There are some problems that are easy to fix, and then there’s international finance, as we discovered in the Google row earlier in the year.
The mass document leak from a Panamanian law firm is, if anything, more complex even than the question of how and where to tax the business of online multinationals. There are layers upon layers of complexity - while some of those named are accused of crimes such as doing business with terrorists or tax evasion; others are accused of activities which are legal but morally questionable (such as the practice the Government terms “aggressive tax avoidance”); others may have good reasons to use such companies (to avoid price gouging, for example) and still others named in the coverage say that the claims are untrue (as Lord Ashcroft’s spokesman has reportedly said to the New Statesman, for example).
Disputes about accuracy aside, the first issue here is that shell companies are legal – using them to commit crimes obviously isn’t, but there are a variety of legal purposes to which they can be put.
If we don’t like those activities which are currently lawful – such as tax avoidance – then Parliament could vote to ban them. Rather like the question of how to squeeze more money out of Google, though, that could have consequences for the UK if it were to provoke similar action by other nations who feel their citizens domiciled in this country are unfairly depriving their home treasuries of income. And of course tax avoidance is also a motivation which governments of all colours have actively sought to harness for their own ends – putting tax breaks on investing in green energy is a measure specifically intended to use people’s instinct for reducing their tax bill for a government-approved end, as is the Chancellor’s new Lifetime ISA, in which citizens under 40 are told that if they save for retirement or a first home then they will be rewarded by being able to avoid tax on their savings income. “Ban tax avoidance” is an attention-grabbing placard, but a nonsensical policy proposal.
The Government has of course muddied the water somewhat by coming up with the new category of “aggressive tax avoidance” to refer to that which it disapproves of but has not banned. It’s certainly true that there are some who expend a large amount of money and effort in the hope of paying less tax than their office cleaner – and the fact that these opportunities are not open to that cleaner is manifestly unfair. How, then, could we rebalance the system to end that injustice? Given that those involved are people or companies of means, we should address the question of motive and opportunity. What is the motive for seeking lower taxes elsewhere? Well, it’s that taxes here are evidently sufficiently high as to justify paying clever lawyers and accountants quite a lot of money to work out tricksy ways not to pay them. Cut taxes in the UK and those costly contortions become less attractive to pursue. As for the opportunity, politicians may fulminate against complex schemes to take advantage of loopholes, but only they created our complex tax system and only they have the power to fix it. A simpler tax system, enforcing lower tax rates, would be fairer for all involved, would drastically reduce both evasion and “aggressive avoidance” and would arguably raise more money for the Exchequer as a result.
Of course, under either scenario – a clunky attempt to ban tax avoidance or a more subtle process of simplifying and lowering taxes – the issue of the secrecy of shell companies would still be there. As I wrote above, this secrecy may serve legitimate purposes for some of their users, but for some it evidently offers an opportunity to conceal crime. In business law, as in the wider criminal law, we should be wary of arguments based on the “nothing to hide, nothing to fear” fallacy – any of our homes could conceal a crime on any given day, and yet we rightly do not think that there should be CCTV cameras in every room offering a live feed to the local police station.
But there is clearly a balance to strike on the secrecy of shell companies. To continue the analogy, hiding precisely what you do in your house is your right – even hiding that you live there in publicly accessible records is legitimate for those with sensitive jobs or concerns about a stalker – but hiding where you live from the tax man and the police would be deemed unreasonably secretive. The British authorities do have at least a qualified right to know about the assets of British citizens. The Prime Minister’s push for greater international transparency seems the right way to go – particularly when allied with leaks like this which pile the pressure of public opinion onto those involved.
Beyond that, the problem is that British law has limited reach. It’s telling that Jeremy Corbyn’s comments today focused on British territories – suggesting that even he knows he would struggle to construct a proposal which could extend to every nation on earth. But even his limited demand, that we enforce “direct rule” over British dependencies and overseas territories, is itself a deeply flawed idea. How exactly does he suggest we do so; with gunboat imperialism of the type he has spent his whole life denouncing? The outcome would, rather obviously, be that the places in question would declare their independence – some because the shady world of offshore finances props up their whole economy, some because they would understandably have little faith in a Corbyn government to uphold their interests (let’s not forget that the Falklands is one such territory) and others because they might believe in that quaint concept of self-determining democracy. The result would be no change in the shell company industry whatsoever.
When faced with difficult problems and unsavoury activities, we like to see a swift and certain solution. The aggravating news on this front is that there doesn’t seem to be one – if there were a quick and easy way for Exchequers the world over to get their hands on more money, you can be sure they’d have tried it by now. Transparency, co-operation and whistleblowing can make headway given time (as it has in the cases of Luxembourg and Switzerland, for example) and the only serious way we can hasten the process on at home is by changing our own tax system to make the whole wheeze less tempting in the first place.