Territorial tax won’t work for Jersey

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Informed sources tell me that the word in St Helier this morning is that Jersey is looking for a territorial tax solution to its failure of the EU Code of Conduct.

I’m sorry to inform them that this won’t work. As I wrote recently:

Any new tax system in these islands must remove all differentials between the local population and those who seek to use these locations for tax abuse. A consistent tax rate must now be applied to business transactions, and that consistency must overflow into any personal tax system. In other words, the tax base for business and personal transactions must be similar. It is, I think, very obvious that the argument that they can be different has now been rejected by the Code of Conduct group. The decisions that have been reached would not have been possible if that were not the case.

There are some immediate advantages in this for the islands. Some glaring anomalies, such as UK High Street stores trading being untaxed in St Helier when their locally owned competition is taxed must go. But since there is no prospect, whatsoever, that Jersey could balance its budget without imposing a positive local rate of tax on companies this does imply that a consistent positive rate of tax will be applied to all profits arising in Jersey  from now on.

This means, at the very least, that a territorial basis for taxation will be adopted in the Crown Dependencies, with all income arising in these places being subject to local taxation. But, remember, that these places do currently apply a residence basis of taxation to their warm blooded populations. To be consistent, and avoid the risk of abuse falling foul of the Code, a territorial basis might also be necessary with regard to the human population of these islands as well, especially if the corporate tax rate is lower than the income tax rate. That would have massive impact: the local population could easily ship income out of the local tax base if this were introduced. I think this may be a major constraint on the potential for a territorial basis for tax, at least with differential tax rates.

And there are, in any event, other risks. Take for example the recent trend for UK quoted companies to be incorporated in Jersey but be tax resident in a location such as Ireland or Switzerland. The assumption here was that the Jersey company would avoid all tax: that is not so obviously the case if a territorial system were to apply. The immediate of certainty which was the underpinning of these arrangements will have been blown apart.

And then there is something more significant still: if it were possible under a territorial taxation arrangements for a Crown Dependency company to still enjoy a 0% tax rate, which would be a significantly different rate from the standard rate of tax in the Crown Dependencies then the preamble test inherent in the Code of Conduct, which suggests that if there are major differential tax rates available to non-resident companies the existence of abuse does prima facie exist, will continue to be a problem, indicating that the Code may not be complied with if a territorial basis for tax is created with this deliberate intention of offering 0% tax to some companies.

I think there is a real chance this will be the case, and this shatters the complacent assumption in the Crown Dependencies that territorial tax will solve all their problems because none of the tax abuse they promote supposedly takes place on the islands — all of it, in the mysterious make believe world of the secrecy jurisdiction, supposedly taking place “elsewhere” (a concept I explain here).

Finally, territorial tax will, in any event, increase pressure on the Crown Dependencies to exchange information with other tax authorities. The simple fact is that if a company incorporated in one these places claims to have no trade arising in that place then its trade must be somewhere else. The Crown Dependencies would in that case be beholden to determine where that other place is and, I think, exchange information with it. If they did not then the opportunities for abuse would be enormous, and they would be deliberately facilitating it.

None of this puts the Crown Dependencies in a pretty situation. But I am not going to get upset about that. This is a problem of their own making, and one that they could have avoided if only they had been willing to listen.

Of course Jersey can ignore my opinion on this issue. It has done so before. The trouble is I’ve always been right and they’ve always been wrong — as have others who have advised them, such as John Whiting then of PricewaterhouseCoopers and now of the Office of Tax Simplification who told Jersey at a cost of £50,000 in 2004:

The 0/10 company tax proposals are sensible and are acceptable to the relevant authorities.

How wrong can you be?


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