Corporate Tax

Tax havens, COVID-19 and sustainability

By Sara Jespersen

At CBS we will host a workshop and two public events (see below for sign up) on corporate tax and inequality next week 24th – 26th June 2020 – the COVID-19 crisis has underlined the pertinence of this topic in major ways.

Taxation, tax havens and corporate tax have been high on the agenda for a while. Since the outbreak of the global financial crisis of 2008 corporations seeking to minimize their tax payments have been under close watch from the media, civil society and politicians with a focus on ensuring that corporations pay their “fair share”. The OECD and the EU have gone to quite some length to try to stop tax-optimizing behavior through revising and modernizing existing rules and legislation. In collaboration with the IMF and the World Bank they have invested time and resources in strengthening tax systems, governance and improving domestic resource mobilization in low- and middle- income countries. This work is ongoing and corporate taxation is already high on the list of priorities for the world community. But then along came COVID-19.

Taxation is central in two ways when we reflect on the pandemic and what will follow. Firstly, governments have passed historic economic recovery packages to ensure that the private sector stays afloat and to avoid mass lay-offs during the lockdown period in 2020. The question is what can we expect in return? Secondly, the emerging discussion on the disruption caused to national economies should be thought into long-term solutions for sustainability including tax.

“Tax haven free” recovery packages

Poland and Denmark, followed by Italy, Belgium and France have attached an explicit conditionality to their COVID-19 state support that companies cannot be registered in tax havens.

In light of this clear conditionality, there has been a media storm in Denmark, when a journalistic investigation revealed that several companies that government support had an ownership structure that was associated with tax havens and with a consumer outcry on social media. This prompted one of the companies, a well-known bakery “Lagkagehuset”, to take out full-page advertisements in daily newspapers to counter the criticism and explain the company structure. The CEO also did a lengthy interview on the issue of the company’s ownership structure to a major daily newspaper.

Two immediate takeaways can be drawn from this:

It has revived the discussion about the usefulness of tax haven blacklists (see more on this by CBS professor Leonard Seabrooke in Danish). Which countries should be on them, and what does it mean if you as a business (or individual) are associated with a tax-haven on such a list? One thing is clear, measures to push countries into greater cooperation will not in itself comprise a substitute for measures to make companies act responsibly.
It has emphasized the importance of corporate governance including a reflected approach to responsible corporate tax practice. The fact that there are so-called tax havens out there warrants companies and individuals to decide how or if they want to be associated with these. If yes, companies must accept that they may be liable to critique and journalistic and even political inquiry into what that association means. It should come as no surprise that association with these jurisdictions may entail suspicion.

Tax havens are not the only concern in relation to companies’ environmental, social and governance (ESG) behavior in this pandemic. The financial times reported how NGOs and investors are challenging shareholder primacy as it leads to growing inequality. Corporate governance and ESG, including tax, is now more than ever one to watch for companies that wish to be part of a sustainable business community in the short-term and the long-term.

Opportunities in the long term

Recovery packages are short-term measures. However, in the long term, the pandemic offers an opportunity that must not be missed in terms of taking a serious look at which direction our global society is heading.

While the pandemic, in theory, cannot tell the difference between the poor and the rich, it is clear that the existing inequality in our society is all made acutely visible during COVID-19. In the US more than 40 million have lost their jobs during the pandemic. In Sierra Leone, there is allegedly just 1 available ventilator in the entire country (for a population of 7 million, where Denmark has more than 1000 ventilators for a population of 5.8 million). As for the gendered impacts even for the better off, there are indications that women are less able to find time to prioritize research and publishing during the crisis than men are (). While big tech companies look to come out of this crisis more profitable and, possibly, powerful than ever.

These are just examples of how inequality is front and center in this crisis and how it offers an important opportunity to consider if the direction we are heading in is where we want to go.

With many countries having been in a complete] lockdown and economic activity at a standstill, this presents a unique opportunity to truly rethink how well the existing economy has worked for our societies and planet. The city of Amsterdam in the Netherlands has seized the opportunity to embrace the concept of the doughnut economy and the OECD is arguing that it makes discussions about challenges of digitalization of the economy and a minimum level of tax for MNEs more pertinent.

Tax is the central tool for governments to raise revenue and engage in redistribution. However, it is much more than a technical tool in an administrative toolbox.

It is the modern social contract for individuals and businesses as highlighted by the discipline of fiscal sociology. Short term, long term, whichever way, you approach it tax should, and will, play a central role in the debate about where we want to go from here towards a more sustainable, and more equal, future.

It provides a key source of revenue to finance vital public services, it can act as an explicit redistributive tool central to fighting inequality, and if used wisely, it can incentivize the behavior of corporations and individuals including the transition to more sustainable practices. Some of these things will be discussed at CBS in June.

A timely workshop on corporate tax and inequality

At CBS we are hosting a timely interdisciplinary workshop as a collaboration between the department for Management, Society and Communication, CBS center for sustainability, and the Inequality platform on corporate tax and inequality. We are bringing together researchers from around the world to meet (virtually) and discuss different pieces of research emerging on this relationship. We have legal analysis, economic modelling, qualitative analysis of tax administration efforts, and sociological analysis of tax professionals and wider societal tendencies on the agenda.

Our keynote speaker Professor Reuven Avi-Yonah will give a (virtual) public lecture (SIGN UP HERE) on Thursday 25^th of June 2020 at 14:15 CET. He will speak to the short, medium and long term revenue options in light of the pandemic including a chance for a Q & A. He is a renowned scholar and has published widely on international tax, history of the corporate form, and CSR and tax among other topics.

The workshop concludes on June 26^th 2020 with a (virtual) practitioner panel to discuss knowledge gaps (SIGN UP HERE) from the perspective of professionals of various disciplines. Bringing together professionals from media, NGOs, tax advisory services, tax administration and business. This is likely to be a lively debate with the aim of furthering the CBS tradition of engaging the private sector on what could be fruitful avenues for further research in this axis of relevance between tax and inequality.

About the author

Sara Jespersen is a PhD Fellow at Copenhagen Business School. Her research is on the emerging relationship between responsible business conduct and corporate tax planning of multinational enterprises. In a complex governance context, there are now signs of corporations’ self-regulation and the emergence of voluntary standards. Sara is interested in what this means for our understanding of corporations as political actors and the notion of political CSR.

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Responsible Tax in Multinational Enterprises – Why?

By Peter Koerver Schmidt

The tax practices of multinational enterprises (MNEs) attract massive interest in these years from the general media, policymakers as well as academia. This public interest is positive, as the subject is both interesting and important. At times, however, the debate can be polarized and rather futile.

Two quotes exemplify the wide spectrum of opinions quite well. On the one side of the spectrum, the more traditional opinion which in the words of NYU Professor David Rosenbloom can be expressed like this: “Taxes are a cost, like any other cost. There is nothing magical or special about taxes as a cost, except that they are subject to adjustment by government action.”[i] And on the other side of the spectrum, UK MP Margaret Hodge’s statement concerning Google’s tax planning set-up “We’re not accusing you of being illegal, we are accusing you of being immoral.”[ii]

Tax is and should be regulated by law

Currently, the zeitgeist strongly seems to favor the latter opinion, and it is often argued that MNEs face a moral or ethical obligation not to engage deliberately in strategic tax behavior solely designed to minimize tax payments. In other words, MNEs should act responsibly and refrain from aggressive tax planning.[iii]

Even though such statements are understandable and well intentioned, it is worth bearing in mind that taxation traditionally – and for good reasons – is an area densely regulated by law.

Generally speaking, the legal order (rule of law) creates stability and foreseeability and acts as an obstacle to power holders of society. This is also important within the area of taxation, as taxes are not voluntary and since taxation is a complex balancing act that needs to be carried out in a transparent democratic order. Moreover, equal and objective treatment of taxpayers presupposes a legal standard, as social/ethical norms are too vague to provide adequate guidance. Finally, yet importantly, procedural justice requires that taxpayers – including MNEs – have access to independent judicial review, in order to give the taxpayers a proper chance to explain themselves and to appeal.[iv]

Reputational risks and shareholders of flesh and bone

Does this mean that everything should just remain as it (perhaps) used to be?

In my opinion, the answer is no. Accordingly, policymakers should cooperate on a global and regional level (as they are already doing at the level of the OECD/G20 and the EU), in order to improve the current international tax regime and reduce the possibilities for applying aggressive tax planning strategies. Moreover, well-managed MNE’s should take account of the fact that the wider public expects them to act responsibly and to refrain from aggressive tax planning.

The reason why MNE’s should acknowledge the growing public distaste for aggressive tax planning strategies is in my view two fold, and does not rest on an inherent social/ethical obligation to so.

Instead, the first argument is based on the fact that responsible tax behavior by an MNE can mitigate a number of corporate risks and that corporate tax planning must be balanced against the potential costs of triggering reputational damage.[v] The second argument is that the management in MNEs should focus on maximizing shareholder welfare, not shareholder value.[vi]

In other words, it should be taken into account that shareholders at the end of the day are ordinary people of flesh and bone that are not only concerned about maximizing profits but also have social/ethical concerns. Accordingly, even though MNEs do not have an inherent social/ethical obligation to stay away from aggressive tax planning behavior there may anyway be good reasons to do so.

Currently, there are strong signs that MNEs have become more prone to critically re-consider their tax planning behavior. More and more MNE’s thus prepare and disclose tax policies/strategies that among other things define the framework for their tax planning behavior. In my view, this appetite for implementing policies on responsible tax is both sensible and laudable.

References

[i] H.D. Rosenbloom, Where’s the Pony? Reflections on the Making of International Tax Policy, 63 Bulletin for International Taxation 11, p. 535-542 (2009).

[ii] Public Accounts Committee Chairman Margaret Hodge. Quote from The Telegraph, November 2012: https://www.telegraph.co.uk/finance/personalfinance/tax/9673358/Starbucks-Amazon-and-Google-accused-of-being-immoral.html.

[iii] P. Schmidt & K. Buhmann, Taxation, General Anti-Avoidance Rules and Corporate Social Responsibility in Fair Taxation & Corporate Social Responsibility, p. 227-260 (K. Elgaard et al. eds., Ex Tuto 2019).

[iv] R.P. Österman, Perspectives on Corporate Taxation from a Sustainable Business Perspective in Challenges, in Managing Sustainable Business pp. 371-397 (S. Arvidsson ed., Springer 2018).

[v] A. van Eijsden, The Relationship between Corporate Responsibility and Tax: Unknown and Unloved, 22 EC Tax Review 1, p. 56-61 (2013). See also R. Knuutinen, Corporate Social Responsibility, Taxation and Aggressive Tax Planning, Nordic Tax Journal 1, p. 36-75 (2014).

[vi] O. Hart & L. Zingales, Companies Should Maximize Shareholder Welfare Not Market Value, Journal of Law, Finance, and Accounting 2, p, 247-274 (2017).

About the author

Peter Koerver Schmidt, PhD, is Professor with special responsibilities in tax law at Copenhagen Business School and Academic Advisor at CORIT Advisory. His research mainly focuses upon international (corporate) tax law, and it has been published in Danish, Nordic and international journals and anthologies. In addition, he has authored and co-authored a number of books, including a dissertation on Danish CFC legislation from an international and comparative perspective.

Photo by 401(K) 2012 available on Flickr.

Thinking outside the box on corporate tax practice

By Sara Jespersen.

Multinational corporate tax payments – a persistent conundrum.

Corporate tax practice of multinational corporations (MNC) have been the topic of intense debate in the media and among policy makers in recent years. Most recently the news broke that Amazon would pay zero tax on their more than 11 billion profit in 2018. The OECD have coordinated a large project on the topic and involved countries around the world in discussing attempted solutions to the issue of “base erosion and profit shifting” which is the technical term for states finding it challenging to tax the profits of MNCs.

Not only policy makers and media have taken an interest in the topic. NGOs have played a large part in agenda setting and mobilizing citizens’ concern in the topic of MNCs tax payments. Last year an interesting book was published on the topic of “The “new” politics of Tax Justice” edited by Richard Eccleston and Ainsley Elbra.

However, the issue is far from resolved. A few weeks ago, at a seminar here at Copenhagen Business School renowned tax law scholar Rita De la Feria confirmed that when it comes to MNCs and the creation of economic value – we simply do not know where it actually takes place geographically. Which under the current rules and norms for international taxation makes it very difficult to ensure an appropriate taxation of MNCs corporate profit as this is closely linked to economic value creation. At the same time, research tells us that MNCs are increasing responsible for the global profits (see table F3 in the Appendix tables here). This is a challenge for policy makers, but highlights the relevance and importance of tax research.

Still much to gain from rethinking corporate tax as a social and institutional practice

Maybe we can learn something from rethinking the boundaries of the topic? Move it beyond a technical/legal debate about the formulas and boundaries of corporate accounting practices to identify economic value on paper. Lynne Oats already reconceived “tax as a social and institutional practice” building on the work done in the related field of accounting challenging its mere technical nature. Further interesting work in this vein can be mentioned the book “the new fiscal sociology” edited by Isaac William Martin highlighting the importance of context for the tax phenomenon. Much more is to be learned about notably the role of corporate taxation in relation to business in society, the fiscal contract between business and the state, and the institutions and social structures that embed the economic activities of MNCs. For example how the notion of corporate social responsibility relates to corporate tax practice.

A recent integrative review by Whait, Christ, Ortas and Burritt (2018) of the literature on CSR and tax aggressiveness find that little research approach the topic from a historical, theoretical or qualitative approach. Further very little research exist on the MNCs that do not consider themselves particularly “aggressive” in their tax affairs, but rather would perceive themselves as responsible. Fortunately, there appear to be developments in practice that indicate that we also have more material available to engage in this type of research.

Developments in practice

Just in the past year, three interesting developments are worth mentioning that express how corporations, the media and policy makers approach the topic of corporate tax practice from different angles:

In 2018 a grouping of MNCs developed and endorsed the B-team’s “Principles for responsible tax”. The B-team is “is a not-for-profit initiative formed by a global group of business leaders to catalyse a better way of doing business, for the wellbeing of people and the planet”. The founding and endorsing companies count just over ten at the moment, but with a call for further business to join the conversation and sign up to the principles. This appears as an example of multinational corporations expressing their willingness to appear more responsible and linking their tax practices to issue of ensuring stable and sustainable societies.

In Denmark, a survey of Danish top 100 companies’ performance on tax governance published for the second year released this month . Findings show only relatively small progress in the picture overall and more than half score zero points on the rating that this journal has developed for the purpose. The fact that the survey publishes the second year in a row is interesting in itself. It appears as a part of the increasing interest from a variety of stakeholders in the topic of corporate tax governance. It indicates a more mainstream interest in the topic from a corporate governance perspective. Corporate tax is traditionally viewed as a cost to be minimized. However, this survey and the demonstration that there is movement in the practice related to tax governance gives relevance to conceiving corporate tax as a social and institutional practice. Group Tax Directors are experiencing increased interest in their work and area of responsibility and this translates into new practices and ways of communicating corporate tax policy.

On the international front, the OECD public consultation on the topic of tax morale closed this month. What was particularly interesting from the OECD’s presentation of the topic at a conference in January this year is that they find that we know very little about business tax morale. How important it is in what situations. We know more about individuals’ tax morale. For example, that it appears to be higher in countries that tax more. Findings from OECD’s consultation will be interesting to follow. I for one will be looking out for how the OECD, as primarily a forum for policy makers, will make use of this input.

A promising research agenda:

Investigating the emerging relationship between corporate tax practice and CSR holds much potential for learning more about MNCs and their relation to society. It might not solve the conundrum of how to ensure their effective and fair taxation at first sight, but being open to conceiving corporate tax as a social and institutional practice might deliver valuable insights and move us towards a more sustainable relationship between business and society.

About the author

Sara Jespersen is a PhD fellow at Copenhagen Business School. Her research is on the emerging relationship between responsible business conduct and corporate tax planning of multinational enterprises. In a complex governance context there are now signs of corporations’ self-regulation and the emergence of voluntary standards. She is interested in what this means for our understanding of corporations as political actors and the notion of political CSR.

Articles by the same author

Investigating Emerging Responsible Corporate Tax Practice

Photo

Photo by TJ Dragotta on Unsplash.