Monday, February 18, 2013

What an OECD "public briefing" teaches about the rule of law.

The ACA representative who attended the OECD public briefing on FATCA posted a comprehensive description here. The substance of the briefing is important of course and it is well explained in the post, but I note that we can also learn a little more about the OECD and about international tax lawmaking from this participation, and these are things worth noticing for anyone interested in how the rule of law develops in taxation.

  • There were no other members of civil society present (non-government, non-business), and there were empty seats, even though Victoria was initially denied entry because space had to be reserved for business interests. So the OECD is still an epistemic community talking with itself. That is important in terms of framing public discourse about what matters and what doesn't for taxation, as well as what questions ought to be answered and what the answers ought to be.
  • The issues are all cast as technical compliance ones, as if the politics and policies are all resolved. They are not, but casting things as merely technical in nature makes it easier to turn aspiration into law; it's a common modus operandi for tax regimes, and the OECD has used it consistently over its lifespan.
  • Treaty competent authorities will be working out the technical details on how automatic information sharing is going to take place, including registering FFIs and sending info through the IRS portal.  So more and more international tax will get worked out through these obscure, opaque, non-law making diplomatic channels, and there will be less and less law to work with as a result.
These are notable phenomena in the context of simultaneous calls for transparency and accountability in governance, including from the OECD itself.


  1. The IRS scratched its web portal in the past due to its maintenance costs. Does this mean that this project will be resumed now and will it be available to all Americans, or only FFI's?

    1. I don't know anything about that, can you tell me more?

  2. Interestingly enough Robert Goulder of Tax Notes Today is taking the opposite tact claiming that in fact the OECD has nothing to do with FATCA.

    More below:

    As a result, the once mighty OECD campaign was reduced to a feckless drive to get countries to sign tax information exchange agreements (TIEAs) that are essentially meaningless. Under a TIEA, a tax haven government promises to exchange tax information with revenue officials from other countries, assuming they possess such information. Of course they never do because all vital tax information on nonresident accountholders remains bottled up within the bank. Let's be honest, that's the whole point of putting cash offshore. If concealment wasn't your priority, you'd use the local bank down the street. Nobody uses Cayman banks because their recordkeeping is better than ours.

    That was the status quo for several years until the UBS scandal broke. Thank you Bradley Birkenfeld. We also experienced a global financial crisis that left almost everyone in the country hating bankers and Wall Street financiers, We are now living through the second great crusade against tax havens. The very measures we rejected a generation ago are now the law of the land, and likely to expand in scope. What's different this time around? One major difference is that the OECD's role is greatly diminished. In fact the OECD is strangely silent on FATCA. Having been previously burned, it's sitting this crusade out.

    FATCA is no exercise in cooperative multilateralism. Had FATCA been left to 'international consensus' it would not exist. It's governments themselves which are doing the heavy lifting -- often ones that face huge deficits and angry citizens who don't want their taxes raised or their services cut. What better place to find revenue than scofflaws like The Economist's cover boy. Will this second crusade endure where the earlier effort failed? Only time will tell, but momentum seems to be building.

    As to Goulder's point it would be kind of cool to see angry demonstrations at Canadian consulates across the US with people chanting Stephen Harper wants to cut Medicare, Stephen Harper wants to cut Medicaid, Stephen Harper wants to cut Social Security.

    What I find most enjoyable is Goulder is increasingly the most public defender of FATCA and FATCA could use a public defender.