Saturday, May 25, 2013

New Book: Looking through the Corporate Structure

Since the introduction of the term “beneficial owner” to the OECD Model Tax Convention in 1977, courts and the OECD have struggled to interpret the term, and to use it as a test for deciding conduit company cases. 
If applied in a formal legalistic sense, the beneficial ownership test has no effect on conduit companies because companies are legal persons that, in law, own both their assets and their income beneficially. By contrast, in a substantive sense, a company can never own anything because economically a company is no more than a matrix of arrangements that represents individuals who act through it.
Faced with these opposing considerations, courts and the OECD have adopted surrogate tests for the beneficial ownership test. These tests, however, were originally meant to counter different kinds of tax planning strategies. They did not indicate the presence of beneficial ownership. Therefore, they are inappropriate for determining the correct tax treatment of passive income derived by conduit companies. 
This book examines the conflict between the general policy of double tax treaties embodied in the beneficial ownership requirement and the concept of corporations. The work highlights the shortcomings of surrogate tests with the help of analyses of reported conduit company cases. It offers an alternative approach for interpreting and applying the beneficial ownership test. It contains a critique of the work of the OECD Committee on Fiscal Affairs before the insertion of the term, and suggests appropriate amendments to relevant parts of the official Commentary on the OECD Model Tax Convention.

John Prebble alerted me to this book and he says:
The book is particularly timely because it addresses one of  the principal means by which multinational companies siphon profits to low-tax jurisdictions. One apparently obvious way to address the conduit company problem is for states to re-draft and to renegotiate their tax treaties. But that is easier said than done, and usually very time-consuming.
Until there can be wholesale re-drafting of treaties, the book argues persuasively that within current legal frameworks it is not only possible but legally correct for tax administrations and courts to interpret beneficial ownership provisions in tax treaties purposively. The result would be to thwart the use of stepping-stone strategies that shift profits from high-tax countries in Europe, Asia, and the Americas to low-tax jurisdictions.
The book adopts a comparative approach, analysing reported cases from a number of jurisdictions, comparing judgments that have interpreted treaties purposively with formalistic reasoning that creates loopholes that states never intended.
I agree, this is a particularly timely topic. It's technically and conceptually difficult, and it is difficult to solve as a matter of law as well.  The book is available at the link above, and at a 20% discount until May 31 using promotional code EBOT_2013.


  1. Interesting article in the Guardian:

    And a really good quote.

    Brenda Cox, spokesman for the If campaign, a coalition of 200 groups campaigning in the run-up to the G8, said: "Cameron has to walk the walk, as well as talk the talk. By getting the UK house in order, he will have the opportunity to make a wider breakthrough at the summit itself on the issue of beneficial ownership, the way to get behind the anonymous shell companies."

    Cameron and the chancellor, George Osborne, are still gauging how far to push the G8 on measures to make it easy to establish the real owners of companies and assets, in the face of hostility primarily from AMERICA and CANADA.

    Osborne is also facing a push-back from business about imposing excessive regulatory burdens on companies to report their profits on a country by country basis.

    Well Well Well. As Pierre Trudeau would say the cat is among the pigeons.

  2. Another big article in the Observer.

    David Cameron's hopes of securing at the G8 summit next week a major anti-corruption agreement that would force companies to reveal who really owns them is hanging by a thread, amid fierce opposition from both the Russian and Canadian governments, as well as from many members of the US Congress.

    The prime minister believes new rules to make company ownership transparent are crucial, and has made it a key goal of UK diplomacy as he prepares to chair the gathering of world leaders which begins a week tomorrow. However, the Observer understands that goal is now in jeopardy, opening up the possibility that there will be no deal endorsed by all parties, a potentially embarrassing result for the UK as summit chair.

    And more:

    However, aid agencies now fear Cameron's plan risks being derailed by other G8 members. Russia is resisting because of its extensive interests in Cyprus. Canada is also opposed, while many US politicians are against the plan because it would have an impact on Delaware, the low-tax, light regulation US state where some 200,000 companies are registered.

    The impasse is considered so serious by Number 10 that Cameron is to discuss the issue with President Obama in a transatlantic phone call later this week.

    Me again:

    I question though what Cameron or Obama can do without the support of the US Congress. Shouldn't David Cameron really be setting a phone call with House Speaker John Boehner.

  3. Solid empirical evidence consistently shows that if you want to set up a shell company your location of choice is Delaware followed closely by Wyoming and Nevada. See, e.g., Jason Sharman: