The Observer editorial says today:
No politician in Britain, the rest of Europe or the US has an answer to one basic question: how will the financial services be overhauled so they are, in future, the servant, not the master, of the global economy?
That is true. There is good reason. Not one of them has yet realised that the cannot re-regulate the banks until they prevent the banks using the ‘get out of regulation free card’, otherwise called tax havens (secrecy jurisdictions).
I wrote earlier this year that
Tax havens are places that create legislation designed to assist persons – real or legal – to avoid the regulatory obligations imposed upon them in the place where they undertake the substance of their economic transactions. This is not by accident or chance: we provide clear evidence that these places, some of them countries, some not, but all with the power to pass legislation, set out to undermine the impact of legislation passed in other jurisdictions. These are deliberate acts of economic aggression targeted at sovereign states.
Offshore financial centres are not the same as tax havens. OFCs are the commercial communities hosted by tax havens which exploit the structures that can be created using the tax haven’s legislation for the benefit of those resident elsewhere. In other words, the offshore financial centre is made up of the accountants, lawyers, bankers, plus their associated trust companies and financial intermediaries who sell services to those who wish to exploit the mechanisms the tax haven has created.
This has made tax havens the primary location of the attack by Anglo Saxon capitalism on the regulation of the sovereign state, aided and abetted by the offshore bankers, lawyers and accountants who are their front line troops. The language might sound dramatic: it isn’t. We have seen these organisations now bring chaos into our economies. It is apparent that the only people who will not suffer are those who have controlled the attack. People may be angry with the bankers, but there is no way that as yet the bankers have had to bear the brunt of that. They won’t, not until the places from which they mount these attacks are brought under control. Dealing with this issue is the next step that must follow those required to deal with the immediate crisis that I wrote about here.
This could be done. Tackling the abuse in tax havens / secrecy jurisdictions is a three fold process. First, the countries under attack have to agree to clean up their own acts. So all financial data for entities established under the law has to be on public record in places like the UK, USA, France and Germany and the EU as a whole. This disclosure of information is the basic price of limited liability that is the foundation stone of this form of capitalism. The price of being exonerated of your obligation to meet your debts is that you are absolutely candid about your financial position. So, all Western countries affected must agree that:
1) Full accounts of all companies they allow to be incorporated must be filed on public record. Abbreviated accounts should be abolished;
2) Full constitutions of all companies must be filed on public record;
3) All shareholdings must be recorded on public record. No nominees and no trust holdings should be allowed to be recorded unless the trust is itself registered for charitable purposes and puts all its records on a public register. If the trust is discretionary the settlor must be named as the beneficial owner. If the settlor is dead all beneficiaries in the last decade must be named as the owners.
4) No nominee directors or other officers must be allowed to act on behalf of legal entities. Those who really control the decisions of such corporations must be recorded as their officers.
5) No ‘striking off’ of companies without liquidation should be allowed. At present in the UK tens of thousands of companies are removed from the public register without ever once disclosing what they do. This is a massive opportunity for fraud and tax evasion that must be closed.
6) Trusts, limited liability partnerships, cell companies and all other structures created under statute or common law must be required to file the same information on public record as do limited companies. The penalties for not doing so must be high. the price of securing registration must be sufficient to provide the resources to effectively and proactively police the system to ensure a very high degree of compliance.
7) All banking secrecy laws must be abolished.
8) All countries must be required to comply with the requirements of the EU Savings Tax Directive, whether in the EU or not, with that directive enhanced to cover all companies and trusts and all dividends, royalties, capital gains, pensions, annuities, rents, licence fees and management charges.
9) All countries must agree to cooperate in the collection of tax due to another state, including prompt provision of information on exchange on request.
10) Tax evasion must be made a predicate offence in all countries engaged in this process.
This agenda could be legislated within weeks.
Second, once this has been done then it must be made clear that those countries that will not take similar steps must be assumed to be acting as secrecy jurisdictions with the intention of undermining the regulation of those states that have ensured information is available on public record. Legislation would be required along the lines of the US Stop Tax Haven Abuse Act to tackle this issue. This would, in effect, require tax deduction at source on payment of all interest, dividends, royalties, rents, licence fees and management fees to recipients in these non-cooperative countries. the withholding rate should be high: the EU Savings Tax Directive will move to a rate of 35% soon and this seems desirable with regard to these territories. Their role as tax havens would disappear over night.
Finally, such legislation should move the agenda beyond that proposed in the Stop Tax Haven Abuse Act by removing the legal right to enforce any debt emanating from the locations which refuse to cooperate in full regulation and disclosure of the activities of their financial services sector . This would mean that debts recorded as due to these places could not be legally enforced in our courts until they put into place all the financial disclsoure requirements noted above.
These are radical actions, but they are precisely what is needed. Anglo Saxon capitalism is failing because the necessary transparency and accountability required to engender the trust to ensure it can work has not existed. We have to create it as the basis of rebuilding capitalism. These actions are, therefore, the basis of rebuilding effective markets. they are not in any way an attack on markets. Anglo Saxon capitalism was that attack.
I note that the Prime Ministers of France, Germany and the UK meeting in France this weekend said:
We jointly commit to ensure the soundness and stability of our banking and financial system and will take all the necessary measures to achieve this objective.
Closing tax havens is the single most important necessary measure they must enforce. If they don’t nothing else will work. It’s as simple as that. Therefore this step is the first, and essential, pre-condition of making any regulation work.