What would a responsible tax strategy involve?
This raises the question of what the key elements of corporate responsibility
would be in relation to taxation. While it is not the aim here to develop a fully
fledged strategy, it is worth identifying a few key features that would need to
be included.
As was seen earlier, the use of transfer pricing has been a key way in which
global companies have reduced their tax bills. A first step, therefore, would be
to commit to using arm’s length pricing in all transactions with related parties
as recommended by the OECD Guidelines on Multinational Enterprises. While it
is not always easy to establish arm’s length prices for all transactions, there are
principles laid out by the OECD in its Transfer Pricing Guidelines for Multinational
Enterprises and Tax Administrations which are regularly updated.
A second mechanism identified which enables companies to avoid taxes is
through the creation of complex corporate structures and the allocation of assets
within those structures. Here a fundamental commitment would be to avoid the
artificial creation of such structures that are unrelated to real business transactions
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and are primarily created to reduce the tax liabilities of the corporation. Since
many of these artificial structures which companies use involve subsidiaries
located in tax havens, a commitment along the lines made by Teléfonica, as mentioned
above, to avoid using tax havens in their operations would be a further
indication of a responsible tax policy.
The third mechanism that was identified earlier through which companies
seek to avoid tax is through artificial financial arrangements. Again, there
should be a commitment not to use such arrangements in order to reduce the
company’s tax burden, unless there was a non-tax related reason for doing so.
A responsible tax strategy involves not only taking steps to ensure that the
company does not engage in tax avoidance, but also requires a high level of
transparency. This includes not only transparency in payments made, as is
required, for example, by the Extractive Industries Transparency Initiative, but
could be extended to reporting on a country-by-country basis.
Tax avoidance is not the only negative aspect of corporate behaviour that
affects government fiscal revenues. The pressure to reduce tax rates in order to
attract investment which governments are often subject to from multilateral
development institutions, and the broader context of ‘tax competition’ between
countries, also undermine the ability of governments to obtain adequate fiscal
resources. Contrary to current practices, corporate responsibility would involve
a company agreeing not to lobby or pressure host governments to provide it
with more favourable tax treatment. This might be consistent with the increasing
emphasis within CSR on ‘responsible lobbying’.
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There are of course limitations on the use of CSR as a means of dealing with
tax avoidance. Many of these are similar to those which have been noted in
relation to other aspects of CSR. First of all, where particular strategies are central
for a company’s profitability, they are particularly difficult to change in
order to bring practice into line with the rhetoric. Companies which at present
make extensive use of tax avoidance and have large numbers of subsidiaries
located in tax havens may find altering their strategies particularly costly. As
with all voluntary codes, the failure of some companies to add such standards
creates a ‘free rider’ problem, with laggards who continue to practice tax avoidance
gaining a competitive advantage vis-à-vis those companies which adopt
more stringent standards. Restraint in terms of not exploiting loop-holes, even
where legally it might be permissible to do so, would need to be exercised by
leading TNCs to show the way and generate pressure on others to conform.
The fact that public pressure puts some companies in the spotlight more than
others means that the application of voluntary measures tends to be uneven.
Most of the companies whose tax avoidance strategies have attracted
widespread attention have tended to be those supplying consumer goods and
having a direct relationship with the public. Reliance on pressure from civil
society to promote greater tax payments also depends on the activities of NGOs,
who are constrained by their limited resources and campaigning priorities and
therefore tend to focus on a few high profile companies.97 This implies that a
regulatory approach is required in order to ensure compliance across the board.