Wednesday, February 14, 2018/ 1:32PM /Deloitte

Business owners constantly seek avenues to eliminate unnecessary and avoidable costs with the aim of optimising profits. Thus, efficient business practices become paramount in minimizing expenses, the most worrisome being “tax expense”.

In a bid to achieve business efficiency and minimise tax spend, companies engage in tax planning activities. Unlike its counterparts (tax avoidance and evasion), which are ladened with non-disclosure, sham transactions, fraud and concealment, tax planning involves efficient arrangement of financial affairs (within the precincts of extant laws) to reduce tax liability.

Tax planning schemes have been generally regarded as acceptable. However, today, some tax planning activities are deemed to have crossed acceptable limits and are termed aggressive. Such aggressive planning are in many cases, likened to tax avoidance procedures used by taxpayers to gain strategic advantage.

Proponents of tax planning schemes, aggressive or otherwise, argue that taxpayers have the right to order their tax affairs in such a way that tax is minimised so long as such actions are within the ambits of the law. However, others argue that taxpayers must also consider the impact of these schemes on the immediate environment.

This thus brings up the concept of tax morality. Morality connotes standards of good or bad behavior, fairness, honesty, etc. that each person believes in, rather than laws. Tax is seen as a means of giving back to the society and a collective modality for improving the society. Thus, where a taxpayer benefits from being in a society, complies with applicable tax laws but takes advantage of the loopholes to ensure minimal tax payment, would he be considered to be paying his fair share of tax? Can this be distinguished from efficient planning based on provisions/incentives in existing laws? The next question that would arise is “how can the fair share of tax be determined?

The subject of tax morality is of global interest, heightened by the Starbucks and Google cases in Europe and ultimately the Panama paper leaks. The public outcry against these schemes gave rise to increased focus on the measures being put in place to curb tax avoidance schemes by the Organization for Economic Cooperation and Development (OECD).

The measures include the Base Erosion and Profit Shifting (BEPS) Project, involving fifteen workable action plans. These are to equip governments with domestic and international instruments to address aggressive tax planning/avoidance. BEPS ensures that profits are taxed where relevant economic activities for value creation are performed and each jurisdiction earns its fair share of profit irrespective of loopholes in the domestic laws and tax treaties. It has also sparked various changes (actual/potential)

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