DRAFT - European Parliament · 2015 "Trusts and Financialization." Socio-Economic Review, 14: 1-33....

DRAFT PROGRAMME

9:00 - 9:10 Welcome by the PANA Chair

9:10 - 9.40 First panelPresentations by speakers (at 10 minutes each)

Professor Ronen Palan, Senior advisor - Tax Justice Network

Professor Brooke Harrington, Associate Professor Copenhagen Business School. Author of“Capital without Borders, Wealth Managers and the One Percent”

Daniel Hall, Director and co-head of Burford’s global corporate intelligence - Burford Capital

9.40 - 10:45 Discussion with PANA Members

10:45 - 11.15 Second panelPresentations by speakers (at 10 minutes each)

Rupert Manhart, Chair of the Anti-money laundering Committee of The Council of Bars and LawSocieties of Europe (CCBE), and Richard Frimston, Member of the CCBE and expert on topicsrelating to tax, beneficial ownership, and offshore activities aspects

Wim Mijs, Chief Executive Officer (CEO), and Roger Kaiser, Senior Policy Adviser of EuropeanBanking Federation (EBF)

Professor Stef van Weeghel, Global Tax Policy Leader, Price Waterhouse Coopers (PWC)

11.15 - 12:25 Discussion with PANA Members

12:25 - 12:30 Conclusions by the PANA Chair

PUBLIC HEARINGTHE ROLE OF LAWYERS, ACCOUNTANTS AND BANKERS IN PANAMA

PAPERS - (PART I)TUESDAY, 24 JANUARY 2017

9.00 - 12.30

Room: József Antall (JAN) 6Q2

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PUBLIC HEARING

THE ROLE OF LAWYERS, ACCOUNTANTS AND BANKERS

IN PANAMA PAPERS - (PART I)

TUESDAY, 24 JANUARY 2017

9.00 - 12.30


CVS OF THE SPEAKERS

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Professor Ronen PalanProfessor of International Politics, Department of International Politics, City, University of London

Background

Professor Ronen Palan (BSc. Econ, LSE, PhD LSE) joined City University London in September 2012.Prior to this he has been a professor of IPE at the University of Birmingham and Sussex University, and alecturer in International Relations at the University of Newcastle-upon-Tyne.

He was a visiting professor at the Hebrew University, Jerusalem and York University, Canada. He was alsoa founding editor of the Review of International Political Economy (RIPE) and member of the Fellow andPromotion Committee at the Institute of Development Studies, Brighton.

Professor's Palan's work lies at the intersection between international relations, political economy, politicaltheory, sociology and human geography. He wrote a number of books and numerous articles, book chaptersand encyclopaedia entries on the subject of Offshore and Tax havens, state theory and international politicaleconomic theory. His work has been translated to Chinese, simple and complex characters, Japanese,Korean, Spanish, French, Russian, Italian, Azeri and Czech.

(Source : Wikipedia)

______

Education: Bsc. Econ and PhD, The London School of Economics and Political Science, 1984,1990

Previous Appointments: University of Birmingham, Sussex, Newcastle-Upon-Tyne

Visiting Professorships: Luiss, Rome, Thammasat, Bangkok, CEPREMAP, Paris; CentralEuropean University, Budapest; York University, Toronto, Canada; Hebrew University,Jerusalem

External Funding

Corporate Arbitrage and CPL Maps: Hidden Structures of Controls in the Global Economy

CORPLINK, ECR Advanced Grant, project 694943 - CORPLINK - GAP-694943 1,728,000Euros, 2017-2021

Combating Fiscal Fraud and Empowering Regulators (COFFERS), Horizon 2020. 4,999,999Euros, PI for WP1, 638,000 Euros.

System of Tax Evasion and Laundering: Locating Global Wealth Chain in the InternationalPolitical Economy (STEAL). Team member. PI Professor Leonard Seabrooke. Research Councilof Norway, 4,997,000 NKR.

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Selected Publications

Palan, Ronen & Abbott, Jason with Phil Deans, 1996, 2003 State Strategies in the Global PoliticalEconomy. London: Pinter. HB. Czech translation.

Palan, Ronen, 2000, 2013 (Editor), Global Political Economy: Contemporary Theories. Routledge: Londonand New York. HB & PB. Azeri and Chinese Translations.

Palan, Ronen, 2003, 2006 The Offshore World: Sovereign Markets, Virtual Places, and NomadMillionaires. Ithaca, N.Y.: Cornell University Press.

Cameron Angus & Ronen Palan, 2004, The Imagined Economies of Globalisation. London: Sage..

Chavagneux, Christian et. Palan, Ronen, 2006, 2007, 2013, 2017 Paradis Fiscaux, Paris : LaDécouverte.,Japanese and Spanish Translation.

Palan, Ronen, Murphy Richard and Christian Chavagneux, 2010, Tax Havens: How Globalization ReallyWorks. Cornell Studies in Money. Ithaca: Cornell University Press. Chinese traditional and complexcharacters, Korean, Japanese Trans.

Halperin, Sandra & Ronen Palan, 2015 (Eds.) Legacies of Empire. Cambridge University Presss.

Palan, Ronen, 1998, “Trying to Have Your Cake and Eating It: How and Why the State System HasCreated Offshore” International Studies Quarterly, 42 (4),625-644

Palan, Ronen, 2002, “Tax Havens and the Commercialisation of State Sovereignty” InternationalOrganization 56 (1), 2002, 153-178.

Nesvetailova, Anastasia & Palan, Ronen, 2008, “A Very North Atlantic Credit Crunch: GeopoliticalImplications of the Global Liquidity Crisis”, Journal of International Affairs (With AnastasiaNesvetailova). 62:1, 165-185.

Palan, Ronen, 2010, “Financial Centers: The British Empire, City-States and Commercially-OrientedPolitics”, Theoretical Inquiries in Law. 11(1), 142-167.

Documentaries:

Advisor to: Britain’s Trillion Pound Island – Inside Cayman, BBC2, The Price we Pay,InformAction.Canada, The UK gold, Brassh Moustach, UK, Les Dessous Des Ecart, ARTE,Germany/France.

(Source : Pr. Palan)

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E. Brooke HarringtonCopenhagen Business SchoolDepartment of Business and PoliticsPorcelaenshaven 242000 Frederiksberg, Denmark

Phone: +45-3815-2463Fax: +45-3815-3555

Email: [email protected]

Academic Appointments2010-present Associate Professor of Sociology

Copenhagen Business School (tenured)Maternity leave: January-August 2010

2012-2013 Visiting Scholar (during research leave from CBS)European University Institute

2006-2009 Research Fellow, Max Planck Institute for the Study of Societies

2003-2004 Visiting Scholar (during sabbatical leave from Brown)Princeton UniversityStanford Graduate School of BusinessSanta Fe Institute

1999-2007 Assistant Professor of Sociology and Public PolicyBrown University

Education1999 Ph.D. in Sociology, Harvard University

Committee: Peter Marsden, Lotte Bailyn (MIT Sloan), David Frank

1996 M.A. in Sociology, Harvard University

1990 B.A. in English Literature, Stanford University

Selected Publications2016 Capital without Borders: Wealth Management and the One Percent

Harvard University Press. Japanese, Korean and Danish translations in progress.

2016

2015

"Trusts and Financialization." Socio-Economic Review, 14: 1-33.

“Going Global: Professionals and the Microfoundations of Institutional Change.”Journal of Professions and Organization, 2: 1-19.

2012 “Trust and Estate Planning: The Emergence of a Profession and Its Contribution toSocio-Economic Inequality.” Sociological Forum, 27: 825-846.

Articles in the popular press and policy journals available at www.brookeharrington.com.

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Daniel Hall

Daniel Hall is a Director and co-head of Burford’s global corporate intelligence, asset tracingand enforcement business.

Mr. Hall is a UK qualified solicitor who practised in both London and Hong Kong forStephenson Harwood.After leaving the law, he enjoyed a number of years in the investigative sector, latterly as aPartner at a leading global risk-management consultancy. He spent ten years investigating fraudand financial crime before founding Focus and has particular experience in sovereign disputes.

Mr. Hall graduated from Oxford University with a degree in Law.

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–MMag. Dr. Rupert Manhart, LL.M. (LSE)

Born 1977 in Salzburg (Austria), Rupert Manhart has been Attorney-at-Law and Partner atManhart Einsle & Partner, Bregenz (Austria) since 2009. Since 2010, he has been Member of theAustrian Delegation to the Council of Bars and Law Societies of Europe (CCBE).He was Member of the CCBE Committee on Competition and the CCBE Anti-MoneyLaundering Task Force from 2010 to 2016. Since 2016, he has been Vice-Chair of the CCBE EULawyers Committee and Chair of the Anti-Money Laundering subgroup.Furthermore, he has been Member of the Working Group on Criminal Law as well as of theCommission on Criminal Law of the Austrian Bar (ÖRAK) since 2009.

Between 2002 and 2006, he was Junior Lecturer at the Department of Criminal Law of theUniversity of Innsbruck. He was trained as Attorney-at-Law from 2006 to 2008 at FellnerWratzfeld Partner, Vienna (Austria), and from 2008 to 2009 at Stolz Manhart Einsle, Bregenz(Austria).

He has studied Law (2001 Graduation to Magister iuris, 2004 Promotion to Doctor iuris, 2005Graduation to Master of Laws) and International Economic Sciences (2002 Graduation toMagister rerum socialium oeconomicarumque) at the Universities of Innsbruck and Strasbourg aswell as at the London School of Economics and Political Science (LSE). Bar exam 2009 andnotarial exam 2012. Several academic awards and scholarships.

Doctorate in Law with a dissertation on tax crimes. Several publications and lectures on financialcriminal law, white collar crime, money laundering and environmental criminal law as well as onEuropean private law.

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European Banking Federation aisbl

Brussels / Avenue des Arts 56, 1000 Brussels, Belgium / +32 2 508 3711 / [email protected] Frankfurt / Weißfrauenstraße 12-16, 60311 Frankfurt, Germany EU Transparency Register / ID number: 4722660838-23

www.ebf.eu

July 2016

BIOGRAPHY: WIM MIJS

Chief Executive of the European Banking Federation

Wim Mijs (1964) was appointed Chief Executive of the European Banking Federation in

September 2014.

Between 2007 and 2014 Wim served as CEO of the Dutch banking association NVB. During

this time he transformed the NVB into a modern industry association, positioning it as the

key representative of the banking sector in the midst of the financial crisis.

Wim studied law at the University of Leiden in the Netherlands, specialising in European

and International law. After his studies he worked for one year at the International Court

of Arbitration at the Peace Palace in The Hague. In 1993 he joined ABN AMRO in

Amsterdam before moving to Brussels to head up the bank’s EU liaison office. Wim moved

back to The Hague in 2002 where he became the Head of Government Affairs for ABN

AMRO.

Between 2011 and 2015 Wim served as Chairman of the International Banking Federation.

From 2012 to 2014 he was Chairman of the Executive Committee of the EBF. From 2013

to 2015 he was President of the Board of Euribor, now known as the European Money

Market Institute.

Wim is married and has two children.

Twitter: @Wim_Mijs

Official photos are available under a Creative Commons1 license via http://bit.ly/WimMijs

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http://bit.ly/WimMijs



www.ebf.eu

January 2017

BIOGRAPHY OF ROGER KAISER

Senior Policy Adviser, European Banking Federation

Master’s Degree in Business Engineering

Master’s Degree in Taxation

Chartered Tax Accountant

Roger Kaiser has 25 years of experience in taxation and financial reporting and a robust

expertise in international public affairs.

In the 90’s, he received a Master’s Degree in Business Engineering from HEC-University

of Liege (Belgium), a Master’s Degree in Taxation from ESSF-ICHEC, Brussels (Belgium),

and a Post-Graduate Degree in European Tax Law from ESSF-ICHEC and University of

Burgundy, Dijon (France). He is also a member of the Belgian Institute of Chartered

Accountants and Tax Advisers.

He has served the Belgian Internal Revenue Service for 7 years, notably as Head of the

Taxation Unit for Brussels' financial intermediaries and as Head Inspector at the Ruling

Commission and the Directorate General for Corporate Income Tax & Withholding Tax.

In 1999, he joined the European Banking Federation (EBF), the representative body of

Europe’s banks. In his capacity as Senior Policy Adviser for taxation and financial crime,

he represents European banks in a number of international expert groups run under the

aegis of the OECD, EU Institutions and industry representation bodies. He is also Lecturer

in the Master of Advanced Studies in International Taxation at the University of Lausanne.

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Prof.dr.Stef van Weeghel (1960) is a tax partner with PwC (Netherlands). Stef is PwC’s Global Tax Policy leader. He is also professor of international tax law at the University of Amsterdam.

Stef’s focus is on tax policy, strategic tax advice and tax controversy. He regularly renders advice and second opinions to clients and to other advisers, on corporate income tax and tax treaty matters and is also consulted by the Dutch government on a regular basis. He acts as expert witness in tax matters (for taxpayers and for governments) before Dutch and foreign courts and in arbitration pursuant to bilateral investment treaties.

At the University of Amsterdam his research focuses on tax treaty abuse and the interaction between domestic anti-avoidance rules and tax treaties. His PhD-thesis of 1997 (the Improper Use of Tax Treaties) was about tax treaty abuse. In 2010 he was the general reporter for Subject 1 (Tax treaties and tax avoidance: application of anti-avoidance provisions) at the Congress of the International Fiscal Association (IFA) in Rome. He also spoke about tax treaty abuse at the OECD Annual Global Forum on Tax Treaties.

Stef is chair of the Permanent Scientific Committee of IFA and former chair of the Dutch branch of IFA. IFA was established in 1938. It is the only non-governmental and non-sectoral international organisation dealing with fiscal matters.

Stef also chairs the Board of Trustees of the International Bureau of Fiscal Documentation (IBFD). IBFD, also established in 1938, is a non-profit foundation that conducts independent tax research, provides international tax information, education, and government consultancy.

Stef graduated from the University of Leiden in business law (1983) and tax law (1987) and obtained an LLM in Taxation from New York University (1990). In 1997 he received a doctorate in law from the University of Amsterdam. He was admitted to the Amsterdam Bar as attorney in 1987. In 2000 he was appointed tenured professor of international tax law at the University of Amsterdam. He authored and co-authored several books and numerous articles on Dutch and international taxation and has lectured extensively in the Netherlands and internationally.

Prior to joining PwC Stef was a partner at law firms Linklaters (2007-2009) and Stibbe (1992-2007) where his roles included membership of the Executive Committee, head of tax and resident partner in the New York office.

In 2009/2010 Stef chaired the Study Group Tax System, a committee that advised the Dutch government on comprehensive tax reform. In 2000 he was a member of the Van Rooy-Committee that advised the Dutch government on corporate income tax reform. Prior thereto he was member of a working group at the Dutch Ministry of Finance that worked on revision of the Dutch ruling practice. He also worked on the review of administrative practices in taxation commissioned by the European Commission.

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PUBLIC HEARING




9.00 - 12.30


CONTRIBUTIONS

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Creative ComplianceWealth Management, Taxes and the Law

Brooke Harrington, PhDAssociate ProfessorCopenhagen Business School

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What the Panama Paperstell us• the law doesn’t constrain the ultra-rich as

tightly as everyone else• they can pay firms like Mossack Fonseca to

“liberate” them from many legal constraints– when it comes to tax, the scale of avoidance we

see now (~$200B/year by individuals worldwide)could not exist without expert facilitation

I’ve spent the past 9 years studying these experts.18

What I’ve learned• what do the world’s ultra-rich want?

– not just tax avoidance, but law avoidance• who does the work?

– a recently-constituted professional group calledwealth managers

– most are trained as lawyers, accountants, andbankers; they specialize in serving the ultra-rich

– at least 20,000 practitioners in 95 countries• what do these professionals do?

– help their clients violate the spirit of the lawswhile remaining formally compliant

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How they work• key strategies

– subvert regulation: not through overt defiance,but through “creative compliance”

– discretion: stay out of public records, courts– use of three basic tools—corporations,

foundations and trusts—to obscure ownership– “hacking sovereignty” across jurisdictions

• key outcomes– legal invisibility of client, frictionless movement

of client assets worldwide, avoid accountability– thus, no prosecutions from Panama Papers

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How I know this

• spent two years training as a wealth manager– learned the state-of-the-art techniques and strategic

mindset– gained access to interview participants and archival

materials for research

• dataset– 65 interviews with wealth managers in 18 countries,

including all the major world regions: Africa, Asia,Europe, and North and South America

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Research sites

Johannesburg: 5

New York: 4

ChannelIslands: 4

London: 3

Zurich: 1

Vaduz: 1

Seychelles: 2

Mauritius: 4

Dubai: 3

British VirginIslands: 3

Los Angeles: 3

San Francisco: 1Chicago: 2

Geneva: 7

Hong Kong: 4

Shanghai: 1Panama City: 4

Cayman Islands: 4

Singapore: 2

Montevideo: 1

Buenos Aires: 2Cook Islands: 4

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A few recommendations• focusing on tax policy for the rich has not

worked– defeated by extreme mobility of the rich and their $– France and the wealth tax as cautionary tale

• focus on the wealth managers instead– Israel succeeded by co-opting wealth managers,

changing the incentives for compliance by theprofessionals—not their wealthy clients

• …and cultivate whistle-blowers– more John Does are out there: protect them from

exposure/prosecution so more will come forward23

Can also answer questions on• interpreting data from the Panama Papers

– reading the patterns like a wealth manager

• structure of the wealth management industry– types of clients, types of businesses

• the geography of wealth management– where wealth moves around the world, and why– the specializations of diverse offshore centers

• how the basic tools are deployed to hide $– understanding uses of trusts, firms and foundations

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Configurations from simple

Subtrust 1—UK based(holds up to US$5.3 million)

Holds portion of couple’s assetsexempt from US estate tax (upto $5.3 million), but not exemptfrom UK estate tax.

Subtrust 2—US based(holds remainder of wealth)

This trusts holds the remainingwealth in the estate—that is,whatever is above the topexemption level available (in thiscase, $5.3 million). This allows taxthat would otherwise be due on aUS person’s death to be deferred.

Main Trust

Subtrust 3—US basedOptional: useful in casethere are grandchildrenwho might benefit from theUS generation-skipping-transfer-tax law.

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To complex

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Your questions?

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Daniell HALLDirector and co-head of Burford’s Global Intelligence - Burford Capital

Hello, my name is Daniel Hall and I’m a director of Burford Capital’s corporate intelligenceand enforcement team. I am grateful to be asked here today and I look forward to giving myviews on this important topic.

To give you a little background, I am a qualified solicitor in the UK but I have left the law anddo not practise. For a little over a decade now, I have primarily been involved in asset recoverywork, formerly on a consultancy basis in the corporate intelligence community, but now inthe financial services industry where I work for the largest litigation finance firm in the world.I mention this background as I have seen the offshore world and its facilitators from a varietyof different viewpoints in my career, so I hope I have something to add to this discussion. Forme, the Panama Papers are fascinating and whilst the leak itself and the specific details wereunexpected, the type of revelations have been unsurprising.

Frankly, I am delighted that the practices of some parts the offshore world have reached thepublic consciousness and caused the outrage that they have. I have spent the majority of mycareer chasing well resourced, hardened, recalcitrant debtors who happily use the corporateveils of convenience provided by many secrecy jurisdictions, so I have some understanding ofthe difficulties faced by national tax authorities, let alone many commercial creditors wholack the funds or wherewithal to make headway in this opaque world.

As you can imagine, my casework (both active and historic) is bound by a multitude of non-disclosure agreements, legal privilege and in some cases, court imposed confidentialityorders, so I can’t give as many details as I would like. However, I will give this Committee aflavour of what I have seen on a regular basis and highlight examples that have made it intothe public domain, where I can.

I should point out that I am not here to demonise Panama or the offshore world in general.After all, I do work for a Guernsey domiciled company, and like the vast majority of journalistswho have written on the Panama Papers, I think it is important to note that much of whathappens offshore is perfectly legal.

However, there is obviously a darker side; as inevitably the secrecy, negligible tax regimes andthe low cost of entry to this world means the entire system is prone to abuse. Sadly, much ofthis abuse is facilitated by groups of well-paid lawyers, accountants and bankers, especiallywhen it comes to professional money laundering and tax evasion.

If you will forgive me being trite for a moment: imagine you are from a poor background,perhaps in a developing nation or a politically unstable country. You end up working for theGovt, a state owned enterprise, or even just a large company, and you are presented with anopportunity to make lots of money; perhaps to make more money than you could possiblyhope to for the rest of your life. Maybe it’s outright theft, maybe it’s a bribe or kickback, butyou do it. Putting aside the morality of this decision for a moment, I urge this Committee tothink about the practical logistics of what happens next. Seriously, what would you do? Do

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you go home and start Googling “How to launder money”? Ask a friend? Imagine thatconversation: “I’ve just been given a suitcase full of money to award a contract to companyX, any idea what I can do with it?”

No, none of that happens. Usually, at the same time you’re provided with the opportunity toprofit you’re introduced to the helpful lawyer or fiduciary that makes it all possible. Beforeyou know it, you’re enjoying the fruits of your ill-gotten gains, often with the funds havingpassed through a daisy chain of offshore companies – none of which are ever likely to belinked to you and getting the funds away from the original crime – and its cost you maybe15%, maybe less. It’s just the cost of doing business; and you haven’t had to do any of thestructuring or money movement yourself.

In some ways it’s a silly example. It all sounds a little far-fetched and exotic, with charactersthat belong in a movie, not the boardrooms throughout the financial capitals of Europe andbeyond. We would all like to imagine the kind of professionals characterised here as grottyindividuals, running tiny businesses and being on the edge of the professional community.People cite historic example such as Jeffrey Tessler, by his own words “a simple lawyer” fromNorth London, who eventually pled guilty to US corruption charges in the Halliburton briberyscandal where over $182m of bribes were funnelled to Nigerian officials under the Abacharegime, with the help of a number of well-known international banks.

However, the problem today is perhaps larger than it has ever been. The IMF released areport on corruption in 2016, which estimated that the cost of bribery and corruption alonewas somewhere between $1.5 to $2 trillion dollars. Per year. So, how are the good guysdoing? The Stolen Asset Recovery Initiative of the World Bank estimates that in the 15 yearsbetween 1995 and 2010, only $5 billion of stolen funds were recovered and returned. Whenyou think about it on that scale and with that enormous gulf between what is stolen(measured in trillions annually) and what is recovered (measured in the low billions over a15yr period), you logically know that these transactions aren’t being dealt with by a tiny groupof ethically challenged lawyers and fiduciaries; it’s big business and lots of people areinvolved. This is bribery & corruption alone don’t forget; this doesn’t take into considerationthe fund flows from other criminal activities such as drugs, prostitution, people smuggling etc– and that’s before we get to ‘just’ tax evasion. The Panama Papers have shined a very smallspotlight on to one small part of a truly vast industry.

So how and why does this happen? Easy answer: it’s good business for the professionals. Nofirm generally wants to lose paying client work, especially when the competition is happy todo it and there is virtually no fear of sanction. This is often the moment when many of theintermediaries are quick to cite the robust Know Your Client and compliance procedures theyhave in place, how these kind of practices couldn’t happen at their venerable institution – butit’s often a convenient fiction. The majority of KYC is ‘compliance theatre’ with the relevantlawyer or accountant merely seeking to ensure that they are not legally exposed in a particularcircumstance, as opposed to actually preventing the flow of illicit funds. I’ve seen lawyersfrom prestigious firms happily smirk that their client is not the Russian sanctioned individualon the EU list, it’s a BVI company associated with his wife, all the time with knowing nods andgrins.

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If you’ll permit me another odd aside: my favourite strained analogy involves the old landingcards for foreign travellers entering the US. For those who don’t know, one of the questionsyou had to answer prior to entering the country was that you were not a terrorist, or a Nazi,nor had you been involved with genocide somewhere. It always struck me as odd thatsomeone could be involved with a genocidal regime, yet feel compelled to tell the truth on aform. I’m betting that the confessions via immigration form were pretty low.

The parallel here is that the KYC used by the intermediaries we are discussing today dependson two things (i) the self-reporting of the individuals concerned; and (ii) the scrutiny or lackthereof by the professional adviser. In the trillions of dollars stolen in the last 5 years, mostwould have been laundered, often via the offshore world, and wound up ‘clean’ somewhereand probably used to invest most asset classes imagine-able. How many of the KYC docs filedcurrently in banks, law firms and accountancy firms do you think – under the source of fundssection - say “kickback, “bribe” or “theft”? Again, I’m guessing zero. To expect self-reportingby the criminal is as pointless as hoping a terrorist identifies himself on an immigration form.So, the only line of defence we really have is the professional adviser; who in turn is facedwith a dilemma: do they refuse the work based on gut instinct, a moral compass and commonsense even though there is no formal evidence of wrongdoing in front of their eyes; or dothey use that very same lack of evidence as a reason to proceed? They have no evidenceanything improper has happened, so why not proceed? Turning a blind eye is all toocommonplace; most intermediaries aren’t egregious examples like Jeffrey Tessler; but mostknow that something isn’t right, but proceed as they don’t feel exposed and they can makesome easy money.

A recent US example exemplifies this perfectly. In January 2016, Global Witness released areport called Lowering the Bar, which was covered in the US media and the undercover videosappeared on 60 Minutes. In the investigation, an individual posed as an advisor to an Africanminister of mines who wanted to bring millions of dollars of suspect funds into the US, to buya jet and a yacht amongst other things He met with lawyers from 13 New York City law firmsand only one turned him away. Of the 12 seemingly willing to offer advice as to how thisAfrican minister could bring his funds anonymously into the US, one of them was the servingPresident of the American Bar Association. Some of the lawyers suggested using their lawfirms’ own bank accounts to help prevent the US Banks detecting who the funds trulybelonged to.

To conclude, how can these practices be stopped and how can we change the calculus forintermediaries. The answer broadly has to be ‘make it bad for business’. When instances ofmoney laundering or tax evasion are identified, the various professionals involved should beplaced under severe scrutiny; they should have to disgorge a multiple of any fees earnt, theyshould be struck off or personally affected; ie you have to make the individual think twice. Aslong as wilful blindness continues to be a valid defence for the intermediaries, the problemwill persist. A small fine for a person or firm combined with the ability to continue earningfees just means it becomes a heightened cost of doing business – the reward will still be worththe risk. That’s the calculus that needs to change.

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Conseil des barreaux européens – Council of Bars and Law Societies of Europe association internationale sans but lucratif

Rue Joseph II, 40/8 – B 1000 Brussels – Belgium – Tel.+32 (0)2 234 65 10 – E-mail [email protected] – www.ccbe.eu

European Parliament Committee of Inquiry into Money Laundering, Tax Avoidance and Tax Evasion (PANA)

24 January 2017

Statement from the Council of Bars and Law Societies of Europe (CCBE)

Good morning.

I am here today on behalf of the Council of Bars and Law Societies of Europe (CCBE). The

CCBE represents the Bars and Law Societies of all EU Member States, as well as Norway,

Iceland, Liechtenstein and Switzerland, and a further 13 associate and observer countries, and

through them more than 1 million European lawyers.

The CCBE is delighted to have the opportunity to assist the Committee of Inquiry. In the allotted

time, I would like to provide you with a brief introduction on the CCBE, with a focus on the

CCBE’s work in the area of anti-money laundering, and comments on tax avoidance and tax

evasion matters.

To begin, the CCBE supports the fight against money laundering and has been actively

engaged in countering existing and potential risks. Lawyers are covered by the obligations

included in the EU anti-money laundering Directive and the International standards set by the

FATF. A legal professional is an “obliged entity” in the sense of the money laundering

Directive, and required to have anti-money laundering systems in place. Lawyers are subject

to customer due diligence, so called CDD requirements, and reporting obligations when they

carry out a number of financially related activities. The current anti-money laundering Directive

make it very clear under which circumstances a full CDD procedure must be carried out.

Moreover, legal professionals use, for many reasons (such as liability, invoicing,

communication with clients, banking requirements), formalistic client intake procedures to

control their ongoing client relationship even in areas not covered by the EU Directive.

In addition, lawyers operate according to the “know your client” principle. A client is not

anonymous to the lawyer. A lawyer has the duty to identify the client and is obliged to do so.

This was a deontological duty before becoming a legal one. The lawyer will always know who

the client is. If a lawyer is prevented from identifying a client, a lawyer must withdraw from

professional activity.

Lawyers are subject to a set of European harmonised rules in the area of anti-money

laundering. National legislation, as well as national Bars and Law Societies, have implemented

the applicable EU Directive and apply the specified measures to address money laundering

risks. The profession is making every effort to detect money laundering and to raise awareness

amongst its members. As an example of a few of these measures:

Bars and Law Societies have developed lists of indicators which illustrate risk situations which a lawyer should be aware of.

Bars and Law Societies carry out onsite inspections of client accounts held by lawyers, and these accounts are usually subject to an annual audit (in the jurisdictions that have client accounts).

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2

Bars and Law Societies provide training on anti-money laundering (AML) issues to both admitted and trainee lawyers.

Up-to-date guidelines have been developed and promoted to assist lawyers in relation to complying with their AML obligations.

AML Toolkits have been developed which provide lawyers and law firms with practical ‘need to know’ information and contain a mixture of draft policies and procedural checklists.

Advice has been developed for new money laundering reporting officers.

There are numerous email alerts about emerging money laundering typologies/red flags and AML-related policy developments.

There are “Hotlines” whereby many jurisdictions have a dedicated AML support phone line for their members.

There is engagement with the relevant national ministry and law enforcement agencies and many other actions.

I would like today to make it clear that the CCBE and its member Bars and Law Societies do

not and never will condone the actions of any lawyer who knowingly participates in any criminal

activity of a client, whether relating to money laundering, tax evasion or any other criminal

activity.

Members of the legal profession are subject to strict sanctions (both civil and - in certain jurisdictions - criminal) for any failure to adhere to AML obligations. There are strict disciplinary procedures which can lead to being struck-off the list of lawyers, and severe fines for failure to adhere to AML procedures. Lawyers are professionals, and yes, while there might exceptionally be some individual “crooked lawyers” as with other professions, this must be kept in context. Criminals exist in every profession and take part in money laundering schemes. There is a significant difference between a lawyer or any other professional being complicit in any illegal activity and a lawyer being unwittingly involved. Any lawyer that knowingly participates in illegal activity is treated like any other criminal. They are not acting as lawyers. This is a position which we the CCBE and Bars and Law Societies have always maintained and made very clear. In contrast, the low level of prosecutions across EU Member States of lawyers being unwittingly involved in money laundering activities is testament to the successful measures which Bars and Law Societies take. It is also very important to understand that professional secrecy does not apply if a lawyer takes part in illegal actions of the client. Privilege and professional secrecy do not, and will never, apply if a lawyer is facilitating an offence. The legal profession is highly regulated at a national level in all EU Member States. There is

no European Regulator or Supervisor like that which exists, for example, for the financial

services sector, as the tasks of lawyers vary across EU Member States. Differences exist

between common and civil law systems regarding how lawyers are regulated at a national

level. However, each Member State’s legal profession is governed by national law, and is well

regulated by national law and national supervisory or self-regulatory bodies. Those bodies

issue very clear and encompassing guidance, take their regulatory duties seriously and provide

extensive training. Moreover, there is also guidance and ethical rules at a national, European

and international level.

The profession is united in efforts to educate its membership regarding money laundering risks

and assist them with meeting their AML obligations. The legal profession is alert to the threat

of money laundering and is actively taking it on. We support any clear, workable and

proportionate measures and will continue to do so. No profession wants its members to be

involved in illegal activity. The legal profession is no different. It is in our interest to protect

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the reputation of the legal profession, and any lawyer that is involved in illegal activity hurts the

reputation of the entire profession. That is why we are so committed to fighting money

laundering.

We understand the inquiry is focusing on a number of issues, including the use of trusts. The

formation of companies and trusts can be an area of vulnerability for legal professionals, as

criminals may seek to abuse their professional services by involving them in the management

of those companies and trusts in order to give the appearance of respectability and legitimacy

to the entity and its activities. This is why the creation or management of trusts and companies

by lawyers is an AML regulated activity across the EU, and also one of the reasons why in

some European countries lawyers are not permitted to act in the management of companies.

This is an area of potential risk that is well recognised and regulated by FATF, EU and Member

State rules, and an area on which we have provided much guidance to our profession. In this

regard, we have already identified and communicated situations where red flags should be

raised.

It is worth highlighting that trusts are an accepted way of managing assets (money,

investments or property) by enabling a third party or trustee to hold those assets on behalf of

one or more beneficiaries. Under all common law, including that of England & Wales, Ireland,

Australia and most of the states of the United States of America, trusts play an intrinsic role in

virtually all transactions.

In the UK, for example, domestic life policies are very commonly held in trust in a way that

mirrors the effects of assurance vie in France. In England & Wales, the Land Registry does

not record beneficial ownership and thus most land in England & Wales is held in express trust.

Problems which confront ordinary EU citizens, which under the laws of Germany or France

may be dealt with under the laws of obligations or contract are commonly dealt with under

common law by the imposition of a trust.

It should be acknowledged that the creation of a trust is therefore not, in common law,

necessarily an indication of risk. In order to further clarify many commonly held misconceptions

about trusts we have decided to make a trusts expert available to the Committee this morning.

The CCBE actively promotes the understanding of FATF red-flag indicators and advises legal

professionals to be alert to the risk of money laundering whenever clients are instructing them

from a distance about transactions without legitimate reason, or engage them although they

do not have the requisite competence, or are inexperienced in providing services in

complicated or especially large transactions. Our members are also on alert when clients are

prepared to pay substantially higher fees than usual. The changing of legal advisor a number

of times within a short space of time, engagement of multiple legal advisers without good

reason, or the termination or refusal by another legal professional are also red flags that the

legal professional is aware of. These are but just a few of the “red flag” situations that legal

professions are acquainted with, and there are many more. But it is our job to identify these

risks and to educate our profession.

The legal profession is in favour of clear, workable and proportionate rules to fight money

laundering and tax evasion. But the legal profession is also aware that fundamental rights and

the rule of law are the cornerstone of democracy. The Union is – above all – an area of freedom

and a beacon of justice. It is very important to find the right balance between regulation and

transparency on the one hand, and fundamental rights and liberties, including the right to a

private life, on the other hand. Neither fear nor financial interests should lead to the creation

of a Union of surveillance. I am sure, that you, members, share the same concerns about

fundamental rights and liberties as foundations of our democracy as lawyers do.

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I would like to conclude by saying that

- The legal profession is making every effort to detect money laundering and to raise awareness amongst its members.

- The legal profession has an extensive number of measures in place to address money laundering risks.

- Members of the legal profession are subject to strict sanctions for any failure to adhere to AML obligations.

- Privilege and professional secrecy do not, and will never, apply if a lawyer is facilitating an offence.

- The legal profession is highly and effectively regulated at a national level in all EU Member States.

- The legal profession is also actively engaged in protecting fundamental rights and liberties.

Thank you

35



1

www.ebf.eu

13 January 2017

EBF_025134

PANA HEARING OF 24/01/2017 ON

“THE ROLE OF LAWYERS, ACCOUNTANTS AND

BANKERS IN PANAMA PAPERS - (PART I)”

Provisional draft

Statement by Wim MIJS, Chief Executive EBF

1. EBF mission

Esteemed members of the European Parliament,

Before going into more detail into anti-money laundering, the fight against tax evasion

and the European banking sector let me address a number of aspects of the role and the

work of the European Banking Federation.

The European Banking Federation represents the banking sector through its members,

national banking associations in 32 countries in Europe. This includes the 28 EU Member

States as well as the four countries in the European Free Trade Association – Norway,

Switzerland, Liechtenstein and Iceland. The EBF and its members together represent

approximately 4.500 of the 7.000 banks in Europe, employing some 2.1 million people. In

terms of assets, EBF represents about 80% of all banking assets in Europe. Within the

EBF, about 100 of the 120 Eurozone banks directly supervised by the European Central

Bank are represented.

The EBF was created in 1960 and has always been a very strong supporter of the European

Single Market. We as EBF are committed to creating a single market for financial services

in the European Union and to supporting policies that foster economic growth.

As EBF we aspire a thriving European economy that is underpinned by a stable, secure

and inclusive financial system. We strive for a flourishing society where stable and secure

financing is available to finance the dreams of citizens, businesses and innovators

everywhere. This vision translates into a mission statement that sees EBF as a partner in

prosperity. EBF is a partner for Europe’s legislative, regulatory, and supervisory

authorities. Our commitment to the policy debate reflects a shared belief in the need for

a fully integrated and robust Single Market for banking services.

36

2

2. Core banking activities

Banks are natural funders of the economy, where – in Europe in particular – they hold

over 75% of the total private sector credit, based on clear, long-standing and reliable

rules. European banks are actively putting their house in order, so they are able to keep

playing their part. Banks remain commercial operators in a market economy and while

they are generally active financial market players, most focus on traditional banking, such

as lending to small and large enterprises and individuals, and take pride in fostering the

economy.

3. Compliance requirements and professional ethics

3.1. EBF’s full support to the objectives of AML and the fight

against tax evasion

The EBF fully supports the objectives of AML and the fight against tax evasion.

Money laundering, terrorist financing, and the financing of the proliferation of weapons of

mass destruction are serious threats to global security and the integrity of the financial

system. The EBF particularly shares those objectives of AML which aim to protect the

integrity and stability of the international financial system, to cut off the resources

available to terrorists, and to make it more difficult for those engaged in crime to profit

from their criminal activities.

In the same mindset and also because they create distortions in the single market for

financial services, the EBF strongly condemns tax evasion and tax fraud.

Concretely, the EBF is deeply involved in international expert groups on anti-money

laundering and tax transparency at both OECD and EU levels. In these fora, the EBF

assists Government bodies in developing efficient and workable solutions, seeking clarity

of the legal and compliance requirements imposed on banks and taking into account

operational constraints, the competitive dimension and potential de-risking.

3.2. Due diligence requirements

Over the last decade, the role of banks as tax collectors, reporting financial institutions

and obliged entities under AML has increased dramatically.

The EBF continuously urges its member banks to be fully compliant with international AML

and tax standards.

At the same time, the EBF is in favor of a more purposive cooperation between relevant

authorities and the obliged entities from the private sector with a view to optimizing their

efforts in a consistent way rather than unilaterally imposing administrative burdens on

obliged entities which may prove to be inefficient.

The EBF also considers intrinsically legitimate the objective to seek synergies between AML

and the fight against tax evasion, particularly regarding due diligence requirements, in

order to boost tax transparency and to tackle tax abuse. However, such synergies should

be exploited consistently considering that any inappropriate mix-up may prove to be

37

3

counterproductive and may eventually hamper the implementation by banks of

international standards.

3.3. Transparency of customers and beneficial owners

While recognizing the need to ensure transparency of customers and beneficial owners,

the EBF would like to emphasize that a risk-based approach is pivotal in the AML processes

and is considered a key factor of efficiency and success.

Some of the recent proposed amendments to the AMLD, including the proposals regarding

centralized payment and bank account registries, may lack proportionality and could lead

to potential infringements to data protection and fundamental rights of citizens which may

result in legal uncertainty for financial institutions.

3.4. Future-proof solutions

The EBF considers that any adaptations to AML measures and tax transparency measures

must be future-proof. This is particularly the case of customer e-identification means in

the AML framework. The EBF welcomes the possibility to identify customers and to verify

their identity also on the basis of electronic identification means. A truly digital agenda

must keep the door open to further progress to ensure technology neutrality and smooth

transition to new technologies. There must be an option to use also alternative

technologies at least when they are approved by the competent authority.

3.5. International cooperation

Money laundering, terrorist financing, tax evasion and tax fraud are global problems which

require global solutions. Money launderers, terrorist financiers and tax evaders exploit

loopholes and differences among national systems and move their funds to or through

jurisdictions with weak or ineffective legal and institutional frameworks.

A global approach to fight against money laundering, terrorist financing, tax evasion and

tax fraud in order to ensure the efficiency of the measures and a level playing field for all

obliged entities and financial institutions is a must.

Binding lists of High Risk Third Countries and non-cooperative countries, i.e. not complying

with international standards in each of the areas concerned (AML, Common Reporting

Standard, etc), must be established in a multilateral framework and in a transparent

manner.

38

About EBF

The European Banking Federation is the voice of the European banking sector, uniting 32 national banking associations in Europe that together represent some 4,500 banks - large and small, wholesale and retail, local and international - employing about 2.1 million people. EBF members represent banks that make available loans to the European economy in excess of €20 trillion and that securely handle more than 300 million payment transactions per day. Launched in 1960, the EBF is committed to creating a single market for financial services in the European Union and to supporting policies that foster economic growth.

www.ebf.eu @EBFeu

For more information contact: Roger Kaiser Senior Policy Adviser [email protected] +32 2 508 37 11

4. Intervention in the setting-up of offshore constructions

The establishment of binding lists of uncooperative jurisdictions must be complemented

with clear indications of which transactions and off-shore constructions are legal and

illegal, of any penalties if applicable and of the reporting requirements if any. A

differentiated treatment should therefore be applied to non-cooperative countries

depending on the nature of the lists on which they are listed.

The EBF is ready to contribute to this work and to encourage its member banks to strictly

comply with the related requirements.

The EBF however has no authority to investigate retrospectively the operations of

individual member banks.

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http://www.ebf.eu/

mailto:[email protected]

PUBLIC HEARING




9.00 - 12.30


REPLIES TO THE WRITTEN QUESTIONS

41

European Parliament2014 - 2019

Committee of Inquiry into Money Laundering, Tax Avoidance and Tax Evasion

Public HearingThe Role of Lawyers, Accountants and Bankers in

Panama Papers - (Part I)

Tuesday, 24 January 2017 (9h00 - 12h30)József Antall (JAN) 6Q2

Brussels

Written questionsto Professor Ronen Palan, Senior advisor,

Tax Justice Network

1. Have you analysed the Panama Papers leak in any way? What would you say arethe breaches to EU law that can be identified? Is there a problem in the design ofthe control instruments? Or in the implementation of anti-tax evasion and anti-money laundering directives? In what ways would you improve the currentframework or plug loopholes to tackle money laundry, tax avoidance and taxevasion?

Answer:

To put the Panama papers in context, the demand side for offshore ‘services’arise from three main sources: First, laundered proceeds of criminal behaviourincluding corruption, embezzlement, organised crime and the like; Second,wealth preservation by HNWI seeking tax avoidance and evasion in order reducetheir taxable bills and/protect their or their family’s wealth. Third, taxoptimisation strategies of international firms. The first source of demand is themost spectacular and clearly falls foul of many national and EU laws on taxevasion, money laundering and corruption. But in sheer volume term and/or

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overall significance to the world economy, it is arguably the smallest item on theoffshore menu.

In addition, the strategies of evasion and avoidance can be divided broadly intothree categories: secrecy and opacity facilities to obscure links between assetsand owners of capital; arbitrage techniques, namely, use of breaks, loopholesand incompatible international legislations in order to fall ‘between the cracks’of taxation rules; the use of sophisticated financial techniques such asderivatives and swaps for tax planning purposes. While much of the internationaleffort to combat tax evasion and avoidance has been focused for the past twodecades on secrecy and opacity, it is becoming increasingly clear that arbitrageplays equally, if not greater role, in securing avoidance and possibly sometimesevasion. The OECD BEPS project is concerned primarily, therefore, witharbitrage. There is little research so far on the subject of financial engineering,the use of derivatives and swaps arrangement. But in my opinion financialengineering may be the largest source of tax avoidance in the world. To its merit,the OECD BEPS’ scheme is concerned with financial swaps arrangements.

The Panama papers confirm (what was suspected by the academic community)that Panama caters largely to the first and second demand groups, namely,criminals, corrupt officials, as well as wealthy individuals – although for reasonsthat I discuss below, Panama is less suited for wealth management strategies ofHNWI (because of its poor reputation). Large multinational firms appeared tohave stayed clear of Panama, in particular in the past few years. It appears thatalso due to the introduction of the US FATCA and other measures, very few UScitizens have made use of Panama in the past few years (as opposed to the past).Citizens of EU countries as well are less represented in the Panama papers. Themajority of users tend to arise from emerging markets.

Issues of concern with Panama are centred almost exclusively on the firststrategy, secrecy. That makes Panama an ‘outlier’ in the offshore world, one ofthe last holdouts of ‘old’ style evasion strategies through offshore jurisdictions.It is an incredibly spectacular case for the reasons described above, but in termsof sheer volume of tax avoided, I suspect that Panama is far less important, then,say, what we have learned from HSBC scandal in one branch Geneva (whichcovered deposits at one point in excess of $120,000,000,000, please bear inmind that HSBC has branches in Zurich, Bern and the like as well), or theinformation gleaned from the so-called Luxleaks.

The Panama papers reveal, therefore, that Panama is no longer used much bylarge multinational firms, as well as HNWIs from advanced countries. I believe,although I do not have firm evidence to corroborate my hunch, is that thispositive trend is most probably the result of the tightening rules and policiesadopted by OECD countries, combined with Panama’s poor reputation.Anecdotally, I have heard for the past few years from those working for‘enablers’ firms in advanced countries, accounting, legal and wealthmanagement firms, advice their clients to shy away from Panama.

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With regards breaches of EU law, I would like to stress that breach of national orEU laws is a matter for the Courts. Each case must be looked at individually bythe Courts. Having said that, nearly all the stories that I have heard so far relatingto Panama papers arise suspicion in the sense that an economic logic oftransacting through Panama is not obvious.

TJN has been a vociferous critique of the Global Forum on Transparency andExchange of Information (TEIA) for tax purposes. The peer review process, webelieved, relies far too much on unverified response of participating countries,both on the demand and supply side. We also heard anecdotally comments fromvarious reviewers how criticisms were toned down or either ignored altogether.Following the release of the Panama papers, The OECD put a brave face claimingthat it pointed out to Panama’s failure to cooperate on critical matters. That iscorrect up to a point. The OECD’s supplementary peer review report on Phase 1of its review published in 2015 (before the leaks) sounded probably more upbeatthen the OECD would have liked to acknowledged at this point.

I quote: ‘The 2014 Supplementary Report concluded that six of the ten essentialelements were in place. Two of the essential elements were determined to be‘not in place’. These were the availability of ownership and identity information(element A,1); and the availability of accounting records (Element A,2). Oneessential element related to Panama’s network of information exchangemechanisms with the relevant partners (element C 2) was determined to be ‘inplace but certain aspects of the legal implementation of the element neededimprovement’. Another essential element concerning Panama’s ability toprovide information in a timely manner (element C 5) involves practical issuesthat will be assessed at a larger stage.

The Supplementary report commend Panama on progress made and hencePanama was able to move to a Phase 2. I quote ‘significant amendments havebeen made to the legal framework governing the availability of ownershipinformation in Panama (Element A 1).. the report goes on to list the positivesteps taken by Panama.

I appreciate the political environment in which the OECD must operate, but Isubmit that none of the information that we have learned from the Panamapapers could have been discovered even if Panama performed better on phase2. TIEAs are far too cumbersome and would not have helped much. Under theTIEA system, a foreign authority would have had to request information on aspecific case, and would have had to provide some incriminating information toPanama for a case to be opened. Most of the cases on Panama papers were notknown to foreign authorities. In addition, many emerging governments areheavily implicated in Panama, including Thailand and Russia, and bothgovernments showed no interest in pursuing any cases. In Thailand, for instance,the Prime Minister (whose name cropped up in the Panama papers) declaredsuch matters to be ‘private affairs’. In short, TIEAs were never designed to solveserious problems. Even the system of automatic exchange of information thatTJN advocated for years and is supposed to come to effect next year is not a

45

panacea. If automatic exchange agreements are implemented, a big ‘if’ at thispoint (We are studying the implementation phase under an EU funded projectentitled COFFER, including the underlying technology of Legal Entity Identifiers(LEI) that will supposedly support those automatic exchanges – and at themoment I would not be overly optimistic), they will be available to nationalauthorities, many of which, including I believe, the British, are reluctant topursue cases for political reasons. The various leaks and scandals show us thatthere is still a very long way to go.

Most worryingly, Panama found a creative way of intimidating its critics by usingWTO dispute resolution facility again Argentine. In December 2010, Panamarequested a ruling by the WTO against a number of preventative anti-avoidancemeasures adopted by Argentine that Panama claimed, were inconsistent withcertain aspects of the GATT and GATS agreement. Panama has tried somethingsimilar with Colombia as well.

2. Would you say that it is necessary to regulate intermediaries further? Pleasespecify.

Yes, but the question is what sort of regulations. Red tape as such will not helpresolve any of the problems revealed by the Panama papers. I am not aware of asystemic academic study of the enablers firms to date save the recent publishedbook of professor Herrington’s on the wealth management industry. But forreasons well explained in her book, professor Herrington could not provide agood statistical overview of the size of the problem.

The lack of academic study can be explained by a. the great reluctance of theenablers firms to participate in such studies, combined with lack of access toeither corporate archives or inland revenue and treasury archives. b. even if anyof the above would have been forthcoming, many funders, including the EU’sown ERC and the Commission’s ethics rule would have either prevented suchstudies or would compromise them to the point of rendering them ineffectual.

My assessment of the enablers profession is based, therefore, largely onfollowing newspapers reports from around the world for many years, discussionswith the enablers themselves, networking with the academic community ofspecialists and bits of information and anecdotes revealed to me from a varietyof sources. I would divide the ‘enablers’ into different categories:

1. Accounting firms, primarily the big four, who are organised as franchisesaround the world and are presented heavily in all of the major tax havens.

2. Accountants working for investment banks and even private bankingorganisations (or desks), or smaller specialised accounting firms

3. Law firms, large and small, many of which are international, specialising invarious aspects of tax and regulations

4. Specialist tax lawyers working for large banks and/or multinational firms5. Specialist law and and/or accounting firms operating largely from tax havens

such as Mossack Fonseca, or Maples and Calder or Ogier and the like.

46

6. Wealth management firms or consultants.7. Offshore specialist providers typically expert in offshore company

formations.

I believe that the big four accounting firms are the heart and soul of the world’scorporate ‘tax planning’ business. Legal firms are often asked for a ‘secondopinion’ on a particular structure as a way of insurance against future legalchallenges by inland revenues, but the structures are set up by normally the bigfour. The big banking houses, such as Goldman Sachs, tend to have their own in-house units who dream up new and sophisticated mechanisms of avoidance andwould then go ‘road shows’ to sell those to so-called preferred clients. Big andmiddle size multinational firms would have in-house teams of laywers andaccountant, who would work with external consultants. They all have theirpreferred contact specialists firms and consultants located in various tax havens.Typically, a deal for say, aircraft buying or leasing will take place in London. Thespecialist London legal firm would then subcontract the registration of thevehicle (and the special purpose vehicle) to an agent in Cayman Island, Bermudaand the like. The ‘deal’ would show then on the Cayman’s financial statisticsaggregate, but in reality it took place in London.

Legal firms, private bankers, wealth management firms and consultants,specialist offshore company formations firms and the like cater for the large‘community’ of HNWI. They would advise them on the best strategy, cautionagainst latest moves by the US, EU and the like. They would have knowledge oflegal loopholes, and would try and navigate through those loopholes to ensuretheir clients achieve maximum ‘efficiency’ in planning.

There is, of course, a ‘dirty’ side to all of the above that consists of lawyers,accountants, specialist consultants and financiers who would either knowinglyand intentionally take a ‘lazy’ attitude to know your clients rules and othercompliance rules. There are those that aggressively pursue clients by offeringessentially tax evasion and money laundering services.

I do not know whether there is a clear distinction, empirically or otherwise,between ‘clean’ and ‘dirty’ companies, or whether the distinction is down todesks or even individuals operating within companies. From what I have learnedof Mossack Fonseca, I would classify them as belonging to the ‘dirty’ side of thebusiness. In term of social harm, I estimate that the ‘clean’ side could be asharmful, if not more, in the aggregate than the ‘dirty’ side.

In general, enablers would try and make sure they do not breach the law, bywhich I mean, they will try and ensure that a. they comply to the letter of the lawof national rules and regulations, and b. they ensure that breaches of the lawwould be attributed to their clients. The enablers take advantage by arbitratingone national law against the other. That is why the business tend to beinternational, and all schemes involved two or more jurisdictions. Viewedseparately, each component of an international structure would be entirelylegal, in term of the laws of the country in which that portion is registered, and

47

often, appear very innocent, but only in combination with other componentslocated in different countries, the true purpose of the structure is revealed.

For instance, in my research I reviewed recently a particular structure run by alarge household name multinational energy company. We discovered thatinvestment in Thailand was run through a series of SPVs, each controllinganother. One SPV in the chain was registered as a packaging company whoseaddress was in a tattoo parlour in Bangkok. It controlled another SPV presentedas a piping company in an address very near the tattoo parlour, the next link inthe chain was investment company bearing a name derived from the mothercompany. It is impossible to tell whether the structure has any tax implication,but it does look a bit strange.

International taxation and financial regulation is a highly complex and specialistfiled that consists of many sub-specialities. No government, even the US, can beexpected to have all the necessary expertise in-house. Governments havetended, therefore, to rely heavily on the very ‘enablers’ they need to regulate foradvice. There is, in addition, considerable degree of ‘revolving door’. In smallercountries, particularly OFCs (or as some call them, tax havens), the enablers mayoften draft laws barely understood by local governments.

The ‘enablers’ tend to argue that they follow the letter to the law, and it is nottheir fault the law has created so many loopholes. While individually they maybe correct, as an industry they are not. They are highly complicit, indeed, theyare the enablers of offshore – no one can set up an offshore structure withoutthe services of an enabler.

The enablers are likely to warn against ‘throwing the baby with the bathwater’,claiming that offshore serves many legitimate purposes. Some claim that theyhelp defend clients against corrupt governments – but then, who judges whichgovernment is corrupt and whether the so-called defence is indeed defence.

While I heard those arguments, they are always couched in very general andbroad terms and so the validity of the specific cases cannot be verified. Inaddition, the arguments are never substantiated with any verified quantitativeinformation. The committee should treat such arguments cautiously andrecognise that they may be self-serving.

For regulations to work, they must overcome somehow this ‘dispersal’ oforganisation and duties along different SPVs located in different countries. -Structures have to be viewed ‘whole,’ and responsibility should shift from theclients to enablers. Those providing ‘road shows’ of tax maximisation should berequired to register those road-shows. The providers of offshore SPVs shouldattract particular scrucity

The fundamental issue is one of liability and responsibility. A

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Money laundering regulation and know your client regulations are helping.

3. Were you surprised by any of the methods for tax evasion as revealed in thePanama Papers? Did the Panama Papers reveal something new for you or was itmerely a confirmation of already known practices?

Panama papers did reveal anything new. The techniques used are familiar.Panama has had a reputation among the expert community as one of thejurisdictions that were not interested in ‘cleaning’ up their act.

4. Is the most efficient way of combatting tax evasion to act for further EU-legislation or should the focus rather be on implementing the legislation that isalready in place?

In addition to automatic exchange agreements, I believe that a variant of US’sFATCA applied now to the EU would be very helpful. FATCA addressed twothorny regulatory problems. First, the sovereign problem. How can one statelegislate for another its taxation and regulation rules. Second, liability.Traditionally liability was with the client, whereas the intermediaries were merefacilitators. FATCA solved the two problems by doing the following:

First, Unlike the OECD FATCA does not seek change in offshore jurisdictions.FATCA merely insists that clients who wish to trade in the U.S. or with a U.S.entity must provide transparency of information. Clients may, of course, chosenot to, but then they would not be able to trade in the US. The EU is a largeenough economy to follow similar

There are criticisms of FATCA. But under an EU version of FATCA, everyPanamanian account holder, whether company or individual, would have toreveal all essential information to banks. . This would not have solved theemerging market problems, but those countries would probably follow if the USand EU.

would have more or less ensured that no reputable bank

FATCA in principle shifted the lines of liability from the individu

5. How can the supervision of the implementation of the EU-legislation bestrengthened? Would you say that the member states have relevant supervisingauthorities and could more be done on EU-level?

6. The EU does, obviously, not have the power to impose legislation on countriesoutside of the union. Do you have any suggestions on how the EU could ensurethat tax havens apply global standards? Will money laundering and tax evasion

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always move to new countries or are there possibilities to force a change, forexample by stricter regulation on which countries European banks and otherintermediaries can conduct business with?

EU version of FATCA

7. Can you provide some insight on the role of tax havens in globalization? You sayin your book (“Tax Havens, How Globalization Really Works”, co-authored withRichard Murphy and Christian Chavagneux) that tax havens are not working onthe margins of the world economy, but are an integral part of modern business.Can you please expand on this? Can you provide a definition of tax havens?

We estimate that about half of the global stock of money is traversed throughtax havens, that is half of international saving and deposits. We also estimatethat about one third of FDI are routed through offshore. We estimate that thereare in excess of 3 million international companies in tax havens. Of the top 500banks in the world, 486 have branch in the Cayman Island. Most banks andmiddle to large size firms would have many subsidiaries, holding companies andspecial purpose vehicles offshore. The evidence suggest that the offshore worldis deeply embedded in the world market. Panama however is an outlier

8. What are tax havens used for? You’ve developed in your book (co-authored withRichard Murphy and Christian Chavaneux) on the different uses of tax havens byindividuals and companies. Can you expand on this? What are the instrumentsused by tax havens?

9. The number of banks that are operational in tax havens is remarkable. What isthe role of banks in relation to tax evasion, tax avoidance and money launderingthrough tax havens? What would you say is the role of tax havens on financialinstability?

My sense is that things have changed dramatically in the past ten years or so.Many banks would have maintained accounts offshore with no question asked. Ido not think this is the case anymore, and a study conducted by Prof. JasonSharman now of Cambridge University, suggests that compliance issues are byno means an offshore world issue. Modern banking has shifted dramatically, inmy view, from secrecy provisions to the much more sophisticated techniques ofavoidance through arbitrage and financial engineering. We need to bear in mind,in addition, that banking is only a portion of the financial system. Indeed, the so-called ‘shadow banking’ sector is estimated at around $US125 trillion. CaymanIslands for instance, is host more than half of the world’s hedge funds. The frontof such fund is the fund manager, normally located London, NY and will beregulated by those jurisdictions. The onshore managers merely managedoffshore funds typically domiciled in jurisdiction such as Cayman. Since Caymanhas no taxation whatsoever, and has easily licensing provisions, and low fees,

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and are regualated by the Cayman financial authority. Accoring to the rule ofthese insitutiton no one else can regulate a Cayman fund. So all the profitsaccrued to the offshore funds, tax free. Repatriation would require additionalarbitrate mechanism and/or financial swaps arrangements that easy to come by.But this is only one element in a very complex system.

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Brussels

Written questionsto Brooke Harrington, Associate Professor

Copenhagen Business School. Author of “Capitalwithout Borders, Wealth Managers and the One

Percent”

1. Can you provide us your views on the role of wealth managers in taxevasion, tax avoidance and money laundering activities?

The whole offshore finance system hinges on the work of wealth managers.Without them, the whole system—and tax avoidance of $200 billion globally eachyear, as estimated by Gabriel Zucman—would cease to exist. There would still betax avoidance, but nowhere near on that scale.

As for illegal activity like tax evasion and money laundering, no reputable wealthmanager gets involved in those things. And it’s not just a matter of morals: theirreputation for discretion and dependability hinges on their staying on the rightside of the law. They may be on the right side just by the tiniest margin, but it’sessential that they stay “clean,” legally speaking, or else most wealthy people willhave nothing to do with them.

The slogan of one wealth management firm, “I want to be invisible,” not onlyencapsulates what the clients of wealth management want, but what the whole

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industry tries to achieve. People engaged in illegal activity are constantly indanger of making themselves (or their clients) visible—even if they are neverarrested or convicted, merely being exposed is the kiss of death, the end oflegitimate clients and business. So most practitioners are very careful, out of selfinterest, not to get entangled in breaking the law.

That doesn’t mean wealth managers don’t violate the law in spirit—that happensall the time. But most practitioners take great care to comply with the letter ofthe law, to the point that the profession is often mocked or disparaged withinfinancial services as being too cautious and compliance-oriented.

2. What are the instruments (e.g. offshore banks, shell corporations,trusts) used to hide private wealth not only from taxation but from allmanner of legal obligations? How are such instruments used?

There are three primary tools of wealth management: the corporation (need notbe a “shell”), the foundation, and the trust. The first two will be familiar to mostpeople; the last of the three may not, since it comes from Anglo-Saxon law. Thetrust is, arguably, the most powerful and most dangerous of the three tools,since it is the least transparent. (For more, please see my article on trusts:https://works.bepress.com/brooke_harrington/44/).

The three structures are used in combination to obfuscate ownership of assets,making it practically impossible to assign legal responsibility for taxes, debts andother legal obligations. Many offshore jurisdictions create special laws just toenhance the obfuscating potential of these structures; this is the basis for muchinter-jurisdictional competition in the offshore world.

As for specific configurations of the three structures, they are as varied as theconstructions that can be made from Lego bricks: from the simplicity of the basicbuilding blocks, tremendous complexity can arise. The greater the complexity,the more time-consuming and costly it is to establish true ownership andresponsibility. This is the key strategy—not law-breaking, but using the law tocreate all-but-impenetrable barriers to ownership identification. For more detailson how corporations, foundations and trusts are used in the real world to hidewide, please see chapter 4 of my book, Capital without Borders:http://www.hup.harvard.edu/catalog.php?isbn=9780674743809

3. What is the result of the self-regulating status of legal/tax advisors, interms of the effectiveness of the disincentives for intermediariesengaged in operations that facilitate tax evasion and tax avoidance?

I don’t understand the question. Could you rephrase?

4. Would you say that it is necessary to regulate intermediaries such asaccountants, lawyers, bankers and wealth managers further? Pleasespecify.

No, I don’t think additional regulation of the intermediaries themselves wouldhelp.

The problem is structural conflict of interest, rather than lack of regulation. Rightnow, wealth managers are put in a highly conflicted position that is, in myopinion, untenable and doomed to fail.

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On the one hand, they are required to act as the front lines for law enforcementin that they must certify that any clients that take on prove their identity as wellas the legitimate source of whatever funds they wish the wealth manager toadminister; they are to refuse anyone who is unable or unwilling to present thisevidence.

Of course, wealth managers have their own (and their firm’s) reputation toprotect; no reputable professional wants to risk tarnishing that reputation bytaking on criminals as clients—that scares away the good, law-abiding clients, inaddition to bringing a host of legal troubles. But what of the marginal cases, orthe cases where a client is perfectly legitimate, but simply refuses to disclose theinformation demanded of him or her? This happens a lot, since wealthy peoplefrom many parts of the world have well-founded concerns about their privacy andsafety: they come from countries where authorities and institutions are not to betrusted, and when you ask them to show all kinds of documentation aboutthemselves and their wealth, what goes through their mind are scenarios likekidnapping and extortion of themselves and their family members.

So many of the wealth managers I interviewed said that when they demandthings from incoming clients that might seem simple and reasonable—like proofof identity and residence—they get clients who just say “no way” and move on toanother firm…and there seems to be no shortage of firms willing to accommodatethem.

This creates an obvious conflict of interest with the business obligations of thewealth managers: they may lose their jobs if they are “too rigorous” inconducting these KYC (Know Your Client) investigations.

In addition, once a wealth manager takes on a client, the professional must alsokeep an eye out for any illegal financial activity by their client (such as moneylaundering). However, the wealth manager may be working in a jurisdictionwhere blowing the whistle on any suspected illegal activity by a client is a civiloffense—potentially a criminal offense.

So wealth managers are already caught, in some places, between conflicting legalimperatives. That’s in addition to the conflict between economic incentives totake on clients, with the legal incentive to turn them away.

More regulation on top of this won’t be useful, in my opinion. Instead, what’sneeded is a change in the structure of incentives for and demands on wealthmanagers. I’d recommend looking at the case of the Israeli tax authorities andhow they “coopted” their country’s wealth managers with some structuralchanges to demands and incentives.

5. Were you surprised by any of the methods for tax evasion or secrecyseeking as revealed in the Panama Papers? Did the Panama Papersreveal something new for you or was it mere a confirmation of alreadyknown practices?

No, I wasn’t surprised. Having trained as a wealth manager—though I neverpracticed—then having interviewed 65 wealth managers in 18 countries, thePanama Papers confirmed what I’d learned and seen.

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It was a bit jolting to find the leak came from the very office in Panama Citywhere I had interviewed a practitioner about three years previously.

6. How can the supervision on the implementation of the EU-legislation bestrengthened? Would you say that the member states have relevantsupervising authorities or could more be done on EU-level?

Are you asking whether the EU member states are implementing EU directives asintended? If so, then I don’t know the answer. A political scientist or politicalsociologist specializing in the EU would probably be more helpful; as a sociologistspecializing in global finance and professions, I don’t really take a country-by-country perspective.

7. The EU does, obviously, not have the power to impose legislation oncountries outside of the union. Do you have any suggestions on how theEU could ensure that secrecy havens apply global transparencystandards?

I think that’s the wrong question. I’d recommend that you look at JasonSharman’s 2006 book, Havens in a Storm (Cornell U Press) on this subject. Heexplains why sanctions from international organizations haven’t worked in“cracking down” on offshore financial centers.

Sharman’s analysis about the failure of the OECD’s attempt to blacklist thesecrecy jurisdictions into compliance comes down to three points:

a) Many of these secrecy jurisdictions are former colonies, and they’ve beenpushed and prodded for years to get on their own two feet economically. Nowthey’ve done it through engaging in the offshore financial services business,and they’re being condemned for it.

b) As the offshore centers see it, they have successfully outcompeted onshorestates in terms of tax policy—the same states that have for years preachedthe virtues of capitalist competition. The onshore states seem to be sorelosers now, crying “unfair tax competition” now that they aren’t in thedominant position.

c) Many of the onshore countries and leaders complaining the loudest about“unfair tax competition” are themselves deeply enmeshed in providing orusing tax avoidance services. The UK and US, for example, are among thebiggest and most successful tax havens in the world. As for individuals, thecase of French finance minister Cahuzac, who had to resign followingrevelations that he was committing tax fraud via offshore structures, comesto mind as a recent example. The Panama Papers gave us many otherembarrassing revelations of this nature.

In essence, any onshore state or organization attempting to “impose” legislationor anything else on the offshore states is going to run into these problems oflegitimacy. The EU should avoid repeating the problems that the OECD ran intowhen they tried imposing on the offshore centers.

8. According to you, will money laundering and tax evasion always move tonew countries or are there possibilities to force a change, for example by

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stricter regulation on which countries European banks and otherintermediaries can conduct business with?

To really put a stop to money laundering and tax evasion—or even to legal taxavoidance on a massive scale, as we are seeing now—would require a level ofinternational coordination that I don’t think has ever been seen before. Evencountries that are seen publicly to agree on measures to combat offshorefinancial abuses often turn out to be playing a double game: they themselvesbenefit from providing tax avoidance services to others.

This means that the incentives to “defect” from any international agreement arevery strong, even among countries that are otherwise closely allied. How then tobring in countries that are not closely tied to the politics and interests of“onshore?” As long as that problem remains unresolved, there will always besome nations willing to accept financial business that is deemed illegal elsewhere.They have the sovereign right, of course, to make laws that ensure that theactivity is legal in their jurisdiction—and they have plenty of professionalsworldwide ready to help them write the laws that wealthy people would find mostconvenient to achieve their objectives.

So, as with question #7 above, I think the language here betrays an orientationthat has demonstrably failed: the notion that the EU can “force a change” is asmisguided as the notion that it can “impose” laws on countries outside of Europe.“Stricter” measures aren’t needed: smarter ones are.

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Brussels

Written questionsto Daniel Hall, Director and co-head of Burford’s global

corporate intelligence - Burford Capital

Have you analysed the content of the Panama Papers? Which are your main conclusions?

I have read many of the media reports, used the ICIJ database and have spoken with some of the journalistsinvolved in the story, but I don’t think its accurate to say I’ve analysed the content of the Panama Papersthemselves.

From what I have read, my conclusions are that the stories are interesting, but unsurprising - at least in types ofthing we see. Apart from my desire for a personal copy of the Papers, my two main thoughts are that (i) manyof the revelations exposed in the press reflect a lack of sophistication by Mossack Fonseca and the people usingthe firm; and (ii) there are probably many more stories hidden there that may never come to light. The factcompanies are put in the names of spouses, immediate relatives and the occasional friendly cellist doesn’t showa huge degree of layering or subterfuge by the individuals using the offshore system. It probably reflects the adegree of laziness by the people trying to hide the true ownership of certain companies; as these structures arerarely exposed. I have no doubt it would be possible to hide ownership far more comprehensively; and that isthe kind of work probably happening as we speak.

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Were you surprised of any of the practices to facilitate tax evasion, as described in the Panama Papers, orwas it mere a confirmation of already known methods?

I haven’t been that surprised by some of the methods highlighted, but do remember that we are largelydependent on the prism provided by what investigative journalists find from the data and feel is newsworthy. Ibelieve the journalists in general have done their job well, but that forensic accountants or tax structuringprofessionals may get something else from the data.

Nevertheless, I don’t get the impression that Mossack Fonseca was re-inventing the wheel. Similar practices toobscure beneficial ownership and facilitate tax evasion can probably be found in many other offshore systemsand evidenced historically when you study collapsed and notorious institutions, such as BCCI

Could you describe the main loopholes in the current EU-legislation with regard to tax evasion?

I am not an EU law expert, so the short answer is ‘no’ sadly. I believe there are global loopholes, many of whichI am sure are not specific to the EU.

According to you, how common it is that intermediaries and other relevant actors are involved in taxevasion? Are you aware of any methods to facilitate tax evasion that have not been described in the reportsfrom the Panama Papers?

I believe it is rare for non-professionals to set up and maintain offshore structures used for tax evasion purposeswithout any guidance whatsoever. Accordingly, it is very common that intermediaries play a role - but howdeeply involved they are varies wildly.

Ramon Fonseca has said himself since the leak: “It’s like if you buy a car and sell it to a dealership and it sells itto a woman who kills someone - the factory isn’t responsible”. Whilst the analogy is a little strained and self-serving for Fonseca, I think it is true that many dealerships should at least be checking if the driver has alicence.

Can you please expand on the different roles, links and connections of tax havens and offshore financialcentres (OFCs)?

That’s a fairly broad question which could be interpreted in a number of ways. I suppose one thing to alwaysconsider when looking for links and connections is understanding what tax reciprocity agreements existbetween certain countries and financial centres; now and historically. For example, many Russian individualsand entities have often used Cyprus for corporate structuring purposes. Likewise India and Mauritius.Also, remember practical things like the utility of a common language between client and serviceprovider. Madeira is not only an offshore centre for Portugal, but other Lusophone countries such as Brazil andAngola.

One of the schemes identified in the Panama Papers is the placement of illegal / illicit funds in an offshorestructure for some years, then investing the money in a life insurance product in Luxembourg/Switzerlandfor 8 years and finally reinvesting the funds in Belgian real estate. What is the role of legal/tax advisors inthe design of these elusive products? Please comment on this or any other elusive schemes designed by

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legal/tax advisors you have encountered in your experience. What steps of regulatory reforms could betaken from the European Parliament?

I don’t know the underlying details of this example, but it just shows the many avenues and routes,sophisticated or otherwise, that can be exploited. As mentioned previously, the individuals benefitting fromthese structures aren’t at home thinking them up in their bedroom or asking their friends over dinner; all of thisis established by a phalanx of well paid professionals.

Don’t forget that only a couple of years prior to the Panama Papers revelations, the ICIJ published LuxLeaks,showing how the Big Four accountancy firms were using a host of different practices in Luxembourg to reduceor eradicate the tax being paid by their clients.

According to the presentations of speakers during the PANA hearings, there is a loophole in Switzerland thatsays if you are not signing for a company than you do not have to do any due diligence at all. So in caseswhere Swiss lawyers have requested the creation of offshore entities for Politically Exposed Persons toMossack Fonseca, they were not doing any customer due diligence, because the ones signing for thecompanies were in Panama. However, the Panamanian law firm, Mossack Fonseca, argued that they needn’tdo any due diligence, because the Swiss firm was doing it. Could you expand on the uses of such legislativegaps today? Please comment on this or any other legislative gaps allowing for money laundering, providingsecrecy for beneficial owners, tax avoidance or tax evasion, you have encountered in your experience.

You are describing a form of jurisdictional arbitrage; i.e. using what is permitted in one jurisdiction and thenexploiting it in another. There is an obvious analogy with the transfer pricing methods used by multinationals tolower their tax bills.

I am not a Monegasque lawyer, but I was once talking to a Monaco based fiduciary who boasted about how hewas under such minimal KYC obligations that he was often the start point for any structure linked to a colourfulowner. He would represent his client ensuring that the evidence of the true beneficial owner of the companyestablished would sit in his safe; and nowhere else. He then, in turn, was the one who purported to be thebeneficiary when setting up international companies and bank accounts. He would give his own photographicID as part of the requisite international KYC checks. He was happy as he charged his client handsomely andmaintained his status as the primary wealth manager; and all the foreign institutions were happy as they had aphoto ID on file and they didn’t set off any red flags in WorldCheck.

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Conseil des barreaux européens – Council of Bars and Law Societies of Europe association internationale sans but lucratif

Rue Joseph II, 40/8 – B 1000 Brussels – Belgium – Tel.+32 (0)2 234 65 10 – E-mail [email protected] – www.ccbe.eu

European Parliament Committee of Inquiry into Money Laundering, Tax Avoidance and Tax Evasion (PANA)

24 January 2017

Committee of inquiry questions to the Council of Bars and Law Societies of Europe (CCBE)

1. Your organisation has co-written “A lawyer’s guide to detecting and preventing money

laundering”, containing 40 recommendations. Do you have any indication if - and to

what extent - these recommendations are being adhered to by your members?

The CCBE is proud to have played an active part in the drafting of the joint publication of the CCBE, American Bar Association and International Bar Association on the drafting of a “Lawyers Guide to Detecting and Preventing Money Laundering”. This Guide provides practical advice to legal professionals. The Guide has been very well received by our members, and contains information that is of assistance to both experienced and new practitioners. The Guide is an example of one of the proactive measures which the legal profession has taken towards increasing awareness amongst the profession with practical examples (red flags) of money laundering risks which our members should be aware of. The Guide highlights vulnerable areas that have been identified by the FATF, and the Guide is constantly being promoted by our membership (it is also available in a number of languages due to the efforts of our Bars and Law Societies). The Guide is but one of the many measures which the legal profession has in place. The legal profession is making every effort to detect money laundering and to raise awareness amongst its members. The following is an example of other measures:

Bars and Law Societies have developed lists of indicators which illustrate risk situations which a lawyer should be aware of.

Bars and Law Societies carry out onsite inspections of client accounts held by lawyers and these accounts are usually subject to an annual audit (in the jurisdictions that have client accounts).

Bars and Law Societies provide training on AML issues to both admitted and trainee lawyers.

Up-to-date guidelines have been developed and promoted to assist lawyers in relation to complying with their AML obligations.

AML Toolkits have been developed which provide lawyers and law firms with practical ‘need to know’ information and contain a mixture of draft policies and procedural checklists

Advice has been developed for new money laundering reporting officers.

There are numerous email alerts about emerging money laundering typologies/red flags and AML-related policy developments.

There are “Hotlines” whereby many jurisdictions have a dedicated AML support phone line for their members.

There is engagement with the relevant national ministry and law enforcement agencies, and many other actions.

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Essentially, the profession is united in efforts to educate its membership regarding money laundering risks and assist them with meeting their anti-money laundering (AML) obligations.

The legal profession is alert to the threat of money laundering and is actively taking-it on. We

support any clear, workable and proportionate measures and will continue to do so. No

profession wants its members to be involved in illegal activity. The legal profession is no

different. It is in our interest to protect the reputation of the legal profession and any lawyer

that is involved in illegal activity hurts the reputation of the entire profession. That is one of

the reasons why we are so committed to fighting money laundering.

2. Do you have information as to what extent lawyers are involved in the creation,

maintenance and/or governance of entities in tax havens mentioned in the Panama

Papers1?

The only information we have on the extent of involvement is information that has been

reported in the media. However, the creation, maintenance and governance of structures in

the countries listed by the Committee is not illegal (particularly in the UK which is an EU

Member State). The Committee should be careful not to infer that any links with these

countries (or indeed the Panama Papers) implies that criminal activity has occurred. Further,

we are not aware of any convictions (or indeed charges) of lawyers resulting directly from

links to the Panama Papers.

3. Can you tell us to what extent lawyers are regulated when it comes to anti-money

laundering and anti-tax evasion? Is this only regulated at the national level or is there

also European oversight?

Lawyers are subject to a set of European harmonised rules in the area of anti-money

laundering. Lawyers are covered by the obligations included in the EU anti-money laundering

Directive. A legal professional is an “obliged entity” in the sense of the money laundering

Directive and required to have anti-money laundering systems in place. Lawyers are subject

to customer due diligence, so called CDD requirements, and reporting obligations when they

carry out a number of activities. The current anti-money laundering Directive makes it very

clear under which circumstances a full CDD procedure must be carried out. Moreover, legal

professionals use, for many reasons (such as liability, invoicing, communication with clients,

banking requirements), formalistic client intake procedures to control their ongoing client

relationship, even in areas not covered by the EU Directive. In addition, lawyers operate

according to the “know your client” principle.

The legal profession is highly regulated at a national level in all EU Member States. There

is no European Regulator or Supervisor like that which exists, for example, for the financial

services sector, as the tasks of lawyers vary across different EU Member States, in addition

to differences which exist between common and civil law systems regarding how lawyers are

regulated at a national level. However, each Member State’s legal profession is governed

by national law, and is well regulated by national law and national supervisory or self-

regulatory bodies. Those bodies issue very clear and encompassing guidance, take their

regulatory duties seriously and provide extensive training. Moreover, there is also guidance

and ethical rules at a national, European and international level.

1 Bahamas, Belize, British Anguilla, British Virgin Islands, Costa Rica, Cyprus, Hong Kong, Isle of Man, Jersey, Malta, Nevada, New Zealand, Niue, Panama, Ras Al Khaimah, Samoa, Seychelles, Singapore, United Kingdom, Uruguay, and Wyoming.

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3

4. Do you think the existing national guidelines and conduct codes are adequate to

prevent money laundering and tax evasion? Do you identify any loopholes?

The CCBE believes that existing national guidelines and codes of conduct are sufficient. In

the CCBE’s view, we do not need more regulation, or more additions to codes of conduct.

The level of regulation has reached a peak which we could not imagine a few years ago.

More time is needed to look at the application of the existing regulations in practice. What

we need is better cooperation among national authorities. While the cooperation between

Bars and Law Societies within Europe is outstanding, the flow of information, e.g. about new

threats and emerging trends, from national authorities and law enforcement to Bars and Law

Societies is too slow.

It should also be mentioned that a highly important concept concerns the actual

proportionality of regulation. Regulation needs to be both effective and proportionate to the

intended goal.

5. Do you have information about the nature and numbers of sanctions by national bar

associations for activities related to money laundering and tax evasion by their

members?

We do not have information on the “nature and numbers of sanctions by national bar associations for activities related to money laundering and tax evasion by their members” on a Member State by Member State basis.

Regarding sanctions that our members face, members of the legal profession are subject to strict sanctions (both civil and - in certain jurisdictions - criminal) for any failure to adhere to AML obligations. There are strict disciplinary procedures which can lead to being struck-off the list of lawyers and severe fines for failure to adhere to AML procedures.

6. Does your Council consider it important that lawyers see themselves as legal

gatekeepers? Should lawyers report suspicious transactions? Should this be

regulated at a European level?

In November 2001, the European Parliament and the Council of Ministers agreed on a text

for amending Directive 91/308/EEC, the principal EU money laundering Directive. The new

text, the 2001 Directive (Directive 2001/97/EC), resulted in new money laundering obligations

which were to be incorporated into national legislation before 15 June 2003. The 2001

Directive obliged Member States to combat laundering of the proceeds of all serious crime.

This was in contrast to the 1991 Directive, in which obligations applied only to the proceeds

of drug offences. The 2001 Directive (the 2nd Money Laundering Directive) extended

AML/CTF obligations to a defined set of activities provided by a number of service

professionals, including accountants, real estate agents and lawyers. These defined activities

consisted of mostly transactional work, such as the purchase of real estate, formation of

trusts and companies, opening bank accounts and the management of client assets.

The 2001 Directive imposed upon financial institutions and professionals, obligations with regard to client identification, record keeping and the reporting of suspicious transactions. The European legal profession has continuing and serious concerns with regard to the reporting of suspicious transactions and other obligations under the 2001 Directive and the Directives since then. The requirements on a lawyer to report suspicions regarding the activities of clients based upon information disclosed by clients in strictest confidence is in the view of the CCBE a violation of a fundamental right. As a result, the essence of the lawyer/client relationship has, in our view, now been infringed upon as a result of the 2001 EU money laundering Directive.

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In 2006 the European Union agreed their 3rd Money Laundering Directive (which remains

the current basis of AML legislation for EU Member States) which brought lawyers fully into

the scope of the AML regime. The 4th EU Money Laundering Directive was passed in June

2015. Each Member State has until June 2017 to transpose this Directive into their national

law.

We oppose the recent trend of European institutions seeking to establish and impose new

AML standards without taking the necessary time to fully understand the risks and to ensure

that proportionality is maintained.

7. In your view, do activities such as assisting in the setting-up of offshore constructions

fall under the attorney-client privilege? Does your answer change if there would be

involvement of the client in criminal activities? Are there differences in interpretation

between member states?

Professional advisers and lawyers are governed by their professional bodies to advise clients within the law. The rule of law, access to justice and legal certainty (all vital principles in every member state) require that a person be able to seek legal advice on any issue, including tax issues. A citizen must be entitled to take legal advice in any area, and his lawyer must be entitled to provide that advice. Professional secrecy/legal professional privilege is the right of the client to consult a lawyer in confidence – it is not the right of the lawyer. Professional secrecy is a privilege that ensures that any information you provide to your lawyer is kept confidential. Professional secrecy/legal professional privilege do not apply if a lawyer takes part in illegal actions of the client. This is the case in every EU Member State. There is no 'difference in interpretation'. Privilege and professional secrecy do not, and will never, apply if a lawyer is facilitating an offence. The CCBE and its member Bars and Law Societies do not, and never will condone, the actions of any lawyer who knowingly participates in any criminal activity of a client, whether relating to money laundering, tax evasion or any other criminal activity.

8. To what extent is it possible for these confidentiality rules to be overridden by other

ethical rules, such as conflict of interest rules?

As mentioned, professional secrecy/legal professional privilege do not apply if a lawyer takes

part in illegal actions of the client. Privilege and professional secrecy do not apply if a lawyer

is facilitating an offence.

9. Can you inform us if - and to what extent - lawyers should know their client. Are the

current rules on client due diligence adequate in your view or should they be updated,

given the findings in the Panama Papers?

A lawyer has a duty to identify the client, and is obliged to do so. This was a deontological

duty before becoming a legal one. A lawyer will always know who the client is, but the client

may wish to remain anonymous to the public. The client has the right to remain anonymous

towards the public, but not towards the lawyer. If a lawyer is prevented from identifying a

potential client, a lawyer must withdraw from professional activity.

The current anti-money laundering Directive make it very clear under which circumstances a

full CDD procedure must be carried out. A lawyer cannot act for a client when they carry out

a number of activities without undertaking AML due diligence on the client.

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The EU AML rules apply to the following obliged entities:

……….. independent legal professionals, where they participate, whether by

acting on behalf of and for their client in any financial or real estate transaction,

or by assisting in the planning or carrying out of transactions for their client

concerning the:

(i) buying and selling of real property or business entities;

(ii) managing of client money, securities or other assets;

(iii) opening or management of bank, savings or securities accounts;

(iv) organisation of contributions necessary for the creation, operation or

management of companies;

(v) creation, operation or management of trusts, companies, foundations, or

similar structures;

The view that current rules are sufficient is also shared by the FATF. In their September

2016 report to the G20 on beneficial ownership in the wake of the Panama Papers they

state:

'The large-scale misuse of legal persons and arrangements which was exposed in April 2016 focussed attention on the need to strengthen controls against the misuse of corporate structures. Our analysis to date does not point to specific gaps or inadequacies in the international standards.'

10. If a client wants to remain anonymous, should that be a reason for a lawyer to refuse

him/her as a client?

Certainly not. There are many legitimate reasons why a client may wish to remain

anonymous. However, it is important to understand, and appreciate, that a client is not

anonymous to the lawyer. As mentioned in response to question 9 above, a lawyer has the

duty to identify the client and is obliged to do so. This was a deontological duty before

becoming a legal one. A lawyer will always know who the client is, but the client may wish

to remain anonymous to the public. The client has the right to remain anonymous towards

the public, but not towards the lawyer. If a lawyer is prevented from identifying a potential

client, a lawyer must withdraw from professional activity.

11. Are there any rules on the conduct of lawyers in any Member States that have the

effect of prohibiting lawyers from advising clients on developing or implementing tax

planning schemes that have the effect of (illegally) evading any Member State taxes?

Are these rules legally binding?

Any lawyer who knowingly participates in any criminal and illegal activity of a client, whether relating to money laundering, tax evasion or any other criminal activity, is complicit in a crime. Tax evasion is a crime in every EU Member State.

12. In terms of numbers of practitioners and/or turnover, do you have an indication of the

importance of the offshore services business for the law profession?

CCBE member Bars and Law Societies do not have statistics on off-shore work of their

members, as lawyers do not transmit such information to Bars. This is also true for other

areas of law.

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http://www.fatf-gafi.org/media/fatf/documents/reports/G20-Beneficial-Ownership-Sept-2016.pdf

http://www.fatf-gafi.org/media/fatf/documents/reports/G20-Beneficial-Ownership-Sept-2016.pdf

6

13. Is there any (European) supervision on national bar associations?

As indicated in response to question 3, the legal profession is highly regulated at a national

level in all EU Member States. There is no European Regulator or Supervisor like that which

exists, for example, for the financial services sector, as the tasks of lawyers vary across

different EU Member States, in addition to differences which exist between common and civil

law systems regarding how lawyers are regulated at a national level. However, each Member

State’s legal profession is governed by national law, and is well regulated by national law and

national supervisory or self-regulatory bodies. Those bodies issue very clear and

encompassing guidance, take their regulatory duties seriously and provide extensive training.

Moreover, there is also guidance and ethical rules at a national, European and international

level.

14. Amongst your members, do you see differences in the codes and guidelines for

lawyers from EU member states and countries that are not in the EU?

The CCBE can only comment on what exists within its members. We can only imagine that

in all countries where the rule of law applies, the obligations for lawyers are very comparable

to those applicable in the EU.

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Brussels

Written questionsto European Banking Foundation (EBF)

1. Could you give us your appreciation of the legal anti-money laundering framework thatis in place? Do you consider the obligations s for banks to be adequate? If not so do youhave any suggestions to improve these obligations so as to better avoid moneylaundering and tax evasion?

2. Do you have any information as to what extent banks in the EU member states? areinvolved in the creation, maintenance and/or governance of entities in tax havensmentioned in the Panama Papers? Have you studied the involvement of banks in therevelations? Was there any follow up on the basis of that?

3. To your knowledge, have the Panama revelations resulted in changes in the internalprocedures of banks (e.a. customer due diligence procedures, suspicious transactionsreports)?

4. Do you have any indication on the number of banks that are being investigated as aresult of the revelations in the Panama Papers? The same for the number of banks thathave settled with (national) supervisory bodies?

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5. Do you think there is a natural tension or even conflict of interest between compliancemanagers units and wealth/assets managers within banks or is there a healthy balancein your view?

6. Do you have any indication as to the specific role(s) of banks in the creation,maintenance or governance of entities in tax- or secrecy havens?

7. In your view, is the facilitation of entities in tax or secrecy havens common practice orlimited to a specific segment of the banking sector? If only a limited segment, whichsegment? And is there a specific reason why some banks engage or abstain fromconducting these activities?

8. Many of the banks mentioned in the Panama papers were involved through subsidiariesin Luxembourg or Switzerland. Do you have any explanation why the subsidiaries inthese two countries are so active in the offshore segment? Could it be related to thefact that these countries used to have bank secrecy and that this business is beingperpetuated in other secrecy havens after the abolition of bank secrecy?

9. Has the role of banks in the facilitation of structures that allow money laundering, taxavoidance and/or tax evasion changed over time? If so, what has changed? And why doyou think it changed?

10. Do you have information on who is demanding banks to facilitate the entities in taxhavens? To whom are banks delivering the services that facilitate the entities in taxhavens? Who pays banks to facilitate the entities in tax havens?

11. To your knowledge, do banks advice companies and/or individuals to create entities sothat they can hide their wealth?

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___________________________________________________________

European Parliament 2014 - 2019


Public Hearing The Role of Lawyers, Accountants and Bankers in Panama Papers -

(Part I)

Tuesday, 24 January 2017 (9h00 - 12h30) József Antall (JAN) 6Q2

Brussels

Written questions to PricewaterhouseCoopers (PwC)

1. The rules of conduct of accountancy profession including ethical responsibilities are

typically set out at the Member State level. In which Member States are these rules set out in legislation, made by a public body pursuant to legislation, or made by a self-regulatory professional body (or bodies)? Are any other structures used by Member States for this purpose?

Directive 2006/43/EC prescribes rules on independence and ethics for statutory audit firms, and has been transposed in national legislation by all EU Member States – usually through the Commercial Code or its equivalent. The directive was amended in 2014 and has been transposed into national law in 21 Member States; the legislative process is underway in the remaining countries. Regulation (EU) 537/2014 establishes a list of non-audit services that cannot be provided by the statutory auditor or audit firm to the audited entity, and imposes limitations on the amount of permissible non-audit services that can be provided by an audit firm to a client. In addition, the accounting profession is required to adhere to the principles of ethics and independence set out in the International Ethics Standards Board for Accountants (IESBA) Code of Ethics. The Code lays down fundamental principles relating to integrity, objectivity, professional competence and due care, confidentiality and professional behaviour. For example, the principle of professional behaviour imposes an obligation on all professional accountants to comply with relevant laws and regulations and avoid any action that the professional accountant knows or should know may discredit the profession. In the majority of Member States, national legislation has been supplemented by more detailed rules established by a professional body.

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2. To what extent do Member States require accountants to implement anti-money laundering

(AML) measures, such as KYC (know your client) and other due diligence rules? How frequently and under what changed circumstances are professionals required to update such due diligence?

The 4th Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing and its predecessors oblige Member States to implement AML measures applicable to accountants. These include KYC requirements to identify and undertake certain verification measures regarding each client, its representatives and ultimate beneficial owners where applicable. These steps should be taken at the start of the relationship with the client or of the transaction for or on behalf of the client. The relationship with the client should be subject to ongoing monitoring. Clients and their ultimate beneficial owners should be checked to determine whether they are a Politically Exposed Person, entrusted with a prominent public function. The Directive also indicates that suspect transactions should be reported to a Financial Intelligence Unit which Member States are required to establish. Further, there is an obligation for accountants to be trained in AML legislation. All EU Member States have enacted AML legislation and all require some form of KYC or client due diligence, which must be updated periodically, either based on the passage of a specified period of time, and/or on changes in circumstances or new information that comes to light.

3. To what extent and in which Member States do rules of conduct regarding accountants

restrict the participation of professionals in advising on structures that involve the use of complex structures of offshore entities that are designed to or that have the effect of obscuring the beneficial ownership of assets, investments or businesses? PwC is not aware of any rules of conduct in Member States that make specific reference to structuring involving offshore entities. However, the fundamental principles in the IESBA Code of Ethics (referred to in the answer to question 1) would apply generally across Member States to professional advice provided by accountants, including in connection with advice regarding offshore structures. Some Member States also have rules or codes relating specifically to tax advisors, such as the UK standards on Professional Conduct in Relation to Taxation (PCRT), or the German Chamber of Certified Tax Advisors’ Charter.

4. To what extent and in which Member States have regulatory bodies for accountants

investigated potential infringements of the rules of conduct in instances that relate to tax planning? More specifically, how many clients have been reported for instance by PwC? Have any of these investigations resulted in proceedings being brought against any professionals involved and if so with what result? PwC does not have comprehensive information regarding investigations conducted by regulatory bodies in Member States in relation to accountancy rules of conduct. In many jurisdictions investigations are strictly confidential unless and until such time as disciplinary action is taken. Consistent with the PwC Code of Conduct, where applicable anti-money laundering legislation requires reporting of suspected illegal activities, including tax evasion, PwC network firms subject to such AML legislation would be required to comply and report any such activity pursuant to the mechanisms established by law.

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Moreover, various professional standards applicable to accountants provide for the reporting of illegal activity by clients. In this regard, the Statutory Audit Framework established by the EU, specifically Regulation 537/2014/EC, requires the statutory auditor to report irregularities to the competent authorities, including fraud with regard to the financial statements of the audited entity, if there are reasonable grounds to suspect irregularity and the client has not responded appropriately to remediate the issue and prevent any recurrence in the future. This EU framework is consistent with similar requirements reflected in international auditing standards. We also note that in April 2016, IESBA published Responding to Non-compliance with Laws and Regulations (NOCLAR), an international ethics standard for professional auditors and accountants, which becomes effective on 15 July 2017. NOCLAR provides an ethical framework to guide professional accountants in considering and reporting potential illegal acts committed by a client or employer. Professional services firms often receive regulatory requests, in many cases pursuant to periodic regulatory reviews, for information on a variety of issues, including tax matters. PwC firms comply, consistent with our PwC network standards and professional and legal obligations, with specific regulatory requests as well as with requirements associated with periodic regulatory reviews.

5. Professional accountancy firms such as the Big 4 typically have their own code of conduct. For example, PwC has five principles that it applies when providing tax advice. Do all these principles have to be followed by individual professionals providing tax advice? Have there been instances of breaches of this code of conduct in any Member States. If so, what actions have been taken against such individuals? The member firms of the PwC network, operating in 157 countries and employing over 220,000 professionals, provide services in accordance with PwC’s Code of Conduct. Please refer to the PwC website for this Code of Conduct and supporting information available at (www.pwc.com/gx/en/about/ethics-business-conduct/code-of-conduct.html). The Code of Conduct establishes a basis for consistent professional and ethical behaviour. It is not meant to provide specific guidance on how to “do the right thing” in every particular situation, but instead provides principles-based guidance that helps PwC personnel consider difficult questions, promotes consultation, and encourages individuals to speak up where there are concerns. In addition, the PwC Network has adopted a Global Tax Code of Conduct (available at www.pwc.com/gx/en/services/tax/global-tax-practice/code-of-conduct.html) establishing principles to help guide PwC tax professionals in judgements they make in advising clients on tax matters. The Global Tax Code of Conduct provides principles relating to what PwC firms do in the context of providing tax advice, the nature of clients for whom PwC firms will provide tax advice, and the high standards that PwC tax professionals are expected to follow. The Code also sets out the five principles to which the Committee refers, specifically: 1. Tax advice which results in positions taken in a client’s tax return must be supported by a

credible basis in tax law; 2. No tax advice relies for its effectiveness on any tax authority having less than the relevant

facts. Advice that a PwC firm gives includes consideration of, and is based on the assumption that the client will make relevant disclosures that both comply with the law and enable tax authorities to make further enquiries should they wish to do so;

3. Tax advice is given in the context of the specific facts and circumstances as provided by the client concerned and is appropriate to those facts and circumstances;

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4. Tax advice involves discussion of the wider considerations involved, as appropriate in the circumstances, including economic, commercial and reputational risks and consequences arising from the way stakeholders might view a particular course of action;

5. PwC firms advise clients of appropriate options available to them under the law having regard to all of the principles contained in this code.

PwC member firms oversee and monitor the conduct and behaviour of their local employees for compliance with the PwC Code of Conduct. Any allegations of non-compliance are investigated and appropriate disciplinary action is taken by PwC member firms where violations of those standards have occurred.

6. With regard to PwC, how independent are its branches in relation to the headquarters? To what extent are they supervised by the former and do you believe there is a need for enhanced supervision?

PwC is the brand under which the member firms of PricewaterhouseCoopers International Limited (PwCIL) operate and provide professional services. Together, these firms form the PwC network. ‘PwC’ is often used to refer either to individual firms within the PwC network or to several or all of them collectively. In many parts of the world, accounting firms are required by law to be locally owned and independent. In light of these regulatory requirements, PwC member firms do not and cannot currently operate as a corporate multinational. The PwC network is not a global partnership, a single firm, or a multinational corporation. For these reasons, the PwC network consists of firms which are separate legal entities. The firms that make up the network are committed to working together to provide quality service offerings for clients throughout the world. Firms in the PwC network are members in, or have other connections to, PricewaterhouseCoopers International Limited (PwCIL), an English private company limited by guarantee. PwCIL does not practice accountancy or provide services to clients. Rather its purpose is to act as a coordinating entity for member firms in the PwC network. Focusing on key areas such as strategy, brand, and risk and quality, the Network Leadership Team and Board of PwCIL develop and implement policies and initiatives to achieve a common and coordinated approach among individual firms where appropriate. Member firms of PwCIL can use the PwC name and draw on the resources and methodologies of the PwC network. Member firms are bound to abide by certain common policies and to maintain the standards of the PwC network as put forward by PwCIL, including with regard to appropriate supervision of services. Every PwC member firm is responsible for its own risk and quality performance and for driving continuous improvement. Each PwC member firm is also exclusively responsible for the delivery of services to its clients. To support transparency and consistency, each PwC member firm provides an annual confirmation of compliance with standards applicable to all firms in the network. These confirmations cover a range of areas, including independence, ethics and business conduct, enterprise risk management, governance, anti-corruption, anti-money laundering, anti-trust and information protection. Confirmations are reviewed and member firms are required to develop an action plan to address specific matters where they are not in compliance. The action plans are also reviewed and their execution monitored at the network level.

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7. Frequently, accountancy firms claim that they are required to help clients achieve highest

level of tax planning as they could get sued otherwise. Are the accounting firms (including the Big 4) ever sued by their clients in any Member State for not providing efficient tax advice? If they are sued, what proportion of cases do the clients win? Our clients seek our advice to help them understand and apply the relevant tax law and the impact this has, along with their obligations to comply with reporting requirements and pay their taxes due. We are aware of situations in which clients have strongly complained and disputes have arisen where they perceive that professional tax advice did not enable them to obtain full tax benefits to which they were legally entitled. As the Committee members will appreciate, litigation and other claims experience is highly confidential and sensitive, and is not shared among competitors. In addition, as indicated in the answer to question 6, the PwC network consists of firms which are separate and independent legal entities that are responsible for managing their own litigation, and the court systems, litigation environments and experiences differ significantly from country to country. Consistent with the experience of other major professional services firms, PwC firms may be a defendant in various claims for damages, including claims relating to tax services. Of course, PwC cannot speak for any other accountancy or professional services firms. It is also important to note that disputes with clients do not always result in lawsuits filed in the court system, and even if lawsuits are filed, most are settled before a judicial decision is rendered, with such settlements typically covered by confidentiality requirements. Thus we are not in a position to provide information on the proportion of cases won or lost, for the PwC network of firms or for the accounting profession more broadly.

8. If a tax planning structure based on advice provided by any of the three professions is

subsequently overturned in a court of law or a tribunal, is there any financial penalty in any Member State to individual professionals involved in providing the tax advice, or is there any financial penalty on the taxpayer that is passed on in whole or in part to individual professionals involved in providing the tax advice? Would criminal penalties constitute a more efficient deterrent solution? The legal and regulatory systems in Member States may permit the State to penalise individual professionals or firms, including criminal penalties, where a tax position taken by a client is overturned, depending on the nature of legal or regulatory action regarding the tax position, and the behaviour in question. In addition, taxpayers in some cases have sought to recover financial penalties assessed against the taxpayer where they believe the penalty is the result of improper advice provided by a professional.

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9. To what extent do the accounting professions in any Member States take the view that

accountants have a responsibility, even if not required by the rules of conduct, not to recommend a tax plan to a client that would involve excessively aggressive tax planning, or to advise a client against entering into excessively aggressive tax planning (developed by the client or recommended by another professional adviser)? There are a number of non-legislative instruments which provide guidance on engaging with clients in this respect, including: • the EU Recommendation on aggressive tax planning of 2012

• The OECD initiative to require taxpayers to disclose aggressive tax planning arrangements.

Action 12 of the BEPS Action Plan targets this objective.

• Accountancy Europe publication in 2015, ‘The accountancy profession and taxation: doing the right thing’. This publication argues that the accountancy profession is responsible for:

− Actively discouraging their clients from engaging in tax fraud and evasion, and resigning from the engagement should the client persist along this path;

− Refraining from promoting tax avoidance schemes based on purely artificial structures using loopholes and mismatches in tax legislation; and

− Using their professional ethical judgement (where allowed by local laws and regulations) to assess whether tax planning that is legal, but that falls in the grey area of “aggressive tax planning” or avoidance, is something that they wish to advise on, also taking into account the non-tax related risks of reputational harm from being associated with such advice.

PwC’s Global Tax Code of Conduct, discussed in the answer to Question 5, incorporates these considerations, making clear that tax advice involves discussion of the wider considerations involved, as appropriate in the circumstances, including economic, commercial and reputational risks and consequences arising from the way stakeholders might view a particular course of action.

10. To what extent do professional service firms (diversified accounting firms, including the Big 4) share clients between different advisory functions: auditing, accounting, legal services, tax advice, other consulting? How frequently do the services provided to such shared clients include tax advice? How frequently do the services provided to such shared clients include both auditing and tax advice? Do you agree that the provision of these different services should be strictly separated?

Some clients choose to have PwC member firms undertake only one type of service for them. Others decide to engage PwC for multiple types of services. In all cases, the extent to which professional services firms are permitted to provide non-audit services to their audit clients has been addressed by the EU Audit legislation adopted in 2014. Regulation EU/537/2014 established a list of non-audit services that cannot be provided by the statutory auditor or audit firm to the audited public interest entities, and imposes limitations on the amount of permissible non audit services that can be provided by an audit firm to a client. The legislation provided Member States with authority to enable audit firms to provide tax services to audit clients in certain circumstances. Several Member States have elected this option. In all cases the audit client’s audit committee must approve the services to be provided. In PwC’s view, the legislation

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provides a basis for audit committees and Boards to make decisions on which professional services firms should provide services to the entity and further restrictions are not warranted.

11. What percentage of turnover of your firm arises from providing tax advice and how much

from auditing? Within the tax advice function, what percentage of turnover is generated from strictly helping clients comply with legislation such as filing tax returns, and what percentage is generated from tax planning?

Of the total PwC Network worldwide revenue of member firms of approximately US$35.9bn in FY2016, approximately US$15.3bn relates to assurance services, and US$9.1bn relates to services delivered by the tax line of service of member firms. The tax line of service of member firms is very broad and diverse, incorporating tax compliance, i.e., assisting clients with preparation of accurate tax returns under applicable law and regulation, as well as consulting on a wide range of tax-related subjects. Member firms’ management reporting systems around the world do not classify revenues by distinguishing between tax compliance and tax planning services. The PwC Global Annual Review, which provides more detail and context, can be viewed on: http://www.pwc.com/gx/en/about/global-annual-review-2016.html

12. Would it be appropriate for professional rules of conduct to play a greater role in ensuring that professional advisers do not participate in advising clients who are seeking to evade taxation or to engage in excessively aggressive tax planning? If so, would it be more effective to do so by enhancing the requirements of independence of the professionals (e.g. under rules against conflicts of interest), or by enhancing the responsibility of the professionals to notify their clients or a competent authority?

The legislative framework in which we operate and the PwC Global Tax Code of Conduct are very clear and prohibit any advice to clients that would result in tax evasion. In addition, please refer to the answer to question 5, regarding the application of the PwC Code of Conduct and Global Tax Code of Conduct. In conjunction with regulatory regimes adopted by the EU and in Member States, these Codes of Conduct establish PwC’s commitment to transparency towards tax administrations and consideration of factors beyond narrow tax results.

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