Baker & McKenzie: the death of information exchange
April 19th, 2011
April 19th, 2011
This blog was originally written by TJN’s John Christensen. It will be permanently archived on TJN’s Information Exchange webpage.
The April edition of the Journal of International Taxation (not available online) has a provocatively titled article on ‘The Death of Information Exchange Agreements?’ about the G-20 / OECD project for tackling tax evasion with tax information exchange agreements (TIEAs). Bottomline, the authors share TJN’s view that TIEA’s just don’t cut the mustard, so powerful countries like the USA and EU member states use other tools:
“The major countries of the western world have clearly started to focus on other means of obtaining data because TIEAs in practice do not work.”
OK, we’ve long since reached the same conclusion, as we recently argued in the Financial Times, but perhaps what makes the article most interesting is the nature of the authors, all four of whom are with the law firm Baker & McKenzie.
Since the article is long and we respect copyright laws, we can only highlight some of the key grounds for the author’s conclusions.
First, they note that the majority of the bilateral agreements currently in use are based on early versions of Article 26 of the OECD’s model tax convention on exchange of tax information. Thus they omit vital provisions added to the Article in 2005 relating to the need for contracting countries (the secrecy jurisdictions) to obtain information for exchange (paragraph 4), and to over-ride banking secrecy laws (paragraph 5). As the authors note:
“It is unclear how long it will take for countries to begin to alter their agreements to take into consideration new paragraphs 4 and 5 of Article 26.”
Second, the article notes the weakness of the OECD’s 2009 black/grey/white listing process. Having set the bar so low that the black list was emptied within a matter of days, and the grey list was rapidly vacated as secrecy jurisdictions scurried round the world signing up to the required 12 TIEAs amongst themselves, the OECD finds itself in an embarrassing mess entirely of its own creation. It now needs to review (i) which jurisdictions have been signing TIEAs with other secrecy jurisdictions (awkward! see note below on Lichtenstein), (ii) whether secrecy jurisdictions that have made it to the white list will be prepared to carry the process forwards (TJN, for example, has suggested 60 TIEAs as the minimum threshold), and (iii) whether all these new TIEAs have served any purposesince there is no available evidence that any information is actually being exchanged.
Which brings us to the author’s third substantive point: the specificity of the requests that need to be made. This is where we enter the world of Catch 22: in order to request information from a contracting secrecy jurisdiction, the requesting country needs to provide a dossier of information about the specifics of the request, including:the name of the (non)taxpayer;
But the obstacles to information exchange don’t stop there. In their fourth point, the authors note that implementation of TIEAs is also thwarted by secrecy jurisdictions interpreting agreements in a very narrow way, some even going to the extent of enacting domestic legislation to impede compliance with information requests. Austria’s recently enacted Administrative Assistance Accomplishment Act is a specific instance, allowing the (non)taxpayer an opportunity to issue an injunction against fulfilment of a request for information exchange which could potentially delay the process for up to 4 years.
Fifth, as TJN has frequently commented, the OECD scored an embarrassing own goal by allowing secrecy jurisdictions to sign up to TIEAs with other secrecy jurisdictions. Oops! Take Liechtenstein, for example. Originally on the grey list, Liechtenstein shifted to the white list on the basis of agreements (TIEAs and in some cases double tax agreements) with the following:
You see the point. As the authors comment: “Thus the question becomes whether these TIEAs exchanged anything of value or just caused a bunch of secrecy jurisdictions to run around the world signing agreements that do not have any effect . . .”
Which brings us to our final point about the article: its title. Is the possibility for effective information exchange dead, or is it more likely the case that OECD countries (especially major secrecy jurisdictions like Austria, Luxembourg, Switzerland, UK and USA) did everything in their power to prevent tax information exchange from ever coming to life?
In this light, it’s probably worth quoting the end our Financial Times article:
“A new dawn of global financial transparency? Hogwash. Or perhaps we should say whitewash.”
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