Corruption Probe against Prime Minister Nawaz Sharif

Panama Papers and Corruption Probe against Prime Minister Nawaz Sharif – A case of tax avoidance

Panama Papers[1] or Panama leaks refer to information based on 11 million documents involving more than two hundred thousand off shore companies. These documents contain confidential information about financial affairs of various affluent individuals and families across the globe. While some of the offshore entities are legal, some of the shell companies have been used for money laundering, tax evasion and fraud and hiding corruption money. The Panama leaks have led many governments to initiate investigations and legal proceeding against individuals whose names were found to be part of these papers. Prime Minister Nawaz Sharif belongs to the most prominent and one of the richest families in Pakistan. The Sharif family has been actively involved in politics since last 30 years. Nawaz Sharif has served as a 12th Prime Minister of Pakistan in two non-consecutive terms from November 1990 to July 1993, and from February 1997 to October 12, 1999. He is now serving under his third terms as a Prime Minister since June 2013. His brother, Shahbaz Sharif is the current Chief Minister of the province of Punjab. Their third generation is also actively involved in the politics. Panama Papers do not implicate either Nawaz or Shahbaz Sharif. However, these papers do identify in-laws of Shahbaz and children of Nawaz to offshore companies. Nawaz’s children have been tied to four offshore companies, Nescoll Limited, Nielson Holdings Limited, Coomber Group Inc., and Hangon Property Holdings Limited. The companies acquired luxury real estate in London during 2006-2007. The real estate was collateral for loans of up to $13.8 million according to the Panama Papers. The prime minister’s children[2] say the money came from the sale of a family business in Saudi Arabia[3]. The Panama Papers have identified Maryam as the joint owner with her brother Hussain of Coomber Group. The three companies obtained a £7 million mortgage from the Swiss bank, Deutsche Bank (Suisse) SA and purchased four appartments in at 118 Park Lane in London. Hassan, the other brother, bought Hangon Holdings and its stock in 2007 for £5.5 million. Hangon, bought property, financed through the Bank of Scotland, at 1 Hyde Park Place in London.[4] Nawaz Sharif and his family used the services of a law firm, Mossack Fonseca[5], to create their offshore companies. They help their clients in creating “complex shell company structures” that, while legal, also allow the firm’s clients “to operate behind an often impenetrable wall of secrecy”. These offshore or shell companies help the owners to avoid any corporate taxes, withholding taxes, income tax, capital gains tax, local taxes, and estate or inheritance taxes, including gift taxes.  This arrangement is ethical and legitimate as long there is no secrecy or corruption money involved. However, this issue becomes questionable when it involves money laundering by corrupt politicians, public officials and criminal organizations. In Nawaz Sharif’s case, few questions arise; what is the real source of this money and did Sharif family paid tax on this money?

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Recently, opposition parties have filed several petitions in the Supreme Court of Pakistan to investigate charges of corruption against the Prime Minister Nawaz Sharif in connection with Panama Papers disclosures. The Supreme Court has appointed a commission to probe corruption charges against the prime minister. The Court has issued notices to his daughter Maryam, sons Hasan and Hussain, son-in-law Muhammad Safdar, finance minister Ishaq Dar, director general Federal Investigation Agency, chairman Federal Board of Revenue, and the attorney general. The case is still being heard in the court and the court has not reached to a decision as yet.

Our paper will focus on ethical issues around undeclared offshore assets and tax evasion and then we will try to reach to a conclusion whether Sharif family can be implicated for tax evasion or not.

Let’s first examine the ethics of tax avoidance and tax evasion. For our ethical analysis, we will apply Utilitarianism[6] approach and the Deontology[7] approach. The Utilitarianism approach states that ethics of tax avoidance cannot be determined theoretically because this evaluation depends, ultimately, on the quality of the government. The latter approach states that tax avoidance is an unethical behavior, since the result of this evaluation creates an irrational outcome. Despite the fact that the Utilitarianism and the Deontology approaches do not bring a unique result, this examination indicates that, in general, tax evasion is unethical. The only possibility in which tax avoidance would be ethical is when the government is expected to spend the tax revenue in a not good way.  Despite the existence of other relevant approaches on Ethics, these two represent the most studied and examined methods, which usually bring trustworthy results in an ethical investigation, and for this reason, they are appropriate to achieve the objectives of this paper. We will discuss the differences and similarities between tax avoidance and tax evasion, and will depict two recent cases of tax avoidance. Then we will use the theory about Utilitarianism and Deontology, and how these theories can be applied to different approaches of tax avoidance.

Before we proceed further, we have to define tax avoidance and tax evasion. Tax avoidance is defined as “the use of legal methods to modify an individual’s financial situation to lower the amount of income tax owed. This is generally accomplished by claiming the permissible deductions and credits”[8].  In 1873 case, US vs Isham, the court gave a ruling that a company cannot be held liable for the activities that are undertaken to reduce the tax burden while following a legal process[9]. This opinion outlines the boundaries of tax avoidance, which is the acceptance that this is a legal way to reduce tax payments; therefore it is a perfectly legal tax structure. However, when an individual or a company exploits the gaps in the tax law and minimizes the tax burden through legal but opposite to the purpose of tax law, then such act is construed as unethical. The offshore or shell companies are a perfect example of clever tax planning to minimize or totally avoid the tax liability. Hence, we can say that tax avoidance is unethical since it uses the gaps in the tax structure that were not expected or perceived by the government.

Tax evasion is defined as “an illegal practice where a person, organization or corporation intentionally avoids paying his true tax liability”[10] .  Tax evasion is unethical as well as strictly illegal. It involves deliberate act of avoiding taxes through violation or circumvention of tax laws.

In order to establish whether tax avoidance is a kind of conduct considered ethically right or wrong, it is necessary to make use of the ethical approaches. For the purpose of this work, as indicated above, the Utilitarianism and the Deontology approaches will be applied to tax avoidance.

The Utilitarian approach[11] to tax avoidance, the means used to attempt the tax reduction is not taken in consideration. All taxpayer motivations and concerns are not contemplated; the only thing that will be evaluated is the result that a scheme would produce. Hence, to determine whether tax avoidance is a kind of conduct ethically right or wrong, it is necessary to evaluate the amount of utility or disutility it brings to the taxpayer, the State, or the society. A preliminary approach is possible to consider the taxpayer as a winner, and the State, representing the society, as a loser. Following the framework presented, the first duty is to evaluate the gain or loss of utility for taxpayers who undertook a tax avoidance arrangement. For this matter, it is necessary to assume that, for the taxpayer, less tax is always desirable. Thus for the taxpayer there is an inverse relation between its amount of tax liability and its perceived utility. Taken this assumption, and considering no other consequences, when a taxpayer makes use of a tax avoidance arrangement his utility grows considerably compared with his former situation. Therefore, taking the Utilitarianism criteria, for this taxpayer, the use of tax avoidance is an advantageous action and the right thing to do. After establishing that the tax avoidance arrangement increases the taxpayer’s utility, then it is necessary to investigate whether this scheme also increases the utilities of the State and society. In this case, the State results should be considered as society results, since the tax collected by states is assumed to be appropriate by the entire society, and, as a result, a good for the State is a good for the society. Tax avoidance arrangements – as defined in this work – reduce taxpayer liabilities and, therefore, reduce State revenue. States are expected to use revenue to pay their current obligations, but also to invest in State equipment to provide better lives to its citizens. However, there not have been any guarantees that the amount of revenue States collect will indeed be used in a desired way for society. In this case, the quality of public administration and state politics are the keys of the utility measure.  So to define if tax avoidance creates more or less utility for the society, it is necessary to evaluate whether this supplementary revenue (that which is paid by the taxpayer in the event he or she does not use the tax avoidance scheme) is expected to have a good use or not. It is not possible to define whether tax avoidance increases the society’s utility without defining in advance if the resources obtained will be well spent by the government. As a matter of conclusion, it is possible to settle on the fact that the reduction in State revenue due to the use of tax avoidance schemes led to a reduction in societal utility. Although it is not possible to determine how governments would use the portion of tax avoided, even a little part of the supplementary money received by the State can be applied in a good way, bringing some marginal benefit to the society. So, according to this reasoning, tax avoidance has a disutility to society, but the extent of its disutility will depend on the specific case analyzed. The question at this point is to weigh the benefit created by a tax avoidance arrangement to the taxpayer, versus the loss it brings to the society, hence determining whether tax avoidance in ethically right or wrong based in a Utilitarianism view. As seen above, the taxpayer views tax avoidance as creating utility and ought to be the right thing to do, but for the society the ethical judgment over tax avoidance relies on the expected quality of the State, and the effective return the revenue can bring to society. Consequently, it is not possible to define in a Utilitarianism view whether tax avoidance is ethically right or wrong, since the consequence of this conduct cannot be applied to all cases, but merely in specific cases under analysis. In short, using the Utilitarianism approach, the ethics of tax avoidance depend on the specific State where tax avoidance is supposed to happen. If the State tends to perform well with the tax revenue, tax avoidance is wrong, because this revenue will bring more utility to the society, even though the taxpayer will lose some utility. On the other hand, if the State manages tax revenue in an undesirable way, the utility created for the taxpayer will overcome the little disutility generated to the society. Using this arrangement will result in the presence of more utility, and therefore an ethical behavior. 44 4.2.2 The Deontological Approach to Tax Avoidance Deontological ethics, or Kantian ethics, points out that an individual ought to observe a moral norm before executing any action. Under this viewpoint, the intention of the individual ought to be in accordance with a moral norm, regardless of the expected and the effective consequences of this act. To apply the Kantian ethics is necessary to transform the situation under analysis in a maxim, and then this maxim should be evaluated as if it is a categorical imperative. As showed before, there are three formulations for the categorical imperative, but to analyze this kind of question, only the first formulation has adequacy to the characteristics of the maxim derived to the taxpayer’s behavior. This first formulation is one in which Kant pointed out that: “Act only in accordance with that maxim through which you can at the same time will that it become a universal law.” From this formulation, a given situation has to be transformed into a maxim, and this maxim has to be examined in such a way that the subject of maxim would desire that all actors would apply the conduct described in the maxim as a natural and universal law. Thus to value the ethics of tax avoidance, a maxim must be defined. This maxim should represent the conduct of a taxpayer while using this arrangement, and has to be a general statement that could be used in any situation, not only in the specific case. As previously observed, the use of a tax avoidance arrangement is the legal use of the loopholes or the methods not expected by the legislator to reduce taxpayer liabilities. This scheme is broadly considered within the law, nevertheless it is not a desirable scheme for the States due to the reduction in States revenue and for its anticompetitive consequences. In light of these issues, the maxim related to the use of tax avoidance by taxpayers could be defined as: taxpayers always make use of tax avoidance arrangements in order to reduce its tax liabilities. 45 This maxim generalized the taxpayers’ behavior as if it is a natural law to be applied to all possible actors. It is now necessary to test this maxim faced with the first categorical imperative formulation: “Act only in accordance with that maxim through which you can at the same time will that it become a universal law.” Under this first formulation, the tax avoidance maxim should be analyzed as if a taxpayer would desire that all others taxpayers in an economy make use of tax avoidance arrangements as a natural law. So, from the standpoint of the taxpayer it is necessary to evaluate if will be it desirable that all others taxpayers use the tax avoidance arrangement in the same way it is using the scheme. As a result, in examining this formulation, this maxim is an undesirable situation, because if all taxpayers reduce their tax liabilities by using a tax avoidance scheme, the total revenue received by a State will decline significantly, forcing the State to act harshly against this situation. For instance, this response can go from increasing the existent tax amounts to creating new taxes to support the obligations. Apart from this consequence, if all taxpayers reduce their liabilities[12], no one will have a competitive advantage, demonstrating that the scheme fails in benefiting any market participant. Therefore, the widespread use of tax avoidance arrangements will reduce State revenues to an insufficient level, leading to efforts to somehow increase their revenues, the most common way being elevating the amount collected by the existing tax or to create new taxes altogether. As a result, applying categorical imperatives over the tax avoidance maxim brings the particular taxpayer and others to a situation equal or inferior than before, which denotes that this is not a rational maxim and thus not an ethical action.

CONCLUSION Since the beginning of the twentieth century, societies around the world have been demanding more goods and service from states. Aside from demands in goods and services, demands for health care, transportation facilities, energy supply, among others, can also be observed. Also as an important issue, there has been a large and constant claim for more welfare spending. 46 Notwithstanding these demands, people in general refuse to pay more taxes to fund this increasing spending by States: They want more from the State but want to avoid paying for the higher presence of States in their lives. But to refuse to pay these taxes is, as a rule, an illegal act. Although people and organizations do not like to pay taxes, they pay in order to be within the law. As demonstrated in this work, tax avoidance is a kind of arrangement in which someone can reduce his or her tax liability in a legal way. For this reason, this arrangement has become increasingly common, resulting in very impressive amounts of tax avoidance, and resulting in a reduction in States revenues. In view of these questions, States have been fighting against tax avoidance with real persistence but have not been very effective, mostly because taxpayers tend to have tax specialists ready to take advantage of an inevitable new tax rule that tries to combat tax avoidance. Even when States are truly efficient in setting a tax framework, taxpayers are usually more efficient than States. The most common methodology used by States to tackle tax avoidance is called GAAR, or General Anti Avoidance Rules. As viewed, almost all capitalist countries have some kind of GAAR to deal with the taxpayers who intend to make use of tax avoidance schemes. In this regard, the U.S. anti avoidance system is based in judicial decisions that constructed a framework of tests and theories applied to situations in which illegal tax avoidance is supposed to be perpetrated. In Brazilian cases, although there is not a totally operational legal framework, the federal and local tax authorities have been using this law structure to fight against these arrangements. Hence, from the legal standpoint, there are not any remaining and relevant questions related to the legality of tax avoidance arrangements. It is recognized by the doctrines and judicial systems that tax avoidance arrangements are within the law. Nevertheless, from the ethical viewpoint, there has been different opinion about the ethics of tax avoidance, namely that it is unethical. 47 Society, in general, tends to consider tax avoidance as an unethical conduct, mainly when confronted with cases related to companies like Apple and Caterpillar, both studied in this work. However, Ethics as a subdivision of Philosophy has methodologies to deal with these kinds of questions. These methodologies are known as Ethical Standards, and among the Ethical Standards there are two that represent the strongest fields in the history of Ethics: the Utilitarianism and the Deontology approaches. In short, Utilitarianism tries to evaluate the ethics of an action by measuring the result of this action, while Deontology is concerned with the intent of the actor not with the result of its action. So, to analyze the ethics of tax avoidance, these two approaches were applied to this kind of tax arrangement. This work found an inconclusive answer using the Utilitarianism approach, but a conclusive answer when using Deontology. By employing the Utilitarianism approach, tax avoidance ethics will depend on the expected quality of the government. The arrangement will be considered ethical if the revenue that the State did not collect would not be used in a good and responsible way. On the other hand, if this revenue that the State did not collect was expected to be used wisely by the government, the use of tax avoidance arrangement by taxpayers will be unethical, morally reprehensive. Using the Deontology approach, after applying the categorical imperative to the maxim related to tax avoidance, the result is that tax avoidance is an unethical action. This is considered unethical because its use is not a rational behavior, since the final result does not bring any advantage for this taxpayer and probably results in cost without any return. As stated above, the ethical analysis using the framework developed by Utilitarianism and Deontology philosophers offered an answer to the question asked in the beginning of this work, but this answer was not consistent. These ambiguous results, however, do not invalidate the objectives of this research; they in fact emphasize the necessity to consider both approaches together in other to have a deeper perspective of the question at hand. Despite the differences in the results for countries where the government has a good historical use of the revenue obtained from taxation, both methodologies deny the use 48 of tax avoidance, declaring that this is an unethical behavior. Only in the countries where the government has a bad historical use of the revenue obtained from taxation prompts the Utilitarianism approach to indicate that tax avoidance is an ethical action, but even in this case from a standpoint of Deontology, tax avoidance is still not ethical. The use of different ethical approaches can, as in this case, result in different ethical viewpoints, but, more importantly, the reasoning for this result can clarify the question under scrutiny. Another possibility to better deal with these questions is to extend this work by using others kinds of ethical approaches, like Virtue Ethics and Common Good Ethics. These two approaches, by using distinct methodology and theories, can exam the question here from different viewpoints, achieving maybe dissimilar results, but certainly improving the understanding of the topic

The Article 62 of constitution of Pakistan requires a member of the Parliament to be righteous and honest[13]. The Panama Papers have raised a serious question about the integrity of Nawaz Sharif and his family.

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[1] https://en.wikipedia.org/wiki/Panama_Papers#Asia

[2] Maryam Nawaz, Hassan Nawaz and Hussain Nawaz (three children of Nawaz Sharif)

[3] http://www.wsj.com/articles/pakistan-prime-minister-upgrades-probe-into-panama-papers-affair-1461344499

[4] http://www.bbc.com/news/world-asia-36092356

[5] https://vgsomnews.wordpress.com/2016/04/29/panama-papers-leak-and-ethics-of-tax-havens/

[6] The utilitarian approach, also called utilitarianism, is essentially a moral principle that asserts that morally correct actions are those that provide the greatest volume of benefits over harms for the majority of people

[7] Deontology (or Deontological Ethics) is an approach to Ethics that focuses on the rightness or wrongness of actions themselves, as opposed to the rightness or wrongness of the consequences of those actions (Consequentialism) or to the character and habits of the actor (Virtue Ethics) (http://www.philosophybasics.com/branch_deontology.html)

[8] http://www.investopedia.com/terms/t/tax_avoidance.asp

[9] Assaf Likhovski (2008, p. 52)

[10] http://www.investopedia.com/terms/t/taxevasion.asp

[11] https://www.researchgate.net/profile/Muel_Kaptein/publication/228174813_Three_General_Theories_of_Ethics_and_the_Integrative_Role_of_Integrity_Theory/links/543196ad0cf27e39fa9f93ea.pdf

[12] http://eml.berkeley.edu//~saez/course/Slemrod,Yitzhaki%20PE%20Handbook%20chapter.pdf

[13] http://www.na.gov.pk/uploads/documents/1333523681_951.pdf