Amid 'Paradise Papers' leak, no Phl law vs offshore accounts

200 Pinoys, firms in 'Paradise Papers'

MANILA, Philippines (Philippine Center for Investigative Journalism) — What do some bankers and fund managers, a few senior government officials, a dozen top taxpayers, and a handful of companies located in the country have in common? 

 

They are among some 200 Filipinos, Philippine residents and corporations that own or are linked to offshore accounts in tax havens across the world, according to the "Paradise Papers" cache of 13.4 million confidential electronic documents that had been leaked and exposed this month.

 

While having offshore accounts is not a wrongdoing per se, in some cases, these may be used to avoid or evade tax payments in their host countries, hide unexplained wealth, or move illicit and fraudulent financial flows across borders.

 

The latest expose by "Paradise Papers,” which has led to stories by media outfits such as the BBC and the U.K. newspaper The Guardian, covers offshore investments made by the law firm Appleby and corporate service providers Estera and Asiaciti Trust in 19 tax jurisdictions in the world. About 120,000 people and companies are enrolled in "Paradise Papers," including Philippine citizens, residents, and business entities. 

 

The “Paradise Papers” data files were leaked to the German newspaper Süddeutsche Zeitung, which shared these with the International Consortium of Investigative Journalists (ICIJ) based in Washington, D.C., and its global reporting network of over 380 journalists from 100 news organizations, including PCIJ.

 

PCIJ reviewed the list with special attention to apparent transparency and accountability issues. PCIJ thus sent inquiry letters to about a dozen individuals who had served as senior state officials, donated to candidates for president, own or run major corporate entities, or are tied to contracts with government. 

 

Not all the Philippine accounts are active as of the current year. Most accounts are listed to be operational still while some turned out to have been dissolved already, according to those PCIJ reached for comment.

 

This is the second round of PCIJ reporting on offshore accounts with ICIJ. In 2013, PCIJ wrote about the offshore ties of then re-electionist Ilocos Norte Gov. Maria Imelda ‘Imee’ Marcos, then senator Manuel ‘Manny’ B. Villar Jr., and then senatorial candidate Jose Victor ‘JV’ Ejercito. They all failed to disclose their interests offshore in their Statements of Assets, Liabilities, and Net Worth.

 

RELATED: Filipinos listed in Paradise Papers leak

Five of those PCIJ sought for comment, as well as replies from the law and accountancy firms that had assisted them, invariably disowned or denied any wrongdoing had been committed in regard to their offshore accounts.

 

But Filipino and Philippine-based offshore account holders may have nothing to worry about for now. At present, the Philippines has neither law nor rules, nor any effective regulatory framework for monitoring or even recovering taxes possibly due from monies in these accounts. 

 

Too, between former and current finance officials, there is a split opinion on what the Philippine government should do to regulate such accounts and to run after their owners. 

 

Interviewed recently by PCIJ, former Internal Revenue Commissioner Kim Jacinto-Henares said that in her view, when someone or some entity opens an offshore account, that should raise concern at once among government officials. In contrast, Finance Secretary Carlos G. Dominguez — who admits his connection to an offshore account himself until 2001 — told PCIJ that "there is nothing illegal per se about these accounts... and we are not about to declare them illegal."

 

"Actually," Henares said, "nobody can stop you from incorporating anywhere in the world." But, she said, “the question is if that company has an asset that matches (its) net worth.”

 

She pointed out, “The important thing to ask is if the tax for that had been paid, and second, did it come from questionable deals. Kasi ‘yung galing sa masama rin, hindi mo rin binabayaran ‘yung buwis (Because if it came from something illegal, you wouldn’t pay the tax due)."

Henares continued: "Ibig sabihin, hindi mo siya maipasok mainly sa pangalan mo kasi hindi mo ma-explain saan nanggaling 'yung income, saan galing 'yung pera. 'Yun lang naman ‘yung tinatanong d’yan, pero itself, wala namang problema (In other words, you couldn’t place it under your name because you won’t be able to explain where the income was sourced, where the money came from. That’s really the only question there, but itself, there’s no problem)."

 

It's a question, according to her, of what would  drive someone or some entity to open an offshore account. "Siyempre, medyo may tanong lang na ano bang objective mo (Of course, there’s a bit of a question there on what really your objective is),” Henares said. “Parang lahat ng tao feeling nila na kapag Pilipino ka, naiisahan mo ‘yung gobyerno mo. Bakit mo ginagawa 'yan? (So everyone starts feeling like, if you’re a Filipino, you can easily put one over your government. Why do you do that?)"

Dominguez takes the contrary view. Indeed, he said that there is no clear, cogent legal framework to regulate offshore accounts, but getting one "would require legislation by Congress." At the moment, he said, "we're all focused on the tax reform bill until December."

 

"But really," Dominguez said, "there is nothing illegal per se about Filipinos or Philippine residents opening accounts overseas." Still, he said that "when information like this comes out, then we look at it case by case."

 

"In truth, there is nothing illegal about it,” Dominguez said. “It is legal, and we are not about to declare it illegal." He then cited one instance when he was told that a friend of his staff had planned to open a dollar account in Hong Kong to buy bitcoins.

 

Recalled Dominguez: "I told her, ‘Go ahead, that's okay’."

 

These comments by the Finance Secretary came on the fourth time that PCIJ had called him in the last month, to follow up on a request letter for an official opinion on offshore accounts from his department.

 

PCIJ mailed its letter to Dominguez last November 8, prompting a quick call from him. At the time, though, he was still in Vietnam for the Asia-Pacific Economic Cooperation Summit. 

 

He promised then that he would organize a technical working group of his staff, as well as officials of the Bureau of Internal Revenue, and —if they would agree, he said — of the Bangko Sentral and the Anti-Money Laundering Council. 

 

The ASEAN (Association of Southeast Asian Nations) Summit intervened and kept Dominguez busy for a week. He received PCIJ's second and third calls during the week, however. 

Last Nov. 16, he said, "My staff will write you a letter. We discussed this yesterday. There is no law prohibiting anyone from opening offshore accounts. It's allowed by law." Offshore accounts "may be a tax leak for us,” Dominguez said, “but it is a small leak."  

 

He added that offshore accounts are a lesser problem than tax incentives that some companies and sectors have been enjoying for so long. "We have a list of tax incentives given, and you'd be surprised how big those amounts are,” Dominguez said. “Some have been receiving tax benefits for over 40 years."

 

Tax leakage on account of incentives given to corporations is, in Dominguez's view, "a more important issue than someone buying, registering a plane or cargo vessel -- that is a one-off thing."

 

In an offshore leaks database reported in 2013, Dominguez's name had actually come up as an offshore account holder. The company listed in his name was called Radstock Corp. 

 

When PCIJ asked Dominguez about this, he promptly acknowledged his connection with Radstock. "I saw that before,” he said. “I was involved with them a long time ago, 2001 ‘ata." As he recalled it, his engagement as a director of Radstock was connected with a project of the Philippine National Construction Corporation.

 

Like Dominguez, many other finance experts say that offshore accounts are legal. They also note that these are rather common among multinational enterprises with global operations. Yet when account holders turn to tax havens offshore to avoid or evade paying taxes, hide illicit wealth, and conduct illegitimate or abusive financial flows in secret, they cross over to forbidden territory in law.

International companies, finance experts say, operate in tax havens to be able to transfer the taxable income to jurisdictions where tax rates are lower. Companies that make profits in the Philippines, for instance, can transfer these to other jurisdictions. This means that what should have been part of the tax base of the Philippines becomes instead part of that of another country. 

 

Tax havens also use secrecy as a prime tool to hide identities. Individuals and entities can hold shares in offshore companies without being identified, unlike in the Philippines where incorporation and registration records are public. Too, one can sell shares offshore without having to pay capital-gains tax.

 

Secrecy jurisdictions provide structures that enable people or entities to skirt or undermine laws of their home country or jurisdictions elsewhere. In the Philippines, the lack of a legal and regulatory regime over offshore accounts makes it difficult for government to run after tax evaders and money launderers.

 

According to the Tax Justice Network, between $21 trillion and $32 trillion of private financial wealth is located, untaxed or lightly taxed, in tax havens around the world. Illicit cross-border financial flows have also been pegged at $1 trillion to $1.6 trillion per year, a huge amount compared to the $142.6 billion in global foreign aid in 2016.

 

Founded in 2003, Tax Justice Network or TJN is a U.K.-based independent international network that conducts research, analysis, and advocacy on international tax, the international aspects of financial regulation, the impact of tax evasion, tax avoidance, tax "competition," and tax havens. Not aligned with any political party, TJN has global and regional partners in Africa, Asia, Africa, Europe, Latin America, and North America.

 

TJN has a Financial Secrecy Index that ranks jurisdictions according to their secrecy and the scale of their offshore financial activities. The higher the rank, the more secretive financial activities are in the country. The scoring is based on an assessment of 15 secrecy indicators that can be grouped around four broad dimensions of secrecy: knowledge of beneficial ownership, corporate transparency, efficiency of tax and financial regulation, and international standards and cooperation.

 

Of the 92 countries surveyed by TJN for its 2015 Index, Bermuda was ranked No. 34 and Isle of Man at No. 32. The Philippines was 46th. Switzerland, Hong Kong, and the United States are first, second, and third, respectively. 

 

The Financial Secrecy Index reveals that the stereotypes of tax havens are misconceived. Said TJN: “The world’s most important providers of financial secrecy harbouring looted assets are mostly not small, palm-fringed islands as many suppose, but some of the world’s biggest and wealthiest."

As of this posting, PCIJ has yet to receive a written reply from Dominguez himself, or even from the "technical working group" that he said he plans to convene to study the matter of offshore accounts. He tossed PCIJ's query letter to Finance Undersecretary Antonette C. Tionko, who recently replied to PCIJ. She said in part that they had “gone through the attached list which contains names of Filipinos and a few foreign corporations which appear to have Philippine ownership (although this is not clear considering that only the name of said corporations are provided).”

 

“Please note,” Tionko said in her letter dated Nov. 22, “that under Philippine tax laws, income of Filipino citizens are subject to Philippine income tax regardless of where earned. On the other hand, only income of foreign corporations from Philippine sources is subject to Philippine income tax. Hence, if we assume that the listed corporations are all foreign corporations, evidence must be presented…that income is earned and not reported in the Philippines to constitute a violation of the Tax Code.”

 

She then asked for “further information” on the Filipinos on the Paradise Papers list. According to Tionko, information “such as purported types of investments, amounts of said investments, and the like will be relevant in determining whether or not there is a violation of Philippine laws.”

To Henares, meanwhile, big companies and top taxpayers who have offshore ties are not suspect. She is more concerned, she said, about those on the list who have no global business or reason to have offshore companies. Asked Henares: “If you have no international corporation, then what are you doing there?” 

 

Henares said that she welcomes having more information into offshore transactions primarily because without information and appropriate regulations, governments have no way of running after tax evaders who hide their wealth offshore.

 

The BIR, with Henares at the helm, had set to investigate Filipinos with offshore accounts following PCIJ’s 2013 report. But Henares said she could not recall updates on the planned investigation. 

 

When contacted by PCIJ on the matter, BIR Assistant Commissioner Marissa Cabreros said that the Bureau cannot confirm or deny any information about it because its staff are bound by law to keep silent.

 

In any case, Henares said that the country’s strict bank secrecy law in a way already offers “a domestic haven” for people who may want to hide their cash assets. Tax havens offshore meanwhile offer options for people who may want to hide their ownership of properties.

 

“Let’s say,” she said, “without knowing how much they have in the bank, we already know they’re deficient by P1 million. What more if we have that bank figure? It would be much, much more ‘di ba? Then what more if we have the information about the international (accounts)? Then it could become much, much more din.”

The OECD Global Forum for Tax Transparency was specifically set up to address the risks to tax compliance posed by secrecy jurisdictions. Global Forum members, among them the Philippines, had agreed to implement transparency and exchange of information for tax purposes. This includes the Exchange of Information on Request (EOIR) and the Automatic Exchange of Financial Account Information (AEOI), which requires tax administrations to exchange taxpayers’ financial information.

 

Henares clarified, however, that the Philippines is involved only in the EOIR, which allows the BIR to exchange information only with a country that the Philippines has a tax treaty with.

 

The Philippines was reviewed as “largely compliant” in the first round of the EOIR review. But it currently has treaties with 41 countries only; it has no tax treaty with many of the popular tax havens.

 

The OECD and the Council of Europe also developed the Convention on Mutual Administrative Assistance in Tax Matters, which is said to be the “most comprehensive multilateral instrument available for all forms of tax co-operation to tackle tax evasion and avoidance.” The convention not only provides for exchange of information, but also includes assistance in recovery, the service of documents, and facilitation of joint audits.

 

The Philippines signed onto the agreement in 2014 but has yet to ratify it.