Demystifying Corporate Tax Avoidance

14/10/2013 11:40 BST | Updated 15/04/2015 16:59 BST


Over the last year corporation tax has surged up the political agenda. Partly due to grandstanding by the public affairs committee, and partly due to an increased public appetite for tax justice in our present austerity context. And if we believe the rhetoric emanating from our political elites, both a consensus and will now exists to take meaningful, remedial action.

But any such belief must have been undermined by Friday's announcement that the value of the tax gap has increased by £3 billion since 2010. It is estimated that £4.7 billion of corporation tax is lost a year, a figure which excludes transfer pricing. It is likely that in the coming weeks, this issue will again feature in headlines and front pages as the HMRC goes before the Common's spending watchdog.

After all the moral case is clear.

Corporations gain significantly from the onshore benefits of tax, many of which are taken for granted - transport infrastructure, which provides the arteries for movement of goods and people; an education system which equips employees with basic skills; healthcare, which keeps them fit; and the apparatus of law and order, which upholds contracts and property rights.

So why should it be that the tax compliance of low to middle income earners and small to medium business is pursued with vigour, yet the state is submissive when it comes to multinational corporations, allowing their tax to essentially be a question of choice.

And at a time when welfare claimants have been characterised as parasitic, a national burden, it would not be outlandish to conceive of these corporations in similar terms, taking much more than they give.

Of course there are those who vehemently disagree. Some who even refute the validity of corporation tax per se. Companies are 'constructs' they cry, with no existence apart from the individuals of which they comprise - shareholders, employees, customers, and suppliers. In reality companies cannot bear tax burdens. Only individuals. And thus, there is no such thing as a "fair share" of corporation tax. Or so the argument goes.

The original aim of the current global tax system, fashioned by the League of Nations in the 1920's was to avoid double taxation; whereby a company could be taxed on the same profits by two countries, for the same activity, and over the same period. Thenceforth, a multinational company was not taxed as a single entity, but as a number of legally distinct, individual enterprises, located in different countries.

But this solution generated what in the future would become intrinsic flaws.

Today digital transfer allows multinationals the freedom to move money fast and far. And this unprecedented mobility has given such companies the power of discretion as to where they locate profits. And they do so, purely for the purposes of minimising tax bills.

In a global economy there are many nations each with their own tax rules. And it is these tax differentials between countries which affect the location of profits. Subsidiaries are set up in low tax jurisdictions, and profits allocated.

Through intra company transactions, taxable profits are moved around within the same corporate empire, the effect being to dislocate them from where the substance of economic activity, and generation of that profit has taken place. This, combined with opaque accounting, veils how much of the value created by a company takes place in the UK, and therefore should be subject to UK tax.

A multinational can also reduce taxable profits in the UK by taking on debt through a British subsidiary. Why?

Because active business income is distinguished from passive income. Treaties define an active business operation in a given source country, and give that country the main right to tax the profits of that operation. But passive income such as dividends, royalties and interest is primarily taxed in the country which the recipient resides.

So how do we solve this problem, if indeed we believe it should be solved at all?

The OECD advocates an international framework based on two main elements: a network of bilateral double tax treaties; and the Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations. It sees bilateral and multilateral agreements as the way through which country by country reporting and profit apportionment, based on a multinational's real presence in each country, can be established as the new global standard in transparency.

A lot of hope is being invested in information exchange. Exchange on bank accounts held by taxpayers in jurisdictions - names, addresses, dates of birth, account numbers, account balances and payments made into those accounts.

But there is a fundamental problem with these measures - the extent to which they depend upon the cooperation of haven states. Tax jurisdictions themselves compete with each other to offer the lowest rates and most secretive accounting. Asking them to open up their tax processes is asking them to forfeit a large portion of their tax revenue.

There are many things moral, and most rely on law and sanction. We know that if allowed, the profit motive will run rampant over ethics and morality. Markets left to their own devices, tend towards amorality. So perhaps the riddle of corporate tax compliance, is really not a riddle at all. It is simple. Not a question of multilateral ensembles. But a question of law, the restoration of tax sovereignty and will, real will.

Multinationals will do what they are allowed to.