Corporate haven
Low "effective" tax rates for foreign corporations / From Wikipedia, the free encyclopedia
Dear Wikiwand AI, let's keep it short by simply answering these key questions:
Can you list the top facts and stats about Corporate haven?
Summarize this article for a 10 year old
Corporate haven, corporate tax haven, or multinational tax haven is used to describe a jurisdiction that multinational corporations find attractive for establishing subsidiaries or incorporation of regional or main company headquarters, mostly due to favourable tax regimes (not just the headline tax rate), and/or favourable secrecy laws (such as the avoidance of regulations or disclosure of tax schemes), and/or favourable regulatory regimes (such as weak data-protection or employment laws).
Unlike traditional tax havens, modern corporate tax havens reject they have anything to do with near-zero effective tax rates, due to their need to encourage jurisdictions to enter into bilateral tax treaties which accept the haven's base erosion and profit shifting (BEPS) tools. CORPNET show each corporate tax haven is strongly connected with specific traditional tax havens (via additional BEPS tool "backdoors" like the double Irish, the dutch sandwich, and single malt). Corporate tax havens promote themselves as "knowledge economies", and IP as a "new economy" asset, rather than a tax management tool, which is encoded into their statute books as their primary BEPS tool. This perceived respectability encourages corporates to use these IFCs as regional headquarters (i.e. Google, Apple, and Facebook use Ireland in EMEA over Luxembourg, and Singapore in APAC over Hong Kong/Taiwan).
While the "headline" corporate tax rate in jurisdictions most often implicated in BEPS is always above zero (e.g. Netherlands at 25%, U.K. at 19%, Singapore at 17%, and Ireland at 12.5%), the "effective" tax rate (ETR) of multinational corporations, net of the BEPS tools, is closer to zero. To increase respectability, and access to tax treaties, some jurisdictions like Singapore and Ireland require corporates to have a "substantive presence", equating to an "employment tax" of approximately 2–3% of profits shielded and if these are real jobs, the tax is mitigated.
In corporate tax haven lists, CORPNET's "Orbis connections", ranks the Netherlands, U.K., Switzerland, Ireland, and Singapore as the world's key corporate tax havens, while Zucman's "quantum of funds" ranks Ireland as the largest global corporate tax haven. In proxy tests, Ireland is the largest recipient of U.S. tax inversions (the U.K. is third, the Netherlands is fifth). Ireland's double Irish BEPS tool is credited with the largest build-up of untaxed corporate offshore cash in history. Luxembourg and Hong Kong and the Caribbean "triad" (BVI-Cayman-Bermuda), have elements of corporate tax havens, but also of traditional tax havens.
Economic Substance legislation introduced in recent years has identified that BEPS is not a material part of the financial services business for Cayman, BVI and Bermuda. While the legislation was originally resisted on extraterritoriality, human rights, privacy, international justice, jurisprudence and colonialism grounds, the introduction of these regulations have had the effect of putting these jurisdictions far ahead of onshore regulatory regimes.
Modern corporate tax havens, such as Ireland, Singapore, the Netherlands and the U.K., are different from traditional "offshore" financial centres like Bermuda, the Cayman Islands or Jersey.[1][2] Corporate havens offer the ability to reroute untaxed profits from higher-tax jurisdictions back to the haven;[3][4] as long as these jurisdictions have bi-lateral tax treaties with the corporate haven.[5] This makes modern corporate tax havens more potent than more traditional tax havens, who have more limited tax treaties, due to their acknowledged status.[6]
The Cayman Islands, BVI, Bermuda, Jersey and Guernsey are more properly now known as IFCs or OFCs.
Tools
Tax academics identify that extracting untaxed profits from higher-tax jurisdictions requires several components:[7][8]
- § IP-based BEPS tools, which enable the profits to be extracted via the cross-border charge-out of group IP (known as "intergroup IP charging"); and/or
- § Debt-based BEPS tools, which enable the profits to be extracted via the cross-border charge-out artificially high interest (known as "earnings stripping"); and/or
- § TP-based BEPS tools, which enable profits to be extracted by claiming that a process performed on the product in the jurisdiction justifies a large increase in the transfer price ("TP") at which the finished product is charged-out at, in the jurisdiction, to higher-tax jurisdictions (known as contract manufacturing); and
- Bilateral tax treaties with the corporate tax haven, which accept these BEPS tools as deductible against tax in the higher-tax jurisdictions.
Once the untaxed funds are rerouted back to the corporate tax haven, additional BEPS tools shield against paying taxes in the haven. It is important these BEPS tools are complex and obtuse so that the higher-tax jurisdictions do not feel the corporate haven is a traditional tax haven (or they will suspend the bilateral tax treaties). These complex BEPS tools often have interesting labels:[8][9]
- Royalty payment BEPS tools to reroute the funds to a low tax jurisdiction (i.e. double Irish and single malt in Ireland or dutch sandwich in the Netherlands); or
- Capital allowance BEPS tools that allow IP assets to be written off against taxes in the jurisdiction (i.e. Apple's 2015 capital allowances for intangibles tool in leprechaun economics); or
- Lower IP-sourced income tax regimes, offering explicitly lower ETRs against charging out of cross-border group IP (i.e. the U.K. patent box, or the Irish knowledge box); or
- Beneficial treatment of interest income (from § Debt-based BEPS tools), enabling it to be treated as non-taxable (i.e. the Dutch "double dipping" interest regime[10]); or
- Restructuring the income into a securitisation vehicle (by owning the IP, or other asset, with debt), and then "washing" the debt by "back-to-backing" with a Eurobond (i.e. Orphaned Super-QIAIF).
Execution
Building the tools requires advanced legal and accounting skills that can create the BEPS tools in a manner that is acceptable to major global jurisdictions and that can be encoded into bilateral tax-treaties, and do not look like "tax haven" type activity. Most modern corporate tax havens therefore come from established financial centres where advanced skills are in-situ for financial structuring.[11][12] In addition to being able to create the tools, the haven needs the respectability to use them. Large high-tax jurisdictions like Germany do not accept IP–based BEPS tools from Bermuda but do from Ireland. Similarly, Australia accepts limited IP–based BEPS tools from Hong Kong but accepts the full range from Singapore.[13]
Tax academics identify a number of elements corporate havens employ in supporting respectability:[14]
- Non-zero headline tax rates. While corporate tax havens have ETRs of close to zero, they all maintain non-zero "headline" tax rates. Many of the corporate tax havens have accounting studies to prove that their "effective" tax rates are similar to their "headline" tax rates,[15] but this is because they are net of the § IP-based BEPS tools which consider much of the income exempt from tax;
Make no mistake: the headline rate is not what triggers tax evasion and aggressive tax planning. That comes from schemes that facilitate [base erosion and] profit shifting [or BEPS].
- OECD compliance and endorsement. Most corporate tax structures in modern corporate tax havens are OECD–whitelisted.[17] The OECD has been a long-term supporter of IP–based BEPS tools and cross-border intergroup IP charging. All the corporate tax havens signed the 2017 OECD MLI and marketed their compliance, however, they all opted out of the key article 12 section;[18][9]
Under BEPS, new requirements for country-by-country reporting of tax and profits and other initiatives will give this further impetus, and mean even more foreign investment in Ireland.
— Fordham Intellectual Property, Media & Entertainment Law Journal, "IP and Tax Avoidance in Ireland", 30 August 2016[19] - § Employment tax strategies. Leading corporate tax havens distance themselves from zero tax jurisdictions by requiring corporates to establish a "presence of substance" in their jurisdiction. This equates to an effective "employment tax" of circa 2–3% but it gives the corporate, and the jurisdiction, defense against accusations as being a tax haven, and is supported in OCED MLI Article 5.
If [the OECD] BEPS [Project] sees itself to a conclusion, it will be good for Ireland.
- Data protection laws. To maintain OECD–whitelist status, corporate tax havens cannot use the secrecy legislation. Activists assert that companies keep the "effective" tax rates of corporations hidden with data protection and privacy laws which prevent the public filing of accounts and also limit the sharing of data across State departments (see here for examples), however most of the situation that have reached the media have been based on information published by the subject companies.
Local subsidiaries of multinationals must always be required to file their accounts on public record, which is not the case at present. Ireland is not just a tax haven at present, it is also a corporate secrecy jurisdiction.
— Richard Murphy, co-founder of the Tax Justice Network and the Financial Secrecy Index, June 2018.[21]
Misnomer
Whereas jurisdictions traditionally labelled as tax havens, often having marketed themselves as such, modern Offshore Financial Centres robustly refute the tax haven label.[22][23][24] This is to ensure that other higher-tax jurisdictions, from which the corporate's main income and profits often derive, will sign bilateral tax-treaties with the haven,[25] and also to avoid being black-listed.[26][27][28]
This issue has caused debate on what constitutes a tax haven,[29] with the OECD most focused on transparency (the key issue of traditional tax havens),[17][30][31] but others focused on outcomes such as total effective corporate taxes paid.[32][33][34][35] It is common to see the media, and elected representatives, of a modern corporate tax haven ask the question, "Are we a tax haven ?"[36][37][38][39]
For example, when it was shown in 2014, prompted by an October 2013 Bloomberg piece,[3][14] that the effective tax rate of U.S. multinationals in Ireland was 2.2% (using the U.S. Bureau of Economic Analysis method),[40][41][42][4] it led to denials by the Irish Government[43][44] and the production of studies claiming Ireland's effective tax rate was 12.5%.[15] However, when the EU fined Apple in 2016, Ireland's largest company,[45] €13 billion in Irish back taxes (the largest tax fine in corporate history[46]), the EU stated that Apple's effective tax rate in Ireland was approximately 0.005% for the 2004-2014 period. The EU's position was found, on appeal in the EU's court, to be unsupported by the facts. However, the G7 leaders in the wake of reporting about a Microsoft subsidiary's level of taxation in 2020, have proposed an agreement on a global minimum corporate tax rate of 15%.
Applying a 12.5% rate in a tax code that shields most corporate profits from taxation, is indistinguishable from applying a near 0% rate in a normal tax code.
Activists in the Tax Justice Network propose that Ireland's effective corporate tax rate was not 12.5%, but closer to the BEA calculation. Studies cited by The Irish Times and other outlets suggest that the effective tax rate is close to the headline 12.5 percent rate – but this is a theoretical result based on a theoretical "standard firm with 60 employees" and no exports: in reality, multinational businesses and their corporate structures vary significantly. It is not just Ireland, however. The same BEA calculation showed that the ETRs of U.S. corporates in other jurisdictions was also very low: Luxembourg (2.4%), the Netherlands (3.4%) and the US for multinationals based in other parts of the World.[4] When Gabriel Zucman, published a multi-year investigation into corporate tax havens in June 2018, showing that Ireland is the largest global corporate tax haven (having allegedly shielded $106 billion in profits in 2015), and that Ireland's effective tax rate was 4% (including all non-Irish corporates),[47] the Irish Government countered that they could not be a tax haven as they are OECD-compliant.[17]
There is a broad consensus that Ireland must defend its 12.5 per cent corporate tax rate. But that rate is defensible only if it is real. The great risk to Ireland is that we are trying to defend the indefensible. It is morally, politically and economically wrong for Ireland to allow vastly wealthy corporations to escape the basic duty of paying tax. If we don't recognise that now, we will soon find that a key plank of Irish policy has become untenable.
Financial impact
It is difficult to calculate the financial effect of tax havens in general due to the obfuscation of financial data. Most estimates have wide ranges (see financial effect of tax havens). By focusing on "headline" vs. "effective" corporate tax rates, researchers have been able to more accurately estimate the annual financial tax losses (or "profits shifted"), due to corporate tax havens specifically. This is not easy, however. As discussed above, havens are sensitive to discussions on "effective" corporate tax rates and obfuscate data that does not show the "headline" tax rate mirroring the "effective" tax rate.
Two academic groups have estimated the "effective" tax rates of corporate tax havens using very different approaches:
- 2014 Bureau of Economic Analysis (or BEA) calculation applied to get the "effective" tax rates of U.S. corporates in the haven (per above § Denial of status);[4] and
- 2018 Gabriel Zucman "The Missing Profits of Nations" analysis which uses national accounts data to estimate effective tax rates of all non-domestic corporates in the haven.[47]
They are summarised in the following table (BVI and the Caymans counted as one), as listed in Zucman's analysis (from Appendix, table 2).[47]
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Zucman used this analysis to estimate that the annual financial impact of corporate tax havens was $250 billion in 2015.[49] This is beyond the upper limit of the OECD's 2017 range of $100–200 billion per annum for base erosion and profit shifting activities.[50] These are the most credible [citation needed] and widely quoted sources of the financial impact of corporate tax havens.
The World Bank, in its 2019 World Development Report on the future of work suggests[51] that tax avoidance by large corporations limits the ability of governments to make vital human capital investments.
Conduits and Sinks
Modern corporate tax havens like Ireland, the United Kingdom and the Netherlands have become more popular for U.S. corporate tax inversions than leading traditional tax havens, even Bermuda.[52]
However, corporate tax havens still retain close connections with traditional tax havens as there are instances where a corporation cannot "retain" the untaxed funds in the corporate tax haven, and will instead use the corporate tax haven like a "conduit", to route the funds to more explicitly zero-tax, and more secretive traditional tax havens. Google does this with the Netherlands to route EU funds untaxed to Bermuda (i.e. dutch sandwich to avoid EU withholding taxes),[53][54] and Russian banks do this with Ireland to avoid international sanctions and access capital markets (i.e. Irish Section 110 SPVs).[55][56]
A study published in Nature in 2017 (see Conduit and Sink OFCs), highlighted an emerging gap between corporation tax haven specialists (called Conduit OFCs), and more traditional tax havens (called Sink OFCs). It also highlighted that each Conduit OFC was highly connected to specific Sink OFC(s). For example, Conduit OFC Switzerland was highly tied to Sink OFC Jersey. Conduit OFC Ireland was tied to Sink OFC Luxembourg,[57] while Conduit OFC Singapore was connected to Sink OFCs Taiwan and Hong Kong (the study clarified that Luxembourg and Hong Kong were more like traditional tax havens).
The separation of tax havens into Conduit OFCs and Sink OFCs, enables the corporate tax haven specialist to promote "respectability" and maintain OECD-compliance (critical to extracting untaxed profits from higher-taxed jurisdictions via cross-border intergroup IP charging), while enabling the corporate to still access the benefits of a full tax haven (via double Irish, dutch sandwich type BEPS tools), as needed.
We increasingly find offshore magic circle law firms, such as Maples and Calder and Appleby,[58] setting up offices in major Conduit OFCs, such as Ireland.[59][60][61]
A key architect [for Apple] was Baker McKenzie, a huge law firm based in Chicago. The firm has a reputation for devising creative offshore structures for multinationals and defending them to tax regulators. It has also fought international proposals for tax avoidance crackdowns. Baker McKenzie wanted to use a local Appleby office to maintain an offshore arrangement for Apple. For Appleby, Mr. Adderley said, this assignment was "a tremendous opportunity for us to shine on a global basis with Baker McKenzie."
— The New York Times, "After a Tax Crackdown, Apple Found a New Shelter for Its Profits", 6 November 2017[62]
Employment tax
Several modern corporate tax havens, such as Singapore and the United Kingdom, ask that in return for corporates using their IP-based BEPS tools, they must perform "work" on the IP in the jurisdiction of the haven. The corporation thus pays an effective "employment tax" of circa 2–3% by having to hire staff in the corporate tax haven.[63] This gives the haven more respectability (i.e. not a "brass plate" location), and gives the corporate additional "substance" against challenges by taxing authorities. The OECD's Article 5 of the MLI supports havens with "employment taxes" at the expense of traditional tax havens.
Mr. Chris Woo, tax leader at PwC Singapore, is adamant the Republic is not a tax haven. "Singapore has always had clear law and regulations on taxation. Our incentive regimes are substance-based and require substantial economic commitment. For example, types of business activity undertaken, level of headcount and commitment to spending in Singapore", he said.
Irish IP-based BEPS tools (e.g. the "capital allowances for intangible assets" BEPS scheme), have the need to perform a "relevant trade" and "relevant activities" on Irish-based IP, encoded in their legislation, which requires specified employment levels and salary levels (discussed here), which roughly equates to an "employment tax" of circa 2–3% of profits (based on Apple and Google in Ireland).[64][65]
For example, Apple employs 6,000 people in Ireland, mostly in the Apple Hollyhill Cork plant. The Cork plant is Apple's only self-operated manufacturing plant in the world (i.e. Apple almost always contracts to 3rd party manufacturers). It is considered a low-technology facility, building iMacs to order by hand, and in this regard is more akin to a global logistics hub for Apple (albeit located on the "island" of Ireland). No research is carried out in the facility.[66] Unusually for a plant, over 700 of the 6,000 employees work from home (the largest remote percentage of any Irish technology company).[67][68]
When the EU Commission completed their State aid investigation into Apple, they found Apple Ireland's ETR for 2004–2014, was 0.005%, on over €100bn of globally sourced, and untaxed, profits.[69] The "employment tax" is, therefore, a modest price to pay for achieving very low taxes on global profits, and it can be mitigated to the extent that the job functions are real and would be needed regardless.[70]
"Employment taxes" are considered a distinction between modern corporate tax havens, and near-corporate tax havens, like Luxembourg and Hong Kong (who are classed as Sink OFCs). The Netherlands has been introducing new "employment tax" type regulations, to ensure it is seen as a modern corporate tax haven (more like Ireland, Singapore, and the U.K.), than a traditional tax haven (e.g. Hong Kong).[71]
The Netherlands is fighting back against its reputation as a tax haven with reforms to make it more difficult for companies to set up without a real business presence. Menno Snel, the Dutch secretary of state for finance, told parliament last week that his government was determined to "overturn the Netherlands' image as a country that makes it easy for multinationals to avoid taxation".
U.K. transformation
The United Kingdom was traditionally a "donor" to corporate tax havens (e.g. the last one being Shire plc's tax inversion to Ireland in 2008[72]). However, the speed at which the U.K. changed to becoming one of the leading modern corporate tax havens (at least up until pre-Brexit), makes it an interesting case (it still does not appear on all § Corporate tax haven lists).
The U.K. changed its tax regime in 2009–2013. It lowered its corporate tax rate to 19%, brought in new IP-based BEPS tools, and moved to a territorial tax system.[73] The U.K. became a "recipient" of U.S. corporate tax inversions,[52] and ranked as one of Europe's leading havens.[74] A major study now ranks the U.K. as the second largest global Conduit OFC (a corporate haven proxy). The U.K. was particularly fortunate as 18 of the 24 jurisdictions that are identified as Sink OFCs, the traditional tax havens, are current or past dependencies of the U.K. (and embedded into U.K. tax and legal statute books).[75]
New IP legislation was encoded into the U.K. statute books and the concept of IP significantly broadened in U.K. law.[76] The U.K.'s Patent Office was overhauled and renamed the Intellectual Property Office. A new U.K. Minister for Intellectual Property was announced with the 2014 Intellectual Property Act.[77] The U.K. is now 2nd in the 2018 Global IP Index.[78]
A growing array of tax benefits have made London the city of choice for big firms to put everything from "letterbox" subsidiaries to full-blown headquarters. A loose regime for "controlled foreign corporations" makes it easy for British-registered businesses to park profits offshore. Tax breaks on income from patents [IP] are more generous than almost anywhere else. Britain has more tax treaties than any of the three countries [Netherlands, Luxembourg, and Ireland] on the naughty step—and an ever-falling corporate-tax rate. In many ways, Britain is leading the race to the bottom.
The U.K.'s successful transformation from "donor" to corporate tax havens, to a major global corporate tax haven in its own right, was quoted as a blueprint for type of changes that the U.S. needed to make in the Tax Cuts and Jobs Act of 2017 tax reforms (e.g. territorial system, lower headline rate, beneficial IP-rate).[79][73][80]
Distorted GDP/GNP
Some leading modern corporate tax havens are synonymous with offshore financial centres (or OFCs), as the scale of the multinational flows rivals their own domestic economies (the IMF's sign of an OFC[83]). The American Chamber of Commerce Ireland estimated that the value of U.S. investment in Ireland was €334bn, exceeding Irish GDP (€291bn in 2016).[84] An extreme example was Apple's "onshoring" of circa $300 billion in intellectual property to Ireland, creating the leprechaun economics affair.[85] However Luxembourg's GNI is only 70% of GDP.[86] The distortion of Ireland's economic data from corporates using Irish IP-based BEPS tools (especially the capital allowances for intangible assets tool), is so great, that it distorts EU-28 aggregate data.[87]
A stunning $12 trillion—almost 40 percent of all foreign direct investment positions globally—is completely artificial: it consists of financial investment passing through empty corporate shells with no real activity. These investments in empty corporate shells almost always pass through well-known tax havens. The eight major pass-through economies—the Netherlands, Luxembourg, Hong Kong SAR, the British Virgin Islands, Bermuda, the Cayman Islands, Ireland, and Singapore—host more than 85 percent of the world's investment in special purpose entities, which are often set up for tax reasons.
This distortion means that all corporate tax havens, and particularly smaller ones like Ireland, Singapore, Luxembourg and Hong Kong, rank at the top in global GDP-per-capita league tables. In fact, not being a county with oil & gas resources and still ranking in the top 10 of world GDP-per-capita league tables, is considered a strong proxy sign of a corporate (or traditional) tax haven.[89][90][91] GDP-per-capita tables with identification of haven types are here § GDP-per-capita tax haven proxy.
Ireland's distorted economic statistics, post leprechaun economics and the introduction of modified GNI, is captured on page 34 of the OECD 2018 Ireland survey:[92]
- On a Gross Public Debt-to-GDP basis, Ireland's 2015 figure at 78.8% is not of concern;
- On a Gross Public Debt-to-GNI* basis, Ireland's 2015 figure at 116.5% is more serious, but not alarming;
- On a Gross Public Debt Per Capita basis, Ireland's 2015 figure at over $62,686 per capita, exceeds every other OECD country, except Japan.[93]
This distortion leads to exaggerated credit cycles. The artificial/distorted "headline" GDP growth increases optimism and borrowing in the haven, which is financed by global capital markets (who are misled by the artificial/distorted "headline" GDP figures and misprice the capital provided). The resulting bubble in asset/property prices from the build-up in credit can unwind quickly if global capital markets withdraw the supply of capital.[90] Extreme credit cycles have been seen in several of the corporate tax havens (i.e. Ireland in 2009-2012 is an example).[94] Traditional tax havens like Jersey have also experienced this.[95]
The statistical distortions created by the impact on the Irish National Accounts of the global assets and activities of a handful of large multinational corporations [during leprechaun economics] have now become so large as to make a mockery of conventional uses of Irish GDP.
Raw materials of tax avoidance
Whereas traditional corporate tax havens facilitated avoiding domestic taxes (e.g. U.S. corporate tax inversion), modern corporate tax havens provide base erosion and profit shifting (or BEPS) tools,[8] which facilitate avoiding taxes in all global jurisdictions in which the corporation operates.[97] This is as long as the corporate tax haven has tax-treaties with the jurisdictions that accept "royalty payment" schemes (i.e. how the IP is charged out), as a deduction against tax.[3] A crude indicator of a corporate tax haven is the amount of full bilateral tax treaties that it has signed. The U.K. is the leader with over 122, followed by the Netherlands with over 100.[98][7][99]
BEPS tools abuse intellectual property (or IP), GAAP accounting techniques, to create artificial internal intangible assets, which facilitate BEPS actions, via:[8][9]
- Royalty payment schemes, used to route untaxed funds to the haven, by charging-out the IP as a tax-deductible expense to the higher-tax jurisdictions; and/or
- Capital allowance for intangible assets schemes, used to avoid corporate taxes within the haven, by allowing corporates write-off their IP against tax.
IP is described as the "raw material" of tax planning.[19][100][101] Modern corporate tax havens have IP-based BEPS tools,[102][103] and are in all their bilateral tax-treaties.[104] IP is a powerful tax management and BEPS tool, with almost no other equal, for four reasons:[8][97]
- Hard to value. IP made in a U.S. R&D laboratory, can be sold to the group's Caribbean subsidiary for a small sum (and a tiny U.S. taxable gain is realised), but then repackaged and revalued upwards by billions after an expensive valuation audit by a major accounting firm (from a corporate tax haven);[105]
- Perpetually replenishable. The firms that have IP (i.e. Google, Apple, Facebook), have "product cycles" where new versions/new ideas emerge. This product cycle thus creates new IP which can replace older IP that has been used up and/or written-off against taxes;[106]
- Very mobile. Because IP is a virtual asset which only exists in contracts (i.e. on paper), it is easy to move/relocate around the world; it can be restructured into vehicles that provide secrecy and confidentiality around the scale, ownership, and location, of the IP;[107]
- Accepted as an intergroup charge. Many jurisdictions accept IP royalty payments as a deductible against tax, even intergroup charges; Google Germany is unprofitable because of intergroup IP royalties it pays Google Bermuda (via Google Ireland), which is profitable.[108]
When corporate tax havens quote "effective rates of tax", they exclude large amounts of income not considered taxable due to the IP-based tools. Thus, in a self-fulfilling manner, their "effective" tax rates equal their "headline" tax rates. As discussed earlier (§ Denials of status), Ireland claims an "effective" tax rate of circa 12.5%, while the IP-based BEPS tools used by Ireland's largest companies, mostly U.S. multinationals, are marketed with effective tax rates of <0-3%.[109][110] These 0-3% rates have been verified in the EU Commission's investigation of Apple (see above), and other sources.[111][112][53][54][113]
It is hard to imagine any business, under the current [Irish] IP regime, which could not generate substantial intangible assets under Irish GAAP that would be eligible for relief under [the Irish] capital allowances [for intangible assets scheme]. ... This puts the attractive 2.5% Irish IP-tax rate within reach of almost any global business that relocates to Ireland.
Encoding IP–based BEPS tools
The creation of IP-based BEPS tools requires advanced legal and tax structuring capabilities, as well as a regulatory regime willing to carefully encode the complex legislation into the jurisdiction's statute books (note that BEPS tools bring increased risks of tax abuse by the domestic tax base in corporate tax haven's own jurisdiction, see § Irish Section 110 SPV for an example).[115][1][11] Modern corporate tax havens, therefore, tend to have large global legal and accounting professional service firms in-situ (many classical tax havens lack this) who work with the government to build the legislation.[74] In this regard, havens are accused of being captured states by their professional services firms.[116][117][107][9] The close relationship between Ireland's International Financial Services Centre professional service firms and the State in Ireland, is often described as the "green jersey agenda". The speed at which Ireland was able to replace its double Irish IP-based BEPS tool, is a noted example.[118][119][120]
It was interesting that when [Member of European Parliament, MEP] Matt Carthy put that to the [Finance] Minister's predecessor (Michael Noonan), his response was that this was very unpatriotic and he should wear the "green jersey". That was the former Minister's response to the fact there is a major loophole, whether intentional or unintentional, in our tax code that has allowed large companies to continue to use the double Irish [the "single malt"].
It is considered that this type of legal and tax work is beyond the normal trust-structuring of offshore magic circle-type firms.[58] This is substantive and complex legislation that needs to integrate with tax treaties that involve G20 jurisdictions, as well as advanced accounting concepts that will meet U.S. GAAP, SEC and IRS regulations (U.S. multinationals are leading users of IP-based BEPS tools).[122][76] It is also why most modern corporate tax havens started as financial centres, where a critical mass of advanced professional services firms develop around complex financial structuring (almost half of the main 10 corporate tax havens are in the 2017 top 10 Global Financial Centres Index, see § Corporate tax haven lists).[12][123][13]
"Why should Ireland be the policeman for the US?" he asks. "They can change the law like that!" He snaps his fingers. "I could draft a bill for them in an hour." "Under no circumstances is Ireland a tax haven. I'm a player in this game and we play by the rules." said PwC Ireland International Financial Services Centre Managing Partner, Feargal O'Rourke
— Jesse Drucker, Bloomberg, "Man Making Ireland Tax Avoidance Hub Proves Local Hero", 28 October 2013[124]
That is until the former venture-capital executive at ABN Amro Holding NV Joop Wijn becomes [Dutch] State Secretary of Economic Affairs in May 2003. It's not long before the Wall Street Journal reports about his tour of the US, during which he pitches the new Netherlands tax policy to dozens of American tax lawyers, accountants and corporate tax directors. In July 2005, he decides to abolish the provision that was meant to prevent tax dodging by American companies [the Dutch Sandwich], in order to meet criticism from tax consultants.
The EU Commission has been trying to break the close relationship in the main EU corporate tax havens (i.e. Ireland, the Netherlands, Luxembourg, Malta and Cyprus; the main Conduit and Sink OFCs in the EU-28, post Brexit), between law and accounting advisory firms, and their regulatory authorities (including taxing and statistical authorities) from a number of approaches:
- EU Commission State aid cases, such as the €13 billion fine on Apple in Ireland for Irish taxes avoided, despite protests from the Irish Government and the Irish Revenue Commissioners;[126]
- EU Commission regulations on advisory firms, the most recent example being of the new disclosure rules on regarding "potentially aggressive" tax schemes from 2020 onwards.[127]
The "Knowledge Economy"
Modern corporate havens present IP-based BEPS tools as "innovation economy", "new economy" or "knowledge economy" business activities[29][128] (e.g. some use the term "knowledge box" or "patent box" for a class of IP-based BEPS tools, such as in Ireland and in the U.K.), however, their development as a GAAP accounting entry, with few exceptions, is for the purposes of tax management.[129][100] A lawyer said "Intellectual property (IP) has become the leading tax-avoidance vehicle."[100]
When Apple "onshored" $300 billion of IP to Ireland in 2015 (leprechaun economics),[85] the Irish Central Statistics Office suppressed its regular data release to protect the identity of Apple (unverifiable for 3 years, until 2018),[130] but then described the artificial 26.3% rise in Irish GDP as "meeting the challenges of a modern globalised economy". The behaviour of the CSO was described as putting on the "green jersey".[131] Leprechaun economics an example of how Ireland was able to meet with the OECD's transparency requirements (and score well in the Financial Secrecy Index), and still hide the largest BEPS action in history.[citation needed]
As noted earlier (§ U.K. transformation), the U.K. has a Minister for Intellectual Property and an Intellectual Property Office,[76] as does Singapore (Intellectual Property Office of Singapore). The top 10 list of the 2018 Global Intellectual Property Center IP Index, the leaders in IP management, features the five largest modern corporate tax havens: United Kingdom (#2), Ireland (#6), the Netherlands (#7), Singapore (#9) and Switzerland (#10).[78] This is despite the fact that patent-protection has traditionally been synonymous with the largest, and longest established, legal jurisdictions (i.e. mainly older G7-type countries).
German "Royalty Barrier" failure
In June 2017, the German Federal Council approved a new law called an IP "Royalty Barrier" (Lizenzschranke) that restricts the ability of corporates to deduct intergroup cross-border IP charges against German taxation (and also encourage corporates to allocate more employees to Germany to maximise German tax-relief). The law also enforces a minum "effective" 25% tax rate on IP.[132] While there was initial concern amongst global corporate tax advisors (who encode the IP legislation) that a "Royalty Barrier" was the "beginning of the end" for IP-based BEPS tools,[133] the final law was instead a boost for modern corporate tax havens, whose OECD-compliant, and more carefully encoded and embedded IP tax regimes, are effectively exempted. More traditional corporate tax havens, which do not always have the level of sophistication and skill in encoding IP BEPS tools into their tax regimes, will fall further behind.
The German "Royalty Barrier" law exempts IP charged from locations which have:
- OECD-nexus compliant "knowledge box" BEPS tools. Ireland was the first corporate tax haven to introduce this in 2015,[134] and the others are following Ireland's lead.[135]
- Tax regimes where there is no "preferential treatment" of IP. Modern corporate tax havens apply the full "headline" rate to all IP, but then achieve lower "effective" rates via BEPS tools.
One of Ireland's main tax law firms, Matheson, whose clients include some of the largest U.S. multinationals in Ireland,[136] issued a note to its clients confirming that the new German "Royalty Barrier" will have little effect on their Irish IP-based BEPS structures - despite them being the primary target of the law.[137] In fact, Matheson notes that that new law will further highlight Ireland's "robust solution".[138]
However, given the nature of the Irish tax regime, the [German] royalty barrier should not impact royalties paid to a principal licensor resident in Ireland.
Ireland's BEPS-compliant tax regime offers taxpayers a competitive and robust solution in the context of such unilateral initiatives.
The failure of the German "Royalty Barrier" approach is a familiar route for systems that attempt to curb corporate tax havens via an OECD-compliance type approach (see § Failure of OECD BEPS Project), which is what modern corporate tax havens are distinctive in maintaining. It contrasts with the U.S. Tax Cuts and Jobs Act of 2017 (see § Failure of OECD BEPS Project), which ignores whether a jurisdiction is OECD compliant (or not), and instead focuses solely on "effective taxes paid", as its metric. Had the German "Royalty Barrier" taken the U.S. approach, it would have been more onerous for havens. Reasons for why the barrier was designed to fail is discussed in complex agendas.
IP and post-tax margins
The sectors most associated with IP (e.g., technology and life sciences) are generally some of the most profitable corporate sectors in the world. By using IP-based BEPS tools, these profitable sectors have become even more profitable on an after-tax basis by artificially suppressing profitability in higher-tax jurisdictions, and profit shifting to low-tax locations.[139]
For example, Google Germany should be even more profitable than the already very profitable Google U.S. This is because the marginal additional costs for firms like Google U.S. of expanding into Germany are very low (the core technology platform has been built). In practice, however, Google Germany is actually unprofitable (for tax purposes), as it pays intergroup IP charges back to Google Ireland, who reroutes them to Google Bermuda, who is extremely profitable (more so than Google U.S.).[53][140] These intergroup IP charges (i.e. the IP-based BEPS tools), are artificial internal constructs.
Commentators have linked the cyclical peak in U.S. corporate profit margins, with the enhanced after-tax profitability of the biggest U.S. technology firms.[141][142][143]
For example, the definitions of IP in corporate tax havens such as Ireland has been broadened to include "theoretical assets", such as types of general rights, general know-how, general goodwill, and the right to use software.[144] Ireland's IP regime includes types of "internally developed" intangible assets and intangible assets purchased from "connected parties". The real control in Ireland is that the IP assets must be acceptable under GAAP (older 2004 Irish GAAP is accepted), and thus auditable by an Irish International Financial Services Centre accounting firm.[64][145]
A broadening range of multinationals are abusing IP accounting to increase after-tax margins, via intergroup charge-outs of artificial IP assets for BEPS purposes, including:
It has been noted that IP-based BEPS tools such as the "patent box" can be structured to create negative rates of taxation for IP-heavy corporates.[148]
Apple vs. Pfizer–Allergan
Modern corporate tax havens further leverage their IP-based BEPS toolbox to enable international corporates to execute quasi-tax inversions, which could otherwise be blocked by domestic anti-inversion rules. The largest example was Apple's Q1 January 2015 restructuring of its Irish business, Apple Sales International, in a quasi-tax inversion, which led to the Paul Krugman labeled "leprechaun economics" affair in Ireland in July 2016 (see article).
In early 2016, the Obama Administration blocked the proposed $160 billion Pfizer-Allergan Irish corporate tax inversion,[149][150] the largest proposed corporate tax inversion in history,[151] a decision which the Trump Administration also upheld.[152][153]
However, both Administrations were silent when the Irish State announced in July 2016 that 2015 GDP has risen 26.3% in one quarter due to the "onshoring" of corporate IP, and it was rumoured to be Apple.[154] It might have been due to the fact that the Central Statistics Office (Ireland) openly delayed and limited its normal data release to protect the confidentiality of the source of the growth.[130] It was only in early 2018, almost three years after Apple's Q1 2015 $300 billion quasi-tax inversion to Ireland (the largest tax inversion in history), that enough Central Statistics Office (Ireland) data was released to prove it definitively was Apple.[155][85][156]
Financial commentators estimate Apple onshored circa $300 billion in IP to Ireland, effectively representing the balance sheet of Apple's non-U.S. business.[85] Thus, Apple completed a quasi-inversion of its non-U.S. business, to itself, in Ireland, which was almost twice the scale of Pfizer-Allergan's $160 billion blocked inversion.
Apple's IP–based BEPS inversion
Apple used Ireland's new BEPS tool, and "double Irish" replacement, the "capital allowances for intangible assets" scheme.[156] This BEPS tool enables corporates to write-off the "arm's length" (to be OECD-compliant), intergroup acquisition of offshored IP, against all Irish corporate taxes. The "arm's length" criteria are achieved by getting a major accounting firm in Ireland's International Financial Services Centre to conduct a valuation, and Irish GAAP audit, of the IP. The range of IP acceptable by the Irish Revenue Commissioners is very broad. This BEPS tool can be continually replenished by acquiring new offshore IP with each new "product cycle".[109][157][144][110]
In addition, Ireland's 2015 Finance Act removed the 80% cap on this tool (which forced a minimum 2.5% effective tax rate), thus giving Apple a 0% effective tax rate on the "onshored" IP. Ireland then restored the 80% cap in 2016 (and a return to a minimum 2.5% effective tax rate), but only for new schemes.[158][159]
Thus, Apple was able to achieve what Pfizer-Allergan could not, by making use of Ireland's advanced IP-based BEPS tools. Apple avoided any U.S regulatory scrutiny/blocking of its actions, as well as any wider U.S. public outcry, as Pfizer-Allergan incurred. Apple structured an Irish corporate effective tax rate of close to zero on its non-U.S. business, at twice the scale of the Pfizer-Allergan inversion.
I cannot see a justification for giving full Irish tax relief to the intragroup acquisition of a virtual asset, except that it is for the purposes of facilitating corporate tax avoidance.
— Professor Jim Stewart, Trinity College Dublin, "MNE Tax Strategies in Ireland", 2016[160]