Tax haven: The devil is always in the detail
Australian banking and finance lawyer
In July 2016 the then Indonesian finance minister Bambang Brodjonegoro, in conjunction with the launch of the widely publicized tax amnesty program (TAP) for undeclared offshore assets, also laid out less publicized plans for a new tax haven on the islands of Bintan and Rempang (Proposed Tax Haven).
A key rationale for the Proposed Tax Haven is to provide attractive investment opportunities for funds repatriated to Indonesia under the TAP.
Once the three-year limitation on how these repatriated TAP funds can be invested expires, the government fears they may again be moved abroad.
The response to the Proposed Tax Haven has been mixed, with some commentators raising concerns including its potential to aid criminal activity, a hostile global environment toward tax havens and social equity issues around the amount of tax being paid by wealthier Indonesians and their companies.
What exactly is a tax haven, how meritorious these concerns are and whether the establishment of a tax haven will further the government’s stated rationale deserves closer attention.
Tax havens have traditionally offered two unique attractions to investors and criminals — high levels of secrecy around the identity and operations of people and entities based in the tax haven and very low or zero rates of tax on economic activity conducted outside the tax haven.
Economic activity inside the tax haven is usually (but not always) taxed at a significant rate in the ordinary course of funding local government spending.
Secrecy is permitted by tax havens in various ways, including the use of nominee (third-party) directors and shareholders by companies to conceal the identity of the true directors and shareholders; the issue of “bearer shares” by companies where share ownership simply rests with holders of share certificates and is not recorded on a public register; the widespread use of legal “trusts” where the true beneficial owner of assets, rather than the notionally registered legal owner, cannot be identified; and little or no financial information sharing by the government of the tax haven with foreign governments.
The secrecy (as opposed to tax rates) of tax havens is increasingly being targeted by other countries and global organizations including the G20, of which Indonesia is a member, and the Organization for Economic Co-operation and Development (OECD).
For example, the G20 and OECD have published a “blacklist” of those tax havens that permit a high level of secrecy. Entities based in countries on this blacklist face high withholding taxes levied on their financial transactions in foreign countries.
If the true identity of company directors and shareholders and asset owners is recorded and made available to legitimate enquiry, the low or zero rates of tax on economic activity should be of no concern. For example, a company incorporated and domiciled in the Cayman Islands and its Indonesian shareholders may face no local company or income taxes on the company’s worldwide income or dividends paid.
Under Indonesia’s income tax laws and related anti-avoidance legislation, income tax would still be payable to Indonesia by the Indonesian shareholders on profits of the company, regardless of whether or not they are actually distributed to them as dividends. Provided the relevant information is available to the Directorate General of Taxation it will be able to enforce this.
Of course, if their identity and operations are no longer secret, criminals have no incentive to use tax havens and launder illicit money through financial institutions based in them.
As a respectable and good global citizen, Indonesia, through its membership of the G20 and good-practice approach of its tax office would presumably not allow the identity and operational secrecy traditionally permitted by tax havens in the Proposed Tax Haven. It certainly should not do so.
The announcements made so far have focused on lower rates of company tax, infrastructure development and cutting regulatory burdens which should, at least until more detail is provided, allay fears around its potential to aid criminal activity and deal with concerns related to the hostile global environment toward tax haven secrecy.
A key rationale of the Proposed Tax Haven is to encourage the money repatriated to Indonesia under the TAP to remain in the country.
How the lower rates of company tax in the Proposed Tax Haven will achieve this remains unclear and it is here that significant complexity will emerge and legitimate concerns related to social equity issues and the amount of tax being paid by wealthier Indonesians and their companies will likely arise.
As noted above, tax havens traditionally have offered low or zero taxes on economic activity conducted outside the tax haven, whilst taxing economic activity inside the tax haven at normal rates.
Will existing Indonesian companies be permitted to reincorporate in the Proposed Tax Haven, cutting the company tax they pay on their foreign earnings? What about Indonesian earnings outside of Bintan and Rempang? Or will existing Indonesian companies be able to incorporate new subsidiary companies in the Proposed Tax Haven and shift business activity across to these new subsidiaries with a similar result?
If not, does the government intend new companies incorporated in the Proposed Tax Haven to have a significant and potentially unfair competitive advantage over existing Indonesian companies as only they will enjoy the lower tax rate?
Meanwhile, the reduced company tax payable represents forgone tax revenue that is badly needed to fund social programs and pay down the fiscal deficit, among other priorities.
Will the increased tax receipts from the expanded “tax base” generated by the TAP and Proposed Tax Haven at least offset the reduced company tax payable under the lower rates?
Finally, while the pragmatism and potential longer-term benefits that underpin the TAP may be justified, despite the moral hazard of waiving punishment for breaking the law, pragmatism must have its limits.
Having already escaped punishment under the TAP for illegally hiding assets abroad, should these would-be-criminals then further receive special tax advantages on their repatriated assets?
The answer may well be no and instead, Indonesia should strengthen its information sharing partnerships and efforts with foreign countries and focus on punishing those who break the law and require them to pay the full tax owed on their assets and income.
The writer, an Australian banking and finance lawyer, has practised law at major international law firms in the UK and Australia for almost six years.
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