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There is a clear-cut unlikeness between tax avoidance and tax evasion. One is legally approved and the other is an offense. Unfortunately however many consultants even in this country do not understand the unlikeness between tax avoidance and tax evasion. Most of the planning aspects that have been recommend by these consultants often fall into the category of tax evasion (which is illegal) and so tends to put clients into a risky situation and also diminish the value of tax planning.
This may be one of the prime reasons where clients have lost faith in tax planning consultants as most of them have often recommend dubious systems which are clearly under the category of tax evasion.
In this part I provide some examples and case studies (including legal cases) of how tax evasion (often recommend by consultants purporting to be specialists in tax planning) is undertaken not only in this country but in many parts of the world. It is true that many citizen do not like to pay their hard-earned money to the government. however doing this in an illegal manner such as by tax evasion is not the answer. Good tax planning involves tax avoidance or the discount of the tax incidence. If this is done properly it can save large amounts of money in a legally approved way. This part also highlights some practical examples and case studies (including legal) of tax avoidance.
Why Governments Need Your Taxes (Basic Economic Arguments)
Income tax the biggest source of government funds today in most countries is a comparatively new invention, probably because the view of each year earnings is itself a contemporary concept. Governments adored to tax things that were easy to measure and on which it was thus easy to guess the liability. This is why early taxes concentrated on tangible items such as land and property, bodily goods, commodities and ships, as well as things such as the estimate of windows or fireplaces in a building. In the 20th century, particularly the second half, governments nearby the world took a growing share of their country's national earnings in tax, generally to pay for increasingly more high-priced defense efforts and for a contemporary welfare state. Indirect tax on consumption, such as value-added tax, has become increasingly leading as direct taxation on earnings and wealth has become increasingly unpopular. But big differences among countries remain. One is the full, level of tax. For example, in United States tax earnings amounts to nearby one-third of its Gdp (gross domestic product), whereas in Sweden it is closer to half.
Others are the adored methods of collecting it (direct versus indirect), the rates at which it is levied and the definition of the tax base to which these rates are applied. Countries have distinct attitudes to progressive and regressive taxation. There are also big differences in the way responsibility for taxation is divided among distinct levels of government. Arguably agreeing to the discipline of economics any tax is a bad tax. But public goods and other government activities have to be paid for somehow, and economists often have strong views on which methods of taxation are more or less efficient. Most economists agree that the best tax is one that has as itsybitsy impact as inherent on people's decisions about whether to undertake a efficient economic activity. High rates of tax on labour may discourage citizen from working, and so result in lower tax earnings than there would be if the tax rate were lower, an idea captured in the Laffer curve in economics theory.
Certainly, the marginal rate of tax may have a bigger result on incentives than the full, tax burden. Land tax is regarded as the most efficient by some economists and tax on expenditure by others, as it does all the taking after the wealth creation is done. Some economists favor a neutral tax ideas that does not work on the sorts of economic activities that take place. Others favor using tax, and tax breaks, to guide economic action in ways they favor, such as to minimize pollution and to growth the amenity of employing citizen rather than capital. Some economists argue that the tax ideas should be characterized by both horizontal equity and vertical equity, because this is fair, and because when the tax ideas is fair citizen may find it harder to elaborate tax evasion or avoidance.
However, who ultimately pays (the tax incidence) may be distinct from who is initially charged, if that person can pass it on, say by adding the tax to the price he charges for his output. Taxes on companies, for example, are always paid in the end by humans, be they workers, customers or shareholders. You should note that taxation and its role in economics is a very wide field and this book does not address the issues of taxation and economics but rather tax planning to improve your economic position. however if you are interested in understanding the role of taxation in economics you should consult a good book on economics which often talks about the impact of distinct types of taxation on the economic activities of a nation of society.
Tax Avoidance and Evasion
Tax avoidance can be summed as doing all inherent within the law to sell out your tax bill. Learned Hand, an American judge, once said that there is nothing sinister in so arranging one's affairs as to keep taxes as low as inherent as nobody owes any public duty to pay more than the law demands. On the other hand tax evasion can be defined as paying less tax than you are legally obliged to. There may be a thin line between the two, but as Denis Healey, a previous British chancellor, once put it, "The unlikeness between tax avoidance and tax evasion is the thickness of a prison wall." The courts recognize the fact that no taxpayer is obliged to dispose his/her affairs so as to maximize the tax the government receives. Individuals and businesses are entitled to take all legal steps to minimize their taxes.
A taxpayer may lawfully dispose her affairs to minimize taxes by such steps as deferring earnings from one year to the next. It is legal to take all available tax deductions. It is also legal to avoid taxes by making charitable contributions. Tax evasion, on the other hand, is a crime. Tax evasion typically involves failing to description income, or improperly claiming deductions that are not authorized. Examples of tax evasion contain such actions as when a undertaker of a package deal "forgets" to description the Lkr 1, 000,000 cash he receives for construction a pool, or when a company owner tries to deduct Lkr 1, 000,000 of personal expenses from his company taxes, or when a person falsely claims she made charitable contributions, or significantly overestimates the value of property donated to charity.
Similarly, if an estate is worth Lkr 5,000,000 and the executor files a false tax return, improperly omitting property and claiming the estate is only worth Lkr 100,000, thus owing much less in taxes. Tax evasion has an impact on our tax system. It causes a indispensable loss of earnings to the community that could be used for funding improvements in health, education, and other government programs. Tax evasion also allows some businesses to gain an unfair benefit in a contentious market and some individuals to not meet their tax obligations. As a result, the burden of tax not paid by those who select to evade tax falls on other law abiding taxpayers.
Examples of tax evasion are: ï?~ Failing to declare dutible earnings ï?~ Claiming deductions for expenses that were not incurred or are not legally deductible ï?~ Claiming input due for goods that Value Added Tax (Vat)has not been paid on ï?~ Failing to pay the Paye (pay as you earn a form of with holding tax)installments that have been deducted from a payment, for example tax taken out of a worker's wages ï?~ Failing to lodge tax returns in an effort to avoid payment. The following are some signs that a person or company may be evading tax: ï?~ Not being registered for Vat despite clearly exceeding the threshold ï?~ Not charging Vat at the precise rate ï?~ Not wanting to issue a receipt ï?~ Providing false invoices ï?~ Using a false company name, address, or taxpayers identification estimate (Tin) and Vat registration estimate ï?~ holding two sets of accounts, and ï?~ Not providing staff with cost summaries
Legal Aspects of Tax Avoidance and Tax Evasion Two normal points can be made about tax avoidance and evasion. First, tax avoidance or evasion occurs across the tax spectrum and is not peculiar to any tax type such as import taxes, stamp duties, Vat, Paye and earnings tax. Secondly, legislation that addresses avoidance or evasion must necessarily be imprecise. No prescriptive set of rules exists for determining when a singular arrangement amounts to tax avoidance or evasion. This lack of precision creates uncertainty and adds to compliancy costs both to the agency of Inland earnings and the tax payer.
Definitions of Tax Mitigation Avoidance and Evasion It is impossible to express a precise test as to whether taxpayers have avoided, evaded or merely mitigated their tax obligations. As Baragwanath J said in Miller v Cir; McDougall v Cir: What is legitimate 'mitigation'(meaning avoidance) and what is illegitimate 'avoidance'(meaning evasion) is in the end to be decided by the Commissioner, the Taxation tell Authority and ultimately the courts, as a matter of judgment. Please note in the above statement the words are certainly as stated in judgment. however there is a mix-up of words which have been clarified by the words in the brackets by me. Tax Mitigation (Avoidance by Planning) Taxpayers are entitled to mitigate their liability to tax and will not be vulnerable to the normal anti-avoidance rules in a statute. A description of tax mitigation was given by Lord Templeman in Cir v Challenge Corporate Ltd: earnings tax is mitigated by a taxpayer who reduces his earnings or incurs expenditure in circumstances which sell out his dutible earnings or entitle him to discount in his tax liability.
Tax mitigation is, therefore, behavior which, without amounting to tax avoidance (by planning), serves to attract less liability than otherwise might have arisen. Tax Avoidance Tax evasion, as Lord Templeman has pointed out, is not mere mitigation. The term is described directly or indirectly by ï?~ Altering the incidence of any earnings tax ï?~ Relieving any person from liability to pay earnings tax ï?~ Avoiding, reducing or postponing any liability to earnings tax On an excessively literal interpretation, this arrival could conceivably apply to mere mitigation, for example, to an individual's decision not to work overtime, because the further earnings would attract a higher rate of tax. However, a good way of approaching tax avoidance is to regard it as an arrangement that, unlike mitigation, yields results that Parliament did not intend.
In Challenge Corporation Ltd v Cir, Cooke J described the result of the normal anti-avoidance rules in these terms: [It] nullifies against the Commissioner for earnings tax purposes any arrangement to the extent that it has a purpose or result of tax avoidance, unless that purpose or result is merely incidental. Where an arrangement is void the Commissioner is given power to adjust the dutible earnings of any person affected by it, so as to counteract any tax benefit obtained by that person. Woodhouse J commented on the breadth of the normal anti-avoidance rule in the Challenge Corporation case, noting that Parliament had taken: The deliberate decision that because the problem of definition in this elusive field cannot be met by expressly spelling out a series of detailed specifications in the statute itself, the interstices must be left for concentration by the judges.
Tax Evasion Mitigation and avoidance are concepts concerned with whether or not a tax liability has arisen. With evasion, the beginning point is always that a liability has arisen. The request is whether that liability has been illegitimately, even criminally been left unsatisfied. In Cir v Challenge Corporation Ltd, Lord Templeman said: Evasion occurs when the Commissioner is not informed of all the facts relevant to an assessment of tax. Innocent evasion may lead to a re-assessment. Fraudulent evasion may lead to a criminal prosecution as well as re-assessment.
The elements which can attract the criminal label to evasion were elaborated by Dickson J in Denver Chemical Manufacturing v Commissioner of Taxation (New South Wales): An intention to sustain facts lest the Commissioner should consider the taxpayer liable to a greater extent than the taxpayer is prepared to concede, is show the way which if the result is to avoid tax would elaborate seeing evasion. Not all evasion is fraudulent. It becomes fraudulent if it involves a deliberate effort to cheat the revenue. On the other hand, evasion may exist, but may not be fraudulent, if it is the result of a genuine mistake. In order to prove the offence of evasion, the Commissioner must show intent to evade by the taxpayer. As with other offences, this intent may be inferred from the circumstances of the singular case. Tax avoidance and tax mitigation are mutually exclusive. Tax avoidance and tax evasion are not: They may both arise out of the same situation. For example, a taxpayer files a tax return based on the effectiveness of a transaction which is known to be void against the Commissioner as a tax avoidance arrangement.
A senior United Kingdom tax legal recently referred to this issue: If an 'avoidance' scheme relies on misrepresentation, deception and concealment of the full facts, then avoidance is a misnomer; the scheme would be more accurately described as fraud, and would fall to be dealt with as such. Where fraud is involved, it cannot be re-characterized as avoidance by cloaking the behavior with artificial structures, contrived transactions and esoteric arguments as to how the tax law should be applied to the structures and transactions. Tax Avoidance in a course Framework We now turn from the existing legal framework in the context of earnings tax to a inherent course framework for inspecting issues relating to tax avoidance generally. The questions considered relevant to a course pathology of tax avoidance are: What is tax avoidance? Under what conditions is tax avoidance possible? When is tax avoidance a 'policy problem? What is a sensible course response to tax avoidance?
What is the value of, and what are the limitations of, normal anti-avoidance rules? The first two questions are discussed below What is Tax Avoidance? Finance literature may offer some advice to what is meant by tax avoidance in its definition of 'arbitrage'. Arbitrage is a means of profiting from a mismatch in prices. An example is seeing and exploiting price differences between New Zealand and Australia in shares in the same listed company. A real value can be found in such arbitrage activity, since it spreads facts about prices. request for the low-priced goods increases and request for the high-priced goods decreases, ensuring that goods and resources are put to their best use. Tax arbitrage is, therefore, a form of tax planning. It is an action directed towards the discount of tax. It is this view of tax arbitrage that seems to constitute commonly approved notions of what is tax avoidance. Activities such as giving money to charity or investing in tax-preferred sectors, would not fall into this definition of tax arbitrage, and thus would not be tax avoidance even if the action were motivated by tax considerations. It has been noted that financial arbitrage can have a beneficial economic function. The same may be true of tax arbitrage, presuming that differences in taxation are deliberate government course furthering economic efficiency.
It is inherent that tax arbitrage directs resources into activities with low tax rates, as intended by government policy. It is also likely to ensure that investors in tax-preferred areas are those who can benefit most from the tax concessions, namely, those facing the top marginal tax rates. If government course objectives are good achieved, tax arbitrage is in accordance with the government's course intent. Tax avoidance, then, can be viewed as a form of tax arbitrage that is contrary to legislative or course intent. What Makes Tax Avoidance Possible? The basic ingredients of tax arbitrage are the view of arbitrage, and the possibilities of profiting from differentials that the view of arbitrage implies. This definition leads to the view that three conditions need to be gift for tax avoidance to exist. A unlikeness in the efficient marginal tax rates on economic earnings is required. For arbitrage to exist, there must be a price differential and, in tax arbitrage, this is a tax differential. Such tax differences can arise because of a changeable rate structure, such as a progressive rate scale, or rate differences applying to distinct taxpayers, such as tax-exempt bodies or tax loss companies.
Alternatively it can arise because the tax base is less than comprehensive, for example, because not all economic earnings is field to earnings tax.
o An ability to exploit the unlikeness in tax by converting high-tax action into low-tax action is required. If there are differences in tax rates, but no ability to move from high to low-tax, no arbitrage is possible.
o Even if these two conditions are met, this does not make tax arbitrage and avoidance possible. The tax ideas may mix high and low-rate taxpayers. The high-rate taxpayer may be able to divert earnings to a low-rate taxpayer or convert highly-taxed earnings into a lowly-taxed form. But this is pointless unless the high-rate taxpayer can be recompensed in a lowly-taxed form for diverting or converting his or her earnings into a low-tax category. The earnings must come back in a low-tax form. The benefit must also exceed the transaction costs. This is the third indispensable health for tax arbitrage.
o Since all tax systems have tax bases (The thing or estimate to which a tax rate applies.
To secure earnings tax, for example, you need a meaningful definition of income. Definitions of the tax base can vary enormously, over time and among countries, especially when tax breaks are taken into account. As a result, a country with a comparatively high tax rate may not have a high tax burden (Total tax paid in a duration as a proportion of total earnings in that period. It can refer to personal, corporate or national income. ) if it has a more narrowly defined tax base than other countries. In new years, the political unpopularity of high tax rates has lead many governments to lower rates and at the same time broaden the tax base, often leaving the tax burden unchanged. )that are less than full, because of the impossibility of defining and measuring all economic income, tax arbitrage and avoidance is inherent in tax systems. Examples of Tax Arbitrage/Avoidance The simplest form of arbitrage involves a house unit or a singular taxpayer. If that house unit or taxpayer faces differences in tax rates (condition 1 above), and health 2 above applies, then the third health automatically holds.
This closing follows because citizen can always compensate themselves for converting or diverting earnings to a low tax rate. An example of such simple tax arbitrage moving a house unit is earnings splitting through, for example, the use of house trust. An example of simple tax arbitrage moving a singular taxpayer is a straddle whereby a dealer in financial assets brings transmit losses on, say shares, and defers gains while retaining an economic interest in the shares through use of options. Replacement pricing and thin capitalization practices through which non-residents minimize their tax liabilities are more sophisticated examples of the same principles. Multi-party arbitrage is more complex; the complexity is made indispensable by the need to meet health 3 above, that is, to ensure a net gain accrues to the high-rate taxpayer. In the simpler cases of multi-party earnings tax arbitrage, this process commonly involves a tax-exempt (or tax-loss or tax-haven) entity and a taxpaying entity. earnings is diverted to the tax-exempt entity and expenses are diverted to the taxpaying entity. Finally, the taxpaying entity is compensated for diverting earnings and assuming expenses by receiving non-taxable earnings or a non-taxable benefit, such as a capital gain.
Over the years many have indulged in numerous examples of such tax arbitrage using elements in the legislation at the time. Examples are finance leasing, non-recourse lending, tax-haven(a country or designated zone that has low or no taxes, or extremely secretive banks and often a warm climate and sandy beaches, which make it moving to foreigners bent on tax avoidance and evasion ) 'investments' and redeemable preference shares. Low-tax policies pursued by some countries in the hope of attracting international businesses and capital is called tax competition which can provide a rich ground for arbitrage. Economists commonly favour competition in any form. But some say that tax competition is often a beggar-thy-neighbor policy, which can sell out other country's tax base, or force it to convert its mix of taxes, or stop it taxing in the way it would like.
Economists who favour tax competition often cite a 1956 description by Charles Tiebout (1924-68) entitled "A Pure ideas of Local Expenditures". In it he argued that, faced with a choice of distinct combinations of tax and government services, taxpayers will select to find where they get closest to the mixture they want. Variations in tax rates among distinct countries are good, because they give taxpayers more choice and thus more opening of being satisfied. This also puts pressure on governments to be efficient. Thus measures to harmonize taxes are a bad idea. There is at least one big caveat to this theory. Tiebout assumed, crucially, that taxpayers are extremely movable and able to move to wherever their adored mixture of taxes and benefits is on offer.
Tax competition may make it harder to redistribute from rich to poor through the tax ideas by allowing the rich to move to where taxes are not redistributive. Tactics Used by Tax Evaders Moonlighting Tax evasion at its simplest level merely involves staying out of the tax ideas altogether. The earnings deploys small teams of volunteer officers to carry out surveillance to track down moonlighters. Early success was followed up by the deployment of compliancy officers in virtually every tax office. earnings Investigation Officers routinely scan advertisements in local newspapers or shop windows and even before the arrival of the contemporary personal computer they frequently had way to reverse telephone directories to track down moonlighters from bare telephone estimate details. They also study bank and other financial institutions deposit and loans databases, customs records, and star class hotel bookings for hidden functions and ceremonies to recognize rich individuals who maybe evading taxes.
Non Extractive Fraud Alternatively it can arise because the tax base is less than comprehensive, for example, because not all economic earnings is field to earnings tax. ï?~ An ability to exploit the unlikeness in tax by converting high-tax action into low-tax action is required. If there are differences in tax rates, but no ability to move from high to low-tax, no arbitrage is possible. ï?~ Even if these two conditions are met, this does not make tax arbitrage and avoidance possible. The tax ideas may mix high and low-rate taxpayers. The high-rate taxpayer may be able to divert earnings to a low-rate taxpayer or convert highly-taxed earnings into a lowly-taxed form. But this is pointless unless the high-rate taxpayer can be recompensed in a lowly-taxed form for diverting or converting his or her earnings into a low-tax category. The earnings must come back in a low-tax form. The benefit must also exceed the transaction costs. This is the third indispensable health for tax arbitrage. Since all tax systems have bases that are less than full, because of the impossibility of defining and measuring all economic income, tax arbitrage and avoidance is inherent in tax systems. This involves behalf switches or timing differences, for example:
o Post dating Receipts
o Ante dating Expenditure
o hidden Reserves
o Incorrect accounting of transactions such as showing an earnings as a payable.
o Stock manipulation perhaps the most common place formula seen in custom is the manipulation of stock to yield the desired "profit".
It is not unknown for the evaders' Accountant to be complicated - putting at risk the livelihood and, if the estimate complicated is significant, personal liberty! The most blatant case of this kind is where the Accountant virtually treated this as year end tax planning. Based upon the formal disclosures made by the evader under the Hansard course to the Inland earnings (in which he concerned the Accountant and in connection with an catalogue in a false name also his Bank Manager), the following scene can be recreated: "Studying the draft accounts the Accountant did a quick calculation to work out what range of figures could be used for closing stock in hand without giving rise to suspicion. He then apparently discussed with the client the impact on net behalf of reducing closing Stock.
Arrangements were then made for the audit to take place and in the meantime some stock was moved off site! "The Accountant and Bank manager who assisted the evader are both guilty of conspiracy to defraud - it matters not that they made no financial gain themselves. Extractive Fraud This might take the form of Suppressed receipts or inflated outgoings: Suppressed Receipts Typically these involve defected mainstream takings and often an undisclosed bank account. however the more resourceful evader may take benefit of extra arrangements or unexpected receipts: Where the proprietor or director personally deals with some customers it may be inherent for cheques to be made out in a manner which facilitates diversion. Alternatively cheque substitution may be used, such that the otherwise "off description sale" cheque is banked and an equivalent estimate of "on description cash" is extracted.
It is not unknown for late cash cost of reputation sales to bypass the bookkeeping ideas with the debt subsequently being written off as bad. Unexpected receipts always gift a good opening for deflection. For example:
1. Scrap sales
2. Guarnatee or bad debt recoveries
3. Refunds, rebates or discounts
4. Returned goods sold for cash, disposal of fully written down assets and windfalls in general.
The evader may take benefit of a new company opportunity, which remains hidden, and off record. Examples of this seen in custom include:
1. The dentist with three practices of which only two were discloses
2. The off description sale of hitherto obsolete car parts to the burgeoning superior car market Inflated Purchases & Expenses Where the ability to deflect receipts is too difficult the evader might draw cash from the company bank catalogue and disguise such withdrawals as some form of legitimate company expense. In custom this often involves the use of "ghost" employees or fictitious outgoings to cover such extractions. Fictitious outgoings have to hire the use of false invoices. These might take the form of altered invoices, photocopied or even scanned "blanked" versions of genuine invoices, thoroughly bogus invoices or even blank invoices supplied by an associate.
Another arrival seen in custom complicated the use of a seemingly unconnected off shore company to raise invoices for fictitious services. To hide the true rights of the off shore company the evader uses a "black hole" trust to hold the shares. Essentially this complicated a compliant non-resident trustee and "dummy" settler - the trustee providing "stooge" directors as part of the arrangements.
Employment Tax Evasion Schemes Employment tax evasion schemes can take a variety of forms. Some of the more prevalent methods of evasion contain pyramiding, laborer leasing, paying employees in cash, filing false payroll tax returns or failing to file payroll tax returns. Pyramiding "Pyramiding" of employment taxes is a fraudulent custom where a company withholds taxes from its employees but intentionally fails to remit them to the relevant departments. Businesses complicated in pyramiding frequently file for bankruptcy to discharge the liabilities accrued and then start a new company under a distinct name and begin a new scheme. Employment Leasing laborer leasing is other legal company practice, which is sometimes field to abuse.
Employee leasing is the custom of contracting with face businesses to cope all administrative, personnel, and payroll concerns for employees. In some instances, employee-leasing clubs fail to pay over to the authorities any measure of the collected employment taxes. These taxes are often spent by the owners on company or personal expenses. Often the company dissolves, leaving millions in employment taxes unpaid. Paying Employees in Cash Paying employees in whole or partially in cash is a common formula of evading earnings and employment taxes resulting in lost tax earnings to the government and the loss or discount of hereafter public benefits. Filing False Payroll Tax Returns or Failing to File Payroll Tax Returns preparing false payroll tax returns understating the estimate of wages on which taxes are owed, or failing to file employment tax returns are methods commonly used to evade employment taxes. Payments of Benefits These contain free benefits such as personal entertainment, inordinate allowances for foreign travel, provision of educational schemes (foreign education) to only adored employees, car and driver paid by company etc are simple examples.
Conclusion
I hope that I have made clear the unlikeness between doing things right and certainly and in a fraudulent manner. whether you are a taxpayer or a advisor it is leading to make sure that you understand the nuances of good tax planning. Whilst it is understood that tax planning is becoming more difficult and there is only a thin line between what is right and wrong it obviously requires the devotee to do the needful. however be particular not to be tricked by those who claim to be experts in tax planning when they are mere computational experts.
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