Ifrah PLLC – 

Congress is poised to deliver on tax reform this year. As part of the package, both houses are seeking to encourage the repatriation of trillions of dollars that corporations and wealthy individuals have been stockpiling offshore.

For decades, corporations and wealthy individuals have been able to avoid taxes legally by transferring assets to tax-friendly jurisdictions like Bermuda, the Cayman Islands, and Panama. Only when the assets are transferred to the U.S. are they taxed at current rates. In hopes of getting that offshore capital back home, the House and Senate have approved legislation that lowers the rates on corporate profits and repatriated cash.

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It is common knowledge that the wealthy take advantage of these tax avoidance schemes. What has been less clear is how the schemes are employed and by whom. The Paradise Papers and Panama Papers leaked in 2017 and 2016, respectively, bring some of those secrets to light.

Paradise Papers

In November 2017, media outlets announced that an anonymous source had leaked 1.4 terabytes (i.e., about 13.4 million documents) of confidential data to a German newspaper, which shared the information with the International Consortium of Investigative Journalists (ICIJ) and its media partners. The documents reportedly were stolen through a cyberattack on Appleby, an offshore legal services provider founded in Bermuda, with offices in “key offshore locations,” such as the British Virgin Islands, the Cayman Islands, Isle of Man, Jersey, Guernsey, Mauritius and the Seychelles.

The Paradise Papers—so called because of their connection to Bermuda—show how wealthy individuals and corporations use offshore tax structures to avoid tax liability, protect assets, hide illicit money, circumvent trade embargoes and (in some cases) finance terrorism. The wealthy may do so by becoming a resident of an offshore jurisdiction that assesses a lower tax on income.

They can also establish and fund an offshore trust vehicle to avoid paying capital gains on profitable investments. Similarly, corporations can register their headquarters in an offshore jurisdiction and shift profits to that location in order to obtain more favorable tax treatment. In addition to these tax advantages, many offshore havens offer unparalleled privacy. Some do not require the actual owners to be named in public documents. Instead, the owner can hire trustees who serve as “nominee shareholders.”

If questions are raised as to the identity of the “ultimate beneficial owner,” the true owner can pay another offshore official to serve as the “ultimate beneficial owner” so the identity of the “actual ultimate beneficial owner” is never disclosed. This level of secrecy protects the owners’ privacy and property interests, but also facilitates tax evasion, regulatory violations, and financial crimes.

These wealth management services are available to anyone who is able and willing to pay.

The Paradise Papers implicate entertainers (e.g., Madonna, Bono), businessmen (e.g., the Koch brothers, Carl Icahn), government officials (e.g., Rex Tillerson, Wilbur Ross) and even royalty (e.g., Queen Elizabeth II). Some of the largest companies in the world are also named in the documents—businesses like Nike, Apple, and Uber, among others.

The leaked data allegedly includes evidence that Mossack Fonseca may have facilitated fraud, money laundering, and theft.

Panama Papers

In April 2016—about nineteen months before the Paradise Papers were released—the media announced that an anonymous source had leaked 2.6 terabytes of data (i.e., about 11.5 million documents) to the same German newspaper, which provided the files to ICIJ and its media partners. The Panama Papers, which include documents dating back to the late 1970s, reportedly were stolen from Mossack Fonseca, a wealth management services firm located in Panama City, Panama.

As do the Paradise Papers, the Panama Papers shed light on the tax avoidance strategies of wealthy individuals and companies. The leaked data allegedly includes evidence that Mossack Fonseca may have facilitated fraud, money laundering, and theft.

The Panama Papers implicated 140 politicians and officials from 50 different countries, including the former Prime Minister of Iceland, Sigmundur Gunnlaugsson (who promptly resigned his position) and former Prime Minister of the United Kingdom, David Cameron. As a result of the leak, many governments have undertaken investigations of persons named in the documents. Authorities in Iceland and Canada have investigated scores of cases involving potential tax evasion, and German authorities have seized from Siemens about €2,000,000 allegedly linked to a bribery scheme.

Opponents of tax reform argue the House and Senate bills will not encourage repatriation: both bills call for tax rates that exceed the negligible or nonexistent rates imposed by offshore jurisdictions. That may be. But, given the release of the Panama Papers and Paradise Papers, individuals and corporations would be foolish to use tax avoidance schemes without considering the potential risks, including that their most sensitive financial information may one day be posted to the internet for all to see.

Author –
Jeffrey Hamlin