Shivakantjha.org - Growing use of tax havens for funding of terrorism
Growing use of tax havens for funding of terrorism
By Shiva Kant Jha
THE OECD has identified four dominant features
of a tax haven. These are no or nominal effective tax rates; lack of effective
exchange of information; lack of transparency and absence of a requirement of
substantial activities. Tax havens are the jurisdictions which make themselves
available for avoidance of tax which would otherwise be paid in relatively high
tax countries.
It is common knowledge that in recent years the tax havens
are widely used for evading tax. In fact, the economy of most tax havens largely
depends on the promotion of the unwholesome activities having the effect of
causing wrongful gain to those not entitled to tax benefits, and causing wrongful
loss to those having legitimate claims to tax Operators in the third countries,
thereby turning such treaties into veritable rouge's charter. If an American
company earns capital gains in India or in the United States it is liable to
be charged to tax as per the laws prevailing in these countries; or, if the
Luxemburg Company earns capital gains in India it would be taxed in India as
an ordinary non-resident as there is no double taxation agreement between these
two countries. If these companies set up subsidiaries in tax havens like Mauritius
they are neither taxed in India nor in such tax havens on their capital gains.
Sailing under false colours becomes most inviting for the tax dodgers as they
wrongfully gain advantages of a bilateral treaty of which they are neither the
parties nor the intended beneficiaries.
It is said that in the globalised economy different countries
tend to share a common emerging space. That this pursuit would be good for the
common people is not beyond all doubt. But time is ripe to recognize that the
pathogenic effects of globalization can be somewhat avoided only by ensuring
complete transparency of the global economic process. Tax havens negate transparency.
Tax evasion and criminal activities flourish in darkness. But right now what
has become a matter of gravest concern for us is the evident risk of the use
of the tax haven routes for transmission of money for promoting terrorism and
effecting anti-national activities.
KICKBACK REGIME
It is commonly shared concern that a lot of money is being
generated by the most unscrupulous methods _ through bribery, receipt of kick-backs,
drug-backs, drug-trafficking, insider trading, embezzlement, computer fraud,
underinvoicing, and other tainted activities spawning scams having deep lethal
consequences on the welfare of common people. But those who earn these ways
try first to park them in places where the risk of detection, seizure and confiscation
is either non-existent or minimal. Then they devise ways to disguise their proceeds
of illegal origin. The tax havens are considered the safe place to park such
tainted wealth. Through companies floated in tax havens ill-gotten money can
be effectively laundered and brought into the normal economic channels. Many
of the tax havens spread red-carpet to welcome them. They ensure legal systems
under which such pursuits are carried on without any risk of being subjected
to scrutiny.
The other day we heard a news on the TV that a most widely
known terrorist has vast wealth in Caribbean islands, Monaco and several other
places _ apparently tax havens. To finance terrorism worldover through his financial
network he adopted complex ways. If a dreaded terrorist decides to transfer
resources to India from Monaco or the Bahamas, or Luxemburg, or some of the
islands in the Caribbean Sea, or the English Channel or some dot-like country
in Micronesia or Polynesia, he would adopt a simple strategy. He would instruct
his investment manager to structure some device for transferring resources into
the target country. By way of illustration, he might float a subsidiary company
or a conduit company in Mauritius for transacting on the Indian Stock Exchange.
It is worth noting that capital gains are neither taxable in
India nor in Mauritius. In fact, capital gains do not constitute even a species
of income under the Mauritian law. Floating a conduit company in Mauritius is
an easy affair. Such companies are so ring-fenced as not to have adverse effects
on the domestic transactions but enjoy all the facilities to maraud the revenue
of other countries. India has become over these years an obvious and immediate
target. Such companies obtain certificate of residence from the foreign tax
authorities in order to pass for the real residents.
There was some measure of check when the income tax authorities
used to investigate the cases of the non-residents in order to see the profile
of the real operators and the beneficial owners to exclude the persons of the
third States from taking advantage of the bilateral treaties. The courts of
law have held such actions of the income tax authorities in total conformity
with law. In exercise of this jurisdiction the Income-tax Department could know
the whereabouts of the real operators and the real beneficiaries. On knowing
that some crime had been committed or some crime had been planned the authorities
of the Income-tax Department were duty bound to inform other agencies of the
government to take appropriate actions. This would be in exercise of general
duty of the type contemplated in the Government Instructions issued in terms
of section 138 of the Income tax, 1961. The various frauds and crimes, especially
in the post-September 11, phase, should drum into the ears even of the banking
regulators worldover, to identify account holders and the beneficiaries of funds
flow from and to bank accounts.
CONTROVERSIAL CIRCULAR
The effect of Circular no 789 issued by the Central Board of
Direct Taxes is to subvert the check, which had its wholesome effect before
the Circular under reference had been issued. The effect of the Circular is
to make the Certificate of Residence granted by a tax haven government conclusive
for two things: (i) as to the authenticity of the fact of residency, and (ii)
as to the beneficial ownership of income. On account of the mandatory directions
the income tax authorities would not be able to know the real operators and
the real income earners. Terrorism can flourish under such circumstances. I
am sure that those who issued this Circular would not have thought that they
were unwittingly facilitating terrorism and anti-national activities. Countries,
which believe in the rule of law and want to ensure that public resources are
not plundered through fraudulent devices, readily reject any Certificate of
Residence granted by a foreign authority when the rogues take unfair advantage.
The United States Courts of Appeal crisply said in an important case, "Be this
as it may, we are not bound by the determination of the Swiss tax authorities."
To say the obvious, the statutory jurisdiction to investigate
can neither be clogged nor curtailed under the executive instructions. It is
a fundamental principle of the tax law that only the real earner of income is
taxed. As legality of the government circular is for the court to decide, but
its evident sinister potentialities which the terrorists would grab must not
be lost sight of.
Such matters cannot brook any delay, as the security of the
country must be of supreme interest. The price of liberty and societal weal
is always eternal vigilance. The Government must respond not only by withdrawing
the aforementioned Circular but should also take all possible steps to see that
there is no unjust enrichment; there are no recipients of wrongful gains and
there are no sufferers on account of wrongful loss. It would be a queer irony
that the government which rightly asserts its case against terrorism tends to
become, perish the thought, a facilitator of terrorism It would be foolish to
wait till facts are proved beyond a reasonable doubt. When the issues relate
to the security of the country a responsive and reasonable government should
act on express probability itself. Whittier said-
"For all sad words of tongue or pen
The saddest are these: It might have been.''
(By Mr Shiva Kant Jha, Former Chief Commissioner of
Income tax)
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