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Opinions of Saturday, 9 April 2016

Columnist: Ace Ankomah

Merely using a tax haven isn't a crime- Ace Ankomah

I absolutely enjoyed grad school. Tax law is supposed to be boring, and so said both Prof. Mills and Mr. Kodjovie (both of blessed memory) to me when I decided to study tax law at graduate level. But Prof. Alec.

But Prof. Alec Easson’s (also of blessed memory) International Tax class was just breeze and a study in naughtiness. He made tax law sexy. You study all the possible provisions for international taxation in municipal statutes, and as you do that, ways of avoiding the payment of those taxes just jump out at you, literally.

You also spend time seeing how double tax treaties and tax havens, etc. are used to avoid taxes, legitimately; not evade taxes, which is a crime. I still remember the 5 key advantages of tax havens: tax planning (reduction or no taxes), asset protection, confidentiality, insolvency remoteness and corporate expediency.

Tax avoidance, i.e. legally utilising a tax regime to your advantage in order to reduce the amount of tax you pay through means that are within the law, might sound immoral to some; but is certainly not illegal.

“Every man is entitled if he can to order his affairs so as that the tax attaching under the appropriate Acts is less than it otherwise would be. If he succeeds in ordering them so as to secure this result, then, however, unappreciative the Commissioners of Inland Revenue or his fellow taxpayers may be of his ingenuity, he cannot be compelled to pay an increased tax.” Baron Tomlin, IRC v. Duke of Westminster (1936) 19 TC 490, [1936] AC 1.

“Any one may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the Treasury; there is not even a patriotic duty to increase one's taxes.” Judge Learned Hand, Helvering v. Gregory, 69 F.2d 809.

Then you learn about how governments try, vainly, to plug the holes in tax statutes with anti-avoidance principles like Deemed Dividend, Artificial and Fictitious Transactions, Thin Capitalisation, Income Splitting, and Transfer Pricing. And the more you learn about these efforts, the more you discover ways in which to avoid the taxes.

And so when I read about the whole world jumping up and down like we have ants in our pants because some people choose to keep monies and incorporate companies in tax havens, I just have a good laugh. If those companies and accounts are used for corrupt purposes or to perpetrate crime, then surely, something wrong has happened.

But, people do not need tax havens to use companies and accounts to be corrupt or to commit crime. How can the mere use of tax havens be a crime or evidence of corruption?

Ignorance is bliss, and the arrogance of ignorance can kill.