Bruce Zagaris on US Perspectives on Information Exchange

Bruca Zagaris has a two-part article on U.S. policies on the exchange of information in tax matters, published  by Tax Analysts on June 9 and  June 17, of great interest (but gated, unfortunately). He provides an overview of the applicable treaties (bilateral and MAATM), TIEAs and IGAs, and discusses the various forms of information exchange. He gives a nice level of detail on how information exchange requests are processed in the US and how the US achieves its information goals vis a vis other countries. He goes through the legal structures and the developments at the OECD and EU. He then provides a series of detailed hypotheticals focusing in on US information exchange policy with respect to Latin America. Bruce is very clear about the lack of reciprocity that characterizes the US position toward information exchange and notes, rightly, I believe, that this position is sure to lead to conflict going forward.

His conclusion is rather bleak but I don't disagree with anything he is saying. Here are a few excerpts:

The U.S. budgetary problems, the pay-as-you-go system, the revenue estimates obtained for the anti-tax-haven bills, and the proclivity of some members of Congress to focus on tax enforcement and compliance directed at U.S. taxpayers concealing money abroad ensures that the anti-tax-haven bills will constantly be appended to appropriations legislation in this session of Congress and in future sessions. There are so many anti-tax-haven initiatives and the lack of actual reciprocity by the U.S. government, as opposed to the rhetoric, may well lead to dispute resolution proceedings soon and to disagreements within the international initiatives of the OECD and FATF, as a result of the perceived lack of a level playing field. 

A global trend toward criminalization of tax compliance and enforcement will continue.... Governments will continue to try to privatize tax enforcement by deputizing FIs and service providers regarding reporting, ethics, and a range of other requirements. Criminal investigations and prosecutions of noncompliant institutions and service providers will continue. 

... Disagreements are likely to continue among the OECD and developing countries about the proper financial architecture, not only in tax policy, but also financial regulation. If possible, the G-8 countries will try to continue to centralize decision-making in elite informal groups, such as the G-20, the Financial Stability Forum, and the OECD and the groups it controls, such as the Global Forum on Taxation. 

... OECD and Latin American governments, including the United States, Argentina, Mexico, and Brazil, will continue to impose sanctions through blacklists and countermeasures against small financial center jurisdictions, both unilaterally and through international organizations (for example, the OECD and IMF) and informal groups (for example, G-20, FATF, and Financial Stability Board), even though small-state offshore financial centers do a much better job of enforcing the prohibition on anonymous companies and bank accounts than do large OECD countries, and the United States is the main offender in failing to enforce the international standards prohibiting anonymous companies 

The biggest potential impediment to the United States achieving its global tax priorities is the political gridlock, especially regarding the budget, spending, raising taxes, and raising the debt limit. ... 

The upshot of globalization and increased penalization of international tax and money movement flows is increased pressure on financial intermediaries, including lawyers, trust companies, banks, accountants, and other wealth management professionals who must advise clients. Increasingly, tax authorities, law enforcement, and regulators will be acting to obtain information and bring administrative and criminal cases for reporting violations, nonpayment, nonfiling, and allegedly fraudulent activities, or conspiracy to do the same.

All in all this is a tremendous resource for anyone wanting to understand information exchange from the US perspective. I hope that others will undertake similar analyses for other countries, so that we can start to understand what tax information exchange actually looks like now, and what it will likely look like going forward. The combination of non-reciprocity, a starved administration, and political gridlock in the US with a continued policy jealousy on the part of the US and its close "elite" allies that Bruce describes portends deep trouble ahead for the rest of the world, especially as these countries continue to reserve their own rights to act as tax havens.