Thus, France and Germany support tax harmonization19. Apparently, the rules of corporate tax and VAT play their role here. With new country members, joining EU, for instance, Baltic countries, the discussions on tax harmonization has been re newed. The problem is that in the majority of Central and Eastern Europe, including Baltic countries, basic tax rates are much lower than in EU. One of proposed meas ures to eliminate this gap is an introduction of minim rate for corporate tax20. Cur rently a minimum threshold for VAT (15 per cent) is applied in all EU country members21.
Irrespective of tax incentives, there are other reasons for capital outflow, but there is no doubt that this is a serious problem for many countries. The major part http://ec.europa.eu/taxation_customs/taxation/gen_info/economic_analysis/tax_structures/ index_ en.htm.
RUSSIAN ECONOMY IN trends and outlooks of capital, illegally transferred outside the country, is allocated in "tax havens", i.e., in jurisdictions, where tax rates are low and there are laws on banking and other in formation privacy, which allow to conceal the name of the investor of the assets from the authorities of his native country.
In fact, investment of assets outside the country can not be regarded as tax evasion, but it can indicate that similar actions took place in the past and will hap pen in future. In this way a taxpayer might be making an attempt to conceal his in come, not filed with domestic tax authorities. Probably, it would be enough to intro duce legislation provisions on economic and money laundering control to ensure exchange of necessary information for disclosure of potential tax evasion.
In case the assets are deposited on an anonymous bank account, and income is not filed for the purpose of income tax, this is the case of concealment of taxable income, i.e., an abuse of tax legislation. In such a case the major task of tax au thorities in the country of investor’s residence is to disclose the incompliant tax payer and apply measures of tax administration. In other cases, when the assets are invested in the company, registered in a tax haven exclusively for capital export to avoid taxation in the country of investor’s residence, rather than for some com mercial activities, an explicit tax evasion in terms of relevant legislation takes place.
The country of residence of the investor needs to have sufficient legal grounds both, for obtaining the information on such offshore companies and for further en forced taxation of non filed assets.
An investor, who has allocated his assets in a tax haven, can later bring them back to the country for other investment purposes. Whereas a trend of the capital inflow looks positive, those assets come back under a false pretence, for the pur pose to obtain unjustified tax benefits. The fact of ownership of such assets is usu ally not identified, as they are acquired in «tax havens». There will be high chances for further outflow of those assets, while their mobility is kept up.
The majority of countries use tax measures alongside with other means of combating capital outflow, negatively affecting domestic tax base. Moreover, they apply legal provisions for retroactive assessment of tax liabilities to be filed in the country, from where the capital was taken out, with due regard to the dividends, gained on that capital. Among other measures, international cooperation is en couraged, addressed to combating harmful tax competition in «tax havens», which are attracting capital inflow from other countries. Problems, related to capital out flow to those «tax havens», give a drive to active development of international co operation and information exchange network.
Trends of harmonization of tax legislation, combating harmful tax competition and capital outflow are developed in Europe in two ways: firstly, it is harmonization of tax legislation (rates, tax base assessment); and secondly, enhancement of in tergovernmental information exchange on taxpayers.
OECD and EU researches, made in regard to harmful tax competition, have revealed: despite an absence of official legal definition of tax competition, it is clear, that this term is understood as “competition of different jurisdictions for tax Annexs able resources, where favorable taxation regimes are applied for their attraction to a certain country”22.
Tax competition can take various forms: it can apply tax and non tax instru ments, it can be open and concealed, fair and harmful, there can be competition in terms of mobile and fixed taxable assets. A number of independent experts con sider that in fact, tax competition arises under the impact of tax system reforms for the purpose of taxpayers’ attraction, investment in extra jobs, encouragement and support of economic growth23. There is no doubt that those incentives are well justi fied, and creation of preferential regimes and/or offshore zones in some countries is caused by the lack of sufficient resources to achieve the aims by other means.
Understanding of those motives makes OECD and EU, the most active supporters of tax harmonization and transparency (through information exchange), to soften their approach to the problem. Thus, OECD, having set forth a number of strict cri teria of “tax haven” definition in the initial report, has later dismissed one of them, i.e. a criterion of the “lack of active business of a company in the country of regis tration”. Moreover, “application of zero rate or minimal tax rate is admissible, in case the jurisdiction is participating in information exchange with other jurisdictions (rather than offshore)”24. OECD criteria include the lack of effective information ex change, insufficient transparency, manipulation with tax regimes for the purpose of risk minimization.
EU takes a similar position. Thus, according to EU Guidelines as of 2004, some country members (Austria, Belgium, Luxemburg) should either participate in the information exchange, or withhold tax at source of income on the added inter est at the rate of 15 per cent from 2004, 20 per cent from 2007, 35 per cent from 2010. Herewith, a part of tax proceeds should be transferred to the country of in vestor’s residence (75/25)25.
Basing on the research results, OECD has proposed to its country members nineteen recommendations aimed at prevention of the effect of harmful tax compe tition:
1) recommendations in regard to national legislations of OECD country members (advice on introduction in OECD country members tax legislations such provisions, which would eliminate offshore benefits to controlled foreign compa nies, ensure an access of tax authorities to bank information, introduce an obliga “Harmful Tax Competition, An Emerging Global Issue”, OECD report, 1998, http://www.oecd.org/dataoecd/33/1/1904184.pdf.
Wilson J. D., Wildasin D. E. Tax Competition: Bane or Boon (Materials from the Scientific Confer ence “World Tax Competition” of 24–25 May 2001). – London: Office of Tax Policy Research / IFS. P.
2–3; Goodspeed T. J. Tax Competition, Benefit Taxes, and Fiscal Federalism // National Tax Jour nal, vol. 51, no. 3 (Sep. 1998). P. 582; Thomas F. Field. Tax Competition in Europe and America. // State Tax Notes. (31.03.03). PP. 1211–1216.
Part IV. Framework of co coordinated defensive measures.
RUSSIAN ECONOMY IN trends and outlooks tion of filing in the country of residence all revenues, obtained outside the country, etc);
2) agreements between the states on provision of assistance in tax issues (in formation exchange, cooperation of tax bodies, regulations, excluding usage of contracts with offshore companies, rejection to sign contracts with «tax havens», etc.);
3) recommendation on international cooperation: organization of a Global Fo rum, working on regular basis26 on the issues of harmful tax competition for the purpose to implement recommendations on development of OECD country members, formation of official list of “«tax havens»”, influence over the «tax havens» through the countries, which have close relations with them, development of prin ciples of proper tax administration, cooperation with countries, which do not be long to OECD members, etc.27.
The final objective, declared at every meeting of Global Forum and in all initia tives of OECD, is formation of the tax systems, which would make the usage of off shore zones unprofitable and infeasible28.
In the framework of OECD project, aimed at combating harmful tax competi tion, the situation in the countries, regarded as «tax havens», or those ones with preferential tax regimes, is under review on permanent basis. The list of countries, which belong to the above categories, is variable. It should be noted, that Russia, initially entered in OECD “black list” due to its insufficient transparency, was later excluded from that list, when Russia has obtained the status of the Observer (in 2002) in the International Group for Financial Measures for Combating Money Laundering (FMCML), and later on became a member of that Group. Together with verification against criteria of compliance, as a rule, OECD also determines the reason to regard a country as the one of preferential tax regime or “tax haven”, etc.There is much in common about the conclusions, made by OECD and EU:
- Preferential tax regimes negatively affect tax bases of other countries;
- Tax regimes should not be the key factor in taxpayer’s decision on capital mi gration;
- It is necessary to abandon an approach of dual criminality (when legal actions are taken against a suspect in accordance with the laws of the country, where he is staying, rather than the country, which brings a claim against him).
Russia is planning to create its own “black list” of “tax havens” countries. Ap parently, it would be reasonable to take as an example the existing OECD black list to coordinate the RF measures with international efforts in this regard. At the same time, it should be mentioned that OECD list is rather short; for instance, it does not http://www.oecd.org/dataoecd/41/49/36031490.pdf.
This is confirmed by the results of the recent conference in Seoul in September, 2006:
The OECD’ project on Harmful Tax Practices: 2006 update on progress in member countries.
Annexs include Cyprus. The list for the purpose of taxation in Russia should be adapted to the national requirements and specifics of tax evasion in Russia.
The majority of countries make use of a complete system to detect “tax ha vens” for the purposes of their national taxation, rather than one list of “tax haven” countries. For instance, in Brasilia there is a list of all countries with favorable tax regimes, without any criteria or terms of taxation, effective in those tax regimes.
Some countries support the idea that the “black list” can aggravate interna tional relations. For that reason Great Britain preferred an absolutely opposite ap proach, having compiled a “white list” (a list of “compliant” countries)30. Moreover, that list is split into two parts. In the first part “absolutely compliant” countries are enlisted, in the second part – “compliant in general” countries are found (which have some disputable legal provisions). There are “white lists” in Germany, Canada and Switzerland as well31..
In Italy there exist several “black lists” (two of them for corporate companies and one for individual entrepreneurs) and one “white list”. Such a variety is ex plained by the fact that different lists are used for different rules against tax eva sion32.
In some countries the category “tax haven” is defined by criteria of income tax threshold. If a country applies the rate lower than the established threshold, it should be regarded as ”tax haven” Such system is in effect in Hungary (threshold rate is 10 per cent). In Brasilia the threshold is established at the rate of 20per cent (in addition to above mentioned “black list”)33.
Such countries as Korea and Japan take into regard for that purpose effective income tax burden throughout the country. In Korea, in case the tax burden of a foreign legal entity in some country makes less than 15 per cent, the country is considered a “tax haven”. In Japan that threshold makes 25per cent34.
In France a company is considered a subject of low tax jurisdiction, in case its tax liabilities are less than 2/3 of taxes, if they were paid in France. A similar scheme is applied in Finland (less than 60 per cent of tax burden payable in Finland) and Great Britain (less than 75per cent)35.
Some countries, like France, for instance, demand from taxpayers, claiming for deduction from their tax base the amount, prepaid to some entities in jurisdic tions with low tax rates, supplementary documents to justify the deduction. In com pliance with Article 238A of the Tax Code of France, French company, claiming for deduction from the tax base the amount, prepaid to foreign company – a subject of favorable tax regime, should confirm that: (à) prepaid amounts match the actual contract value; (b) amounts, prepaid under those contracts, are in line with general standards of business practice.