Following the statements on crackdown of tax havens amidst various announcements in G20 communiqué, the OECD has published a report on implementing internationally-agreed standards on exchange of information for tax purposes. The report, a result of over a decade of OECD work to facilitate greater openness and transparency to cross-border financial transactions has laid out a three-tiered tax havens’ list who have implemented or committed to implement the tax standards.
Media coverage on ‘tax havens’ has resurfaced debate on a controversial issue, which in my view has either been misinterpreted or at best misunderstood in the context of tax treaty policies of countries.
OECD approach to ‘tax haven’: The underlying objective of OECD approach is to ensure oversight of unregulated entities (such as hedge funds) operating through ‘tax havens’ (NIL or negligible tax rate jurisdiction) by putting in place an effective machinery of tax information exchange and not to stifle genuine investment and capital flows into countries.
It is appropriate to mention OECD’s analysis on alleged ‘harmful tax practices’ adopted by jurisdictions identified as ‘tax havens’. Its 2000 report on “Progress in Identifying and Eliminating Harmful Tax Practices” identified 35 jurisdictions meeting the ‘tax haven’ criteria.
Whilst the classification of ‘tax havens’ have evolved in the past decade, the G-20 communiqué has narrowed the classification to three baskets — ‘white list’ comprising countries with substantially implemented internationally agreed tax standard; ‘grey list’ comprising tax havens/financial centres that have committed to the internationally-agreed standards but have not implemented them; and ‘black list’ countries like Costa Rica, Malaysia, Philippines and Uruguay — jurisdictions that have not committed to implement the standard. Remarkably, within a week’s time of G-20 communiqué by OECD, all four states in the black list pledged their commitment to co-operate in tax information.
Recent developments on Tax Information Exchange: In a related development over past few months, certain jurisdictions (Switzerland, Liechtenstein, Luxembourg, Austria) have offered to relax their banking secrecy norms to exchange tax information with Revenue authorities of foreign jurisdictions. In an unprecedented development in the history of Swiss banking industry, UBS agreed to share client data with the US IRS in a tax probe, triggering of a debate on client confidentially and information secrecy norms.
Though, countries sharing information have insisted easing of access to tax information would not lead to “fishing expeditions” and they would cooperate in cases of serious fraud proven by foreign authorities, such moves by European offshore centres is intriguing, particularly when Asian rivals like Singapore and Hong Kong have adopted OECD’s rules for cooperation in tax information exchange.
Indian landscape — ‘tax havens’ misinterpreted: Given this background, the wider objectives for the recent whiplash on ‘tax havens’ is to implement international standards for exchange of information. Regrettably, the approach has been misunderstood in the Indian context by different sections of media and vested groups. More often than not, such critique on ‘tax havens’ is attributed to the government’s policy for tax treaty negotiation with tax favourable jurisdictions.
It is my belief the tightening of noose on ‘tax havens’ and G-20 forum is a holistic approach for curbing unregulated economic activities resulting in loss of tax revenues to OECD members and non-OECD countries. The approach has least to challenge the tax treaty policy of governments besides OECD members. It is, hence, not prudent to paint the landscape with the same brush of taint, when it comes to resolving issues surrounding re-negotiating of tax treaties with low tax jurisdiction.
Tax treaty — a legitimate planning tool: In Indian context, tax treaties with Mauritius and Cyprus have been debated by the tax administrators, and courts in the context of Mauritius. Undeniably, capital gains tax exemption with absence of a ‘Limitation of Benefits’ clause under tax treaties with Cyprus and Mauritius are legitimate tax planning tools available to offshore investors. The validity of such beneficial provisions have been upheld by the Apex Court in a public interest litigation in the Azadi Bachao Andolan case.
Neither of the jurisdictions feature in OECD’s ‘black list’; indeed OECD has withdrawn Mauritius from the list of tax havens not committed to sharing information. Mauritius has demonstrated its endeavor towards overcoming ‘harmful tax practices’ by building measures for ensuring transparency and exchange of information with treaty partners. The Mauritius regulatory regime prescribes stringent conditions for grant of Tax Residency Certificate including annual requirement for renewals. It has undertaken legislative changes by setting up Financial Services Commission (FSC) to regulate operations of offshore companies.
To combat ‘round tripping’ of investment, FSC has mandated offshore investors to submit an undertaking confirming funds routed to Mauritius shall not be reinvested in the same country unless accompanied by approvals from the regulatory body of the (investment) source country. In the past, Indian exchange control regulators pointed alleged round tripping by Indian firms. Furthermore, to strengthen strategic economic ties, FSC has signed a Memorandum of Understanding with SEBI for exchange of information and Mauritius Revenue has cooperated with India for exchanging information under the treaty.
Mauritius has enacted a legislation to counter money laundering. In pursuance thereto, FSC has issued a code on prevention of money laundering and terrorist financing which serves as a statement of minimum criteria to describe operational practices of management companies in Mauritius.
Despite measures by Mauritius, admitting treaty benefits to Mauritius firms continue to be a bone of contention. In a recent case (e-trade) of judicial and administrative examination, the Revenue disregarded the ‘white list’ status to Mauritius by the OECD.
While the dispute appears set to wind its way up to the apex court, this could be a case of unguarded aggression on part of the tax administration or misinterpretation of ‘tax haven’ riddle. In a related development, India’s apex tax administration CBDT has established a task force to advice on prevention of ‘treaty shopping’ involving Mauritius and Cyprus treaty.
In either scenario, I believe besides adhering to the spirit of international conventions like bilateral tax treaties, foreign investors who wish to avail of legitimate tax treaty benefits don’t deserve such uncertainty. Somewhere, we are lost in understanding the objectives with respect to regulation of tax havens with economic benefits accruing due to a tax treaty or larger economic trade agreements like we have with Singapore. So, as the task force will examine treaty shopping via Mauritius, Singapore’s anxiety will heighten as our treaty with Singapore is reliant upon our treaty with Mauritius.
(With inputs from Sumit Singhania)
The author is a Partner with BMR Advisors and views are entirely personal
