Saturday, May 19, 2012

Tax transparency and confidentiality: The case of nonprofits and political spending

Lloyd Mayer explores the social costs and benefits of privacy protections for the nonprofit sector, in his new paper, Nonprofits, Politics, and Privacy.   The focus is on the increasing deluge of cash flowing into politics in the U.S., well shielded by confidentiality laws.  Mayer says "the time is ripe for a deeper consideration of the policy concerns that underlie disclosure requirements and the related issue of privacy."  I think we are seeing this pressure very clearly at the intersection of federal tax law and the globalization of capital and trade; Mayer shows the same pressure at work at the intersection of federal tax law, federal nonprofit law, and federal election law.  Different intersections, same basic issues:
The concept of privacy is one that is instantly recognizable and yet theoretically, much less legally, hard to define.  ... [T]here are at least two competing approaches with respect to privacy. One approach takes a cost-benefit approach. It judges disclosure requirements based on their quantifiable costs and benefits, including among those costs the harm to privacy, however measured. The other, less frequently used approach is a right-to-privacy approach that considers privacy a fundamental right that can only be abridged if there is a relatively strong interest for doing so and then only to the extent required to further that interest. 
Mayer examines how existing "rules are sometimes but not always based both on the cost-benefit approach to disclosure, in which privacy harms are but one possible cost, and on the right-to-privacy approach."  He considers recent proposals for disclosure rules relating to nonprofit organizations engaged in political activity, and argues that disclosure of financial information of the organizations themselves can survive either approach, but for individuals disclosure is more difficult to justify under right-to-privacy norms.   Mayer is specifically focused on nonprofit organizations, for which there might (or might not) be a better argument for public scrutiny than that for strictly for-profit companies.  But for those of us thinking about tax transparency in the international context, such as through country-by-country reporting for example, this paper is of interest.

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