4 The effects of tax havens

In this chapter, the Commission presents and discusses arguments for and against the kind of structures which characterise tax havens. Issues related to the taxation of international companies and capital movements are central to this discussion. Also addressed are issues relating to the effects rising from access to information about financial institutions and markets.

4.1 Negative effects of tax havens

4.1.1 Damaging tax competition

Economic integration has made it easier to avoid taxation in one country by moving mobile taxable objects to other countries. In particular, increased capital mobility has made it possible for countries to attract capital by offering favourable tax terms. A welfare economics perspective indicates that, when countries compete to attract taxable objects, taxes will be set too low because each country will not take account of the fact that they harm other nations. Tax havens have contributed to reinforcing tax competition by offering secrecy rules and fictitious domiciliary positions combined with “zero tax” regimes. This is not tax competition in the normal sense, because low taxes are combined with legal structures which represent a major encroachment on the sovereignty of other countries.

The degree of harmful tax competition will largely depend on the mobility of the tax base. 1 It has normally been assumed, for example, that people are less mobile than capital and that tax competition accordingly presents a bigger problem for capital taxation. Governments can in principle reduce the problem of competition over capital taxation by assigning the right to tax capital gains to the country in which the owner of the capital is domiciled rather than the one in which the capital has been invested (the source country). Most OECD members have accordingly opted to apply the domiciliary principle to taxation, which means that taxpayers are taxable in their country of domicile on all their income regardless of where it has been earned. However, this principle has often proved difficult to enforce because it depends on the country of domicile obtaining information from the source country. Tax havens increase this problem because their secrecy legislation hinders insight by third parties.

Tax competition makes the national tax base more tax sensitive. Some people have feared that tax competition will lead to a “race to the bottom”, where tax rates become so low that countries with large public sectors must make dramatic cuts in their welfare systems. However, the impact of tax competition on the general level of taxation has proved more limited than had been feared. Generally speaking, tax competition has led to higher taxes on immobile tax objects and lower rates on mobile objects. A particular decline has been seen in taxes on capital income, which has been offset by higher taxes on other tax objects.

The change in the composition of the tax base has two secondary effects. First, it affects the way the tax burden is distributed between different groups in society, such as owners of capital and wage earners. Viewed in isolation, a reduction in capital taxes means that owners of capital pay a relatively smaller proportion of total taxes and wage earners pay a higher share.

Second, a change in tax composition could cause an increase in the social cost of taxation if reduced capital taxes are offset by higher taxes on other parts of the base. In that context, it is important to stress that an significant insight from economic research is that taxes direct resource allocation by both companies and employees away from what is socially optimal. A tax on earned income, for instance, could prompt wage earners to desire to work less than they would have done without the tax, which means a loss of efficiency in relation to the position in which earned income is not taxed. The effect on the supply of labour, and thereby the efficiency loss from taxing earned income, will normally increase with the tax rate. Moreover, it is the case that the effect on resource allocation, and thereby on economic efficiency, differs between various types of taxes. Generally speaking, the loss of efficiency in tax financing is smaller the lower the tax rates and the broader the tax base. Tax havens increase the loss of taxation efficiency by reducing the tax base and thereby triggering the adoption of high taxes for the remaining base. It should also be stressed that competition over capital from tax havens is particularly harmful because of the use of secrecy by the tax havens, which interferes with the opportunities of other countries to gain access to information and thereby causes additional harm. In that sense, the tax havens do not compete over tax – they utilise legal structures which encroach on the sovereignty of other countries to attract capital.

The costs of tax competition affect all countries, but are higher for developing countries because they derive the larger part of their tax revenues from capital. This means that they face a greater threat of losing tax revenues and must accordingly reduce public sector investment, for example. Since poor countries have a different structure for their tax revenues and a far greater need for public sector investment than rich countries, they suffer more harm from tax competition. See chapter 5 for more details.

The damaging effects of tax competition have led to a recommendation that national taxes on mobile tax objects should be harmonised or coordinated. 2 This view was reflected, for instance, in multilateral initiatives undertaken by the OECD and the EU in the 1990s, where the intention was to limit competition over mobile tax bases. 3 These initiatives also assumed that damaging mechanisms such as secrecy regulations in tax havens should be abolished.

4.1.2 Inefficient allocation of investment

To maximise the contribution to value creation, investment should be made where it obtains the highest pre-tax return – in other words, where the socio-economic return is best. However, private investors are not concerned with the pre-tax return but with the post-tax return, which is the income they retain. Ideally, the tax system should be designed to ensure that private and socio-economic investment decisions coincide. That would yield the highest possible value creation. As mentioned above, however, taxes influence investor behaviour. The greater the difference between private and socio-economic returns, the more the tax system will impose an efficiency loss on the economy.

Tax havens can change investor behaviour and thereby increase the difference between socio-economic and private returns. This is because the profitability of some investments could be enhanced by routing them through tax havens. The existence of such jurisdictions and low/zero tax may mean that investments which would not have occurred if they were taxed under the usual rules are nevertheless made. This reduces the socio-economic return on the investments actually undertaken, so that tax havens have lowered overall value creation for society.

4.1.3 Effects of secrecy

The secrecy rules mean that tax havens can easily become pass-through locations where investors achieve anonymity from the tax authorities in their home country and from possible creditors. This is lucrative for these jurisdictions because, in exchange for zero or very low tax, they make money from fees or from the use of local representatives and administrators by foreign companies. The effect of such rules on other countries is that the cost of committing economic crimes is reduced, because both the criminal activity and its proceeds can be concealed. Furthermore, the tax base has become more sensitive to tax changes. Taken together, this imposes heavy costs on third parties.

As discussed in greater detail in chapter 3, the principal competitive parameter of tax havens is that they offer a combination of (a) tax affiliation without the investor or company needing to have real activity and (b) systems which hinder access to information. This cuts the link with real ownership and ensures anonymity, so that owners avoid having to pay tax in their own country of domicile. This is not tax competition in the traditional sense, but competition over offering the combination of low tax and tax evasion technology. Low tax serves as bait in order to charge for the sale of tax evasion technology. Income from these services is the real source of revenue for tax havens.

In reality, jurisdictions where no real activity occurs and where technology is provided to promote transfer pricing and tax evasion offer investors “weapons” for tax evasion in their country of domicile. This is not beneficial for the world economy because it has no effect other than to damage national and international welfare while simultaneously violating national rights to the tax base. Establishing “safe houses” to conceal criminal activity is not an acceptable competitive parameter.

4.1.4 Tax havens and the financial crisis

The Commission would furthermore emphasis that the international financial crisis which began in 2007 has been reinforced by the existence of tax havens because they impose various costs on the international capital market.

Among other factors, the financial crisis was driven by new types of financial instruments and derivatives (such as the transformation of mortgage debt into convertible financial instruments) which were placed in funds located in secrecy jurisdictions. The use of complex new financial instruments made it difficult for investors to understand the risk profile they were acquiring. Registering funds in secrecy jurisdictions also created uncertainty because third parties were denied information about the actual commitments of counterparties.

The financial crisis has led to the collapse of banks which were regarded as rock-solid, such as Carnegie and Lehman Brothers. Such bankruptcies have meant that the banks no longer have mutual confidence in each other’s financial strength. This uncertainty and lack of trust is reinforced in cases where the counterparty operates in jurisdictions characterised by a lack of transparency and regulation. Because confidence is lacking in the regulatory regime or in the ability of governments to regulate or support companies which might falter during a crisis, players will seek to mitigate counterparty risk with companies which transact substantial business using tax havens. This is well illustrated by the fact that the interest rate on four-week US Treasury bills was down to zero for part of 2008. The bills were much sought after because the buyers knew the risk involved. When uncertainty peaked, it was better to lend money free of charge to the US government for four weeks than entrust it to a bank which might be doing business in opaque jurisdictions, where insight and legal processes were challenging, and where there was no confidence that governments could play the role they should in a modern financial system. This means that transactions and companies operating in tax havens pose an additional risk for the international financial market. That is well illustrated by the fact that many financial institutions in the run-up to the financial crisis had off-balance-sheet liabilities in their accounts – such as special-purposes vehicles (SPVs) and structured investment vehicles (SIVs) – which were registered in tax havens.

All in all, the various conditions described above have meant that tax havens have contributed to information asymmetry between various players in the financial markets. They have increased the risk premium on financial transactions in the international financial market. 4 At the same time, they have contributed to bigger stock exchange fluctuations as players sought to eliminate counterparty risk.

4.1.5 Illegal transfer pricing

Much analysis has been conducted into the way multinational companies transfer corporate profits to low-tax countries through the pricing of intra-group transactions (see Appendix 3 for documentation). These studies show that national differences in nominal corporate taxes drive illegal price-setting of intra-group transactions.

Two principal methods are available to a multinational company for transferring profits from a high-tax to a low-tax country. The first method is to overprice transactions from low-tax to high-tax countries and under-price transactions in the opposite direction. Such a strategy reduces the taxable profit in the high-tax country and, conversely, increases it in the low-tax country. The second method is to structure the balance sheet of a company to minimise tax. One way of doing this is through debt financing of subsidiaries in high-tax countries in order to achieve large tax deductions there, while financing subsidiaries in low-tax countries by equity. 5 An example is the extensive use of internal banks by multinational companies. The banks are equity financed, and the internal bank then lends this capital to companies in the same group located in high-tax countries. The company thereby achieves tax deductions on its debt in the high-tax countries, while income earned by the internal bank often remains untaxed. 6 It is precisely because tax havens have particularly favourable tax rules on capital directed solely at foreigners that such tax arbitrage is so profitable.

Multinational companies also use subsidiaries in tax havens as pure holding companies to achieve tax credits. Since capital income often goes untaxed in tax havens, tax on current profits is avoided. This makes it particularly attractive to use companies in tax havens as holding companies.

Another strategy is to transfer the ownership of brand names to subsidiaries in tax havens. These companies then charge royalties for the use of the brand name, reducing taxable profit in high-cost countries. A multinational company may have transferred such brand names to subsidiaries in tax havens at a very low price or free of charge. Such transfers of brand names, for instance, can be legal pursuant to the tax regime in certain countries. The fact that tax havens apply tax rates for foreigners alone which are effectively zero or close to zero makes such transactions very attractive. But it also means that high-tax countries lose a tax object which they might have been entitled to tax, and that the loss of tax revenue would not necessarily have arisen if the tax havens had not set special rules for foreigners.

Insufficient data are currently available in developing countries to establish the share of company profits, and thereby of the tax base in these countries, which is transferred out through intra-group transactions. To obtain an indication of the scale of such transfers, the Commission has commissioned a research team at the Norwegian School of Economics and Business Administration/Institute for Research in Economics and Business Administration to produce a status report on the extent of transfer pricing in Norway. Since Norway has very strong tax controls compared to developing countries, the hypothesis is that if profits are transferred away on a large scale by multinational companies established in Norway, the problem will probably be considerably greater in developing countries.

The study is presented in Appendix 3. Utilising Norwegian enterprise data, the study has exposed links consistent with the movement of profits through the manipulation of internal transfer prices. The study found that multinational companies move profits both in and out of Norway, depending on the relative tax rates they face. The net flow is estimated to be out of Norway, and the revenue loss could be in the order of 30 per cent of the potential tax payable by foreign multinational enterprises. Furthermore, the study found that multinational enterprises in Norway have a profit margin which is 1.5 to four percentage points lower than in comparable national companies. The research team conducting the Norway study takes the view that more studies must be conducted in order to confirm the findings, and that research into multinational companies and tax is a neglected subject area in Norway. It nevertheless points out that large amounts of tax are potentially evaded through the transfer of profits abroad by multinational companies in Norway.

4.1.6 More unequal division of tax revenues

The use of tax havens also affects which countries have the right to tax capital income which can lead to a more unequal division of tax revenues. This problem is particularly associated with the taxation of capital gains by companies registered in a tax haven.

Under international tax law, both the country where an owner is domiciled (if a private individual) or registered (if a company) and the country where the company operates basically have the right to tax capital gains. A large network of bilateral tax treaties seeks to overcome the potential problem of double taxation which arises because more than one jurisdiction has the right to tax the same tax base. These treaties normally apply the domiciliary principle – in other words, the country in which the owner is domiciled or registered acquires the right to tax, rather than the source country where the income has been earned.

Traditionally, this way of assigning the right to tax has been justified with reference to the strong ties which typically exist between the country of domicile and the taxpayer. If a personal taxpayer pays tax in the country where they are domiciled, they will also benefit from the range of public services financed by the tax. This justification disappears in the case of legal entities merely registered in a jurisdiction. A characteristic of tax havens is precisely that a minimal link exists between the taxpayer and the jurisdiction. In such circumstances, principles of fairness suggest that the right to tax should rest with the source country.

Many tax treaties between OECD members and developing countries have taken account of the effect of the domiciliary principle on the distribution of taxes by giving the source country the right to impose a withholding tax up to a specified amount. This system ensures that the source country also receives a share of the tax revenues. Typically, tax treaties established between tax havens and other developing countries make no provision for such a withholding tax.

4.2 Positive effects of tax havens

The economic literature cites a number of positive aspects related to tax havens. In principle, tax havens could have a positive impact on prosperity in (a) countries which are not tax havens and (b) countries which are tax havens. The economic literature primarily cites effects which only affect the prosperity of tax havens. These are presented below.

4.2.1 Beneficial tax competition

Some commentators have maintained that a political system has an underlying tendency to set the level of taxation too high. This view is derived from the notion that politicians are not solely concerned to serve voter wishes, but that they have private interests related to a high level of taxes (see, for instance, Brennan and Buchanan, 1980). Such private motives could be the desire for power, which would be bolstered by a large public sector. In such circumstances, tax havens – with low or non-existent taxes – can help to keep taxes in other countries down. This is because other countries would lose part of their tax base to the tax havens if they set tax levels too high. In other words, the tax havens discipline politicians so that they do not increase taxes beyond levels desirable for the voters.

4.2.2 Increased investment in high-tax countries

Tax havens can contribute to increased activity in high-tax countries, and so do not crowd out investment there. This argument is advanced by Desai, Foley and Hines (2006). They point out that tax havens can contribute positively to a high level of investment if investors can transfer taxable profits from a high-tax country to a tax haven. This will increase the effective return on investment in high-tax countries and thereby make them more attractive for further investment. Alternatively, the use of tax havens can be a source of tax credits which would also reduce the effective tax rate on investment in high-tax countries. Furthermore, it might be that economic activity takes place in tax havens which involves the sale of low-priced goods and services (low-priced because they are not taxed) to high-tax countries. Such activities would also increase the return on investment in high-tax countries.

The analysis by Desai, Foley and Hines (2006) builds on the assumption that an investor can make real investments with a real level of activity in a tax haven. In fact, foreigners who use the preferential tax regime are not permitted to invest locally, have local employees or use the country’s currency. The Commission accordingly takes the view that the assumption underlying the analysis is based on ignorance of investor regulations in tax havens.

4.2.3 Economic development in the tax havens

Dhammika and Hines (2006) study which countries become tax havens. They find that these countries often display political stability, a well-functioning legal system, a democratic form of government, little corruption and a relatively well-qualified bureaucracy. One reason that countries become tax havens could be that low tax is not the only important attraction for mobile capital. Institutional conditions which assure the safety of investments and the conduct of financial transactions may also be important. The study shows that tax havens are well organised and that competition over capital sharpens the requirements for institutional quality and good politics. Since institutional quality is an important factor for economic expansion, competition over capital between tax havens helps to improve their growth prospects (see Hines 2004). The extent to which such growth occurs at the expense of expansion by other countries is not an issue addressed in this literature.

The fact that a tax haven is able to develop strong institutions and that it must have these in place to be an attractive investment location is supported by Norfund’s justification for investing in such jurisdictions. In correspondence with the Ministry of Foreign Affairs, the institution noted that Mauritius is attractive as a location for investment funds because it has predictable legislation and a well-run banking sector. Overall, this ensures cost-efficient handling of transactions and low risk for investors. See the discussion in chapter 7 below.

4.3 Tax treaties and tax havens

An important feature of the tax havens is their use of tax treaties. A network of bilateral tax treaties between the tax havens and other countries regulates which of them should have the right to tax different tax objects. These agreements regulate, amongst other matters, which country has the right to tax capital income where the owner of an enterprise is not domiciled in the country in which the business is conducted.

4.3.1 Background

A basic characteristic of a sovereign state is its ability and right to levy taxes. 7 Without the opportunity to acquire financial resources, a state would not be able to offer collective benefits to or redistribute income between its citizens. Economic integration means that value creation occurs in part across national boundaries, and creates circumstances in which more than one country has the opportunity to tax the same tax object. In such circumstances, one needs to determine which country has the right to tax. International tax law regulates how that determination should be made. Its rules also influence the scope for effective national tax collection and the division of tax revenues between countries.

International tax law is based on international legal rules which restrict the right of states to levy taxes. The principle rule is that a relevant connection must exist between a country and a tax object if the country is to have the right to tax a person, a transaction or a property. Under international tax law, the connections which give a country the right to tax a taxpayer can be both personal and economic. Two types of personal connection are recognised as a legal basis for the right to tax. First, a country has the right to tax all its citizens regardless of where they reside and where their income is earned. Second, a country has the right to tax all persons resident within its territory even if they are not citizens. International law also permits a country to levy taxes in the absence of a personal connection if an economic connection exists through the location of either economic activity or assets. Personal connection, both citizenship and residency, creates a general tax liability, while economic connection creates a limited tax liability. In other words, a country has the right to tax the “global” income of all its citizens and everyone resident within its borders, but can only tax income earned domestically in the absence of a personal connection. The practice in most countries, including Norway but with the USA as an important exception, is to exempt citizens from tax if they are domiciled and earn their income abroad.

A number of features of international tax law are worth noting. First, the characteristics of a country – whether it is poor, for instance – or the taxpayer – such as their ability to pay – provide no legal basis for taxation. Only the existence of specific connections between the country and the taxpayer give the country the right to tax. Second, only a limited set of such connections confer the right to tax. Historical connections, such as a person’s earlier residence in or citizenship of a country, do not give that country the right to tax. Third, tax liability varies between the different forms of connection. As mentioned above, an economic connection creates a limited liability, while a personal connection creates a general one. A final important feature is that international tax law regulates the division of the right to tax between sovereign states. Other groups or entities, such as international organisations, are not given a right to tax.

The mobility of individuals, production factors and goods between different countries creates circumstances in which the same taxpayer or tax object has connections with more than one jurisdiction. Economic integration has therefore meant that conditions which can be termed double taxation have become more common. Such conditions typically cause international transactions to be taxed more than once. Double taxation worries economists and politicians because it means that income from international transactions is taxed more heavily than corresponding domestic income, which results in reduced trade and inefficient resource allocation. The most important measure for limiting double taxation is a network of bilateral tax treaties. These agreements normally build either on the domiciliary principle or on the source state principle. A tax treaty based on the first of these principles assigns the right to tax to the taxpayer’s country of domicile. The source principle, on the other hand, assigns this right to the country where the income is earned. These principles can be combined, and a particularly common way of achieving such a combination is to grant the source country a restricted right to impose a withholding tax. This divides the tax revenue between the two countries. The choice of international tax principles has different effects on the distribution of saving and investment between countries and on the cost of tax collection.

4.3.2 Dividing the tax base

An important ethical issue is how far these treaties lead to an inequitable division of the right to tax. The fundamental moral concept in international tax law is that an adequate connection must exist between a country and a tax object in order to justify taxation. However, a distinguishing feature of secrecy jurisdictions is that a minimal connection exists between the taxpayer and jurisdiction. Typically, very little of the economic activity actually takes place in the tax haven. In such circumstances, principles of fairness suggest that the right to tax should lie with the source country.

The way tax treaties assign the right to tax has little effect on the division of total tax revenues between two countries if their tax bases are fairly similar – with regard to exports and imports, for instance, or to foreign direct investment. In the case of tax treaties which regulate relations between rich and poor countries and between tax havens and other nations, however, big differences exist in tax-base composition. The choice made between source and domiciliary principles in such treaties will affect the division of tax revenues between the countries. A tax treaty based on the domiciliary principle will clearly give larger revenues to the country in which owners of capital are domiciled and companies registered than to the source country.

Many tax treaties between OECD members and developing countries have taken account of the tax division effect by giving the source country the right to impose a withholding tax up to a specified amount. This system ensures that the source country also receives a share of the tax revenues.

An unfortunate effect of tax treaties as normally formulated is that they reduce tax revenues in the country where the income is earned (the source country). At the same time, the use of secrecy rules and fictitious domiciles make the access to tax-relevant information conferred by the treaty illusory. Paradoxically, tax treaties help to make tax havens more favourable as a location than would be the case without such agreements. Nor do they affect the harmful structures in the tax havens. Accordingly, the Commission finds that tax treaties can do more harm than good unless they are followed with measures that modify the harmful structures identified by the Commission. In that connection, it is important to ensure that tax treaties do not constrain further action against tax havens.

4.4 Overall effect

The Commission cannot see that the positive effects of tax havens outlined above are in any way sufficient to compensate for the damaging impact which has been identified. In fact, the position is that the positive impact of tax havens is largely confined to these jurisdictions alone, and thus make no positive contribution in an overall perspective. The Commission’s view is, accordingly, that tax havens impose losses on other countries because they weaken the ability of tax systems to yield tax revenues and encourage transfer pricing, economic crime and income transfers in general from high-tax to low-tax countries.

The Commission does not object to countries choosing their own tax rates and is not opposed to low taxes, but would stress that competition between high-tax and low-tax countries is not conducted on equal terms. Virtually all tax havens have a dual tax system, with extremely favourable rates for foreigners and more normal rates for residents. This type of discrimination does not occur to the same extent in other countries. In addition, tax havens combine low or no tax with legal structures which prevent access to information by other countries, and which cut the link with real ownership while providing anonymity which caters to tax evasion in the country of domicile. So tax havens are not involved in competition on equal terms, but in a type of competition which is directly aimed at harming the economies of other countries. The fact that very limited real economic activity is conducted by the companies in tax havens which are offered zero or very low tax rates further supports this view. The tax havens thereby serve as pass-through locations for capital rather than as places which lay a sound basis for value creation and in which capital is genuinely invested locally.

In the following, the Commission will analyse the particularly damaging effects of the tax havens on developing countries.