From 2016 to date, acting as counsel in respect of multiple Cayman Islands investment fund product launches to provide access vehicles for clients of a major Swiss regulated private bank (aggregate capital raised US$800 million) to invest in US funds and products managed by predominantly US managers in the real estate, technology and aircraft leasing sectors, including in relation to niche real estate sectors, and as lead investor counsel on behalf of such funds in connection with onwards investment transactions.
Acting for NASDAQ listed, Gridsum in going private with a US$75.5 million valuation.
Acted as Cayman Islands counsel to Solidarium (Cayman) and its wholly owned Brazilian subsidiary Olist, a leading Brazilian-based sales platform, on multiple Series Preference Share financings, since its original Series A financing in 2015, including as counsel on the most recent Series C BRL190 million financing (2019) and Series D BRL310 million financing (2020), both with lead investor SoftBank, and with follow-on investments in 2019 by Redpoint eventures and in 2020 by Valor Capital, Peninsula, Velt Partners, FJ Labs and angel investor Kevin Efrusy, and as counsel in respect of two Brazilian M&A acquisitions by Olist in Q4-2020.
Acting for Zai Lab in its HK$5.94 billion NASDAQ listing and secondary listing in Hong Kong
Legal 500 Alternative Investment Funds Comparative Guide
Cayman Court says Limited Partners are entitled to “true and full information” about a partnership
IFC 17th June 2020 – The Cayman Islands And The International
Bodies: A Commentary On Inequality And
Published in IFC Review – June 1st 2020
“The things that make me different are the things that make me” – Winnie The Pooh.
Being different can be a good thing. But evidently enough if that difference means you are able to provide a superior financial services product to that available in Europe you must anticipate that you will be regarded in the corridors of Brussels as a threat and, if it possibly can, and without reference to the principles of fairness or objectivity, the EU will wield its apparent weight to do something about it. That, in a nutshell, is the entire rationale for the new EU blacklist which currently affects the Cayman Islands. But there is a good deal more to the story than that.
We can agree that the threat to the EU is real. According to the European Securities Market Authority’s most recent figures, the assets under management in the UCITS product in Europe amount to Euro 9.7 trillion. But this is an entirely EU centric product marketed and heavily regulated within Fortress Europe EU for EU investors (and those non-EU investors daft enough to think that EU style securities law and regulation translates into greater investor security.) (See below Re Basle II.)
But UCITS products apart, in the alternative investment space, defined to include hedge funds, fund of funds, real estate, and private equity funds, the total assets under management in Europe amount to only Euro 4.7 trillion. I say only because the comparative Cayman Islands figure for its 8,000 Cayman Islands hedge funds comes in at US$2.5 trillion with like amount estimated to be invested through some 20,000 Cayman Islands private equity vehicles, making a total of $5 Trillion.
So, we can conclude that as a tax neutral financial centre the fund structures of which attract global capital flows for onward alternative investment, the Cayman Islands is at least as compelling a jurisdiction as the aggregate of all the financial centres in the EU. European Tax Commissioner Moscovici and his colleagues in the European Code of Conduct Group (“ECCG”) know that these capital flows when invested onshore (the United States with its competitive tax rates promoting inward investment is the primary beneficiary of Cayman Islands fund structures) generate significant tax revenues for which the EU with 7% of the world’s population and 55% of the world’s welfare spending, a declining birth rate and increasing longevity, is desperate. Those capital flows if reinvested in the EU would generate, on realization of the investment, taxes that would pay for pensions for policemen, firemen, teachers, nurses, social security and welfare benefits generally.
In what is simply a war for capital flows and attendant financial services the EU has limited weapons at its disposal other than its blacklisting process because it remains the case that the Cayman Islands has less than a 6% investor base within the EU (and we can safely surmise that it is unlikely that the AIFMD pan European securities marketing passport will ever be extended and certainly not to the Cayman Islands). And therefore, the recommended EU “defensive” measures suggested consequent upon the blacklisting are unlikely to be of any practical effect although no doubt the inclusion on a ‘’blacklist” is intended by the EU Commissioner and the ECCG to effect a measure of reputational damage. But justifiably so? Let us examine the rationale for the introduction of the economic substance rules which were described repeatedly by Moscovici as being driven by the “non-compliance of the Cayman Islands in tax matters”. Surprisingly and from deep within the EU Ms. Tove Maria Ryding who heads up the Tax Justice team in the European Network on Debt and Development, makes the point (with an unusual degree of charm for a European high tax advocate) that the EU behavior is entirely arbitrary and prejudicial. “Whenever”, she states,” the EU has sent out its list of non-cooperative tax jurisdictions also known as the “EU Tax Haven blacklist”, all EU Member States have been consistently and noticeably absent”. So far, so good. But Ms. Ryding still fails to make, as do most, the blindingly obvious and crucial point. She cannot say, and does not, with what it is the Cayman Islands is not compliant.
A moment’s analysis should have revealed the true narrative. Firstly, the Cayman Islands is not a double tax treaty jurisdiction and is in no way involved in the aggressive international corporate tax avoidance for which Ms. Ryding concludes, EU jurisdictions are responsible. Further “The BEPS standards”, she says rightly,” have been repeatedly criticized in being ineffective in stopping international tax avoidance”. The reason for that is simple enough. The BEPS initiative is no more a band aid placed over the compound fracture of the hopelessly broken OECD double tax treaty network which has enabled industrial scale tax avoidance by the EU jurisdictions of Ireland, the Netherlands and Luxembourg through the highly artificial mechanisms of the Double Irish and the Dutch Sandwich.
Ms. Ryding tacitly recognizes that problem in that certain countries, France included, propose now a “digital tax” on gross sales which are not part of international standards. France is driven to this because taxing net profits after the ineffective double tax treaty has permitted deductions for royalties, licensing fees and interest, generates no tax revenue at all in the country of sale. Which is precisely the core of the Starbucks, Google, and Apple problem. And yet the acceptance of the BEPS initiative by the OECD as some form of solution seems alarmingly universal. The BEPS initiative, if it does anything at all, is supposed to avoid the Google Starbucks and Apple tax avoidance by introducing the principle of international taxation known as capital import neutrality which states that taxation should be borne in the jurisdiction in which profits are made .In that context the OECD and EU focus on “economic substance” in the relevant jurisdiction makes sense only as a precondition to a properly taxable entity securing legitimate and intended access to a double tax treaty. That is to say, conversely, that flow through vehicles which pay no appropriate tax on profits should not. BEPS does nothing to cure the underlying flaws in the double tax treaty network which reduce taxable profits to insignificant levels. And in relation to a non-double tax treaty jurisdiction like the Cayman Islands applying economic substance is an invented irrelevance. Ms. Ryding correctly adds “it is high time for the most powerful players, including the EU, to take a critical look at their own performance”: but the BEPS initiative will not improve it. Although, and here the irony is complete, it is Cayman Islands structures that ensure compliance with the foundation principle of the BEPS initiative in that Cayman Islands structures always result in proper taxes being paid in the jurisdiction in which the profits are made.
But, secondly, we can go further than saying that the Cayman Islands, which has no OECD double tax treaties, was not engaged in tax avoidance or non-compliance. In terms of cooperation, rather than “non-cooperation”, the Cayman Islands record is actually exemplary. It has a fully transparent regime. Not only are profits paid on the realization by any Cayman entity of investments made in the onshore jurisdiction, but as an early adopter of FATCA and the Common Reporting Standard, it is unanswerably the case that tax should be paid on distributions or redemption proceeds received by the investor in his jurisdiction of tax residence. And yet, Ms. Ryding still finds herself able to say in relation to the Cayman Islands, “This jurisdiction does cause great concern with regard to tax matters,” but is then incapable of describing any concern whatsoever, let alone a “great” one. And nor has anyone else. And particularly not, Moscovici. His allegations are a fiction. But so often repeated in the halls of Brussels that those in the EU and others with a superficial understanding have actually come to believe them .
With this latest blacklist, the abusive behavior of the EU strikes a new low, given that Cayman under identical threat had enacted the economic substance legislation. This new blacklist list has nothing to do with tax matters. Without due notice the ECCG insisted that Cayman Islands private equity funds be regulated in accordance with EU direction, a ridiculous proposition of extra territorial regulation, without any suggestion it should apply only to those Cayman Islands entities marketed in the EU. And no other justification was suggested. Nor did the ECCG comply with its own internal principles for blacklisting. By ECOFIN’s own ‘rules of engagement’, defensive measures (including blacklisting) should be ‘proportionate’ and ‘encourage positive change leading to removal of the jurisdiction from the list’ and should ‘not be applied once the specific reason for listing is resolved’. In the case of blacklisting on a technicality (lateness) there was nothing to be resolved. The rules binding the ECCG show this new blacklisting to be an arbitrary abuse of process. The correlation between the desperation of the EU and its lack of principle seems compelling.
There are though also troubling observations from within about the thinking of the Cayman Islands Government in seeking to appease the EU. Particularly, the Cayman Islands ,having now been blacklisted in any event ( much as predicted) ,we can also conclude, that the advice given to the Cayman Islands Government by certain Cayman accounting firms and bankers in 2018 to avoid Blacklisting at any cost for the reason that it would result in the termination of New York correspondent banking relations with the Cayman Islands banking industry was clearly misguided. No such termination has occurred. Conversely the advice given by others that appeasement would not stop the EU in its endeavor to do further reputational damage to the Cayman Islands, which advice was ignored, has proved correct. But there is a more damaging subliminal concern with the Cayman Islands Government’s policy. As with any course of appeasement it creates the suggestion that there may exist some truth in the EU allegations of “non-cooperation”. Appeasement is as misguided an approach when dealing with the EU allegations of noncompliance as the hens “confessing” to Napoleon crimes they did not commit in Animal Farm, and with similar outcome. In consequence the great majority of casual commentators including Ms. Ryding actually believe that there is some veracity (they can never specify what precisely) in the EU suggestion of Cayman Islands “non-compliance”, when there is none. The EU does not just deal in negative interest rates, it has mastered the art of negative truth.
But what drives the EU to unprincipled behavior of this sort? Not as Ms. Ryding suggests, simply as retaliation for Brexit. The truth may be found deep within the EU and in the conflict created by the ruling of the German Constitutional court over the ECB acquisition of over Euro $2 trillion sovereign debt, contrary to the principles of the Lisbon Treaty. The truth may be found in the Target 2 debts of Euro1.2 trillion of which Euro 500 billion is owed by Italy to the ECB and Euro 225 billion is owed by Greece neither of which can be repaid. The truth may be found in the sovereign debt on the balance sheets of European banks being given by European banking regulators under Basle II a zero-risk weighting as if to suggest default is an impossibility when the opposite is the probability. The truth may be that the Euro Zone does not and cannot ever constitute a successful Optimal Currency Area with the result that Target 2 must increase and that therefore it is also the truth that two things only can happen to the EU .The first is that despite its attempts to export suffocating European Union tax law and regulation to competitor offshore jurisdictions the EU simply implodes under the weight of its debt and its current rules which mean that debt can never be repaid. Without more, that seems inevitable. The more, in the alternative, is for the EU to advance by way of complete political, monetary and fiscal union to a Federal State. This of course was precisely the contemplation of one of the founders of the EU, Jean Monnet when he said, “I have always believed that Europe will be built through crisis and that it would be the sum of their solutions”. The ruling of the German constitutional court in May, may yet precipitate the crisis that advances that endeavor. We shall see. But either outcome suits the Cayman Islands as well because what seems clear given the weight behind the Common Consolidated Corporate Tax Base, is that if a full monetary and fiscal union prevails across the EU it will be the expense of the tax vetoes of Dublin and Luxembourg, and the shenanigans they have engineered to provide tax neutral vehicles in a taxable environment . And that the rates of taxation in Europe will be uniform and eyewatering, sufficient to meet the conjoined EU Member States welfare and social benefit programs and with E$2 or US$3 trillion in addition to bail out the ECB.
Monnet also said “Europe’s nations should be guided towards the super state without their people understanding what is happening. This can be accomplished by successive steps, each disguised with having an economic purpose which will eventually and irreversibly lead to federation”. Let us hope he is right. Because the objective for the Cayman Islands will be to ensure that it remains different and a fully and an efficiently functioning transparent and tax neutral offshore financial centre if and when that day arrives.
 An investment fund that invests in liquid assets and can be distributed publicly to retail investors across the EU pursuant to the undertaking for Collective Investment in Transferable Securities Directive 2009/65/EC.
 The Cayman Islands statistics in relation to private equity are anecdotal for the moment but will soon come to hand given the introduction of the Private Funds Law 2020 which requires mandatory Cayman Islands audit sign off and the filing of audited accounts with the Cayman Islands Monetary Authority.
 As matters stand, whilst Cayman Islands funds may be marketed country by country under the National Private Placement regimes which remain or by way of reverse solicitation, it is not customary to market Cayman Islands funds within the EU other than by way of very limited and targeted private placement.
 The EU has no authority other than to recommend defensive measures be adopted by Member States. These may include (i) withholding taxes from payments from entities in EIU Members States to an entity in the Cayman Islands, (ii) loss of tax deductions, (iii) enhanced requirements for CFC inclusion, (iv) loss of participation exemption benefits.
Given the absence of much in the way of European involvement by Cayman Islands entities, these defensive measures already exist, are largely useless and have only been adopted thus far, astonishingly, by that bastion of international tax integrity, Luxembourg.
 See the article, IFC – 16/04/2020 “Time for Real Tax Cooperation”, Ms. Tove Maria Ryding
 This highly artificial structure has now been outlawed with effect from 2020.
 We have arrived at the ridiculous situation where the Organization for Economic Cooperation and Development which authored the highly subjective and widely criticized“ Harmful Tax Competition: An Emerging Global Issue” initiative in 1998 has concluded that the Cayman Islands is “Not a harmful jurisdiction “.This explains why EU Tax Commissioner Moscovici whose thinking is at least as transparent as the Cayman island tax system has had to shift his description of the Cayman Islands to the wholly unspecific and disingenuous expression “Non-cooperative”.
 The use of outrageous mischaracterization is a familiar tactic habitually used by totalitarian leaders in European States over the years when engaged on propaganda campaigns .The essence of it is that the lie must be continually repeated to be fully effective and it seems , “The lie has to be so colossal that no one would believe that someone could have the impudence to distort the truth so infamously”. – Mein Kampf Adolf Hitler 1925.
 Animal Farm, George Orwell.
 See the very excellent article by Professor David Blake May 2018, “Target II: The Silent Bailout System which Keeps Europe Afloat”.
 Otmar Issing, the ECB’s first Chief Economist – “One Day the House of Cards will Collapse”
Acting on the launch of SCREP VII Opportunistic Real Estate Fund closed at US$2.75 billion
Published by Cayman Compass, 9th April 2020
Note to reader: This article, prepared by Louise Desrosiers, of Travers Thorp Alberga, a member of the Family Bar in the Cayman Islands, is intended to help parents get up to date with the changes in Regulations that may affect them and their children. It is not intended as government or legal advice and should the reader require advice about their own situation it is suggested they seek independent legal advice or visit the Government’s website at www.gov.ky/coronavirus .
Under the Public Health (Prevention, Control and Suppression of COVID-19) Regulations (‘the Regulations’) it not permitted for a person, including children, to be outside their home for any purpose other than those exempted.
On Friday 3 April, Attorney General Samuel Bulgin announced that persons undertaking travel to facilitate child contact arrangements would be exempt from the shelter in place regulations.
The announcement of the Attorney General comes amid concerns that parents moving children between households are in breach of the Regulations. Conversely, parents refusing to move children between households were in breach of Court Orders and (no less importantly for the child) private arrangements. The announcement is timely as Easter and summer is fast approaching and there are often extended arrangements over holiday periods.
On 6 April, the wording of the new amendment was published, adding a new category of ‘essential travel’ as:
in relation to children who do not live in the same household as their parents, or one of their parents, to continue existing arrangements for access to, and contact between, parents and children; AND …“parent” includes a step-parent, a person who has parental responsibility for a child or a person who has care of a child.”.
These are Amendments to Regulation 8 ‘shelter in place’. The amendments do not apply to the ‘curfew’. However, the spirit of the amendment might suggest that as long as children remain inside the home of the other parent, overnight contact can be facilitated during curfew.
The Amendment covers all persons with parental responsibility, as many children live with family members other than their parents. If contact is facilitated by another family member without parental responsibility, this is not covered.
The following general advice, echoing the President of the Family Division and Head of Family Justice in England and Wales, is intended to help parents decide what to do if they are faced with children who are a member of two households:
- Whilst the Amendment establishes an exemption, it does not mean children must move between homes. The decision is for the child’s parents to make after a sensible assessment of the circumstances, including the child’s health, risk of infection and the presence of vulnerable individuals in the household(s).
- Parents should communicate with each other about their worries and make suggestions for practical solutions. Many people are worried about Coronavirus and the health of themselves and their family. Even if some parents think it is safe for contact to take place, it might be entirely reasonable for the other parent to be genuinely worried.
- Parents may be able, acting in agreement, to exercise their parental responsibility and temporarily vary arrangements. It would be sensible for each parent to record such an agreement in a note, email or text message sent to each other.
- Where parents do not agree, but one parent is sufficiently concerned that complying with the arrangements would be against current government advice, that parent may exercise their parental responsibility and vary the arrangement to one they consider safe. If governed by a Court Order, they should request a variation to that Order. If, after the event, the actions of a parent acting on their own are questioned by the other parent, the court will likely look to see whether each parent acted reasonably and sensibly in the light of the official advice and the Regulations in place at that time, together with any specific evidence relating to family.
- Where a child does not get to spend time with the other parent, it is likely the the Court will expect alternative arrangements to be made, for example via the internet or telephone.
The circumstances of each child and family will differ, so advice is in the most general form. If you are worried about any of the issues outlined in this article and how they might affect your family, please contact a legal professional who can help with tailored advice about your situation.
The Cayman Islands has been blacklisted by the European Union (EU) for failing to comply with good governance standards on tax, according to reports published in The Guardian newspaper. Anthony Travers, OBE, Senior Partner at Travers Thorp Alberga, comments on this decision.
Acting for Grab in raising US$850 million from Japanese investors including Mitsubishi UFJ Financial Group Inc and TIS Inc
IFC Annual Review 2020 – The Cayman Islands and Offshore Finance
Arbitration means Arbitration
Cayman Islands Court of Appeal stresses rule that arbitration clauses apply to all disputes arising
under a contract unless there is express contractual language to the contrary.
IFC Review – A reply to Dame Margaret Hodge
Published in The IFC Economic Report – Spring / Summer 2019
Cover Story by Anthony Travers OBE, Senior Partner, Travers Thorp Alberga, Cayman Islands
Published by The Washington Times, Monday January 14th 2019
Recently, Pascal Saint-Amans, a representative of the Organization for Economic Cooperation and Development(OECD), was in Cayman to explain the OECD position with respect to the proposed European Union and OECD “black list” of the Cayman Islands. I am not sorry that I missed his visit, as the true position of the OECD cannot be explained politely.
As Richard Rahn points out in his recent excellent piece in The Washington Times (“The return of the tax bullies,” Web, Jan. 7), the pervasive creep of international organizations in their not-so-hidden agenda for a global high-tax superstate is evident. It is, however, worse than that. Pierre Moscovici, the EU tax commissioner, and Mr. Saint-Amans are both French, and on extraterritorial tax initiatives they speak the same language. One would have hoped the EU and the OECD had learned the true lesson of World War II. You can call it bullying, but it is only one degree removed from Fascism. Admittedly, they do not now use guns and bullets, but this “black list” initiative is economic warfare by high-tax, inefficient and bankrupt countries that are in collusion with one another.
Also disappointing is that in advancing their high-tax, globalization agenda, the EU and the OECD adopt the very same tactics that the post-World-War-II international bodies and the EU were designed to prevent — all the while shamelessly oblivious to the fact that it is Paris which is in flames as a direct result of an increasingly insupportable tax burden.
Let’s be clear: We can, at a stroke, cut through the hundreds of thousands of pages of tortuous double standards produced by the OECD. The truth is that what the EU and the OECD want (and this is inarguable in light of the complete tax transparency that Cayman now provides) is for the investment profit made by Cayman Islands structures to be deemed “harmful” unless taxed twice, whilst investments and structures made through the EUstructures are only taxed once.
Black shirts or black lists, their tactics are indistinguishable.
Senior Partner, Travers Thorp Alberga
Grand Cayman, Cayman Islands
Acting for Polymer Capital Management a new Asian equity focused market venture hedge fund platform
Senior Partner, Travers Thorp Alberga
The difficulty of attempting to deal with the EU and the OECD in relation to their ridiculously entitled ”harmful” tax practices initiative, whether through the introduction of economic substance legislation or howsoever, is well illustrated today by that paragon of tax avoidance techniques The Netherlands which, when I last looked, was a member of the EU, now introducing its independent “black list” including the Cayman Islands.
That should have surprised no one.
As matters stand under EU law, EU countries retain the right of self-determination over tax matters and it seems therefore what they should and should not be shy about.
But clearly the policy of appeasement adopted by the Cayman Islands government (no doubt in good faith) is rendered somewhat more difficult when dealing with a multi-headed hydra comprising, it seems now, the EU, the OECD and each independent EU jurisdiction.
An alternative strategy might begin with someone, anyone, explaining precisely what is ”harmful“ about Cayman Islands tax structuring which, I am as certain as may be, involves full taxes being paid on profits in the jurisdiction of investment.
Clearly, therefore, what the EU and the OECD must simply mean, and their objective, is that Cayman Islands investment vehicles will be “harmful“ unless taxed twice (difficult as a proposition for a global standard), or otherwise rendered uncompetitive through the entirely novel and entirely fanciful “economic substance” initiative. (This is much, much easier since firstly, no one has the slightest idea what this means, except we can say with certainty that for Cayman it cannot possibly mean anything good and, secondly, since now we have the legislation, the EU can make up the rules as it goes along, however arbitrary and discriminatory.)
There is no other sound explanation for the EU and OECD position. And since a satisfactory explanation cannot, as a matter of logic or international tax law, be forthcoming, we should ask how precisely a policy of appeasement is intended to achieve an outcome that does not secure the EU and OECD objective.
“The higher races have a right over the lower races. They have a duty to civilise the inferior races.”
Extract from the IFC Review 2018 / 2019
Acting on the launch of PAG Asia III closed at US$6 billion.
Acted as Cayman Islands counsel to Pintec Technology Holdings Limited (NASDAQ: PT) in its initial public offering in October 2018, with US$44.3 million raised. Pintec is a leading independent technology platform enabling financial services in China.
Acted as Cayman Islands counsel to Australia Nature’s Care Biotech in the sale of a majority stake of the company to a Chinese consortium. Norton Rose Fulbright in Sydney acted as lead-counsel in the deal.
Successfully representing The International Banking Corporation BSC – Discovery from the “SAAD” litigation (June 2018)
IFC Economic Report – Summer 2013
The Big Debate: Can and should Morality be applied to corporate tax planning?
Those who seek to allude to morality as a basis for revenue collection fail to comprehend that by definition, insofar as it exists, morality is not a universal standard but accords to any one or more of a particular philosophy, religion, or culture, sometimes all three.
Some observers, notably Celia Green, make other distinctions between tribal and territorial morality. Territorial morality is permissive, allowing the individual whatever behavior does not interfere with the territory of another and seeks to apply rules which are universal and absolute, Kant and Geisler would agree. Green relates the development of territorial morality to the rise of the concept of private property and the ascendency of contract over status. Tribal morality on the other hand is prescriptive, imposing the norms of the collective on the individual. These norms will be arbitrary, culturally independent and entirely subjective. So which sort of morality are we talking about? And therein lies the entire basis for the rebuttal. One man’s tax avoidance is another man’s tax legitimacy but are we really to run a civilized society on the basis of tribal behavior?
The confusion that results if we do is evident.
Mr Miliband thought that Mr Livingstone’s use of a corporate service company to reduce his personal tax liability in a highly artificial manner was ‘correct and proper’. So do numerous employees of the BBC. Mr Clegg thought Mr Romney’s perfectly correct tax payments, calculated at 15 per cent on long term capital gains and dividend income as prescribed by the IRS Code, were in some, unspecified way, wrong, apparently simply because the investment was made in a Cayman Islands entity. So too President Obama is of the view that companies operating lawfully in the Cayman Islands subject to the complete tax transparency afforded to the IRS under the 2001 Tax Information Exchange Agreement are a ‘tax scam’ although the basis for the allegation is not specified. Nor does the IRS seem motivated to enquire. On the other hand, Mr Cook contends that Apple was at all times complying with applicable law and asks the Senate Subcommittee, in effect, what other test he is supposed to apply to assess the amount of tax payable.
Sir Roger Carr of the CBI says the same thing succinctly: “Mr Cameron should avoid the moral debate. Tax avoidance cannot be about morality. Tax should not be viewed as a down payment on social acceptability. Tax should be calculated in keeping with the law of the land.”
And there we have it. Tax or indeed, any form of transfer of property compulsory or otherwise can only be dealt with by the law of the land. That is the cornerstone of the rule of law which underlies the concept of a civilized society and distinguishes us from the tribal behavior to which the extreme left wing and the NGOs that speak on its behalf would have us descend.
If morality is based in philosophy, religion or culture, it cannot provide sufficient certainty and certainly not a mechanism for assessing quantum. The term ‘fairness’ does not provide a satisfactory basis. Fair to whom and why?
The confusion that is inherent in the suggestion that morality is a basis of revenue collection is amplified by weak politicians who necessarily seek to appeal to the greatest number of voters. Thus the issue of ‘morality’, as determined, from time to time, by the consensus view of the3 inevitable focus groups may indeed determine the content of a political manifesto but at no time does it constitute a basis for corporate conduct where duties are owed by management to the company.
It is only when moral position is held by sufficient majority of legislators and enactment results that we have sufficient certainty for assessment and enforcement. Assessment and enforcement are simply a function of the law of the land.
Somewhat regrettably with the introduction of the GAAR, the position may not be as clear now as it was at the time of the admirable statement of Lord Tomlin in IRC v Duke of Westminster: “Every man is entitled,” he said, “if he can, to order his affairs so as that the tax attaching under the appropriate Acts is less than it otherwise would be. If he succeeds in ordering them so as to secure his result, then, however unappreciative the Commissioners of the Inland Revenue or his fellow taxpayers may be of his ingenuity, he cannot be compelled to pay an increased tax.”
‘Furniss v Dawson and Ramsay did not alter that fundamental proposition save to say that where a transaction had prearranged artificial steps, which served no commercial purpose other than to save tax then the proper approach was to tax the effect of the transaction as a whole. In time, we will know whether the GAAR will change that approach. The expressed intention – that it will negate an expressed course of action that aims to achieve a favourable result that Parliament did not ‘anticipate’ and which cannot be regarded as reasonable – hardly improves on grounds of certainty. Nevertheless it will be for the Courts to decide on any outcome. Thus does the law deal with aggressive tax avoidance?
And thus nowhere in the law do we find any support for the comments of Mr Cameron and Mr Osborne, who seem strangely at ease in aligning their opinions with radical left wing groups such as the Tax Justice Network, regarding morality being a satisfactory test for the assessment of tax revenue.
If the law does not meet with the intention of the legislators they must change it. It is only when they fail or are incapable of doing so that we find the minority braying about unspecific notions of ‘morality’.
Travers Thorp Alberga, Cayman Islands