back to article Australia to reveal tech giants' tax tricks

Australia's assistant treasurer David Bradbury has outlined a plan to make the ingredients of the infamous “Double Irish Dutch Sandwich” – a recipe for tax minimisation used by tech giants - known to all, so that the public can understand just what the likes of Apple, Microsoft and Google are up to. Bradbury yesterday released a …

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Holmes

One can only presume...

... that this means that the specific commercial arrangements contrived by the specific companies involved will be laid out, since the mechanics of the Double Irish Dutch Sandwich (and other variants) are readily available already from numerous sources.

As such, I'm not entirely sure what "transparency" this will add that could not be achieved by simply affirming that "Yes, indeed, <identified> companies are using <identified> mechanisms to reduce/lower/evade tax".

The real question is, that being the case, why are they not being pursued more vigorously for tax evasion ?

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Anonymous Coward

Re: One can only presume...

Why are they not being pursued more vigorously for tax evasion ? Because they are not evading tax. They are avoiding it. All perfectly legal. The government has the power to pass taxation legislation, but apparently lacks the competence to frame it correctly so that there are no loopholes. That is hardly the fault of large corporations, who have a legal obligation to maximise shareholder profits through whatever legitimate means are available.

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"... apparently lacks the competence to frame it correctly..."

While I understand and I'm sure politicians appreciate your generous use of Hanlon's Razor, I'm not convinced the politicians here in the U.S. aren't getting exactly the tax code they expected. After all, some of us have to "contribute" via taxes to keep the government solvent and some make contributions in a slightly different manner but ultimately that money is controlled by much the same people albeit somewhat more privately.

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Re: One can only presume...

Avoidance is only legal whilst the law permits that particular flavour of avoidance. Once such loopholes are closed, HEY PRESTO - it's evasion. And if there is sufficient concern (and there increasingly seems to be) to change the laws to make former avoidance now evasion then it can only be concluded that it was evasion to start with. Simply a form of evasion that was not previously caught by the laws.

In these cases, what we have are complex interactions between disparate tax systems, some of which were intended to reflect complications inherent in the tax affairs of multinational companies. But these were NOT deliberately created mechanisms specifically intended to allow corporations to legally avoid tax.

Which brings us back to the original question: Why are these companies not being brought to book ?

Arguing that "what they are doing is legal" is dodging and fudging the issue.

Once upon a time there were no speed limits on the road. Then ideas changed and so did the law, but good luck arguing your way out of a speeding ticket now by falling back on the position that what you did used to be legal and so should continue to be so.

Also, try arguing with a straight face that speed limits are not themselves legal for the same reason.

Sheesh.

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FAIL

Re: One can only presume...

Your argument is so flawed it's hardly worth rebutting, but here goes:

1) It's not currently illegal to avoid taxes in the ways that many companies do.

2) Making it illegal at some future point in time does not make it illegal now. You can claim it does as much as you want, but it simply doesn't (short of an ex post facto law, which are thankfully not possible in some countries and are normally frowned upon because it requires some really special powers to know whether you're currently breaking a yet-to-be-created law).

"Why are these companies not being brought to book ?"

In most countries you don't bring people to book for not breaking the law.

In your road speed limit analogy, noone is saying that you could now argue that there used to be no speed limit but now there is, so I'll ignore the limit. What they are saying is that currently there is no speed limit. Introducing a speed limit does not make past driving at above the now legal limit magically illegal, but it does make continued driving at such speeds illegal.

Arguing what they are doing now is legal is not "dodging and fudging the issue". If it's not illegal, it's legal. End of story. Anything else leads to chaos.

Sheesh.

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@Jolyon Smith Re: One can only presume...

That was an amazing example of digging yourself into a hole. Remember, if you misuse an analogy then it will bite you.

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Re: @Jolyon Smith One can only presume...

The "maximising profit" excuse doesn't really work. There are many things companies have done which weren't illegal but most people would accept were wrong. There are also many companies which don't do these things because they see them as wrong.

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Facepalm

Re: One can only presume...

They are avoiding tax (which is legal). Tax *EVASION* is illegal. There is a small but significant difference.

HMRC and others now require avoidance schemes to be reported, at which point their lawyers and accountants go over them to see if they truly are compliant with the law as it stands, and whether they comply with the spirit of the law (not just the letter of the law).

Several avoidance schemes have been declared not compliant, which meant that people using those schemes were required to pay back taxes, but generally it just gives HMRC more of an idea what shenanigans are being used, which in turn leads them to ask the Treasury to request more tax law amendments and swelling the already voluminous tax code even more.

It's a vicious circle/

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Anonymous Coward

Re: One can only presume... @Jolyon Smith

Tax law != traffic law.

Don't compare apples with oranges.

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FAIL

thus proving taxation systems are broken

every time a new loophole is found, it's patched over. our legal and tax systems are like a badly written hacked-together overly complex computer program. no wonder it's possible for clever accounting practises to run rings round it. The winners are the corporates and the accountancy consultants!

we need simpler tax, simpler corporate law.

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Big Brother

Re: thus proving taxation systems are broken

The IRS publishes 108 pages of "instructions" for the basic 1040 tax form. This does not include the multitude of special "supplements" for additional portions of the 1040 tax form.

The taxation system is not "broken," it is exactly where the Congress intends it should be: incomprehensible, incontestable, and feared.

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Re: thus proving taxation systems are broken

The source of these problems is actually very simple: countries have agreed to write their tax systems so that multinational companies are not taxed twice on the same profit - called 'double taxation'. This is supposed to be fairer to the company.

The problem that occurs is small jurisdictions that don't need a lot of revenue - in absolute terms - set their tax rates very low - in percentage terms. (Or places that set corporate taxes to zero for overseas corporations and raise all their revenue from residents.) Through assigning some income to such tax havens, or exaggerating the costs of some required resource, whose supply is routed through the tax haven, the corporation can reduce their tax bill in the high-tax countries that are actually providing the revenue. This is referred to as 'double-non-taxation'.

Google, I believe, has assigned the copyright to its logos to a subsidiary in a tax haven, then that subsidiary charges a ridiculously large amount to each national subsidiary for use of those logos. Starbucks did something similar, and also routed all buying of coffee beans via Switzerland, for which the Swiss subsidiary extracted very high management fees, so each national subsidiary is paying far more than open market price for coffee.

Amazon UK's servers are actually hosted in Luxembourg, and all purchases from amazon.co.uk are therefore reported as being made in Luxembourg, meaning they pay Luxembourg's very low rate of VAT rather than the UK's much higher rate. VAT-bearing goods were formerly routed via Guernsey - as in, shipped from a UK warehouse to a Guernsey subsidiary, and back to the customer in the UK - in order to avoid VAT, but HMRC have closed that one (Low Value Consignment Relief was a special feature for the Channel Islands, intended for small businesses actually based on the Islands selling small amounts of stuff to the UK, but it was abused, and so small Guernsey businesses don't get the relief any more.)

Microsoft have set up their patent licensing subsidiary Microsoft Open Technologies Inc in a tax haven, and Microsoft Corp will pay MOT Inc royalties for use of those patents. (You didn't think it was really about making the interoperability groups arms-length from Redmond, did you?)

The answer is also quite simple. Strike out the double taxation rules. All revenue raised in the country that the end customer lives in is taxed at the prevailing rate in that country. Multinationals are then playing by the same rules as corporations that do business solely in one jurisdiction.

However, that is considered bad for business, so the suggestion from the Tax Justice Network is to employ country-by-country reporting. That is, change the global accounting standards so that multinationals are forced to report accurately how much revenue was raised from each country. The group profits are then apportioned to each country according to the proportion of revenue, and tax assessed in each country according to the corresponding part of the profit.

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Re: thus proving taxation systems are broken

It is by choice that it is complicated.

If you look at the way that importing alcohol and tobacco is dealt with they are capable of doing it in a simple manner.

I think the EU is working as designed for the companies (But not for average people wanting reasonably taxed booze and cig's). The whole point originally was you can buy from anywhere and pay tax in the country of origin.

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RE: Re: thus proving taxation systems are broken

Strike out the double taxation rules. All revenue raised in the country that the end customer lives in is taxed at the prevailing rate in that country. Multinationals are then playing by the same rules as corporations that do business solely in one jurisdiction.

Which is well and good, but, if you notice very carefully, many of these avoidance schemes involve tax deductible business expenses. And, if you think corporates are going to stand for basing tax on gross revenues as opposed to net profits; you are in for a serious shock. The wailing and moaning will be heard world wide. The trick for tax agencies world wide is to determine how to fairly assess legitimate business expenses, and tax those claimed business 'expenses' that simply serve to move profits out of a high tax percentage country into a tax haven.

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Re: RE: thus proving taxation systems are broken

Don't see why corporate taxes should not be assessed on revenues rather than profits. My income tax is assessed on, well, my income, less a personal allowance. In fact my personal allowance is slightly *reduced* because my employer pays for private health insurance - which I don't expect to use, but haven't opted out of.

I'd have no problem with allowing a 'corporate allowance' of something like number of employees registered in PAYE, multiplied by some reasonable wage level, to ensure that the company can always pay its employees.

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Coffee/keyboard

Very badly written sorry

I thought Google was only allowed to do this in the EU - but Google Australia must be a subsidiary of one of the Google Ireland companies with licence / royalty agreements between the two.

The tax rate in Ireland is 12.5% which is a fantastic tax rate. I'm an accountant who does a fair few corporation tax returns (mostly my clients don't pay Corporate tax either because t hey are making losses or that they will be taxed an addition 12,5%.

Similar to the UK - This tax rate is useless for people who live in Ireland (and not so great if you live in the EU or elsewhere) because once you pay CT, you don't get a credit when you finally pay a dividend or salary/directors bonus out of your company which will be taxed at your personal rates which are (very roughly) when you include PAYE, ER/EE Prsi and the "Universal social charge" between 30% (lower bracket) and 55%.

In practice it means most directors would pay a bonus and get hit with the Payroll taxes instead of paying the extra 12.5% Corporate tax.

If you live in Europe - but have an Irish company, you pay 12.5% Corporation tax, and as there are double tax treaties between Ireland and all the EU countries, you probably can qualify of 0% DWT (Dividend Withholding Tax) - but these dividends would be taxable in your country of residence on your personal tax return.) Say in France/UK/Italy, this would throw your liability over 30-40% including the Irish CT.

Ireland's Company law and Tax code is almost identical to the UK - Everything is very similar. We copy everything the UK does except we have a lower rate of CT, and have very friendly transfer pricing policy towards this tax structure that should be renamed "the bank transfer" and imho is money laundering.

Dividends (from after tax profits) go from one tax haven, (a respectable EU one called Ireland) to some kind of charity vehicle in Holland (bank transfer only) to another REAL tax haven (bermuda and company where I assume you don't even have to declare your income never mind produce a DWT computation).

That doesn't sound right does it?

Ireland is the first leg of the journey -

Google has 5 or 6 companies registered at the companies office (e.g. Google Ireland Limited (368047), Google Commerce Limited (512080), Google Ireland Holdings (369511) and Google Voice Ltd (459359)) if you want to search yourself), all but one are unlimited companies (which means they don't have to publish public accounts - just an audit report and annual return, and we don't get to read notes explaining how the charge to corporate tax was reduced to 2% (or whatever rate Google boasts about it's worldwide effective tax rate) instead of 12.5%).

But with licence agreements (god knows what kind of transfer pricing happens between the 7 companies in Ireland, EU and Bermuda) - All their expenses in Ireland are probably under the R&D Tax credit scheme so 25% every cost they have here (Google are a huge employer in Dublin with about 3,000 people employed) - can be offset against the CT liability. There are also very friendly rules for holding companies in Ireland and for moving Intellectual property / patents/ offsetting losses etc... to the emerald Isle.

Even if Google pays only 2% CT here - the actual figure paid must be massive especially if Ireland has Licencing agreements with it's subsidiaries worldwide that connect to Ireland (judging by the aussie response this must be the case) - Also VAT and Payroll taxes (mostly VAT should be paid to the respective EU countries for B2C transactions but for selling directly to business, it could normally be classed as a intra eu charge (used to be called fourth schedule services) and would be 0% vat subject to the reverse charge basis), but the employment and payroll taxes are high (for Ireland).

- Ireland was still able to bankrupt itself even with all the inward investment and googles global CT of whatever % -. That's how inept we are at managing ourselves as a country.

- MNC's in real terms I think only employ 150k - 200K people in Ireland (and if you allow for spin off work from MNC's being here) perhaps another 200K people. The other 1.7 Million working here work for the SME market. Incredible small market compared to the UK et al.

- I only use Google as an example as it's the one I follow on the companies office - for other companies look here www.ida.ie

- Nothing against google's products (migrated to Gapps, have a firm android app etc...) so I've nothing against them except that the Irish market is so small and pointless to them, that they still haven't released the Nexus 10 here, and also I'd prefer they paid a reasonable amount of tax in EU (not asking for 30% + but at least pay 12.5%).

- HMRC lowered UK CT to 19% I think? So It's trying to compete with Ireland here, also HMRC has some interesting things for non doms with a flat tax rate (which I think ranks in the same category as what Ireland/Holland does for MNC's).

-MNC's are so important to Ireland now that Ireland needs to get far more strict so as not to piss off everyone else who (UK, Germany, Australia etc...) who will force some change in policy and sink Ireland's advantage -

- I can't see Ireland getting away with it for much longer without making some kind of effort to police the crazy transfer pricing thats going on and to make sure our partners (UK etc...) get a reasonable deal.

- I think the US may be happy with Ireland because at least it stops foreign countries from getting AMERICAN companies taxes :). Anyway Obama is Irish so hopefully he will veto whatever Australia is trying to do with the ODCE :).

- Go to page 8 for an explanation from the IDA on how Google can lower it's CT from 12.5% to 2%? - http://www.idaireland.com/news-media/publications/library-publications/ida-ireland-publications/IDA_Tax_2012.pdf

- sorry for typos and poor wording /structure - it's late!

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Happy

Re: Very badly written sorry

Not that badly written.

It seems to me that more and more "countries" are getting fed up with companies who avoid paying a "reasonable" tax (through fully legal "wholes"). This, I suppose, is because at the end of the line there is always some tax heaven (island), Common sense to use them, though. Take a cruise in the Bahamas in one of the finest and biggest cruisers in the world. Does it bother you that they are registered in the Bahamas, probably not, unless you have a hart attack or something, and suddenly the standard of "help" is also according to the lowest possible standard on a ship registered in the Bahamas. Surprised, or are you. The EU has aims to get rid of the tax heavens, I salute that, but it's not easy, much perhaps because those who should write the laws are perhaps in their own private economy too involved in those tax heavens. An "island" where the finest crooks of the world and the finest international companies unite in the finest hotels.

As for Obama, (happy for his first and second election) I was told he was either alien, African or from some island around Hawaii newer recognised, yet, by the GOD (the Great Old Disaster), but now, he being Irish I feel much better. A third election impossible for other reasons too, mind.

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Re: Very badly written sorry

Nicely written, thank you for the explanation.

However I must take issue with one part re the incompetence. They do have some minimal level, look at the m50. The EU paid for the vast majority (85%?) of that road and when you leave the airport what is waiting for you? A ****ing toll booth about 100 yards past the sign that says we didn't pay for it. It was a few years back so it is probably camera based now but I thought that was either the height of cheek or cunning, I couldn't work out which :) You think you could have used some of that foreign tax to pay for your own damn roads ;) It must have taken some level of competence to get the EU to pay for your roads, steal their tax revenue and then charge them for using the roads when they visit? Respect! I would do it if I could!

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Re: Very badly written sorry

Thanks guys, the interesting note I'd love to read in Google's or any of these companies accounts would be something like this (based on a theoretical 100 euro profit before tax):

FACTORS AFFECTING TAX CHARGE FOR PERIOD

The tax assessed for the period is lower than the standard rate of corporation tax in Ireland (12.5%). The differences are explained below:

FY 2012

Profit on ordinary activities before taxation 100

Profit on ordinary activites multiplied by standard

rate of corporation tax in Ireland of 12.5% 12.5

Actual tax liability incurred: (€16 x 12.5%) 2

Effects of:

Negative goodwill associated with purchase of

Motorolla Inc (20)

Amortisation of intangible assets

(IP/royalty agreements) (20)

Utilisation of Tax losses (20)

R&D Tax Credit (4)

Group Relief (10)

Capital allowances (10)

Profit Before tax €100 - €84 = adjusted profit of €16.

€16 x 12.5% = 2

The company would pay 2 euro corporation tax to the Irish Revenue,

Afterwards, they would file a dividend withholding tax return (€98 bank transfer to a dutch company).

Ireland has a double tax treaty with Holland, so 0% withholding tax to the dutch company.

After that I'm not sure what happens - I presume the dutch revenue takes a cut, before dividending it out to Bermuda or other offshore countries.

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Re: Very badly written sorry

The EU cannot get rid of tax havens when Luxembourg is part of it. (And it is the main purpose of it).

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JLV
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Trollface

Aussies rule!

>Tax systems that rely on voluntary compliance require strong public confidence

Voluntary compliance? As in, I decide how much to pay? Oooooh, getting me tix to Australia then.

Seriously, not meaning to jump on the anti-corporate bandwagon, but...

Stop this BS! Corporation should pay taxes relative to where their profits are earned. Australia is taking a very good, relatively easy approach with name & shame. But we need to go much further.

I don't object to low corporate taxes as such, but once a country has exercised its sovereign rights to tax at a certain rate, there should be considerably less leeway to avoid paying taxes by shopping for friendly tax jurisdictions that have nothing to do with revenue aquisition. If "profits" is too difficult to pinpoint geographically, then let's use "local revenues / global revenues * global profits" to determine local profits.

Name & shame is cheap, easy to defend and an excellent start.

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Re: Aussies rule!

"Voluntary compliance? As in, I decide how much to pay?"

No, as in taxpayers honestly and accurately comply with taxation laws. Most of us do (which is one of the reasons Oz is not a basket case like so many Eurozone countries). It frees up ATO and state revenue office staff for compliance programs aimed at those who don't comply. But, if a lot of people are evading or avoiding tax, it tends to erode confidence in the system.

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JLV
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Boffin

Re: Aussies rule!

>not a basket case like so many Eurozone countries

Lots of Euro countries are basket cases because the voters have decided to have their governments spend more than they collect. Taxes are a part of that equation, but so is spending. Unfortunately, when there is a really big problem that has built up over the years, lots of pain can be inflicted to the citizens without much progress being made (Greece).

> if a lot of people are evading or avoiding tax

evasion is NOT avoidance. Tax evasion is illegal. Tax avoidance means staying within the law, having high-paid tax accountants and _legally_ paying less than might be otherwise expected if the special tricks weren't available.

The problem here is that there is way too much _legal_ leeway for multinationals to avoid paying taxes. Transfer pricing (having subsidiary in country X with high taxes pay up the wazoo for goods/services bought from subsidiary in country Y with low taxes) is a huge culprit.

Besides less tax collected, this means people/companies with lots of $ employ clever tax accountants to allow them to pay less tax than the less affluent. It's not going to be fixed in a day, but I am all for a level playing field.

Tax evasion => enforce the laws. Tax avoidance => change the laws (hopefully constructively). Name & shame => don't change the laws, but let the companies' customers know who they are dealing with.

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Pint

Re: Aussies rule!

"evasion is NOT avoidance. Tax evasion is illegal."

Yes, I understand that. My point was that, if avoidance becomes widespread among those who can afford smart lawyers and accountants, it erodes confidence in the tax system among the rest of us (who can't take advantage of these loopholes). Essentially, I'm agreeing with you, just looking from a slightly different POV.

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Devil

And "Oh how they wail"....

About people using their software, without paying for that also....

And so the evil people in the evil corporations, using evil manupulative and disingenous accounting practices, run rampant over the planet with one set of rules for them and another for the rest of us....

Not to mention the price gouging on top of this.....

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Thumb Down

pollies and advisors have other interests

like "free trade" agreements that suit incoming but not outgoing trade. Agreements get signed that reduce national sovereignty over tax to "enable" international trade. One might think that those donations to political parties from the corporates have an ulterior motive. Or that advisors and pollies are trusting, gentle soulsd who do not have a clue. After all, they have pay and superannuation the rest of us do not, so consequences, intended or otherwise, are of no personal importance, hence easily ignored.

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Pint

Consumtion taxes don't work in a global market

Why do governments keep whinging on missed tax dollars when they continue to avoid the reality that we can now spend our money and but items in any state or country we choose. The idea of a consumtion based tax on everything just wont work in a global market. In Australia we have the GST, if I buy my clothes and technology etc online from a site in another jurisdiction then there is no GST for the pollies. As this increases and business like Google move money between markets in the same way as our purchasing discretion then the less tax that will be paid by all.

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I also hope to see..

I also hope to see the Departmental Revenue of a ministers department shown as his "Income".

I'm in favour of taxation, but politicians always seem to equate turnover and control with profit, for every other entity than themselves.

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Pint

"I am not evading tax in any way, shape or form. Now of course I am minimizing my tax and if anybody in this country doesn't minimize their tax they want their heads read because as a government I can tell you you're not spending it that well that we should be donating extra. "

-Kerry Packer.

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"If anything, taxes for the lower and middle class and maybe even the upper middle class should even probably be cut further. But I think that people at the high end - people like myself - should be paying a lot more in taxes. We have it better than we've ever had it."

Warren Buffett

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Anonymous Coward

Hmmmm

If I were to torrent my files from Ireland or Holland, maybe I'd be exempt from the law too!

[Joke Alert]

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Transfer tax

It appears to me that the multiple transfers from jurisdiction to jurisdiction are the key element behind the avoidance loopholes. Perhaps the key would be to apply a tax to corporate revenue whenever it leaves a jurisdiction? It could scale up based on the number of transfers, so the first time a company moves revenue in a year it is either free or 0%, but to move the same money again would incur a 2% charge, then 4% to move it again etc. Companies bouncing money around Ireland/Holland/Bermuda would stop getting to do this for free.

Another option would be to allow money to leave the country tax free on the condition the company declares that this is the final destination for the funds in this financial year, however if it's going to be bounced around at least one more haven, then there is a charge.

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Sadly...

this is an example of how normal processes can be corrupted if it can save more than it costs to implement. All the oft castigated companies use licensing fees and suchlike (transfer pricing?) as a need to shift the bullion to a more lenient jurisdiction but this was setup to allow normal businesses to account for costs. As an example, if you were a one man band franchisee for 'SupaKlean Floors' you may have to pay for branded kit and consumables and that is a legitimate part of the cost of doing business. What the big-boys have done is squeeze every possible penny through that route (such as buying their coffee beans from the franchisor) to minimise their apparent profit margins.

All perfectly legal and a perfectly created minefield for anyone to try to return it to the original intent rather than the predominant usage.

As I have mentioned before, these are textbook examples of the difficulty in converting good intent to clear and precise laws. No matter how careful you are they has to be a boundary zone and this is where the lawyers feed.

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Re: Sadly...

This is Gödel's incompleteness theorem manifest in law. (Rules cannot be consistent and complete so there will always be something for an accountant can exploit.) That's why a generalised anti-avoidance rule might be a Good Thing.

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Re: Sadly...

Large legal firms are heavily involved in making these tax structures - along with the big four, Deloitte, KPMG, E&Y and PWC, so don't just blame accountants :)

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I *so* wish

I *so* wish something like this would happen in the US.... but that would require unicorns, fairies and dragons...

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rjf

if only Ireland was getting 12.5% tax rate from these companies... but in reality the trick is to pay no taxes... hence the Double-Dutch-Irish thingy and many other similar ones. What they do is manipulate the rules between difference jurisdictions so that income is classified in different ways, thereby minimising taxable income. If done right, you can work your way down to an effective 0% tax rate. it's a very clever piece of legal arbitrage ... we need to fix the tax code and the regulations.

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Anonymous Coward

Why not introduce yearly "one off" windfall taxes on these tax avoiding corporations?

A windfall tax should be introduced based on the difference of the tax that should have been paid had the corporation acted ethically and the actual amount it paid. The windfall could be charged at 200% of the difference thus meaning that companies that "avoid" tax through unethical means get hammered. Such a tax would be a legal and fair way to deal with an unethical corporation that had abused the local tax system. If such a tax were introduced it would quickly no longer be worthwhile trying to operate complex tax avoidance schemes as these would end up being punished not through fines but through a windfall tax.

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Re: Why not introduce yearly "one off" windfall taxes on these tax avoiding corporations?

Sometimes it happens ...

http://www.canberratimes.com.au/business/act-scores-77m-win-over-news-tax-scheme-20110215-1av6b.html

... just not often enough.

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