research briefing

Investor Brief on Tax

Table of contents Evasion and Avoidance
Why it matters for long term investors 1
Tax evasion and tax avoidance in figures 2
Investor risks 3 Why it matters for long term
Tax evasion versus tax avoidance 3 investors
Tax evasion 3 The series of tax evasion scandals – UBS, HSBC,
The Global Forum on Tax Transparency 3 ‘offshoreleaks’ among others – concerns about the
The European Commission list and the Tax Justice aggressive tax planning schemes by some multinational
Network Secrecy Index 5 enterprises (MNEs) – Amazon, Google, the ‘Luxleaks’
scandal – as well as public concern about the low effective
Aggressive tax planning 5 tax rate of some MNEs, are dire reminders that much must
The G20/ OECD BEPS Action Plan 5 still be achieved to effectively put an end to tax evasion
Country-by-country reporting framework 5 and “aggressive” tax planning worldwide. Civil society
Measuring tax avoidance: the “6+2” OECD groups have been doing their part to keep the spotlight
quantitative indicators 6 on tax evasion, including the Tax Justice Network and
individual NGOs such as ActionAid, Oxfam, the French
What to look for & what to ask 8 CCFD, Brussels-based EURODAD and the Washington-
Non-audit fees 8 based Global Financial Integrity. Public sector trade unions
Other corporate governance indicators 9 have also been very active, including the European EPSU
Quantitative indicators from financial and, at the global level, the PSI.
statements 9
Governments have started to take action. At the
Roadmap on responsible tax practices 10 international level, the G20 countries, accounting for 80%
of world GDP, adopted an Action Plan in October 2015
Key resources for trustees 11 to eliminate Base Erosion and Profit Shifting (BEPS) tax
practices by MNEs. The Action Plan, which is the outcome
of a two-year negotiation process, represents to most far
reaching attempt in modern history to reform the global
In partnership with tax system and the taxation of MNEs in particular. In
Europe, the European Commission has revived discussion
on a Common Consolidated Corporate Tax Base and has
taken action along the lines of the BEPS Action Plan.

The emerging international consensus to curb aggressive

tax planning by MNEs is welcome, but needs to be
followed by effective action and implementation. It would
About the CWC: also require the active participation and support in the
The Global Unions Committee on Workers’ Capital, market place and among all corporate stakeholders,
established in 1999, is a joint initiative by the including investors.
International Trade Union Confederation (ITUC), the Despite the visibility of tax issues in the international
Trade Union Advisory Committee to the OECD (TUAC) forums such as the G20, there is still a lot of caution
and the Global Union Federations. among institutional investors on the subject. The notion of
“responsible tax practices” has yet to make inroads in the
responsible investment world. However, there is a rising
interest in the topic. In March 2015 the UK Local Authority
Pension Fund Forum (LAPFF) launched a Corporate Tax For the OECD aggressive corporate tax
Transparency Initiative and sent a questionnaire to all planning “affects everyone”
FTSE100 companies with technical questions on their
respective taxation and governance policies. For its “Globalisation has opened up opportunities for MNEs
parts, in November 2014 the ITUC and the TUAC helped to greatly reduce the taxes they pay. The use of legal
coordinate a Global Union Call for Action for Pension Fund arrangements that make profits disappear for tax
Responsible Tax Practices2. purposes or allow profits to be artificially shifted to
low or no-tax locations is referred to as Base Erosion
Tax evasion and tax avoidance in figures and Profit Shifting (BEPS). (…) BEPS affects everyone.
Measuring the impact of tax evasion is a challenging task. It harms governments because it reduces their tax
However, official statistics on current accounts and on revenues and raises the cost of ensuring compliance.
foreign direct investment (FDI) stocks and flows reveal It harms people because, when some MNEs pay
some surprising figures: low or no tax, individual taxpayers must shoulder a
◆◆ With less than 30 000 inhabitants (but with more than greater share of the tax burden. And finally it harms
40000 registered trusts), the British Virgin Islands businesses themselves: MNEs face significant
(BVI) are the second largest “investor” in China, while reputational risk from the public focus on their tax
Mauritius is the top investor in India. Cyprus, BVI, affairs while domestic companies face an uneven
Bermuda and the Bahamas are among the top five playing field when competing with multinationals”.
investors into Russia; OECD statement on the release of the final package of
◆◆ In 2012, the Netherlands attracted more foreign the G20/OECD BEPS Action Plan, 5 October 20151
direct investment (FDI) from Bermuda (64,000
inhabitants), Curaçao (150,000) and Cayman Islands
(56,000) combined than from the entire Nordic
countries (Denmark, Norway, Sweden, Finland and
Iceland)3. Of the total USD3.5tr in FDI in 2012, just
USD573bn ended up in the real Dutch economy, Tax planning and business
while Luxembourg booked USD2.28tn in FDI but just restructuring, what is the impact on
USD122bn entered the real economy4; workers?
◆◆ According to calculations by Oxfam, when taking into
account the use of empty shell companies abroad, Tax avoidance harms government finance and the
Spain becomes the second largest “foreign” investor right to public services through the net loss in tax
in Spain5. revenues. But it also directly affects workers’ rights.
The Trade Union Advisory Committee to the OECD
The measurement of the effective tax rate (ETR) of MNEs has held regular meetings on corporate tax planning
(as opposed to the nominal tax rate) is another indication and its impact on workers10. Trade union experience
of the size of the problem: shows that aggressive tax planning is just another
◆◆ According to a joint report by UnitedVoice & the Tax form of corporate “regulatory planning” with short
Justice Network, the effective tax rate of Australian termist goals. For example, abusive transfer pricing
ASX 200 companies over the last decade is 23%, typically reduces profit levels in subsidiaries that are
below the statutory rate of 30% and nearly one third employment intensive. When a business restructuring
of companies have an average effective tax rate of for tax planning purpose splits a single company
10% or less. The report also shows that 57% of ASX into separate entities, workers’ access to important
companies have subsidiaries in secrecy jurisdictions company information is reduced. A trade unionist of
(as defined by the Tax Justice Network) and 60% report the French subsidiary of Colgate captured why tax
debt levels in excess of 75%, which may artificially planning matters for trade union action: “the farther
reduce taxable profits6; you are from where tax is being declared within the
◆◆ According to a trade union report prepared by EPSU, MNE group structure, the higher the risk for worker
EFFAT and the SEIU, with only 13 employees, between misery”. For trade unions, aggressive tax planning
2009 and 2013, McD Europe Franchising Sarl (Mc and tax evasion schemes are manifestations of
Donald’s Luxembourg entity) made €3.7bn in revenues corporate short-termist behaviour that harms the
and paid €13m in taxes7; interest of the company and its stakeholders.

According to OECD estimates released as part of the final

BEPS packages of October 20158:
◆◆ Between 2007 and 2011, reported profit rates of MNE ◆◆ Between 2000 and 2010, the ETRs for large MNE
affiliates in lower-tax countries were, on average, entities (with more than 250 employees) was
almost twice as high as their group’s worldwide profit estimated to be between 2.7 to 4.5 percentage points
rate; lower than similar non-MNE ETRs;

PAGE 2 CWC Investor Brief on Tax Evasion and Avoidance

◆◆ Overall, revenue losses from BEPS are conservatively Tax evasion versus tax avoidance
estimated at USD 100-240 billion annually, or A primary distinction needs to be made between
anywhere from 4-10% of global corporate income tax; aggressive tax planning (tax avoidance) and tax evasion.
While tax evasion is by definition illegal, tax avoidance
Investor risks is by definition the use of legal means to reduce
Aggressive tax planning and tax evasion practices may tax liabilities. The following table explains the main
increase profits – and hence shareholder returns – on the differences between the two and how to deal with them.
short term. But these corporate practices are detrimental To give a practical example, the “offshoreleaks” and
to the interest of the company, its stakeholders, and the “Swissleaks” scandals involve pure tax evasion issues,
broader economic environment, because of multiple forms while the “Luxleaks” scandal (involving secret deals,
of risk that they generate. called “rulings”, between tax authorities and MNEs on an
Company-specific risks: individual base) is a case of tax avoidance.
◆◆ Corporate governance and transparency risk: Investors
rely on sound corporate accountability at every step of
the investment chain. Aggressive tax planning implies
a lack of transparency for institutional investors and a Tax evasion
greater risk of corporate wrongdoing.
◆◆ Government relations and litigation risk: Governments Combatting tax evasion by MNEs requires greater
are no longer taking a passive view on aggressive tax information sharing between tax authorities. There are
planning. Companies who engage in such behaviour several international forums and initiatives which aim
risk exorbitant legal fees to respond to tax compliance is promote tax transparency within the corporate and
audits and the loss of lucrative government contracts. financial sector and between tax authorities. At the
◆◆ Reputational damage: Aggressive tax planning and international level, the authoritative body is the Global
tax evasion may harm a company’s reputation with its Forum on Transparency and Exchange of Information
customers and the public. This risk to a company’s for Tax Purposes. At the regional level, the European
brand names may be particularly acute for retail and Commission published a list of 30 “non-cooperative
consumer product companies. jurisdictions” in June 201511. On NGO side, the Tax Justice
Network has produced a rating system, the Tax Secrecy
Economy-wide risks: Index12.
◆◆ Impact on availability and quality of public services
and infrastructure: tax evasion and planning contribute The Global Forum on Tax Transparency
to the gradual reduction in the traditional sources The main international initiative to curb tax evasion is
of finance for public services, health, education, the OECD-hosted Global Forum on Transparency and
and social security – a problem that has become Exchange of Information for Tax Purposes, with 127
exacerbated in times of public budget constraints. Tax member countries13. At the request of the G20, the Forum
revenues are essential to the entire macroeconomic previously published a “grey list” and “black list” of “non-
system as they provide for crucial government cooperative jurisdictions.” This mechanism had positive
spending and investment; effects… perhaps “too” positive. The number of countries
◆◆ Impact on market competition: tax avoidance and on the “grey list” fell from 44 in 2009 to 5 in 2011), while
evasion practices lead to unfair competition in the the black list – which included 4 countries in 2009 – was
private sector, between MNEs and the rest of the emptied during that period. After 2009 however, the
economy. As noted above, the effective tax rate of Forum replaced this “naming and shaming” technique
large MNEs has been estimated to be on average 5% with a peer review14 system against a “standard” for tax
lower than that of comparable domestic companies; transparency. This standard covers 10 elements and is
◆◆ Impact on public governance and rule of law: tax grouped in three categories:
evasion practices may contribute to a broader ◆◆ A: Availability of information, including access to
institutional environment that is conducive to beneficial ownership, record keeping of banking &
weak rule of law, corruption, and organised crime – accounting information;
particularly in developing countries; ◆◆ B: Access to information, including granting
◆◆ Impact on society: compliance is also important for authorities enforcement power;
upholding human rights in countries of operation. ◆◆ C: Exchange mechanisms, including a minimum of
For the International Bar Association, “tax abuses 12 bilateral agreements covering “relevant economic
– defined as practices contrary to the letter or spirit partner” countries.
of global or national tax laws and policies – have a
significantly negative impact on the human rights The Forum’s peer review process consists of two
of those living in developing countries, by depriving consecutive phases: legal compliance with the standard
governments of the resources they require to alleviate (Phase 1) and its effective implementation through
poverty”9. enforcement and practices (Phase 2). The Countries are
“rated” accordingly: fully compliant, partially compliant,
or non-compliant. According to the Forum annual report,

CWC Investor Brief on Tax Evasion and Avoidance PAGE 3

TABLE 1 DISTINCTION BETWEEN TAX EVASION & AVOIDANCE
Tax evasion Aggressive tax planning & tax avoidance
Legal compliance Illegal Legal
Problem Opacity of information on tax; Inadequate & “outdated” tax regulation;
Non-cooperative jurisdictions Mismatch between jurisdictions
High profile scandals “Offshoreleaks” and “Swissleaks” “Luxleaks”
Policy issue Tax transparency; Tax treatment of transfer pricing, debt, foreign opera-
Automatic exchange of information tions, etc.
between tax authorities International harmonisation
Key international The Global Forum peer review process, G20/ OECD BEPS action plan
forum & agenda OECD Standard for automatic exchange of
information

TABLE 2 LIST OF TAX JURISDICTIONS AT-RISK

Not included in the
Included in the EU list EU list, but with a TJN TJN Secrecy Score
of tax havens secrecy score of 65 or below 65 or not
(June 20125) above (November 2015) rated by the TJN
Phase 1 failed > Liberia (83), Nauru (79), Vanuatu (87) Guatemala (76), Lebanon Kazakhstan (n.a.),
because of “se- (79), Micronesia (n.a.),
rious deficien- Trinidad & Tobago
cies in the legal (n.a.)
framework”
Phase 1 suc- > Marshall Islands (79) Dominican Republic (65- Mauritania (n.a.),
cessful, but 73), Switzerland (73) Morocco (n.a.),
not compliant Romania (n.a.)
with A1 criteria
Status of the Global Forum peer review

(beneficial
ownership)
Phase 1 suc- > Brunei (83), Panama (72), Niue (n.a.) Botswana (71),
cessful Dominica (76),
(October 2015):

Partially > Antigua & Barbuda (81), Andorra (77), Curacao (68), Samoa (86) Costa Rica (55),
compliant Anguilla (69), Barbados (78) Indonesia (n.a.),
(Phase1&2) Israel (53), St
Maarten (n.a.),
Turkey (64)
Largely > Bahamas (70), Belize (79), Bermuda Aruba (68), Bahrain (74),
compliant (66), British Virgin Islands (60), Cayman Ghana (67), Malaysia (75),
(Phase1&2) Islands (65), Cook Islands (76), Grenada Gibraltar (67) Jersey (65),
(76), Guernsey (64), Hong Kong (72), Macao (70), St Lucia (83),
Liechtenstein (76), Mauritius (72), San Marino (80),
Monaco (74), Montserrat (67), Singapore (69),
St Kitts & Nevis (78), St Vincent & Uruguay (71)
Grenadines (78), The Seychelles (71),
Turks & Caicos (71)

> Maldives (76-84), US Virgin Islands (69) Bolivia (72-80), Gambia

by the Forum
Not reviewed

(73-81), Macedonia (66),

Paraguay (75-83), Tanzania
(73-81), Taiwan (67-75),
Venezuela (64-72)

PAGE 4 CWC Investor Brief on Tax Evasion and Avoidance

jurisdictions’ compliance with the standard is “generally Aggressive tax planning
high”. Over 80% of jurisdictions are considered fully
compliant or “largely compliant” with the standard. Unlike tax evasion – which is illegal – tax avoidance is by
However, when looking at the compliance rating for each definition the use of legal means to reduce the amount
of the three categories, some serious differences emerge. of tax that is payable. Aggressive tax planning strategies
In particular less than 50% of the rated jurisdictions include various accounting and financial transactions
scored a “fully compliant” rating regarding “availability of that aim at (i) artificially reducing the taxable income
ownership information” (category A). base of the company and/or (ii) moving profits away
from economically relevant (but high tax) jurisdictions
Although the Global Forum no longer produces an to economically irrelevant (but low-tax) jurisdictions. An
official list of “tax havens”, its peer review rating process example is the “Double Irish”: the legal ownership – and
provides some indication of countries where tax opacity the allocation of revenues – of an intangible asset created
remains of concern, including jurisdictions that (i) failed in country A (say, in Palo Alto, California) is domiciled in an
the Phase 1 review because of “serious deficiencies in the empty shell company in an unrelated country B (Ireland).
legal framework” and therefore “cannot move to Phase 2”,
or (ii) are rated as non-compliant after having completed The G20/ OECD BEPS Action Plan
both Phase 1 & 2. Countries that pass Phase 1 successfully The OECD Action Plan on Base Erosion and Profit Sharing
but are non-compliant with the Standard’s A1 criteria (BEPS) is the primary initiative at the international level
(access to beneficial ownership) should also be treated to counter tax avoidance and aggressive tax planning17.
with concern. The deliverables of the Action Plan agreed to in October
2015 includes 15 action points, covering the most common
The European Commission list and the Tax forms of aggressive tax planning techniques such as:
Justice Network Secrecy Index ◆◆ Transfer pricing, most frequent case of tax avoidance.
In June 2015, the European Commission published its For example a subsidiary of an MNE (typically located
first list of 30 non-cooperative jurisdictions as part of a in a high tax jurisdiction) is charged well above market
new Action Plan for Fair and Efficient Corporate Taxation value for spare parts provided by another subsidiary
in the EU15. This list does not consist of a comprehensive (located in a low tax jurisdiction);
assessment, but rather a compilation of the countries ◆◆ Artificial allocation of debt services, of intangibles
listed on at least 10 of the national tax haven lists and of other profitable risk-related assets to low-tax
submitted by EU member countries. jurisdictions and away from economically relevant
jurisdictions.
The Tax Justice Network (TJN) “Financial Secrecy Index” ◆◆ Exploiting “treaty shopping” (and treaty abuse)
rates jurisdictions based on their lack of transparency but whereby an MNE uses an empty shell company to
also their scale of activities. This index gives a quantitative unduly access the tax benefits of a bilateral tax treaty
“secrecy score” from 1 to 100 which is based on 15 secrecy (i.e. the “Dutch sandwich”);
indicators16 where 100 represents maximum secrecy. A ◆◆ Exploiting “hybrid mismatches” between two or more
score of 65 or above qualifies the country as a secrecy jurisdictions with regard to the tax treatment of debt
jurisdiction. Secrecy scores are then weighted based on and equity (for example the USD700m tax evasion
the share of the financial services industry in order to schemes set up by Barclays and KPMG between 2002
calculate an overall financial secrecy ranking. The top ten and 2007 under a US-based scheme called “STARS”);
ranking of the 2015 results is: ◆◆ Avoiding “permanent establishment” status for
1. Switzerland; local economic activities and hence escaping paying
2. Hong Kong; corporate income tax locally;
3. USA; ◆◆ Benefiting from government “harmful tax practices”
4. Singapore; to shift income away from economically relevant
5. Cayman Islands; jurisdictions such as aggressive tax incentives to
6. Luxembourg; attract foreign investors (i.e. “patent box” regimes)
7. Lebanon; and the secretive “rulings” between a tax authority
8. Germany; and an individual MNE (i.e. the “Luxleaks” scandals,
9. Bahrain; and the tax deal between Apple Inc. and the Irish tax
10. United Arab Emirates (Dubai). authorities);

Based on different combinations between the outcome Country-by-country reporting framework

of the Global Forum rating process (update October A key achievement of the BEPS Action Plan is the
2015), the EU list (June 2015) and the TJN Secrecy Score agreement on a new country-by-country reporting
(November 2015), the Table 2 identifies the jurisdictions framework18. From 2016 onward, MNEs with annual
where tax opacity remains of concern – hence “tax revenues equivalent to USD750m or above will have to
jurisdictions at-risk”. report on 8 items: revenue, profit (or losses), income
tax paid (on cash basis), income tax accrued, capital,
accumulated earnings, number of employees, and

CWC Investor Brief on Tax Evasion and Avoidance PAGE 5

tangible assets (other than cash). In addition, MNEs Public reporting on a country-by-country is already a
are to report the business activities of each corporate requirement in a number of jurisdictions in Europe and
entity located in each country (e.g. manufacturing, sales, in the US. In the US, the Dodd-Frank Act (section 1504)
marketing, R&D, financial, etc.). OECD experts had initially has such a requirement for the extractive industry. In the
considered a more comprehensive reporting framework EU, the country-by-country requirement for the extractive
(also including: employee remuneration, royalties, industry and the banking sector are under revised
interest, service fees). The list was cut down following Accounting and Transparency Directives (2013) and the
pressure by business groups and some countries Capital Requirement Directive (CRD IV, 2013) respectively.
The implementation of the CRD IV reporting requirements
The new country-by-country reporting framework is in 2014 in France is being monitored by a joint NGO
necessary to enhance transparency for national tax platform on tax transparency19.
administrations and allow them to properly monitor
the tax avoidance strategies of MNEs. However, only Measuring tax avoidance: the “6+2” OECD
national tax administrations will have access the reports. quantitative indicators
Corporate stakeholders, including shareholders, will not. While recent corporate scandals have shed light on
The strict confidentiality rules surrounding the reporting specific sectors – such as the extractive industry, the
is a serious disappointment, considering that the IT sector and the banks – it is clear that the risk for
information contained does not inherently confidential, aggressive tax planning to occur is an issue for any
such as business secrets or otherwise private knowledge. sector of the economy and for any company involved in
international transactions. There simply is no sufficient
comprehensive data available to conduct sector-specific
analysis. As part of the BEPS Action Plan n°11 on
“Measuring and Monitoring”,20 the OECD has identified
six quantitative indicators to measure the importance of
Private equity funds under scrutiny? aggressive tax planning and for which data is currently
available. In addition, the OECD has identified two
In a study of 523 private firms between 1978 indicators for which data are not necessarily currently
and 2005, a Harvard Business School paper has availably but could be so in the future and/or at the
shown that private equity backed firms “engage in company level:
significantly more nonconforming tax planning and
have lower marginal tax rates than other private
firms”22, Specifically, private equity-backed portfolio
firms paid 14.2% less income tax per each dollar
of pre-tax income than other portfolio firms. These
results hold even after controlling for factors that
are known to cause variation in tax avoidance across
firms.23
Aggressive tax planning is even alluded to as a legal
obligation within the wording of limited partnership
contracts. In a legal document of a US limited
partnership, for example, the general partner is called
to prepare all necessary fillings in order to obtain “any
available exemption from, reduction in the rate of,
or refund of, any material withholding or other taxes
imposed by any non-US (whether sovereign or local)
taxing authority.”

PAGE 6 CWC Investor Brief on Tax Evasion and Avoidance

TABLE 3 MACRO- AND FIRM-LEVEL OECD INDICATORS
Category OECD indicator Data
Disconnect between financial and 1. Concentration of high levels of foreign direct investment (FDI) relative macro-level
real economic activities to GDP
Profit rate differentials within top 2. Differential profit rates compared to effective tax rates firm-level
(e.g. top 250) global MNEs
3. Differential profit rates between low-tax locations and worldwide firm-level
MNE operations
MNE vs. “comparable” non-MNE 4. Effective tax rates of large MNE affiliates relative to non-MNE entities firm-level
effective tax rate differentials with similar characteristics
Profit shifting through intangibles 5. Concentration of high levels of royalty receipts relative to R&D macro-level
spending
Profit shifting through interest 6. Interest expense to income ratios of MNE affiliates in high-tax loca- firm-level
tions

Future indicators #7. Profit rates compared to effective tax rates for MNE domestic (HQ) firm-level
& foreign operations
#8. Differential rates of return on FDI investment related to special macro-level
purpose entities (SPEs)
Source: Measuring and Monitoring BEPS, Action 11 - 2015 Final Report, October 05, 201521

TABLE 4 EXAMPLES OF VOTING RECOMMENDATIONS ON NON-AUDIT FEES

Constituency AGM recommendation to vote ‘no’ on the ratification of an auditor if:
Labour & civil society:
AFL-CIO The auditor provides tax advice or strategies for tax avoidance or non-audit ser-
vices are more than 20% of total fees24.
Episcopal Church The sum of “tax fees” and “all other fees” exceeds 5% of total fees25.
Pension funds:
Ontario Teacher’s Pension Plan Non-audit fees are greater than audit fees26
Ontario Municipal Employees
Retirement Fund
The Ohio Police and Fire Pension Non-audit fees are greater than audit fees, audit-related fees, and permitted tax
Fund service fees combined, or if non-audit fees are “excessive”27
Suffolk Pension Fund advises Non-audit fees exceed 25% of total fees, unless special circumstances are ex-
plained28
West Yorkshire Pension Fund Non-audit fees are greater than 25% of total fees
Proxy Voting Firms:
Glass Lewis advises Tax fees and/or other fees are greater than audit and audit-related fees for more
than one year in a row and if audit fees include fees for tax services for senior
executives29
ISS US: non-audit fees exceed 25% of total fees, or if non-audit fees are excessive /
Continental European: non-audit fees exceed standard annual audit-related fees
(for main index listed companies)30
Dimensional Fund Advisors Non-audit fees are “excessive” and if no explanation is given to show that inde-
pendence is maintained when non-auditor services are given31

CWC Investor Brief on Tax Evasion and Avoidance PAGE 7

What to look for & what to ask
Compared with other non-financial risk – environmental,
social and corporate governance – corporate tax planning Shareholder activism preventing
is a relatively unexplored domain for corporate research corporate inversion
and long term investors. However there are a number
of relatively simple indicators, most being drawn from The AFL-CIO advises voting to “support proposals to
the company’s annual report, that can be used to help block or prohibit companies from reincorporating in
measure the extent to which a company is exposed to tax havens and support proposals urging companies
corporate tax planning risk. Two sets of indicators are to reincorporate in the US”. Walgreens, a U.S.
proposed below: those that are corporate governance pharmacy and drugstore, is a case in point. The
related and those related to the financial statements of company announced plans in 2014 to merge with
the company. the European company Alliance Boots and transfer
its residence to Switzerland, despite the fact that
From a corporate governance perspective, the primary the vast majority of its operations would remain in
quantitative indicator for measuring the presence of the U.S. The deal was heavily supported by hedge
aggressive tax planning practices may be found in the size funds with short-term stakes in Walgreens, who
of “non-audit” fees taken by auditors. A large proportion stood to gain from higher temporary profits. However,
of non-audit fees not only threatens the independence of the corporate inversion would have harmed long-
the auditor but may also provide for a good indication of term investors including pension funds. The deal
the level of resources spent by the company on aggressive would have cost U.S. taxpayers USD4mn over 5
tax planning schemes. years, according to a report by Americans for Tax
Fairness and Change to Win. Such a move would
A number of “qualitative” corporate governance indicators have negatively impacted Walgreens’ reputation
can help inform investors, including: the extent to which with customers and the U.S. government (over 40%
the Board of directors treats tax planning practices as a of Walgreens’ revenues come from the government
potential but significant risk for the company, what the through Medicare and other programs). Several
drivers are of any large business restructuring, mergers & pension funds launched a resolution to challenge the
acquisitions, and executive compensation. inversion, and the inversion was ultimately rejected
by Walgreens’ board.
Last but not least, several indicators can be drawn from
the consolidated financial statement of the company.
Some of the 6+2 OECD indicators presented above
may be precious in this regard. As well, the country-by-
country reporting may help spot any inconsistency in the
transactions and distribution of assets within the group.
Reporting “on earnings indefinitely
Non-audit fees reinvested outside of the US”
“Non-audit” fees refer to the amount of auditor fees
spent on services that are not directly related to the US accounting standards require publicly held
basic responsibilities of an independent auditor. An companies to disclose the US tax they would pay
independent auditor is required to review a company’s upon repatriation of their offshore profits. Offshore
financial statements each year to ensure that the profits that an American corporation repatriates are
company abides by fiscal laws. Companies are in turn subject to the U.S. tax rate of 35% minus a tax credit
required to report the cost of this external auditor as equal to taxes paid to foreign governments. However,
an expense for accounting purposes. Auditor expenses accounting standards provide a loophole allowing
are publicly available in a company’s annual financial companies to assert that calculating this tax liability
statements. is “not practicable.” As reported by the Citizens for
Tax Justice32, almost all of the 243 non-disclosing
If the company has hired an auditor to perform tax companies use this loophole to avoid disclosing their
services as well, namely advising in tax planning, this likely tax rates upon repatriation—even though these
service will be recorded as a “non-audit” service. Several companies almost certainly have the capacity to
investors and proxy advising services have, in their proxy estimate these liabilities. According to the securities
voting policy, specific recommendations on when to filings of 304 US corporations surveyed Bloomberg,
vote ‘no’ on the ratification of an auditor, based on the profits held abroad account for some USD2.1tr. Of
amount of non-audit fees. The AFL-CIO advises voting no which over a fifth is held by Microsoft, Apple, Google
if the auditor provides advice on abusive tax avoidance and five other tech companies33.
strategies. In addition, proxy voters should consider
voting against the auditor if the fees for non-audit services
(audit-related fees, tax services, or other fees) are more

PAGE 8 CWC Investor Brief on Tax Evasion and Avoidance

than 20% of total fees. Non-audit fees over 50% should be Quantitative indicators from financial
considered “a serious threat to auditor independence.” statements
An in-depth analysis of the consolidated financing
Other corporate governance indicators statements, including information drawn from the
In addition to non-audit tax fees, several qualitative new country-by-country reporting can help investors
indicators on the governance of the company may be of make informed judgments about the exposure of the
relevance to measure the extent to which tax evasion and company to aggressive tax planning practices. Corporate
aggressive tax planning is an issue. reporting can indeed reveal the presence of subsidiaries
in a number of countries where tax opacity remains
◆◆ Board policy & management reporting: best practice of concern. In the same vein, corporate reporting that
calls for the board of directors to have direct oversight reveals a marginal number of staff employed in a low
of the company’s risk management system, including tax jurisdiction with disproportionate levels of revenues
tax risks. As noted by the OECD, “jurisdictions are would merit further engagement with the management
increasingly demanding that boards oversee the of the company. In the US context, information about
finance and tax planning strategies management is “earnings indefinitely reinvested outside of the US” may
allowed to conduct, thus discouraging practices, for also provide for an indication of the level of aggressive tax
example the pursuit of aggressive tax avoidance, that planning.
do not contribute to the long term interests of the
company and its shareholders, and can cause legal Investors could make use of the official OECD indicators
and reputational risks”. of tax avoidance for which data is currently available at
firm-level (indicators n°2, 3, 4 & 6) as well as requesting
◆◆ Business restructuring, mergers & acquisitions: large disclosure of additional data for the “future” indicator
business restructuring and mergers and acquisitions which is also based on firm-level data:
may pose significant risk for the company’s ◆◆ Differential profit rates compared to effective tax rates
stakeholders, including substantial social and (OECD “BEPS” indicator n°2);
employment costs for workers and local communities, ◆◆ Differential profit rates between low-tax locations and
and destruction of shareholder value for long-term worldwide MNE operations (OECD “BEPS” indicator
investors. Investors should be particularly concerned n°3);
when a restructuring involves splitting a company or ◆◆ Effective tax rates of large MNE affiliates relative to
part of it in several entities (fragmentation) or shifting non-MNE entities with similar characteristics (OECD
operations into a foreign jurisdiction (inversion). “BEPS” indicator n°4);
Such a move may be an attempt to reduce taxes and ◆◆ Interest expense to income ratios of MNE affiliates in
increase short-term profits, at the expense of long- high-tax locations (OECD “BEPS” indicator n°6); and
term stability. ◆◆ Profit rates compared to effective tax rates for MNE
domestic (HQ) & foreign operations (OECD future
◆◆ CEO & executive management compensation: indicator).
Although executive compensation is not directly
related to aggressive tax planning, it is an important
indicator for corporate governance best practices.
Investors should be aware of a company’s policies on
executive compensation, as they are an important part
of a comprehensive approach to long-term growth and
sustainability.

CWC Investor Brief on Tax Evasion and Avoidance PAGE 9

Roadmap on responsible tax practices
Tax evasion and aggressive tax planning are still emerging issues in the responsible investment world. The international
landscape on tax cooperation is changing fast. But, pension fund trustees can anticipate and take proactive steps
to begin integrating tax risks —the risk for being exposed to tax evasion or tax avoidance behaviour by invested
companies—into their investment policy.

DEVELOP A FORMAL STATEMENT COMMUNICATE

1 4
Analyse the risks associated with Communicate the statement
aggressive tax planning and tax evasion and goals with plan members;
from the fund’s perspective;

2 5
Determine the fund’s in house
Survey investment managers and other
management capacities and expertise to
relevant service providers regarding their
address tax risks, as well as the role and
capacity and commitment to effectively
possibility of outside consultants;
observe the fund’s statement.

3
Establish a formal statement, including
how to vote and/or how to engage with
individual companies. The statement
could address:
◆◆ Corporate governance related indicators
• non-audit fees; ENGAGE

6
• companies’ domicile of incorporation; Engage with key companies to encourage
• exposure to countries for which tax voluntary disclosure of tax payments,
secrecy remains of concern; including country-by-country breakdowns
• integration of tax in the risk of revenue, tax and use of subsidiaries in
management oversight by the Board of secrecy jurisdictions.

7
directors;
Review the fund’s portfolio holdings in
• tax drivers of business restructuring, light of the expectations contained in the
mergers and acquisitions; Statement,
• tax treatment of executive

8
compensations. With due regard for the fund’s internal
◆◆ Economic and financial indicators capacity, conduct a screening process
• public disclosure of country-by-country identifying portfolio companies where tax
reporting; risk may be significant;

9
• use of the OECD BEPS indicators at
Engage with the management of
firm-level. companies at risk.

REPORT BACK

10
Report annually on the observance
of the statement and on any other
specific measure taken to address or
mitigate tax risks.

PAGE 10 CWC Investor Brief on Tax Evasion and Avoidance

Key resources for trustees
Trade unions base-erosion-and-profit-shifting-project 16. Secrecy indicators include: banking
◆◆ Global Union Call for Action for Pension ◆◆ PwC > Global Tax > BEPS http://www. secrecy, trusts and foundations register,
Fund Responsible Tax Practices, Novem- pwc.com/beps recorded company ownership, published
ber 2014 http://www.tuac.org/en/pub- ◆◆ KPMG > Tax News Flash > BEPS company ownership, published company
lic/doc/tradeunions/index.phtml https://home.kpmg.com/xx/en/home/ accounts, country by country reporting,
◆◆ AFL-CIO > Corporate Watch > Avoiding insights/2015/03/beps-in-taxnewsflash. fit for information exchange, efficiency of
Their Fair Share of Taxes http://www. html tax administration, avoids promoting tax
aflcio.org/Corporate-Watch/Avoiding- evasion, harmful legal vehicles, anti-mon-
Their-Fair-Share-of-Taxes Notes ey laundering, automatic information
◆◆ EPSU > Tax Justice Campaign http:// 1. Taxing Multinational Enterprises - OECD exchange, bilateral treaties, international
www.notaxfraud.eu/ Policy Brief, OCTOBER 2015 • BEPS transparency commitments, and interna-
◆◆ ITF > Chevron investigation launched UPDATE No. 3 www.oecd.org/ctp/poli- tional judicial co-operation. http://www.
at global labour tax summit http:// cy-brief-beps-2015.pdf financialsecrecyindex.com/PDF/FSI-Meth-
www.itfglobal.org/en/news-events/ 2. http://www.tuac.org/en/public/e- odology.pdf
news/2015/september/chevron-in- docs/00/00/0F/70/document_doc.phtml 17. http://www.oecd.org/tax/beps.htm
vestigation-launched-at-global-la- 3. http://dotstat.oecd.org/ 18. http://www.oecd.org/ctp/transfer-pricing/
bour-tax-summit/ 4. Figures shed light on tax avoidance haul, beps-action-13-country-by-country-report-
◆◆ PSI > Public Funding/Tax Justice http:// ft.com, April 28, 2013, http://www.ft.com/ ing-implementation-package.pdf
www.world-psi.org/en/issue/pub- intl/cms/s/0/aad0297e-b020-11e2-8d07- 19. 2014 : Que font les plus grandes banques
lic-fundingtaxation 00144feabdc0.html#axzz2S20gaTUh françaises dans les paradis fiscaux ?
5. LA ILUSIÓN FISCAL - Demasiadas sombras Plate-forme paradis fiscaux et judiciaires,
NGOs en la fiscalidad de las grandes empresas Novembre 2014 http://www.stoppa-
◆◆ Global Alliance for Tax Justice http:// - INFORME DE OXFAM INTERMÓN– Ox-
www.globaltaxjustice.org/ radisfiscaux.fr/IMG/pdf/etude-banques-
fam Intermón Nº 36 MARZOMarzo 2015
◆◆ ActionAid > Tax Power http://www. PPFJ-13-11-2014.pdf
https://oxfamintermon.s3.amazonaws.
actionaid.org/tax-power 20. http://www.oecd.org/tax/measuring-and-
com/sites/default/files/documentos/
◆◆ BEPS Monitoring Group https://beps- monitoring-beps-action-11-2015-final-re-
files/InformeLailusionFiscal2015.pdf
monitoringgroup.wordpress.com/ port-9789264241343-en.htm
6. Who pays for our common wealth? Tax
◆◆ Global Financial Integrity (GFI) > Tax Ha- 21. http://www.oecd.org/tax/measuring-and-
practices of the ASX 200, UnitedVoice / Tax
vens / Bank Secrecy http://www.gfinteg- monitoring-beps-action-11-2015-final-re-
Justice Network Australia, September 2014
rity.org/issue/tax-havens-bank-secrecy/ port-9789264241343-en.htm
http://www.unitedvoice.org.au/news/
◆◆ SOMO > Economic Justice / Tax Justice 22. http://www.hbs.edu/faculty/Publica-
who-pays-our-common-wealth
http://somo.nl/dossiers-en/econom- tion%20Files/10-004.pdf
7. UnHappyMeal: €1bn Tax Avoidance on the
ic-justice/tax-justice 23. Including leverage size, current year losses,
Menu at McDonald’s, EPSU, EFFAT, War On
◆◆ Tax Justice Network Financial Secrecy net operating loss carryforwards, foreign
Wabnt, SEIU, ChangeToWin, February 2015
Index http://www.financialsecrecyindex. income, and the tax benefits of employee
www.notaxfraud.eu/unhappy-meal
com stock options
8. Source: Measuring and Monitoring BEPS,
24. http://www.aflcio.org/Corporate-Watch/
Action 11 - 2015 Final Report, October 05,
Investor groups Capital-Stewardship/Proxy-Voting
2015 http://www.oecd.org/tax/measuring-
◆◆ LAPFF > Investor Statement G20 Global 25. http://www.episcopalchurch.org/files/
and-monitoring-beps-action-11-2015-final-
Tax Reform, November 2014 http://www. ec_proxy_voting_spreadsheet_2015.pdf
report-9789264241343-en.htm
lapfforum.org/LNews/Investor State- 26. http://www.otpp.com/docu-
9. Tax Abuses, Poverty and Human Rights - IBAHRI
mentTransparencyG20TaxReform12th- ments/10179/20940/teacherscorp-
Task Force report, October 2013 http://www.
Nov2014.pdf gove.pdf/cfca9682-9368-4cf4-96ce-
ibanet.org/Article/Detail.aspx?ArticleU-
◆◆ UN PRI > PRI addresses multinatio- fe5381d5647e & https://www.omers.
id=4A0CF930-A0D1-4784-8D09-F588D-
nal tax avoidance, November 2014 com/pdf/Proxy_Voting_Policy.pdf
CDDFEA4
http://www.unpri.org/whatsnew/ 27. http://www.op-f.org/Files/Proxy%20Vot-
10. 13/05/2015| TUAC meeting on Corporate
pri-addresses-multinational-tax-avoi- ing%20Policy.pdf
Tax Planning, 20 March 2015 http://www.
dance/ 28. http://www.suffolkpensionfund.org/
tuac.org/en/public/e-docs/00/00/10/6B/
document_doc.phtml & 20/12/2013| themes/suffolk/scheme%20documents/
International initiatives
Report on a global unions meeting on Voting%20Guidelines%20for%20Pen-
◆◆ G20/OECD Action Plan on Base Erosion
corporate tax planning http://www.tuac. sion%20Fund%20Investments%20(Gov-
and Profit Shifting http://www.oecd.org/
org/en/public/e-docs/00/00/0D/FE/docu- ernance).pdf
tax/beps.htm
ment_doc.phtml 29. http://www.glasslewis.com/assets/
◆◆ Global Forum on Tax Transparency and
11. http://ec.europa.eu/taxation_customs/ uploads/2013/12/2015_GUIDELINES_Unit-
Exchange of Information http://www.
taxation/gen_info/good_governance_mat- ed_States.pdf
oecd.org/tax/transparency/
ters/lists_of_countries/index_en.htm 30. http://www.issgovernance.com/file/
◆◆ European Commission > Taxation and
Customs Union > Fight against tax fraud 12. http://www.financialsecrecyindex.com/ policy/1_2015-public-fund-internation-
and tax evasion http://ec.europa.eu/ 13. http://www.oecd.org/tax/transparency/ al-policy-updates.pdf & https://www.
taxation_customs/taxation/tax_fraud_ & http://www.oecd.org/tax/transparency/ issgovernance.com/file/policy/2015Euro-
evasion/index_en.htm GFratings.pdf peanPolicyUpdates.pdf
14. http://www.oecd.org/tax/transparency/ 31. http://eu.dimensional.com/process/
Business & tax advisors implementingthetaxtransparencystand- corporate-governance/proxy-voting-guide-
◆◆ BIAC > Taxation http://biac.org/poli- ardsahandbookforassessorsandjurisdic- lines.aspx
cy_groups/taxation/ tions-secondedition.htm 32. http://ctj.org/ctjreports/2014/05/#.
◆◆ Deloitte > Global Tax Alerts http:// 15. http://ec.europa.eu/taxation_customs/ ViTGIPmqpBc
www2.deloitte.com/global/en/pages/ taxation/gen_info/good_governance_mat- 33. http://www.bloomberg.com/news/
tax/articles/global-tax-alerts.html ters/lists_of_countries/index_en.htm & articles/2015-03-04/u-s-companies-are-
◆◆ EY > Tax Services > OECD BEPS http:// http://europa.eu/rapid/press-release_ stashing-2-1-trillion-overseas-to-avoid-
www.ey.com/GL/en/Services/Tax/OECD- MEMO-15-5175_en.htm taxes

CWC Investor Brief on Tax Evasion and Avoidance PAGE 11

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