says:

"It’s alleged that David Hartnett, the government’s top tax man, who loves to be wined and dined, met Goldman Sachs’ top brass in late 2010 and with a handshake agreed that the bank would be let off paying £10 million owed to the public purse in interest on an unpaid tax bill.

To challenge this back room deal, UK Uncut Legal Action, with the help of law firm Leigh Day & Co, is threatening legal action against the HMRC unless this dodgy and unfair decision is quashed."

Then at a tab called "quids in" it says further that "We are taking HMRC to court because we believe that their secret deal was unlawful. HMRC and Goldman Sachs can afford the best lawyers in town, so we need your help to take them on. It’s the people’s court case."

If anyone understands the legal structure under which they can sue, can you fill me in?

The Lobbyists are Winning: Corporate Tax Transparency edition

The activist-led movement to increase multinational tax disclosure is proving to be a full-employment program for natural resource industry lobbyists.  The money and energy available for fighting against transparency seems limitless.  We have seen the effects of this in the US, where Dodd-Frank's section on extractive industry transparency has been completely undermined and consistently sidelined as a result of lobbyists.  We have seen the effects in Canada, where the industry managed to kill transparency legislation all together by means of a tidal wave of lobbying by the energy industry there.  Today the FT tells a similar tale unfolding in the EU.

There is a perhaps not obvious but very pernicious undercurrent in this transparency contest.  It is that in each country, lobbyists are using the success of the lobbyists in the other countries to bolster the cause for their own success.  No matter we may like to think about the nature of tax policy as somehow a sacred and protected space for purely national politics, that hallowed chamber of sovereign entitlement, it's clear that lobbying is fully globalized and therefore tax policy is, too.

Today's FT story provides a case in point.  First, the FT notes that the EU's work on transparency was prompted by the inclusion of new corporate tax information disclosure standards for resource extractors (think oil, gas, etc):

The European Commission last year proposed a scheme that allowed for payments for specific projects to be tracked, with reporting requirements that broadly matched the US approach enacted in the Dodd-Frank Act.

Just by putting the possibility of corporate tax transparency into legislation, even though it could not and still cannot be implemented without further action through federal regulations, Dodd-Frank put extractive industries transparency on the map of legislative possibilities, and therefore cleared some space for the policy to spread to other nations (I analyze this more thoroughly in my forthcoming book chapter on global tax activism).

The FT reports that industry in the EU responded by protesting the new rules as unnecessary, onerous, etc.--in other words, a set of self-serving arguments with which those of us who have been following this issue in the US and Canada have become all too familiar and most of which do not hold up under scrutiny.  But lobbying works very well, and so the EU is considering a much less transformative version of the proposal, one that would not require very much disclosure if any at all.

The FT closes the circle by concluding that:

If the compromise passes in Brussels, it will bolster industry arguments that the US rules being drawn up to implement Dodd-Frank should be watered down to match the EU approach and ensure a level playing field.

The idea that tax policy is in any sense a purely national project could not be more clearly debunked.  The EU's imminent adoption of a more lax standard arms lobbyists in the US with a fresh round of anti-transparency ammunition.  Their ability to use this to further the anti-transparency cause in the US will in turn re-invigorate lobbying in Europe and elsewhere.  This will continue until transparency is uniformly killed, unless the pro-transparency lobby gains a similarly viral foothold from which to reinvigorate the campaign for transparency.  It is an international game with fascinating network aspects and effects.  Too bad then that in the meantime, a policy that really ought to be implemented, not least because it is in fact written into the rule of law here in the US at least, will be stalled indefinitely.

On a related note, it is worth recognizing that a new euphemism is emerging in international tax policy that is steadily gaining ground through casual and unexamined use.  That is the idea that this or that tax policy is necessary to "ensure a level playing field." Both sides of the transparency issue have used the term to support completely opposing goals in the past, so it would seem that the term means very little.  That means a translation is in order when people use the term to score political points.

Let us be clear then that when used by opponents of transparency, "ensuring a level playing field" is what people say when they mean that the lobbyists are winning.  That is because a level playing field would quite obviously exist when the market has full information--that is, when all multinational companies engage in full disclosure of their tax payments in all countries, and all stakeholders--shareholders, taxpayers, governments, and watchdog groups--have the same information about how generous tax policies support industry all over the world (this is how the pro-transparency crown use the term).  When what is sought is a market with little or preferably no publicity of this kind of information, "the level playing field" means something very close to the current status quo--the product of all that successful lobbying to date.