Kamshibayev Ermek , PhD candidate
Republic of
Kazakhstan
Ways of the conceal possession of property with the help of the offshore companies.
The offshore company - investor is widely applied at
various schemes of the minimization of the taxing. The offshore company
obtains funds of founders or the third parties and places them in authorized capital stock of branches. Use of the offshore company in the capacity of the investor permits to achieve the following basic purposes:
- To minimize the taxation of property at import;
- To minimize the taxation of the current activity of branch of the offshore company;
- To overcome separate restrictions and the embargos established in the country of realization of activity.
Minimization
of the taxation at import of property is possible at the effect of that,
besides funds in authorized capital stock of associated company it is possible to insert the equipment, real estate, and any kind of fictitious assets. Import of the equipment to the Russian Federation and a whole range of other countries for
the purpose of introduction in authorized capital stock of associated company is Exempted From Tax customs duty and value added tax (VAT).
A rank
of additional opportunities on minimization of the taxation consists in property in authorized capital stock of an affiliated society is inserted not at cost of its
purchase, and according to founders of a
society. In other words, there are opportunities, both overestimate, and understatement of the property cost imported
for the purposes of entering in authorized capital stock.
Minimization of the current tax obligations of branch can be realized as due to a variation of the prices by
mutual deliveries
of the goods and services between parent and affiliated enterprises, and as well as due to their credit, license and
rent mutual
relationship. These opportunities can be limited by the internal tax laws, separate agreements on avoidance of the double taxation, special internal and international legislations on transfer pricing.
Overcoming of separate restrictions and embargos reaches by that mutual relations with foreign creditors,
borrowers, landlords,
insurers and diverse business associates, access to credit by the legal person are limited to the national legislation on monetary regulation and the monetary control. Such restrictions are not distributed to the offshore company. In principle, it can borrow means from any sources, and then transfer their branch uniformed of additional payments in authorized capital stock at increase the capital of this affiliated society. Besides registration procedure of enterprises in the separate countries can provide all kinds of the coordination and the statement.
Term
"money-laundering" has received a wide circulation at the beginning
of 80th years of the last century in the USA where it began to be used in legal processes, and then was fixed in a range of the
international acts, including conventions of the United Nations (UN). According to norms of international law, to
washing up of criminal incomes any actions directed on suppression of criminal character, their origin and use of
such incomes even in legal economy since their entrepreneurial activity with a support on similar actives becomes
process of their washing up concern.
In the capacity of origins washing clean incomes the international
legal acts consider, first of all, the grave crimes connected to illegal overturn of drugs, participation in the organize criminal
groups, corruption, etc. The List of such crimes named basic or previous in
relation to washing up of the incomes, identifies by the internal legislation
of each state. The legalized incomes from sell of drugs, the weapon and other crimes, providing
financial additional charging of the organized crime, corruption and terrorism,
afford grand threat
for world security of the state and the international community in whole.
For a regular estimation of danger of the phenomenon is necessary
to present its scales. For the popular reasons
these estimations are relative. Experts of the International monetary fund identify summary volume washing up criminal incomes in 2-5 % from world gross national product that makes from 0,6 up to 1,5 billion,
dollars a year. According to the Government of Republic Kazakhstan, volumes of
shadow economy in the country achieve 22 percent to the size of gross national
product.
Though processes of washing up of fund can occur in any country, the more attractive thereto those, where the system of opposition of certification of criminal incomes is absent. Inflow to the country of tainted money and their
washing up inevitably conduct to growth of criminality and corruption. The
bribery grows in total sectors concerning this money. It is not necessary to
forget, that the organized criminality seeks to the full control over the financial organizations
used in the process of washing up of
criminal incomes, as well as through investment of the means legalized thus in
the whole industries and sectors of economy. Judgments about that criminal
capitals, passed through a stage of certification, finally lose criminal character
and start to serve to development of national economy, are insolvent. Criminals
and swindlers always keep the control over their capitals and introduce in
legal economy appropriate to them criminal methods of
competitive struggle, including swindle, false entrepreneurship, blackmail,
deliberate bankruptcy and other kinds of criminal deeds.
Criminalization of economy and creation of favorable
conditions for washing up of criminal incomes are inevitably reflected in the
international standing of the country and its investment rating. Whole dealership with participation of physical and legal people from such country is
exposed to particularly close check that conducts to increase in time constraints of their carrying out and upswing of operational charges. In a number of cases foreign companions prefer to limit or in general to stop correspondent
relations with its residents.
In activity of transnational corporations constantly arises problems with the double taxation as each country, where participants TNC (trans-national
corporation) arrange are located, tries to impose the last with
taxes and payments.
To avoid significant scales of tax and other payments TNC fulfill the following operations:
1.
Reapportion profit - a substantial part of
it locate in the countries with advantageously low level of taxes;
2.
Understate profit by attribution of a part of costs, interest payments, dividends, a royalty on financial results of intrafirm companies - residents;
3.
Bear all operations on formation profit to tax harbours through their affiliated companies;
4.
Reduce costs by force of approach of manufacturing to
the consumer, saving due to transport costs and customs duties. Therefore at creation TNC usually consider capacity from advantages and lacks each of forms of occurrence in
the market of the foreign state.
Besides the international transnational corporations can use such economic
mechanisms as:
1.
The transfer pricing permitting to reduce profit of transnational group in judicial notices with a low level of taxes and to accumulate incomes of group on accounts of associated companies - residents of tax harbors;
2.
"Shopping" of the international tax agreements, permitting to repatriate incomes in uniform of percents,
dividends and a royalty with the minimal tax costs;
3.
To create manufacture
and business in the country with low tax rates due to factual pronouncement of business in tax harbor;
4.
To make use of individual international tax planning as the concept
of trust estate administration of natural person.
This or that method of decrease of spending part and
deductions at formation of the transfer prices depends on the form of the
organization of commercial activity of corporate legal persons from the point of view of
gradualness of entry of the company on the foreign markets. Usually allocate seven corresponding forms: export of goods and services without crossing
by the exporter of national boundary, i.e. without
physical presence abroad; the limited attendance abroad without formation of permanent representation of corporation in foreign judicial notice; creation of foreign chapter (branch) of
the company without formation of the novel legal person; creation of the separate subdivision of corporation abroad - the associated company entering into intrafirm
structure; association of affiliated companies - non-residents in connecting group of the foreign enterprises of corporation
through creation of the foreign holding company; purchasing of the ready foreign company and its inclusion
in intrafirm
structure of corporation; the organization of mutual enterprise with the foreign company (an alliance with
another TNC).
The basic problem of functioning offshore the company - investor in the scheme of the international tax planning is remittance of the income to the parent
enterprise. Dividends usually transferred abroad are subject
to the taxing at a source of the income. The
national tax legislation of the following countries does not provide imposition of dividends at a source at transfer them abroad (on the assumption of 100 %-s' participation of the foreign
investor in the principal of the national enterprise):
Argentina, Australia, Bahamas, Bahrain, Barbados (for
the offshore enterprises), Belgium (for the companies registered in the Coordination
Center), Bermudas,
Brazil, British Islands, Cayman Islands, China, Cyprus, Ecuador, El Salvador, Egypt, Gibraltar (for the released companies), United Kingdom Great Britain and Northern
Ireland, Greece, Guatemala, Hong Kong, Ireland, Jersey, Kuwait, Luxembourg
(for the holding companies), Malaysia, Malta, Mauritius, Mexico, Monaco, the Netherlands Antilles, Nicaragua, Oman, Peru, Qatar, Republic of South Africa, Saudi Arabia, Singapore, United Arab Emirates, Venezuela.
To the countries which have established a low
level of the taxing at a source of the
income of transferred dividends, apply: Kenya (the rate of pay makes 7,5 %), Colombia (7 %), Paraguay (5 %), Liechtenstein (for domiciliated the companies - 4 %).
The rate in 10 % on transfer of dividends has been established by the
national legislation in India,
Ireland (for the International Financial Center), Morocco, Nigeria, Panama, Puerto Rico,
Senegal, Thailand, Trinidad and Tobago. The rate in 12 % was established by the
Ivory Coast, in 12,5 % in Bolivia.
In the group of the countries with relative low level of the taxing of dividends transfered abroad include the countries making use of the rate in 12 %: Barbados, Kazakhstan,
Pakistan, Russia, Slovakia and others.
Many countries apply to applicable rates up-to-date of 20-25 %,
and in the separate countries this level is even higher: Iran (54 %), Switzerland (35), Philippines (34), Jamaica (33,3), Italy (32,4), the USA (30), Uruguay (30), Sweden (30 %).
It is necessary to note, that in many countries, particularly offshore centers, and also in the countries accommodating preferential duties of the taxation of separate kinds of incomes, can
be provided clearing or a preferential level of the taxing
of dividends for the companies with the special status. The international agreements
on avoidance of the double taxation usually
provide the lowered level of the taxing of dividends transferred abroad.
Function of the offshore company as a shareholder of branch (holding), is similar to function of the
offshore company as investor in principle. Provided that exist specific peculiarity. In some diagrams of the international tax planning it is sometimes expedient to realize an investment of means in authorized capital stock of branch, and then to resell
actions of the ultimate parent standing in alter tax judicial notice, or to abolish by reorganization (liquidation)
an intermediate link. In other words, function of investment (application of a share in authorized capital stock of branch) and function of holding (shareholding of branch) can be performed by the various companies depending on specific goals and problems constructed by international diagram. Usually such maneuvers
are undertaken at change of the internal tax legislation or the country of
registration, or the country of realization of active
economic activities, or at revision of terms of settlement on avoidance of the double
taxation. Special efficiency corresponding schemes can have in the case of when the contribution in authorized capital stock constitute an object of premises, the expensive complete plant, etc. Low-price variants of tax optimization are seldom constitute legally fine. One can to
create one firm in an offshore zone and to work in the own city, closely observing privacy and the
requirements of arbitral practice
determining a place of activity of the company for tax purposes. The present, really working tax scheme is under construction with participation of several
firms (two, three, sometimes the greater number) which part is located in a
place of realization of principal activity, a part in various on the appointment and specific character offshores. If the
offshore company - investor is more often registered with orientation to tax remissions at import of the equipment (a deposition in authorized capital stock) for an initial stage of development of the enterprise that at
establishment of the holding company the basic attention has a maturity on an opportunities of unchecked remittance of the fund from an affiliated society to parent . In other words, the holding
is usually created for
long-term management of investments, optimal building of the scheme of financial streams. Enterprising manufacturer have calculated that annually to change the offshore
more cheaply, than wholly to serve it, and at the same time they in full leave a
legal field and sink to "black" schemes, abusing "loyalty" of rating authorities of offshore zones which personally does not guarantee acquaintance from the legal and financial responsibility. The tax legislation is the most mobile of all branches of the right. Any politician in any country taking part on elections promises to
change it. Sometimes they realize promises. Fiscal executives specially trace actions of manufacturers with the purpose of creation of the normative
documents forbidding or limiting the best known ways of tax reduction.
Kazakhstan basically at present time has taken a prior direction on supreme kind of a corporate alliance.
Formation of joint-development enterprises from the point of view of
formation of expenses and the burden acts as the special form of foreign trade activities. At creation of mutual enterprise as world practice testifies, in many cases separate taxable
unit does not form- the independent legal person, that permits to distribute the income depending on a degree
of participation of companions in the given enterprise and affords a fiscal transparency of costs and a deductions.
Transfer pricing underlies at
the bases of each of existing forms of creation TNC, and just it facilitates to system of intrafirm trade and
creations of associative corporations. With the help of transfer pricing it is possible to realize redistribution
of a part of
incomes between parent and the affiliated companies which are taking place in
the countries with a different level of tax rates.
The majority of the countries impose taxes incomes of a gain of the capital at alienation of a basic fund. Words « alienation of the property » are used especially for scope of incomes from a gain of the fund, arising at
sale or an exchange of the belonging (property) as well as at partial alienation, expropriation, transference of the companies in exchange for actions, at selling of the right, at gift and even at inheritance
of the belonging (property).
Perfection of the taxing of the foreign capital
in territory of the country can be realized by intervention of the state in this process on
basis of creation of the
special economic and offshore zones stimulating development of process of manufacture and, consequently, of the greater tax collection from great volumes of realization of the industrial goods. Economic problems at that becomes ways of attraction of the foreign fund owing to special benefits (under
taxes, custom duties, accumulations, etc.) which create conditions for the
accelerated development of backward regions. In territory of Kazakhstan since 1996 year 4
special economic zones acted. In republic accumulated the certain experience of their use which has shown that Kazakhstan yet has not
exhausted reserves of creation SEZ. Use SEZ permits to create
more perfect remuneration of
labour, to develop manufacture from increased volumes of which taxes gather in
the greater size, than at high taxes, but slight volume
of manufacture; digression to territories SEZ considerably improves an investment climate and permits to harmonize more easy taxes with another the countries, i.e.
facilitates ocurrence of Kazakhstan in world economy.
Фамилия: Камшибаев
Имя: Ермек
Отчество: Есимбекович
Место
работы: ВКГУ им. С. Аманжолова, кафедра
«Финансы и учет»
Раб.
адрес: Республика Казахстан, ВКО, г.
Усть-Каменогорск, ул. 30-й Гв. Дивизии, 34
Ученая
степень: Магистр экономики
Телефон
дом. 8 (7232-код г. Усть-Каменогорск) 47-69-58, моб. 8 777 3939 782
Домашний
адрес: Республика Казахстан, почтовый индекс: 070010 ВКО, г. Усть-Каменогорск, ул. Виноградова, д.
29, кв. 116.
Количество
сборников: 3 экземпляра.