Размышления женщины о геополитике. Татьяна Александровна Югай

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СКАЧАТЬ by large companies and to ensuring fair tax competition. Measures to combat BEPS would be inefficient without resolving the problem of high offshore secrecy. «The veil of secrecy can too easily be used to hide the beneficial owners of legal arrangements from tax administrations and other law enforcement agencies»63. The latest standard for identifying beneficial owners was developed by the Financial Action Task Force in 2012. The FATF published the new Guidance on Transparency and Beneficial Ownership in 2014.

      The FATF gives the following definition: «Beneficial owner refers to the natural person (s) who ultimately owns or controls a customer and/or the natural person on whose behalf a transaction is being conducted. It also includes those persons who exercise ultimate effective control over a legal person or arrangement». Further on, the Guidance gives a more detailed interpretation: «an essential element of the FATF definition of beneficial owner is that it extends beyond legal ownership and control to consider the notion of ultimate (actual) ownership and control. In other words, the FATF definition focuses on the natural (not legal) persons who actually own and take advantage of capital or assets of the legal person; as well as on those who really exert effective control over it (whether or not they occupy formal positions within that legal person), rather than just the (natural or legal) persons who are legally (on paper) entitled to do so»64.

      The FATF explains that «legal and beneficial ownership information can assist law enforcement and other competent authorities by identifying those natural persons who may be responsible for the underlying activity of concern, or who may have relevant information to further an investigation. This allows the authorities to „follow the money“ in financial investigations involving suspect accounts/assets held by corporate vehicles. In particular, beneficial ownership information can also help locate a given person’s assets within a jurisdiction»65.

      The FATF Recommendations provide measures to address the transparency and beneficial ownership of legal persons (Recommendation 24) and legal arrangements (Recommendations 25). Countries should take measures to prevent the misuse of legal persons and arrangements from being misused for criminal purposes, including by:

      – Assessing the risks associated with legal persons and legal arrangements;

      – Making legal persons and legal arrangements sufficiently transparent, and

      – Ensuring that accurate and up-to-date basic and beneficial ownership information is available to competent authorities in a timely fashion66.

      Recently, the UNCTAD carried out a comprehensive study of beneficial ownership dedicating its annual World Investment Report 2016 to the problem of investor nationality and policy challenges. The Report states, «More than 40 per cent of foreign affiliates worldwide have multiple «passports». These affiliates are part of complex ownership chains with multiple cross-border links involving on average three jurisdictions. The nationality of investors and owners of foreign affiliates is becoming increasingly blurred». According to the UNCTAD, «Multiple passport affiliates» are the result of indirect foreign ownership, transit investment through third countries, and round-tripping. About 30 per cent of foreign affiliates are indirectly foreign owned through a domestic entity; more than 10 per cent are owned through an intermediate entity in a third country; about 1 per cent are ultimately owned by a domestic entity. These types of affiliates are much more common in the largest MNEs: 60 per cent of their foreign affiliates have multiple cross-border ownership links to the parent company. The larger the MNEs, the greater is the complexity of their internal ownership structures. The top 100 MNEs in UNCTAD’s Transnationality Index have on average more than 500 affiliates each, across more than 50 countries. They have 7 hierarchical levels in their ownership structure (i.e. ownership links to affiliates could potentially cross 6 borders), they have about 20 holding companies owning affiliates across multiple jurisdictions, and they have almost 70 entities in offshore investment hubs»67.

      The UNCTAD presumes that the phenomenon of multiple cross-border ownership creates political challenges, particularly, on the eve of future trade and investment mega deals. The report warns that «Policymakers should be aware of the de facto multilateralizing effect of complex ownership on IIAs [international investment agreements]. For example, up to a third of apparently intra-regional foreign affiliates in major (prospective) megaregional treaty areas, such as the Trans-Pacific Partnership (TPP), the Transatlantic Trade and Investment Partnership (TTIP), and the Regional Comprehensive Economic Partnership (RCEP), are ultimately owned by parents outside the region, raising questions about the ultimate beneficiaries of these treaties and negotiations. Policymakers should aim to avoid uncertainty for both States and investors about the coverage of the international investment regime»68.

      Co-operation between tax administrations is critical for promoting transparency. On 19 April 2013, the G20 Finance Ministers and Central Bank Governors endorsed automatic exchange of tax information. Global tax transparency agenda was further enhanced in 2014 when under the mandate from the G20 the OECD developed the global Common Reporting Standard (CRS) for Automatic Exchange of Information (AEOI), which 101 jurisdictions have now committed to implement, with the first such exchanges to begin by 201769.

      The Standard provides for annual automatic exchange between governments of financial account information, including balances, interest, dividends, and sales proceeds from financial assets, reported to governments by financial institutions and covering accounts held by individuals and entities, including trusts and foundations. Countries have already identified almost 55 billion euros in additional revenues through voluntary disclosure programmes and other initiatives targeting offshore evasion70. Finally, 31 countries signed the Multilateral Competent Authority Agreement (MCAA) for the automatic exchange of Country-by-Country reports as part of continuing efforts to boost transparency by multinational enterprises (MNEs) on January 27, 2016.

      Russia’s anti-offshore package

      Recently, Russia has joined international efforts in fighting offshore tax evasion. Though the country’s economy has been hemorrhaging due to offshore tax evasion since 1990s, Russia could not start combating tax havens unilaterally.

      According to Russia’s Bank for Foreign Trade (Vnesheconombank), offshore companies had become one of the main channels of capital flight from Russia abroad since the beginning of liberal economic reforms. Russian businesses have begun actively using offshore jurisdictions since the 1990^th. Most of Russian firms established offshore companies in European countries and especially in the Isle of Man (UK), Cyprus, Gibraltar, Ireland, Switzerland and Liechtenstein. Offshore structures of Russian business are, first of all, centers for concentration profits which are generated in Russia but they evade from paying taxes there and serve as reliable «vaults» for fortunes of Russian «oligarchs» received both by legal and criminal means71.

      The IMF highlights the main channels of illegal capital flight from Russia which «have included (i) under-reporting of export earnings, including through transfer pricing schemes; (ii) overstatement of import payments, including through fake import contracts for goods and services; (iii) fake advance import payments; and (iv) a variety of capital account transactions, often effected through the correspondent accounts of nonresident banks with Russian banks»72.

      The Global Financial Integrity report (GFI) traces illicit financial flows СКАЧАТЬ