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First we will define the concept of tax avoidance and tax evasion. There is no universally accepted definitions of tax avoidance and tax evasion. HMRC define tax avoidance as an activity that a person or a business may undertake to reduce their tax in a way that runs counter to the spirit and the purpose of the law, without being strictly illegal. Tax evasion, in contrast, is usually defined as a violation of the law (Hood, C. 1986). Tax avoidance is the utilization of the loopholes in the countries tax laws to one's own advantage, while tax evasion is not paying the taxes al together. While tax avoidance is within the legal framework of the countries law tax evasion is illegal. Now we will get into more detailed definitions of tax evasion and avoidance.
Tax avoidance is the utilization of the legal loopholes or the legal privileges provided to citizen or company of a country by its government. Tax avoidance is the legal right of an individual provided by the government to reduce the tax burden and decrease the level of tax evasion.( Stella, P. 1992) Some of the examples of tax evasions are:
Tax Avoidance Through Change Of Country:
One of the ways utilized by an individual or a company to lower the tax burden is by constantly travelling to different countries or by shifting permanently to a country with lower or no tax environment. Such a country is called tax havens. The policy adopted in this case is that an individual or a company shifts its asset or base of operation to tax havens thus avoiding higher taxes.( Stella, P. 1992) But now many countries such as USA have realized the potential loss of revenue through such a practice of tax avoidance. Hence these countries are now taxing all their citizens and companies on all income generated by them throughout the world. (Hood, C. 1986)
Double taxation is a policy where in an individual or a company is taxed by the country of its residence and by country of its origin. Most countries impose taxes on income earned or gains realized within that country regardless of the country of residence of the person or firm. Although many countries have entered into bilateral double taxation treaty. In this treaty an individual or a company once taxed by one country is not again taxed by another country. Though, this kind of treaty is rarely done with tax havens.
Creating A Separate Legal Entities
Another general practice adopted by individuals for tax avoidance is to create a separate legal entity. The separate legal entity is often company, trust, society, NGO or foundation. Under this practice an individual transfer his property and his assets to these legal entities so that the income earned is transferred to this legal entity. (Hood, C. 1986)Usually one is only personally taxed on property and earnings that one actually owns; thus, by donating assets to a separate legal entity, personal taxation can be avoided, although corporate taxes may still be applicable. If the legal entity is ever liquidated and the assets transferred back to an individual, then capital gains taxes would apply on all profits.
Transfer Price Manipulation:
Transfer pricing is simply the act of pricing of goods and services or intangibles when the same is given for use or consumption to a related party (e.g. Subsidiary) (Hood, C. 1986). There can be either Market-based, i.e. equivalent to what is being charged in the outside market for similar goods, or it can be non-market based. Importantly, two-thirds of the managers say their transfer pricing is non-market based. There can be internal and external reasons for transfer pricing. Internal include motivating managers and monitoring performance, e.g. by putting a cost to imported inputs. External would be taxes and tariffs.
Tax evasion is a general term often used in cases where in an individual or a company evades taxes all together. Here in this case an individual or a company deliberately conceals his or her income from the tax authorities to reduce the tax liability or not to pay taxes all together. Various forms of tax evasion are:
Non Declaration Of Income:
This is the most common form of tax evasion practiced by individuals. Under this form of tax evasion an individual would not declare all his income to the tax officials. Sometime an individual may be working at more than one places and hence has more than one source of income, he may choose not to disclose all the income. This is generally possible only if the extra income he generates comes in form of cash and does not show on the system.
Non Payment Of Customs Duty
Customs duties are an important source of revenue for any country. In this case the importers avoid paying of custom duty by either under pricing the products that are brought in the country or by understating the quantity of the goods brought in the country.
Smuggling Of Goods
It is a practice where in an individual do not pay any kind of custom duty on the product that is being brought in or being taken out of the country, it is a criminal offence in most countries.
Evasion Of VAT And Sales Tax
Under this an individual or a company may evade paying Value added Taxes or sales tax by underreporting the sales of the good.
United Kingdom And Tax Avoidance/Evasion
While the term “Tax evasion and Avoidance” was well established in USA by 1920's (Sears, 1922), in UK there was still no distinction between Tax avoidance and tax evasion by as late as 1950. Till that time the term evasion was regularly used in the sense of avoidance. The official terminology and distinction between avoidance and evasion was established in a case between Craven vs White in 1970. Further in this field a new term was coined tax mitigation. Tax mitigation is a process through which individual tax liabilities are reduced without tax avoidance. Now tax avoidance was redefined as a process which designed to defeat the intention of the parliament. (IRC vs Willoughby, 70 TC 57.) Tax mitigation would include activities like gifts to charity, donations, investment in products designed for tax benefits. These activities are in the spirit of the law.
EU And UK Tax Problems
UK has traditionally attracted a higher level of foreign direct investments, mainly because of its lower corporate taxation and financial stability, this has attracted the envy of other European Union members. The only option EU states have is to go for tax parity with UK or for tax harmonization. The Single Market gives the EU the means to end the UK's autonomy in corporate taxation. One of the member of Ruding Committee which has investigated company taxation in the EU in 1992, noted that )( Chowdhury, F. L. ,1992)
‘There was no doubt in the … Committee that a common currency requires at least minimum harmonisation of direct taxation'.
The result is that other countries will increasingly be able to decide Britain's tax strategy especially if the UK joins EU. Any of EU's economic benefits (no exchange rates, lower interest rates) would be cancelled by the significant increase in UK corporation tax to match the continental average of 43.8% (weighted to take account of population). Whereas recent UK tax policy has lightened the burden and encouraged investment, continental taxes have risen (by the EU's own calculation, 35% — 42% of GDP 1981- 1995. Harmonisation of EU member states' tax rates would mean higher taxes for the UK, since other states are unable or unwilling to reduce the tax burden on their voters and institutional developments inside EU would end the need for unanimity among European Union members over tax matters. Also recently there have been conflicts regarding taxation between EU and UK, (Erard et al 2001) in a recent case involving stamp duty reserve tax (SDRT). The case in question involves HSBC which has just won what is predicted to be the right to a tax repayment of £27m after the European Court of Justice ruled that a tax HMRC has collected since 1986 is illegal.
It seems that elements of the law concerning SDRT have always been incompatible with EU law such that refunds will be available dating back to when the tax was introduced. In the light of this decision the government scrapped the tax on some share transactions after the European Court of Justice ruled it breaks EU law. The Telegraph reports that the UK Treasury (ie: the taxpayer) (9)could be "forced to repay as much as £20bn to companies" as a result of this ruling. One of the arguments employed in the battle against abusive tax avoidance and tax evasion is the rule of law. We should all comply with it. Equally so should the Government.There are numerous cases however making their way to or through the European Court because the Government has not complied with European law - when framing or amending UK tax laws(Erard et al 2001) Where such allegations are made the cases are staunchly defended by HMRC on behalf of the Government. Many such cases are the subject of Group Litigation Orders - where a number of taxpayers claim that the UK law is incompatible with European law and thus the tax in question should not be paid or should be repaid to them. The conflicts regarding UK and EU will continue mainly because:
the EU law was not properly considered when the UK law was framed; and those cases where,
after full consideration, the UK law was crafted in an effort to avoid the restrictions imposed by EU law.
Until these matters are resolved the conflicts would continue.
(1988) 62 TC 1 at 197.
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