Tax Research UK

On 17 February the editor of Taxation magazine, Mike Truman, wrote an article under the title ‘Lack of Evidence’, the summary of which said:

The claim that poor countries lose $160 billion in tax from ‘transfer mispricing’ has been repeated endlessly. MIKE TRUMAN finds it hard to justify

KEY POINTS

• Two Christian Aid reports claim $160 billion tax lost.
• Raymond Baker’s 7% claim does not relate to TNCs.
• Problems of methodology in Simon Pak’s study.
• Real shortfall is homegrown tax evasion.

Raymond Baker of Global Financial Integrity, Alex Cobham of Christian Aid and I wrote a response, published this week. It is entitled ‘Lack of Will’.

That response is behind a paywall and so is not on public record, even though the critical article is.

There is also apparently an on-line debate going on about the issue – which none of us can read or contribute to as it is also behind a paywall. So much for debate. In the circumstances I think it entirely appropriate to republish our response, below. I leave it to others to work out the ethics of publishing criticism on open pages and denying response and debate a similar airing.

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Lack of will

Transfer pricing abuse is a massive global problem, argue

Richard Murphy , Alex Cobham and Raymond Baker.

Mike Truman, in his comment article ‘Lack of evidence’, Taxation, 17 February 2010, page 6, questioned work we have, in various and different ways, undertaken to estimate the loss arising to developing countries from transfer pricing abuse – or transfer mispricing as we prefer to call it.

We think Mike is saying three things. The first is that Raymond Baker’s work on this issue, published in his 2005 book Capitalism’s Achilles Heel, used an inappropriate interview-based methodology to establish a potential rate of transfer mispricing, which he anyway contends is now out of date.

Second, he challenges Christian Aid’s May 2008 report on transfer mispricing ‘Death and taxes: the true toll of tax dodging’, which suggested that the loss to developing countries from transfer mispricing might be as much as $160 billion a year because that reports relies in part on Baker’s work.

Finally, Mike questions the findings of Christian Aid’s second report on the subject (published in March 2009), ‘False profits: robbing the poor to keep the rich tax free’, which relies on the statistical analysis of world trade data using a methodology developed by Professor Simon Pak of Penn State University.

Based on his analysis, Mike concludes:

· transfer mispricing is not the issue we claim it is;

· country-by-country reporting as proposed as one solution to this problem is not therefore as important as we claim it might be; and KEY POINTS

· Illegal flows out of developing countries could be up to $1 trillion annually.

Despite our high regard for Mike, we have to disagree with him on all counts, although in the space available cannot address all the issues he raises.

Methodology

First let us deal with methodology. Raymond Baker in his book only examined mispricing in arm’s length transactions, i.e. between unrelated entities. Having done so, and based on personal experience, he concluded that while it was highly likely that the rate of mispricing was higher in related party transactions, he would only use the figure his interviews had established to be likely between unrelated entities. Three things should be noted as a result: first this is likely to be a conservative estimate. Second, research based on semi-structured interviews is considered entirely suitable as a basis for research in all social science disciplines, including taxation. Third, while now relatively old research, subsequent work has corroborated the findings .

That subsequent research includes new work published by Global Financial Integrity (GFI), a project Baker now directs. Its study of illicit financial flows, published in 2008, defined illegal flight capital as funds intended to disappear from record in their country of origin, with the earnings on the stock of illegal flight capital outside of a country not normally returning to that country of origin.

The report recognised a number of mechanisms that that can be used for this purpose, of which transfer mispricing was just one. As it noted, since this activity is illicit, available data with which to assess its scale is oft en incomplete or inaccurate: the work accepted that risk, as do all other studies in this area. That said, GFI used several methodologies and databases to estimate both the legal and illegal components of flight capital, including the Hot Money, Dooley, and World Bank residual methods, IMF Direction of Trade Statistics, and the International Price Profiling System. All are widely used, recognised and considered by those bodies that have given their name to some of them as the best available methodologies.

Based on this work, GFI estimated that illicit financial flows out of developing countries are some $850 billion to $1 trillion a year. We believe this estimate is conservative. It does not, for example, include transfer mispricing within the same invoice, which cannot be picked up in mispricing models based on IMF Direction of Trade Statistics.

Such mispricing is entirely possible within multinational corporations which do not need to rely on reinvoicing. Nor does it provide any estimate of the loss due to transfer mispricing on services or intangibles, which are perhaps more open to abuse given the difficulty in identifying comparables to establish an accurate arm’s length price.

The IMF Direction of Trade Statistics on which the estimate of transfer mispricing is primarily based measures the difference in exports out of one country and imports into another country for all pairs of reporting countries. After subtracting the cost of freight and insurance, the only way to get a difference in export and import prices (other than mis-entering the data which might itself be indicative of mispricing) is to reinvoice, for example through tax haven locations. It is this reinvoicing that the GFI data records meaning that mispricing within the same invoices would have to be added to these figures to get a more accurate analysis of total mispricing.

Transfer pricing abuse

The GFI report in 2008 estimated that at least half of all illicit financial flows out of developing countries involved transfer mispricing. In February 2010 a further GFI report, ‘The implied tax revenue loss from trade mispricing’ sought to quantify the tax loss arising from these illicit flows and concluded that the average tax revenue loss in developing countries was between US$98 billion and US$106 billion annually over the years 2002 to 2006. This figure represents an average loss of about 4.4% of the entire developing worlds’ total tax revenue.

The methodology used is one some commentators will challenge: it assumes that the identified flows of transfer mispriced funds would have been taxed at the marginal corporate tax rate of the location they fl owed from. This ‘tax gap’ methodology, developed by Richard Murphy, has been challenged by some as misleading since its opponents argue that it ignores the availability of reliefs and allowances that might have reduced the effective tax rate below the nominal tax rate.

We do not agree for two reasons. First, if those reliefs had been available in respect of these profits, it would have been rational to have used them. We assume we are dealing with rational entities. They were not used, so presumably they were not available, meaning that tax would have been paid.

Second, to assume that the allowances and reliefs that multinational corporations enjoy in developing (or other) countries are independent of their considerable economic power in such places when negotiating inward investment, or are even independent of other illicit financial flows such as those resulting from bribery, is untenable. Numerous reports, including some by the authors of this article, for Christian Aid, Global Witness and others attest to this fact. As such we suggest that the methodology records a potentially recoverable loss, and that is its purpose.

Bilateral trade

Simon Pak’s approach to this issue is different from Raymond Baker’s. Christian Aid notes the OECD estimate that at least 60% of world trade now takes place within multinational corporations rather than between arm’s length bodies. For the years 2005-2007, Simon Pak analyses data on all bilateral trade on commodities with the US and European Union to determine the extent of losses arising on this intra-group trade. The US and EU provided the data for this purpose.

The data is the most granulated available: so detailed that HMRC would not provide it directly for the UK because identification of individual trades was possible in too many cases. 83.7 million EU trades were analysed by Pak in 2007, for example. Only data where price estimates per unit supplied could be calculated was used. By definition services are excluded, and given that the majority of transfer mispricing is now likely to be in this area this will result in any estimate we offer significantly underestimating total losses from this activity.

An important assumption in the price filter analysis method Pak uses on the resulting data is that the estimated inter-quartile price range per unit of product traded is an arm’s length price range. This assumption is suggested by some to be arbitrary. However, the assumption is considered reasonable as the US Internal Revenue Service transfer pricing regulation, Internal Revenue Code 482, specifies that an inter-quartile range is an acceptable arm’s length transaction range. We believe that provides credibility to the approach used but we accept that the point is debatable, but then everything in statistical analysis is. This does not invalidate statistical analysis as the basis of much, if not most, academic tax analysis and in turn a great deal of tax policy worldwide.

Lost tax revenue on capital flows as a result of trade mispricing is then calculated on a country-by-country basis by multiplying the capital flow by corporate marginal tax rate for each country in question: this approach accords with that used by Baker/GFI, noted above and acceptable for the same reasons.

Losses underestimated

This approach is reflected in the second Christian Aid report noted above, but not the first. As that second report notes, the approach seeks to use Pak’s methodology to estimate how many imports to the EU and US from non-EU countries are underpriced, and how many exports from the EU and US are overpriced to facilitate illicit capital transfer from non-EU countries. In doing so it is likely to underestimate the losses, partly because services are not considered and partly since the techniques used will underestimate mispricing because over and under pricing is aggregated by the methodology. There is also the risk that averagely priced transactions may be mispriced. This possibility is not detected.

In contrast, it is accepted (and noted in the relevant report) that there is an opposite risk with regard to products with highly volatile prices, e.g. oil. There, averaging over an annual period,

as the method does, might produce errors. Across the whole spectrum of trade this is assumed to be a counter-balancing error, but it does also explicitly recognise that the issue raised by Mike Truman in his article is a matter of concern, but not one considered likely to be material.

The result of the work is an estimate of lost tax revenue from all non-EU countries to the EU and the US between 2005 and 2007 of £190.8 billion or about £63.6 billion a year ($127 billion a year at 2007 exchange rates). Given that this implied lost revenue is based on EU and US trade, and assuming that trade between developing countries and the rest of the world is characterised by a similar level of mispricing, Christian Aid extrapolated this figure to find it consistent with their earlier estimate of $160 billion globally.

All of the estimates reviewed fall in the range $100 billion to $160 billion a year. As yet unpublished research by Richard Murphy for the World Bank undertaken in 2009 shows it is plausible for transfer mispricing of this scale to take place within multinational corporations.

Consistent estimates

Our point now is to suggest that we are presenting broadly consistent estimates within a range. We are not claiming spurious accuracy. As other studies have shown, e.g. that of Clemens & Fuest for the Department for International Development in June 2009, no one outside the small circle of NGO researchers noted here has even sought to do this work. Many have sought to criticise it. We accept it is open to improvement. We also accept, as should any researcher, that the flaws in available data make the results offered estimates. We would however stress, that if the data is fl awed it is likely to be because of trade mispricing, not its absence.

We would also add that the direction of this flow should be noted: overall additional funds arrive in the EU and USA. They may be taxed there, usually at lower rates than would have been paid in developing countries. Many will come through locations such as Switzerland and Hong Kong and in case study after case study we have seen this to be true. This lets us immediately dismiss the main thrust of Bill Dodwell’s assessment of our work as implausible: we do not know of tax authorities which take transfer pricing cases to argue down their revenues. This is what would be required if Dodwell’s assessment assertion was to be correct.

That said, Christian Aid does also show a transfer of capital from the US and Japan to Europe. Given the use made by corporations from both locations of European holding companies to act as worldwide sales agents, nothing surprises us about this. Indeed, work by Martin Sullivan for Tax Notes in the US has long documented this trend, noting in 2004 that American companies were able to shift $149 billion of profits to 18 tax haven countries in 2002, up 68% from $88 billion in 1999. This strongly suggests that this direction of flow is correct, the strength of the transfer pricing regimes of those countries notwithstanding.

All this being noted, the important thing is to ask what does potential transfer mispricing of this scale from developing countries imply? First, the losses are, even if the lower end of the estimate range is considered, more than twice the sum required to pay for the United Nation’s Millennium Development Goals.

In other words, we believe that reducing (but not eliminating) transfer pricing abuse could eradicate extreme poverty and hunger, achieve universal primary education, promote gender equality and empower women, reduce child mortality, improve maternal health, combat HIV/AIDS, malaria and other diseases, ensure environmental sustainability and help develop a global partnership for development. If that is the case, the argument for inaction has to be very strong indeed.

Any action does, however, have to recognise the reality of taxation in developing countries. It is essential to bring the poor into the tax base, as it is likely to result in stronger engagement in political processes, and strengthen accountability between state and citizen.

However, in the short term, income taxation will have limited revenue impact given the weak economic base. Taxing a small elite of individuals, civil servants, major corporations, international trade and natural resources when present is likely to have a much greater revenue impact. To be effective the largest available flows must be taxed.

Stricter tax reporting

We suggest three things to ensure that these flows are taxed as effectively as possible. The first is that, and here we agree with Mike, significant technical support to tax authorities in developing countries is needed – as well as cash to ensure their best staff are not continually poached by the biggest firms of accountants.

Second, we argue for country-by-country reporting by multinational corporations. Mike is entirely wrong to say this cannot help. HMRC now publicly concede that country-by-country reporting by multinational corporations would increase tax yield in the UK. We do not however argue it is the solution to transfer mispricing: it is not. What it does is provide the data that can show whether pursuing a case is likely to be worthwhile. When resources are scarce, as they are in developing countries, this is vital. The tiny experience of transfer pricing litigation in Africa to date suggests that the simple absence of data on differing profit rates by location within multinational groups – data we think was deliberately withheld by those multinational corporations to assist their cases – is a major inhibitor to any chance of success on this issue. Country-by-country reporting would help provide this data.

Country-by-country reporting does much more: it is now seen as a key component in effectively tackling corruption in the extractive industries, for example. It is, therefore, a key component in tackling the very issue Mike says is an impediment to progress. It also provides enormous value to shareholders concerning the timing and location of tax liabilities that their company faces. To dismiss country-by-country reporting because it cannot solve transfer mispricing by itself is absurd.

Lastly we promote massive increases in the range and scope of information exchange agreements available to developing countries so they can secure the data they need to address issues on transfer mispricing, which also impacts revenues from royalties, sales taxes, export levies and more besides. Developing countries are almost entirely excluded from the tax treaty network. They start with a massive asymmetric information disadvantage as a consequence, which makes their current task almost insurmountable. This economic externality has to be removed if they are to have any chance of building successful states.

In these circumstances to suggest the problems faced are the result of home-grown tax evasion misses the largest part of the picture. Nothing but abuse by those unscrupulous businesses can explain the data differences we have consistently found. We can argue about the scale of the abuse but not its existence. Even then, suppose we had overstated the scale of this issue twofold and only half the problem could be effectively tackled using the mechanisms we promote. That would still eradicate extreme poverty and hunger, achieve universal primary education, reduce child mortality and improve maternal health while leaving some over to tackle AIDS and other major diseases.

Can anyone give a good reason why the tax profession would not want to do that when all the evidence suggests that tax compliance by multinational corporations – where tax compliance means seeking to pay the right amount of tax (but no more) in the right place at the right time, where right means that the economic substance of the transactions undertaken coincides with the place and form in which they are reported for taxation purposes – could achieve these aims?

We don’t know of any.

Richard Murphy Country-by-country, Development, Secrecy jurisdictions, Tax Havens, Transfer Pricing, Transparency

At the core of my work is a concern about poverty. Some of that is in the UK, some in developing countries.

I and others have argued that the combination of opportunities that banks and secrecy jurisdictions provide promotes capital flight out of developing countries and into western economies – flight that we have argued might amount to $1 trillion a year.

Now the official Norwegian aid agency – Norad – has produced a new publication that examines the literature (including some by me) on this subject. I strongly recommend the resulting work, which is available here. As the preface says:

Systematic studies of the banking sector’s involvement in facilitating capital flight from developing countries are limited. This paper was commissioned by Norad’s Anti‐Corruption Project (ANKOR) for the purpose of summarising key lessons from the existing literature and to identifying knowledge gaps. It focuses on capital flight from Africa and how much needed public finances are hidden abroad. The study is a desk study, based on a review of library and online literature databases and reports and documentation from national and international organisations.

The material reviewed does not provide the information necessary to draw firm conclusions as to what constitutes ‘best practice’ in providing donor support for better regulation of banks and financial institutions in Africa. The term ‘best practice’ itself is unclear and depends much on the environment within which finance institutions work. The review shows that banks should not be disregarded as passive players when analysing capital flight. Banks play an active role in facilitating capital flight from Africa. However, to improve the regulation of the banking and finance sectors, there is a need for more detailed knowledge on how banks actually operate as facilitators and the mechanisms applied.

This may be a technical paper, but this sort of study takes matters forward in a real way that helps to alleviate poverty. I warmly applaud Norway’s initiative in publishing it.

Richard Murphy Banking, Development, Secrecy jurisdictions, Tax Havens

Global Financial Integrity has released the following video along with a letter from GFI Director Raymond Baker. The video encourages individuals to combat one of the oft-neglected causes of poverty, illicit financial flows, by urging the G20 to create financial transparency. It’s one of the best videos of its type I’ve ever seen.

The letter says:

Dear Supporter,

For over half a century – western aid organizations have admirably worked to alleviate poverty in developing countries. Despite these efforts, over 3 billion people-or half the world-live on less than $2.50 per day. Indeed, more people live in poverty today than at any other time in human history.

That’s because for every 1 dollar in foreign aid sent to developing economies, 10 dollars is flowing out illicitly. In fact illicit financial flows from developing economies total $1 trillion every year-10 times the amount of foreign aid received.

But there is hope! We can curtail the devastating effects of dirty money by urging the G20 to create financial transparency in the international banking system.

Today, Global Financial Integrity released a video urging people to do just that. The video, titled “Who Suffers?” explains this problem and urges people to take action by signing the petition to the G20 at www.G20Transparency.com. Please join us in our fight by forwarding this video to your friends and family.

Best Wishes,

Raymond Baker
Global Financial Integrity

Please do support this campaign.

Disclosure: Global Financial Integrity and Tax Research LLP are both members of the Task Force on Financial Integrity and Economic Development

Richard Murphy Corruption, Development, Secrecy jurisdictions, Tax Havens, Tax evasion

MPs act to stop vulture funds using UK courts to pursue poor nations | Business | guardian.co.uk .

Vulture funds would be banned from pursuing the world’s poorest countries for debts in the UK courts, under a private member’s bill that has won the backing of the government.

MPs will vote on the second reading of the debt relief (developing countries) bill, sponsored by Labour backbencher Andrew Gwynne, on Friday. The Treasury has repeatedly promised to tackle the problem of investors suing poverty-stricken governments, often over debts contracted decades ago.

So-called vulture funds buy the debts of poor countries, usually at a sizeable discount, wait until the government has received debt relief from foreign creditors, and then pursue their share of the debt in courts around the world.

Vultures are invariably based in tax havens / secrecy jurisdictions. This is an essential development to stop yet another offshore abuse.

Congratulations to all involved.

Richard Murphy Development, Secrecy jurisdictions, Tax Havens

Debtonation » Blog Archive » A wake-up call from Vultures .

Ann Pettifor in fine form:

In the international financial system, the Rule of Law seldom applies.

It is in this context that a wake of vultures (for that is the collective noun) hovers over weakened debtor nations as diverse as the Congo, Iceland, Greece and Portugal and operate in a context of weak international law.

They are international creditors, and their presence reminds us once again of the urgent need for governments to co-operate to devise international law to protect effectively insolvent sovereign nations from rapacious creditors. In just the same way that e.g. the US’s Chapter 11 protects insolvent companies from creditors.

Quite so, and she chillingly documents why.

Richard Murphy Banking, Development

A new report on oil extraction and associated problems has come to my attention. Called ‘Contracts Curse: Uganda’s oil agreements place profit before people’ it’s a great piece of work and thoroughly recommended to all with concern on exploitation of developing countries.

How much exploitation? Well, let’s start with Tullow Oil’s expected 35% rate of return and move on from there to things like most of the risk being left with Uganda. The title of the report is, in this context, well chosen.

Richard Murphy Development

I’ve just noted the finance minister of India saying:

The structure and the location of the group entities of the multinational enterprises exploit the favourable tax regime offered by the low tax jurisdictions and tax havens.  This has lead to accumulation of wealth and shifting of intellectual capital to these jurisdictions.  The role of tax havens and low tax jurisdictions has become an area of great concern for a country like India which is putting its all acts together to mobilize resources to attack on poverty and illiteracy.

Then I read in Business Week that:

Software and computer companies such as Microsoft Corp., Hewlett-Packard Co. and Dell Inc. are gearing up to fight an Obama administration plan to curb offshore tax avoidance.

The $15.5 billion proposal in President Barack Obama’s 2011 budget targets what the Internal Revenue Service calls the growing problem of so-called transfer pricing. The technique allows companies to reduce their tax bills by transferring intangible property such as patents, trademarks and licenses to offshore subsidiaries.

The Business Software Alliance, a Washington-based trade group that represents technology companies, said it would “educate policy makers” on how the proposal would hurt U.S. companies, jobs and the economy.

The finance minister of India speaks with some authority on the issue. Microsoft and its chairman seek to direct world development through charitable structures whilst diverting attention  from the secretive tax policies that deny tax revenues to places like India by selling them product from places like Ireland so limited local taxable revenues arise.

Is this what Microsoft wants to ‘educate’ Washington about?  Is this to be a lesson in how to move wealth from the poorest to the richest in the world, because that’s what these structures are used to do.

And how does that help your charitable objectives Bill? Let’s debate it, anytime, anywhere. Your call.

Richard Murphy Development, Tax avoidance, USA

The Finance Minister of India Shri Pranab Mukherjee spoke to a seminar on transfer pricing yesterday and said:

The structure and the location of the group entities of the multinational enterprises exploit the favourable tax regime offered by the low tax jurisdictions and tax havens.  This has lead to accumulation of wealth and shifting of intellectual capital to these jurisdictions.  The role of tax havens and low tax jurisdictions has become an area of great concern for a country like India which is putting its all acts together to mobilize resources to attack on poverty and illiteracy.

The financial crisis faced by us has been unprecedented in recent history.  It is widely believed that the tax havens and low tax jurisdictions were an important actors in the crisis.  The opaque system of Exchange of Information in these tax havens and their non-compliant behaviour has been a matter of concern not only for revenue base but also linked to financing of activities which are detrimental to national security interest.

It is in our mutual interest to maintain a healthy global fiscal system which is self-sustainable and all important actors including the tax havens comply with the established norms of transparency and fiscal discipline.

I think that says a great deal in a very few words that summarise much of what the Tax Justice Network has been seeking to raise awareness of, and change.

The awareness is now commonplace. Change is happening.

We need to celebrate the good news sometimes.

Hat tip to Martin Hearson, Action Aid

Richard Murphy Development, Secrecy jurisdictions, Tax Havens, Transfer Pricing

Developing countries are losing approximately $100 billion dollars every year due to trade mispricing, according to a new report from Global Financial Integrity (GFI).

“Every year crime, corruption, and tax evasion drain $1 trillion out of developing countries,” said GFI director Raymond Baker.   “This report more closely examines one particular form of financial outflow and shows how illicit financial practices — in this case trade mispricing — deprive developing country governments of tax revenue.”

Report findings include:

• The estimated range for tax revenue loss due to trade mispricing in developing countries, per year, is between $98 billion and $106 billion;
• This estimated revenue loss is approximately 4.4 percent of the developing world’s total tax revenue;
• The top five countries with the largest tax revenue loss are: Zimbabwe (21.5%), China (31%), Philippines(30.7%), Nicaragua (27.7%), and Mali (25.1%);
• Rates of trade mispricing for the time period examined (2002-2006) nearly doubled from the first year of the range (2002) to the last (2006);
• Trade mispricing is one of the most prominent drivers of illicit capital flight out of developing countries;

“Trade mispricing moves more illicit money across borders than any other single phenomenon,” noted Mr. Baker.  “To curtail these tax losses, developing and developed countries alike must work to curb the global shadow financial system that facilitates illicit financial flows.”

Encouraging governments worldwide to take action, GFI recently launched its G20 Transparency Initiative which seeks to build massive grassroots support from around the world for increased transparency and accountability in the global financial system.  “The G20 Transparency Campaign seeks to give people around the world the chance to weigh in on a crucial issue at a critical time,” said Baker.

Click here to download a full copy of the report, which adds to the growing literature on this subject and stresses the urgent need for action to tackle this abuse.

Note: This post is open for comments. Comments will only be accepted if they contribute positively to debate on this issue. Those that do not will be deleted.

Richard Murphy Development, Transfer Pricing

Joel Tan-Torres, Commissioner of the Bureau of Internal Revenue in the Philippines has offered reasons why it is so hard for developing countries to collect tax. He says:

1. Too few staff
2. Staff too lowly paid so high turnover
3. Poor IT
4. Slow speed of enforcing action through the legal system.
5. Problem of special interest tax provisions
6. The aggressiveness of the tax industry in promoting avoidance bordering on evasion. Tax evasion is at least 0.03% of GDP in the Philippines – which seems surprisingly low to me, but then so is the tax yield.

In many ways this sounds like the UK but let’s have no doubt. In terms of scale everything is worse.

What he needs he says is information. Internally generated sources are not enough in the current world. He appears to be asking for automatic information exchange, but without being specific. What he does say is that expertise will need to be developed to make this work.

Volume issues regarding information will need technology support – but it’s clear, it’s our job to do this. This has to be a key component in the development agenda.

Richard Murphy Development, OECD