Co-operative Compliance & the Legal IssuesAlicja Majdanska

Two aims

1. The broader context.

2. The main legal issues.

“Spirit of law”

“The aim of the Code is to ensure that banking groups operating in the UK comply with the spirit, as well as the letter, of the law when it comes to tax matters.”

the FTA‘s report “A Framework for Voluntary Code of Conduct for Banks and Revenue Bodies”

“(…) enterprises should comply with both the letter and spirit of the tax laws and regulations of the countries in which they operate.”

the OECD’s Guidelines for Multinational Enterprises

Transparency

• International initiatives: • AEOI, • BEPS Action Plan, • other, e.g. EITI.

• Domestic legislation: • the DOTAS regime, • “Uncertain Tax Position Statement”.

Boundaries to acceptable tax planning

“(…) jurisdictions are increasingly demanding that boards oversee the finance and tax planning strategies management is allowed to conduct, thus discouraging practices, for example the pursuit of aggressive tax avoidance, that do not contribute to the long term interests of the company and its shareholders, and can cause legal and reputational risks.”

G20/OECD Principles of Corporate Governance

Boundaries to acceptable tax planning

Or as Angel Gurria put it:

“… companies should stop considering it their “duty” to employ tax-dodging strategies.”

Advance certainty

• “No surprise” approach.

• In the search for measures to encourage:• real time discussions,• timely advice,• active dialogue.

Obligations imposed on tax administration

• commercial awareness, • impartiality, • proportionality, • responsiveness,• openess through transparency and disclosure.

How to ensure the tax administration lives up to these obligations?

Multilateral co-operative compliance

• the Forum on Tax Administration (FTA)

• the Joint International Tax Shelter Information and Collaboration (JITSIC)

Is the legal foundation for multilateral co-operative compliance clear?

What is missing?

• ”spirit of law”,• transparency,• advance certainty,• boundaries to acceptable tax planning,• obligations imposed on the tax administration,• multi-lateral co-operative compliance,• ???

Research program

• Equality before the law—a real of perceived barrier?

• Disclosure—disclosing more than is legally required, including legally privileged information; tax secrecy and tax transparency.

• Implications of complying with the “spirit of the law” on taxpayers’ rights and potential over compliance.

• Supporting legal framework—availability of rulings in real—time (pre-filing or pre-transaction).

• Supporting legal framework for a multilateral Cooperative Compliance model.