Offshore, Onshore, Midshore: An Introduction

27 March 2014   Saving Havens: "Offshore, Onshore, Midshore: An Introduction"   Professor Michael Mainelli     “It’s fun to charter an accountant And sail the wide accountancy, To find, explore the funds offshore, And skirt the shoals of bankruptcy.” (“Accountancy Shanty”, Monty Python, The Crimson Permanent Assurance, 1983)     Blame Game   Out of the world’s 221 sovereign states and dependent territories in 2009, 67 have a population of less than 1 million (30%).  Many of them have chosen to compete as international financial centres, with examples such as the Bahamas, Guernsey, Isle of Man, British Virgin Isles, Gibraltar, or Mauritius (yes, Mauritius has a population of 1.2 million).  Off-shore centres have used their constitutional independence to develop legislation, regulation and tax vehicles that attract non-resident business.  Many have used their comparative advantage to create world-class expertise in international financial services.  The most enduring off-shore centres offer ways of transacting essential but regulatorily complex wholesale finance transactions, e.g. reinsurance in Bermuda.   Political leaders continue to seek scapegoats for the Credit Crunch - greedy bankers, incompetent regulators, dopey rating agencies, useless accountants, hysterical journalists.  There are victims, “us”, so someone with suspect motives must have caused the harm; we just need to name them.  During the Great Depression, H L Mencken wrote of “morons” blaming the “machinations of werewolves assembled in Wall Street” [H L Mencken, Baltimore Evening Sun, 15 June 1936].  As with any crisis, the Credit Crunch has multiple causes, but the populace need the distraction of simple ‘guilty’ verdicts, and offshore centres are a good distraction for blame.   Financial crises since 2007 suggest that large states have a comparative disadvantage in global finance.  They seem unable to combine wholesale and retail financial regulation without incurring booms and busts.  Nor are they paragons of virtue, let alone LIBOR, FX, and numerous other scandals, the largest amounts of recorded money laundering took place through London, Zurich and New York, and there is no shortage of large nations’ banking sleaze.  The comparative disadvantage of large states indicates that there may be a way to aid global financial reform through off-shore centres.  In its simplest expression, large economies will never be able to regulate wholesale and retail properly, so push problematic wholesale financial activities towards designated off-shore centres, “mid-shore financial centres”.   A word on trade.  Gross World Product is about $50 trillion, and trade is over $25 trillion.  In fact, 25% to 40% of trade is non-monetary, so global trade is not far off Global World Product, though this is a bit of an apples and oranges comparison.  Now, can you name my economic hero of the 20th century?  He destroyed the UK’s northern ports, devastated east London, and transformed the UK road network.  No, not Adolf Hitler.  My hero was of Scottish descent.  Several cities such as Oakland, California or Tanjung Pelepas in Malaysia sprang from nowhere due to him.  His innovation created London’s Tilbury port.  He is of course Malcom McLean, father of the shipping container.  With containerisation trade has grown many-fold.  Over the past half century trade has lifted billions out of poverty.  But when global financial deals suffer, trade suffers, increasing poverty.   Taxing Problems   From January to June 2013, the UK media had headlines such as “Google, Amazon, Starbucks: The rise of 'tax shaming'” (BBC), and “David Cameron: Tax avoiding foreign firms like Starbucks and Amazon lack 'moral scruples'” (The Telegraph).  In late June 2013, Starbucks agreed to pay £10 million to the UK Treasury.  Given that Starbucks reportedly paid no tax in the previous four years, £8.6m in corporation tax in the UK over the previous 14 years, yet had sales in the UK of £400m per annum, this might sound like a victory over tax evasion.   At no point has any authority accused Starbucks of not complying with tax law.  Having followed the tax code correctly, Starbucks reached annual agreements with HM Revenue & Customs that little or no corporation tax was payable.  The majority of people seem to have no problem with Starbucks’ payment or feel an urgent need to reform tax laws.  However, as an accountant I wonder how the payment should be booked.  Certainly not to marketing or advertising expenses?  Possibly to tax?  Tax liabilities have always been a complicated area, but in this case is the payment:   • a mistake, an adjustment to historic tax liabilities, or a retroactive tax? • a bonus payment or donation to HM Revenue & Customs? • a donation or bribe paid to the UK coalition government, or perhaps David Cameron’s Conservative Party? • a shakedown or protection racket payment to a corrupt government?   Perhaps I might mischievously suggest that Starbucks be reported to the US authorities under The Foreign Corrupt Practices Act of 1977 which “was enacted for the purpose of making it unlawful for certain classes of persons and entities to make payments to foreign government officials to assist in obtaining or retaining business.” [US Department of Justice website]  The rules on international corporate taxation are close to unworkable, though I wonder why more people do not question the theoretical basis for taxing corporations, which is at best dubious.    Things are no better with international personal tax, whether it is the inheritance tax nightmares we see in probate courts as lawyers drain away estates, or the future delightful Catch-22’s of the US Foreign Account Tax Compliance Act (FATCA) ranging from the illegality of overseas compliance to denial of service for US citizens or residents.  Though the intentions of some of the bodies shouting for reform can be questioned, it is clear that tax reform is essential.  The road to tax reform is unlikely to be smooth or straight, so expect a large number of awkward, contradictory, and dangerous steps along the way.     It is no surprise that aggressive tax enforcement follows a series of financial crises in developed countries.  Monetary systems are under strain following a period of excessive credit growth and banking leverage that now requires much tighter budgets and recapitalisation.  During financial crises weightless capital flies to safe havens, yet there are many dangers beyond grasping governments.   Global unrest has been enormous.  Just mentioning the Arab Spring, Thailand, Turkey, Ukraine, and Russia encompasses huge numbers of people and territory enduring civil unrest.  These conditions form a perfect storm for wealth destruction.  London, home to a few financial crises, has paradoxically benefitted from capital flight.  Though London itself needs to shape up, in comparison with many other places it is a safe haven.  Nevertheless, London may have moved from being a centre of wealth creation to a centre for wealth protection, potentially harming its domestic economy’s future.  Since 2008, offshore centres have held their own in the Global Financial Centres Index.  But that’s not sufficient.  In all the turmoil they should have thrived.    At the moment, larger economies exhibit many of the characteristics of a protection racket, particularly when tax is taken into account.  Looking at the EU over Cyprus or Ireland, the USA on FATCA, the OECD on tax equalisation, the UK on retroactive and windfall taxes, and it is easy to see that the value of wealth protection is growing.  Offshore centres compete by providing stability and simplifying financial services.  What we have here is a failure to take positive action and communicate offshore centres’ roles to clients and onshore authorities.  Offshore centres must prove that they are far less likely to make capricious changes to rules or regulations.   The Traditional Offshore Winds – Tax & Secrecy   Intelligent use of off-shore centres might accelerate useful reforms to the global financial system.  Off-shore centres have four roles, long-term finance, regulatory simplicity, tax mitigation and secrecy.  Off-shore centres are famous for two of their four roles, tax mitigation and secrecy.  Secrecy is easily attacked – why do you have something to hide?  When looked at from a stable country, this seems a cutting question, but there are many legitimate reasons to desire secrecy.  When looked at from an unstable country, secrecy can mean being less vulnerable to extortion or kidnap, or more able to consider positive reforms.  Still, secrecy can too easily correlate with criminality, particularly where money laundering is involved.  One solution is what Bermuda, Barbados and other responsible off-shore financial centres do, have information agreements that allow competent authorities to share essential information responsibly, without risking legitimate people.  There are many small states that need to attain these essential levels of transparency, but so too do many larger states.    Tax mitigation, as with all things to do with tax, is more complex.  Off-shore centres act as “way stations” that facilitate complex international trade and investment flows.  Imagine a Japanese company that builds and sells products in Britain, the USA, Turkey and Japan.  If the holding company is based in an off-shore financial centre, corporation taxes on earnings will be paid in the British, US, Turkish and Japanese subsidiaries before they arrive in the holding company.  Taxes on dividends are then paid by the shareholders when they repatriate their dividends home.  There are no taxes in the “way station” because the money is in transit.  Taxes are paid at the beginning and end of the journey, just not along the way.    Now imagine that the Japanese company is sold to Chinese shareholders and ceases trading in Japan.  Where should taxes be paid?  Again, the company’s operational subsidiaries should pay corporate tax in each jurisdiction and the Chinese shareholders should pay Chinese income and dividends taxes.  Without the off-shore centre, taxes will be paid not just in the US where some activities take place, or in China where the investors are, but also in Japan where no activity or investors reside.  Excessive taxation reduces the returns from international operations and trade.  The off-shore centre acts as a tax “way station” that facilitates international trade and investment.  Taxes are paid at the beginning of the journey where the activity takes place and when the investors are at the end of the journey, but not along the way.  Tax mitigation (legal) can too easily become tax evasion (illegal), particularly where secrecy is too highly guarded.     The Essential Offshore Tides – Long-Term Finance & Regulatory Simplicity   The comparative advantage of off-shore centres is displayed in how they ‘signal’.  In biology and economics, animals and people convey information about their abilities and intentions by ‘signalling’.  Off-shore centres advertise their stability, their freedom from interference and their dependence on financial services, using such signals as credit ratings, legal codes or funds under management.  The key message of these off-shore signals is that, unlike financial centres with large domestic economies, off-shore centres won’t do something stupid, e.g. radically change the tax code or impose onerous regulation at short notice.  Off-shore centres walk a tight-rope across a chasm of claims on the one side that they are both capable of rapid change, and on the other side that they are havens of stability.  For example, off-shore centres simultaneously claim that they can change legal codes rapidly when laws impede sensible decisions, yet also avoid hasty legislation when larger nations are senselessly reacting to domestic calls for action.  Unlike larger economies, financial services are so important to off-shore centres that they must keep their balance.   A more integrated perspective of comparative advantage emerges from the argument that savvy off-shore centres enable longer-term financial planning.  ‘Long finance’ structures, i.e. structures that can endure for a generation or two, benefit from avoiding the capriciousness of larger nations’ domestic agendas.  A large nation can change tax rules or ownership rules at short notice.  Well-regarded off-shore centres have achieved a reputation for avoiding hastily-enacted changes that would harm their own self-interests.   Mid-Shore Solutions?   I believe that enduring offshore centre strategies are to support long-term finance and provide regulatory simplicity.  What sorts of action could be taken?  A 2013 Long Finance, CISI and BSI report, Backing Market Forces: How To Make Voluntary Standards Markets Work For Financial Services Regulation, contains several signalling ideas such as working more closely with the International Standards Organization (ISO) on Anti-Money Laundering (AML), Know Your Customer (KYC), alternative currency management, barter, or even developing a standard for a Secure International Financial Centre that could be audited.  A few centres are exploring transferable AML & KYC passports.  Others are looking at improving intellectual life.  Alderney is working on alternative currency regulation.  I would suggest going further faster, perhaps even ‘selling’ good regulation.  Imagine a value-added silver or gold service where an offshore centre provides external inspection reports to family office owners alongside benchmarks with other family offices on the same island.   For example, larger nations’ banks could be controlled more simply by segregating wholesale and retail transactions.  Regulation would force ‘proprietary’ trading by banks to mid-shore centres.  This is one elaboration of ideas that limit retail banking to ‘utility banking’ and put ‘global finance’ elsewhere, just here it’s specific physical locations.  Competition amongst mid-shore centres should create centres of excellence that have a better chance to get regulations and risk-reward balances correct than any single country.  Mid-shore then becomes a known high-risk, high-reward zone, of rapidly evolving regulatory structures that suit wholesale finance.  Since global finance brings economic benefits, albeit at great risk, the possibility of keeping the benefits at lower risk is worth pursuing.   The idea of turning off-shore centres from convenient scapegoats to central participants in controlling global finance is appealing.  Clearly, there are complexities.  Despite the unpopularity of global finance, no large country will voluntarily give up its international banking companies and be at the mercy of mid-shore banking titans, out of reach and not responsible to anyone.  As a consequence, mid-shore centres would have to be subject to an international legal system with enforcement powers, including criminal prosecutions.   Mid-shore global finance companies are likely to be profitable, possibly extremely profitable.  No country will entertain the thought of powerful, mid-shore finance companies playing a substantial role in its economy without far better disclosure of transactions, profitability, risks and reserves.  Politicians would have to level with the public that these centres exist to keep larger national retail finance safe.  Claims of unfair competition would have to be countered in part by pointing out that these mid-shore companies ultimately contribute to the local economy, via taxes, but over time.  Purposely taking the riskiest parts of global finance and putting them in a few jurisdictions will require thought about the role of a ‘lender of last resort’, if any.     In summary, today’s off-shore centres contain good and bad, from money launderers and tax evaders to long-term planners and legitimate but complex wholesale financiers.  Off-shore centres should continue to exist because on-shore regulators haven’t created sensible wholesale finance regulations and are subject to bouts of rapid regulatory change in response to domestic crises.  Credible off-shore centres have moved well beyond primitive secrecy to build reputations based on tax mitigation, longer-term stability and regulatory simplicity.  If larger nations separated retail and wholesale regulation, leaving wholesale to mid-shore centres, the comparative advantages of large and small could help achieve a more stable global financial system.     © Professor Michael Mainelli, 2014