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Posted: 2021-10-05 05:14:04

The Pandora Papers leak of nearly 12 million documents has shed further light on the secretive, mysterious world of offshore companies and trusts.

These structures — set up in so-called "tax havens" or "secrecy jurisdictions" — are used by many of the world's wealthiest and most powerful people and corporations to shift and store money internationally.

Three major data drops via the International Consortium of Investigative Journalists — the so-called Pandora, Paradise and Panama Papers — as well as smaller leaks, have shed some light on the sorts of dealings that take place.

So what exactly are these offshore structures? How do they work? Why are they used? Are they legal? And why don't more of us set up our finances this way?

What are 'offshore structures'?

Generally they are "shell" companies or trusts, which means that they don't really employ people or carry on business themselves, they are like a wrapping around actual corporate or individual activities or assets.

Usually, the registered office will be an accountancy or legal firm in one of the secrecy jurisdictions, with that firm often providing the directors or trustees for the shell.

These companies and trusts will not, generally, engage in day-to-day business activities but, instead, transactions will flow through them or they will be the registered owners of valuable assets.

Jason Ward from the Centre for International Corporate Tax Accountability and Research (CICTAR) says they are most often created to minimise tax bills. 

"An artificial creation that's designed to avoid taxation where profits are earned," he says.

Why do people set them up? Is it just about tax?

One benefit from these offshore structures is that earnings and assets can be parked in low-tax or no-tax jurisdictions.

But that's not the only reason people and companies use them. Secrecy is a big factor.

Sometimes that secrecy is to assist with minimising tax — if the authorities know about your assets or income then it often does not matter where they are located, they will still send you a tax bill for them.

But what the tax office does not know about, it cannot tax.

Mr Ward says there are other reasons beyond tax for some people and companies to use offshore structures.

"Money laundering and criminal activity and corruption and bribery are all reasons to use secrecy jurisdictions," he notes.

Another reason that some companies and wealthy individuals use them is to hide their assets from people they owe money to, sometimes even including their own families.

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The Pandora Papers reveal the hidden assets of the rich and powerful(Nassim Khadem)

However, there are less-nefarious reasons for wanting secrecy about your assets.

For example, a celebrity may buy their homes through an offshore company or trust so that it is harder for people to find out where they live.

And, sometimes, unfair quirks in tax rules between countries could result in double taxation on earnings or transactions if an offshore structure was not used.

"There are some very specific examples of where using these jurisdictions, even from a tax perspective, can make sense for certain types of investment. But they're the exceptions, not the norm."

What are potential problems?

This leads to the widespread critique of offshore structures and the jurisdictions that host them.

For the most part, whether illegal or not, they are used to minimise liabilities to tax departments and others who might have a claim on those assets.

Transparency International Australia's Serena Lillywhite says a range of illegal and unethical behaviours are supported by secrecy jurisdictions.

"[They help people] avoid or minimise tax, taxes that should be paid in the country where the company actually conducts its business," she says.

"Companies can claim business expenses in high-taxing jurisdictions, and shift profits to low or no taxing jurisdictions, evading tax obligations and robbing countries of much-needed tax income for the provision of essential services.

"[They] hide the identity of ultimate beneficiaries, which can include politically exposed persons, kleptocrats and individuals involved in crime and corruption.

"[They] can be used to launder dirty money, often part of complex web of opaque business structures — usually with the intention of secrecy, or to channel money, which may be the proceeds of crime and corruption, through offshore companies, no questions asked."

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As noted earlier, these offshore structures can be used to protect assets from creditors.

It is extremely difficult — and expensive — in many of these locations for the people owed money to even find out what assets the person or company who owes them money owns, let alone to get their hands on the cash.

So, for example, if you ran a business that owed people a lot of money that you know you cannot repay, you might move some of the assets into an offshore structure.

When your creditors come knocking at the door, you say I don't own anything. They then have to embark on a difficult, expensive and often fruitless chase around the world to find out what you do really own to try to get their money back.

Are they legal?

Often, yes, sometimes no. It depends on the structure used, how it is set up, what it is used for and the rules of the jurisdiction(s) where the so-called beneficial owner of the assets lives and/or operates in.

"I'd say that a lot of it is probably technically legal," Mr Ward says.

"But, if you are setting up these structures and shifting the money on the basis of fraud, then there's a lot of grey area in there as to whether this is legitimate or not.

So why don't more people use them?

Many of these shell companies and trusts cost around a thousand dollars, or even less, to set up and not much to maintain.

So why aren't millions of ordinary Australians setting them up to try to lower their tax bills or hide their assets from creditors?

Mr Ward says there's anecdotal evidence that more people are.

"Which makes it all the more time to crack down on this before it becomes a lot more widespread than it already is," he says.

However, he also says the biggest cost is not setting up the offshore structure, but getting the right advice to make sure it is done legally.

"It looks like it's easier to go after people at the lower end, rather than people at the top end, because aspiring people who are trying to take advantage of these can't hire an army of lawyers if they get into trouble," he says.

"They spend a lot of money on tax advice and consulting and, obviously, they wouldn't be spending that money if it wasn't providing returns, if it wasn't cost-effective."

Mark Zirnsak from the Tax Justice Network says offshore structures are simply unnecessary for the majority of people.

"Most people do honest business and have no need to conceal their identity, so just use the normal method of setting up a company," he tells the ABC.

"Also, banks, financial institutions and other entities that have obligations under anti-money laundering laws may refuse to do business with a company where they suspect the real ownership is concealed."

Why do some countries and regions become 'secrecy jurisdictions'?

It boils down to money. For many smaller jurisdictions, it is the "ticket-clipping" corporate registry and professional services fees they can collect for hosting shell companies and trusts.

A man walks the streets of Bermuda dressed in what are known as Berumda shorts.
Bermuda is famous for its quirky business attire (shorts) and as an offshore financial centre.(

Four Corners: Sashka Koloff

)

When your population numbers in the thousands, these can be enough to underwrite the nation.

Although, both Mr Zinsak and Mr Ward point to recent research indicating that being an offshore financial centre does not always leave smaller nations better off.

"There's a growing research [body] talking about the finance curse," Mr Zinsak says, "that a lot of these economies are overly-financialised and that it's actually hurting the local economy by having this offshore cash flowing in."

A 2016 feature in The Atlantic describes how many of these countries end up being run by, or for, international elites.

"Such countries gradually become organised around the interests of people who don't even live there, to the detriment of those who do," the report in The Atlantic says.

As Mr Ward notes, however, many of the most-popular secrecy jurisdictions are US states, such as Delaware and South Dakota, or British territories.

"I can't tell you how many companies that I've come across that use Jersey, Guernsey, Isle of Man, Gibraltar — Bermuda and the British Virgin Islands are also British protectorates — and the City of London itself as a tax haven," he says.

Bigger, low-tax, "business friendly" nations — such as Ireland, the Netherlands and Singapore — are chasing the investment and money flows they can attract from big corporations.

Are there any moves to restrict or stop the use of these offshore structures?

Yes. In 2014, the Organisation for Economic Cooperation and Development (OECD) published a set of common reporting standards (CRS) to facilitate the disclosure of financial information between the authorities of different nations.

Well in excess of 100 nations have now signed up to the standards, including many of the better-known tax havens and secrecy jurisdictions.

However, there is a push for more public disclosure of exactly who owns what through "beneficial ownership" registers.

The beneficial owner is the person or corporation that ultimately has the rights to the asset — basically cutting through the layers of shell companies or trusts.

"There are lots of jurisdictions where there is public reporting of beneficial ownership," Mr Ward says.

"So that means that you can just set up company 1234 but, at some point, it has to identify who actually owns the company."

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