Councils for Fair Tax Declaration

Unfortunately, it’s not that easy. UK public procurement rules are being rewritten following our exit from the EU but the scope for excluding suppliers for poor tax conduct will still be limited. Existing and proposed new rules rightly allow councils to exclude supplier businesses for non-payment of tax, but the grounds for exclusion are narrow and rarely triggered in practice. The proposed new rules will make it easier to know which firms must be excluded as Government intends to set up a central ‘debarment register’, but the way the rules are written mean that many firms with questionable tax practices are unlikely to make it onto this list. Because of these challenges in factoring in bad tax conduct, the Declaration instead focuses on maximising opportunity for encouraging good tax conduct, including greater transparency, and calling for greater powers under procurement law.

As Government rewrites the UK’s procurement rules, it should help promote fair competition for businesses small and large, and bolster efforts to drive out corruption, by explicitly permitting ‘responsible tax conduct’ in the award of public contracts alongside other social value criteria, and requiring robust public disclosure of who owns and controls supplier firms.

The UK’s procurement rules are now being rewritten and proposals to date cover some new and welcome ground. If rules progress as proposed, for the first time suppliers – whether based in the UK or overseas – will be required to disclose their beneficial owners (i.e. identify individuals with significant control of a business) and this information will be published for the successful bidder at contract award stage. A central debarment register is also proposed, together with the introduction of more open and transparent data standards. All of the Fair Tax Mark’s accreditation standards require robust beneficial ownership disclosure at thresholds below those currently required by legislation.

However, more could still be done to drive out the corrupt and recognise responsible tax conduct. To enable meaningful consideration of ‘good’ supplier tax conduct, the new rules will need to overcome the requirement to clearly link social and environmental criteria to the subject matter of the contract (‘tax’ cannot be linked in this way as it is general corporate-wide behaviour). Government should permit a limited and specific break for ‘responsible tax’ criteria, allowing councils to include the following as social value considerations:

• suppliers should provide a publicly-available tax policy that explicitly shuns tax avoidance and the artificial use of tax havens and low-tax jurisdictions; and,
• the consolidated annual profit/loss of the parent company should be publicly available within the UK, together with details of associated corporation tax payments (total, current and deferred tax payments), with multinational businesses disclosing this on a country-by-country basis.

If a business is not actively involved in tax avoidance, these conditions can quickly and easily be committed to.

Our focus at the Fair Tax Foundation is on corporate taxation. Our Fair Tax Mark accreditation standards are based on the following principles. A business should:

• pay the right amount of tax (but no more) in the right place at the right time, according to both the letter and the spirit of the law;
• readily provide sufficient public information to enable its stakeholders to form a rounded and informed view of its beneficial ownership, tax conduct and financial presence (across the world if they are a multinational);
• say what they pay with pride.

Progressive business can be expected to go further than pledges around legal compliance and tax evasion. Not least as such a lowest common denominator approach would be unthinkable in other areas of corporate responsibility, such as environmental protection or human rights. A Fair Tax Mark accredited business would be expected to explicitly shun tax avoidance and the artificial use of tax havens, and commit to the declaration of profits in the place where their economic substance arises.

As part of our assessment we review policy, reporting and tax payments, and subsequently provide suggestions for improvement. Fair Tax Mark companies tell us that the process of accreditation is a valuable means to benchmark performance and move towards best practice. They appreciate that the bar is set high and view this as a valuable asset in an area where trust is often low.

The scoring system underpinning the Fair Tax Mark accreditation standards is predominantly driven by the belief that ‘transparency’ encourages and helps business demonstrate responsible tax conduct. The tax contribution made by a business over a number of years is also considered (with feedback from civil society strongly supporting inclusion of this additional element). However, there are many good reasons why a business may not be paying high tax rates over a given period – for example, it may be loss-making in some years, or legitimate tax reliefs are being claimed within both the spirit and letter of the law. Such businesses can still secure a Fair Tax Mark, but additional disclosures will be needed – especially in connection with shortfalls from the applicable headline rates of tax in operation.

Note: initially, Fair Tax Mark accreditation was available only to businesses headquartered in the UK, but this was extended internationally to multinational enterprises in November 2021, with the launch of the Global Multinational Business Standard.

Tax contributions are a key part of the positive social and economic impact made by business – helping the communities in which they operate to deliver valuable public services and to build the infrastructure that allows business to thrive. A small, but rapidly growing, number of progressive businesses now publicly recognise this and say what they pay with pride, with some even linking their contributions to the UN’s Sustainable Development Goals.

The growth of tax havens and unethical corporate tax conduct have become prominent concerns across the world. Aggressive tax avoidance negatively distorts national economies and undermines the ability of business to compete fairly, both domestically and internationally. Recent research has found that close to 40% of multinational profits (some US$950bn) are artificially shifted to tax havens each year, leading to a US$240bn reduction in corporate income tax revenue. Within this, the UK was found to suffer a staggering US$120bn of profit shifting, leading to an estimated $23bn reduction in corporation tax revenues – which equates to £17bn of missing tax, or 28% of what is collected.

Compared with other areas of corporate responsibility, responsible tax conduct has emerged relatively recently. Commitments and disclosures on tax significantly lag behind reporting on other sustainability issues, with a recent global analysis[i] finding:

• over half (55%) of large and mid-sized companies still make no material disclosures whatsoever;
• only a third (34%) have commitments or policies on tax transparency in place, compared to 87% for climate change and 98% for health and safety;
• just 12% commit to comply with and follow the spirit of the law;
• a miniscule 7% disclose country-by-country breakdowns of taxes paid; and
• an incredible 3% have a named position responsible for tax policy at board level.

However, the pressure for change has now reached a tipping point. Across the world, there is now general agreement that tax laws need to be rewritten to end the global race to the bottom. Institutional investors and asset managers are paying much greater attention to the tax practices of companies in their portfolios, recognizing sound tax practices as an important sustainability issue and that companies employing aggressive tax practices could be exposing themselves to growing regulatory and reputational risks. Citizens across the world are insisting by a large majority that Government support for business (i.e., in connection with the Covid-19 pandemic) should be conditional on recipients ending the artificial use of tax havens and tax avoidance.

It is no longer enough for a business to claim that their tax conduct is acceptable as long as they are not breaking the letter of the law – in the same way that such a narrow framing of impact would be frowned upon if it were to be deployed with environmental and human rights considerations.

“Earnings that are reliant on tax planning rather than genuine economic activity are vulnerable to changes in tax regulation and enforcement… Even if specific tax regulations are not changed, more proactive enforcement by regulators suggests the earnings risk resulting from these strategies is increasing. As countries and their tax authorities become increasingly concerned with the exploitation of loopholes in international tax frameworks and are under fiscal pressure to fund additional government programmes, the incidence of tax disputes and litigation will increase.” The United Nations Principles for Responsible Investment (PRI)

“Effective tax policies are integral to ensuring that profits are taxed where economic value is created.” International Chamber of Commerce (ICC)

[i] Global trends in corporate tax disclosure (June 2021). FTSE Russell. Commissioned by PRI.

The use of low tax jurisdictions (more commonly referred to as ‘tax havens’) has been an area of high concern for civil society, institutional investors and the public in general for many years.

The growth of tax havens and unethical corporate tax conduct have become prominent concerns across the world. Aggressive avoidance negatively distorts national economies and undermines the ability of business to compete fairly, both domestically and internationally.

Sometimes a business will use a combination of tax havens to shuffle money around the globe and exploit loopholes in the bilateral tax treaties between particular countries. So, for example, Google has, in the past, combined a ‘Double Irish’ and a ‘Dutch Sandwich’, with a zero-tax haven such as Bermuda as the final destination. There have even been instances of corporate profits becoming ‘stateless’ from a tax perspective, as was revealed in the Paradise Papers and with Apple’s income flowing through Ireland.

On the other hand, business should not be condemned for their presence in a tax haven if there is evidential economic substance in that jurisdiction (demonstrable via public Country-by-Country Reporting). Economic substance might be indicated by the presence of a significant number of staff or substantial third party sales.

So, for example, the Fair Tax Foundation’s Global Multinational Business Standard includes the following question:

“Does the business utilise tax havens as locations for either registration, subsidiaries or operations?”

Four points are awarded if the business does not utilise tax havens as locations for either registration, subsidiaries or operations.

Alternatively, four points are awarded if it is clear (from public Country-by-Country Reporting) that the use of tax havens reflects the economic substance of transactions located in the territories, and that these transactions are taxed where value is added.

The Fair Tax Foundation’s identification of tax havens is informed by the work of the Tax Justice Network and their Corporate Tax Haven and Financial Secrecy Indexes.[i] The determination of tax havens is periodically reviewed and a current listing is provided to businesses as they begin assessment and accreditation (see below).

The Fair Tax Foundation’s current listing of tax havens is available online.

[i] For example, see Tax Justice Network’s Corporate Tax Haven Index 2021.

Profit shifting describes tax avoidance strategies employed by some multinational firms that exploit gaps and mismatches in tax rules to artificially shift income and profits to low or no-tax locations. An estimated £17bn of corporation tax receipts are still going astray as a result of profit-shifting alone, significantly reducing the corporation tax contributions that support vital public services across the UK.

We have publicly outlined our concerns about freeports, namely the likelihood that they will exacerbate tax avoidance and evasion in the UK, encourage a global race to the bottom on corporation tax, create unfair advantages to a select group of businesses, and, attract illicit actors, such as money launderers. As a result, we cannot endorse or promote any local council that approves the Councils for Fair Tax Declaration if it has actively supported, or has involvement with, one of the new UK freeport sites announced in 2020. You can read more about our position on freeports.