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Archive for the tag “Tax Justice Network”

Press Release: Kenya must review Double Tax Agreement with Mauritius (02.11.2015)

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(Nairobi, November 2, 2015) – Kenya is teetering on the brink of financial meltdown with the implosion of at least two private commercial banks in the last few months and signing of loophole-ridden double taxation agreements with tax havens Mauritius, United Arab Emirates and Qatar.

Tax havens are countries or states that position themselves as low tax jurisdictions allowing companies and rich individuals to hide their wealth without paying appropriate taxes where they actually make their profits or wealth. Tax Justice Network-Africa (TJN-A) in October 2014 sued the Government of Kenya (specifically the Cabinet Secretary to the Treasury, Kenya Revenue Authority and the Attorney-General) challenging the constitutionality of the Kenya/Mauritius Double Taxation Avoidance Agreement signed in Port Louis, Mauritius on May 11, 2012 and as contained in Legal Notice 59 published in the Kenya Gazette of May 23, 2014.

The Agreement significantly undermines Kenya’s ability to raise domestic revenue to underpin the country’s development by opening up loopholes for multinational companies operating in the country and super- rich individuals to shift profits abroad through Mauritius to avoid paying appropriate taxes. For example, provisions under Article 11 of the Agreement relating to interest limit Kenya’s withholding tax to 10 per cent whereas the Kenyan domestic rate currently stands at 15 per cent. This will significantly affect the tax base of the Kenya Revenue Authority (KRA). The Agreement also sharply contravenes Articles 10 and 201 of the Constitution and is inconsistent with the principles of good governance, sustainability and accountability. The Agreement is open to abuse and this could endanger the growth and development of Kenya.

Three main reliefs sought by TJN-A are: that the High Court declares the government’s failure or neglect to subject the Kenya-Mauritius Double Taxation Avoidance Agreement to ratification in line with the Treaty Making and Ratification Act 2012 as a contravention of Articles 10 (a), (c) and (d) and 201 of the Constitution of Kenya.

That the Court directs the Cabinet Secretary for Treasury to immediately withdraw Legal Notice 59 of 2014 and commence the process of ratification in conformity with the provisions of the Treaty Making and Ratification Act 2012.  And award cost of the petition with interest against the Government of Kenya. The case came up for mention at the Nairobi High Court today, November 2, 2015. The court will fix a date for hearing the case on November 9, 2015. Speaking at a press briefing earlier today, the Executive Director of TJN-A, Alvin Mosioma said “there is need for public participation in the process of ratification of double tax agreements…double tax agreements kill the competitive edge of local firms”. 2 Senator Hassan Omar of Mombasa County who also addressed the press said Kenya’s “Parliament needs to appreciate its responsibility in safeguarding the public’s interests,” adding that “the reason people steal is because there is complicity and people are aware of it”. Provisions under Article 12 of the Agreement which relates to royalties also restrict at- source withholding tax to half (10 per cent) of Kenya domestic rate of 20 per cent. This will significantly weaken Kenya’s ability to raise revenue to finance its development. Additionally provisions under Article 20 of the Agreement reserves all taxation of “other income” not dealt with in specific Articles to the residence state.

This effectively reduces withholding tax to zero per cent on services, management fees, insurance commissions among others, whereas Kenyan domestic withholding tax rate currently stands at 20 per cent. This is a major gap that will lead to massive revenue leakages. The Agreement is neither United Nations nor OECD compliant and it also fails to address the issue of disposal of shares in companies. The Agreement effectively reserves under Article 13.4 all taxation of capital gains from selling shares in companies to Mauritius where the effective Capital Gains Tax is zero per cent. Under the Agreement foreign investors in Kenya can acquire Kenyan companies through Mauritius holding companies and Kenya cannot tax any of the gains when they sell these businesses again. This is open to abuse. Similarly, domestic Kenyan investors can dodge Kenyan taxes by round-tripping their investments illicitly through Mauritian shell companies. Kenyan companies can also easily avoid Kenyan taxes in dividends paid to foreign investors through devices like share buy-backs therefore deny the government of development funds.

The provision is very similar to the Capital Gains Tax Article in the India-Mauritius treaty which has proved very controversial costing India an estimated US$600 million a year in revenues as a result of tax avoidance and illicit round-tripping by Indian business executives driving the Government of India to initiate steps to renegotiate its agreement with Mauritius. Under the definition of ‘bilateral treaty’ in Section 2 of the Treaty Making and Ratification Act an ‘agreement’ such as the one between Kenya and Mauritius and which is the subject matter of this legal case, is a treaty subject to the Act and therefore requires that the Cabinet Secretary to the Treasury in consultation with the Attorney General, submit to the Cabinet the treaty, together with a memorandum outlining, inter alia – 1. Policy and legislative considerations, 2. Financial implications 3. Implications on matters relating to counties, 4. The views of the public on the ratification of the treaty.

Mauritius presently has tax treaties with 13 African countries namely Botswana, Lesotho, Madagascar, Mozambique, Namibia, Rwanda, Senegal, Seychelles, Swaziland, South Africa, Tunisia, Uganda and Zimbabwe. Apart from Kenya, Mauritius also has signed Double Taxation Agreements with Congo, Zambia and Nigeria. Currently Mauritius is negotiating DTAs with Algeria, Burkina Faso, Egypt, Gabon, Ghana, Malawi and Tanzania. Unlike Mauritius’ DTA with Uganda and Nigeria, for example, which have specific provisions for withholding tax for management/technical services fees, Kenya failed to negotiate any such provisions. 

In a related development, the Government of Kenya has signed an equally harmful Double Tax Agreement with United Arab Emirates and Qatar – both of which are tax havens – in which Kenya further deems its right to tax as unnecessary in a bid to attract investment from these two countries. These agreements will deepen Kenya’s current cash crunch by allowing the further erosion of the country’s tax base. – END.

ABOUT TJN-A: Tax Justice Network-Africa (TJN-A) is a Pan-African initiative and a member of the Global Alliance for Tax Justice. It is a network of 29 members in 16 African countries. TJN-A collaborates closely with these member organisations in tax justice 3 advocacy at the national and regional levels. TJN-A seeks to promote socially just and progressive taxation systems in Africa, advocating for pro-poor tax policies and the strengthening of tax systems to promote domestic resource mobilisation. TJN-A aims to challenge harmful tax policies and practices that favour the wealthy and aggravate and perpetuate inequality. For further enquiries, please email Kwesi Obeng at kobeng@taxjusticeafrica.net (+254 726 804 400) and/or Michelle Mbuthia at mmbuthia@taxjusticeafrica.net (+254 724 994 796).

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Recent Corruption cases: “It was part of being an insider but it was a very corrupting business”

Hapers

“He did not care for the lying at first. He hated it. Then later he had come to like it. It was part of being an insider but it was a very corrupting business.” – Ernest Hemingway, For Whom the Bell Tolls

You who follow my blog know I does this once in a while to prove that corruption isn’t a one area thing, it’s international and got no borders. Always somebody who want to pocket some easy and quick money, that is because it’s easier then actually work for the money in the end. This time around there is a few Island cases two cases on the Dominican Island and one that origins from Mauritius. The World Bank president is addressing taxation and how bad practices can destroy economic situation in low-developed countries. In South Africa there been a shady deal between Statehouse and the Hitachi, the ANC are continuing to do this and the old cases that has hurt the regime like he army deal in not to distance past. And a UN environmental negotiator who has a few counts of tax fraud so that the United Nation has even some people who got questionable actions. No place in the world you can walk anymore without insider, but it was a very corrupting business. Seems like a worry from Dominican Republic to the New York UN office. Take a quick look!

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In the Dominican Republic:

“The alleged bagman in the State Works Supervisory Engineers Office (OISOE) on Monday said the money provided to contractors to conclude construction of schools came from the beleaguered agency´s technical director, Jose Florencio” (…)”Alejo Perez said the money was sometimes handed out at the schools or at OISOE headquarters, in presence of de los Santos´ and the engineer in charge of the work. “These payments were sometimes made in cash or checks.” (…)”When asked what de los Santos did with the money he gave to Florencio, Alejo said: “They gave it to the engineers on loan to finish the work, which was withdrawn from a line of credit” (Dominican Today, 2015).

There is even another recent case on the island:

“The embezzlement case against ruling PLD party and senator Felix Bautista has unleashed a crisis of confidence among Supreme Court justices Frank Soto and Miriam German, who in a letter dated September 21called her colleague unfair, disrespectful and abusive” (…)”The Supreme Court on September 22 set a hearing for Oct. 21 to hand down the ruling on the prosecution´s appeal against Bautista´s acquittal by a lower court” (Dominican Today, 2015).

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More trouble in another Island Paradise:

“Senior figures from the island’s new government visited Britain in the summer to lobby for a National Crime Agency (NCA) investigation into the 68-year-old British passport holder for alleged corruption in Mauritius” (…)”The NCA is believed to have contacted the island authorities for details of credit cards found in Mr Ramgoolam’s safe that included two Centurion American Express cards given only to high-spenders. Mr Rangoolam, who owns a Rolls-Royce with a personalised number plate in London, has vowed to open his accounts to independent scrutiny in an attempt to persuade the NCA that he owns no property in Britain and only legitimately amassed savings. Banks in the UK shut down his accounts after the arrest in February” (…)”Any British investigation into Mr Ramgoolam would fit the profile of the more than 20 high-profile politicians being targeted by the National Crime Agency’s International Corruption Unit (ICU)” (Fellstrom & Peachey, 2015).

Statement from the World Bank president Jim Yong Kim:

“Some companies use elaborate strategies to not pay taxes in countries in which they work, a form of corruption that hurts the poor” (…)”We reject “trickle-down” notions that assume that any undifferentiated growth permeates and fortifies the soil and everything starts to bloom, even for the poor” (…)”Developing countries must also construct more equitable, efficient and transparent tax collection systems.  IMF Managing Director Christine Lagarde and I pledged a few months ago that our organizations will do all we can to help countries collect more taxes more fairly” (Tax Justice Network, 2015).

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In South Africa:

A deal between Hitachi Ltd and the Government of South Africa:

“SUMMARY OF ALLEGATIONS

Hitachi allegedly sold a 25-percent stake in a newly created South African subsidiary to Chancellor, a local South African company serving as a front for the ANC, South Africa’s ruling political party. This arrangement allegedly gave Chancellor and the ANC the ability to share in the profits from any power station contracts that Hitachi secured. During the bidding process, Hitachi was allegedly aware that Chancellor was a funding vehicle for the ANC but nevertheless continued to partner with Chancellor and allegedly encouraged Chancellor’s use of its political influence to help obtain the government contracts” (…)”Hitachi was ultimately awarded two contracts to build Medupi and Kusile power stations in South Africa and Hitachi’s lax internal control environment allegedly enabled its subsidiary to pay Chancellor approximately USD 5 million in “dividends” based on profits derived from the contracts. Through a separate, undisclosed arrangement, Hitachi allegedly paid Chancellor an additional USD 1 million in “success fees” that were inaccurately booked as consulting fees and other legitimate payments without appropriate documentation” (Trace International, 2015).

RATIO OF IMPROPER PAYMENTS TO BUSINESS ADVANTAGE

 Approximate Alleged Payments to Foreign Officials  Business Advantage Allegedly Obtained
 USD 5 million in “dividends” based on profits derived from the contracts & USD 1 million in “success fees” inaccurately recorded as consulting fees  Awarded of two contracts, worth approximately USD 5.6 billion, to build power stations in South Africa

(Trace International, 2015).

“HOW CONDUCT WAS DISCOVERED

On 10 November 2006, the Mail & Guardian published an article, entitled “the ANC’s New Funding Front,” exposing Chancellor as a business front set up by the ANC to seek profit on its behalf, generally by acquiring “empowerment” stakes in a wide range of businesses seeking state procurement” (…)”On 19 January 2007, Financial Mail published an article, entitled “Finacing the ANC, Untold millions,” quoting the admission by Kgalema Motlanthe, ANC Secretary General, that Chancellor was an “ANC vehicle” that existed for the sole purpose of funding the ANC” (Trace International, 2015).

A little more of the case:

“The story of how Hitachi bought political influence, in order to win a $5.6 billion power station contract, calls into question not only the integrity of a massive company with a global reputation, but also the integrity of the South African government” (…)”A $19m fine for a company of Hitachi’s size, when they have won a $5.6 billion tender, is laughable and certainly does not help with law enforcement efforts to stamp out corruption” (Kenney, 2015).

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In the U.S.:

Chicago the place of Al Capone and other villains of old there are new corrupt faces:

“Charges that Byrd-Bennett steered more than $23 million in work to Supes and Synesi Associates “in expectation of hundreds of thousands of dollars in bribes and kickbacks,” according to Fardon’s office” (…)”Byrd-Bennett, 66, faces 15 counts of mail fraud and five of wire fraud. Solomon, 47, faces those charges, plus alleged bribery and conspiracy, as does Vranas, 34” (…)”Her attorney confirmed that plan in a brief statement:”Barbara Byrd-Bennett will plead guilty to charges in the indictment,” Michael Scudder, a partner in the Chicago office of law firm Skadden Arps Slate Meagher & Flom,” said. “As part of accepting full responsibility for her conduct, she will continue to cooperate with the government, including testifying truthfully if called upon to do so” (Hinz, 2015).

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Even in the UN:

Who knew that a negotiator in the UN for clean-energy and environmental issues has been getting accused on 5 counts on Tax fraud, here are brief information on the case.”A former president of the U.N. General Assembly “sold himself and the global institution he led” by allegedly pocketing more than $1 million in bribes to finance a luxury spending spree, according to a federal prosecutor” (…)”Ashe is accused of underreporting his income by more than $1.2 million, prosecutors said” (…)”ASHE also then began soliciting additional payments from LORENZO to pay for the installation of a private basketball court at ASHE’s house in Westchester County. In addition to agreeing to pay for ASHE’s family vacation and basketball court, LORENZO began paying ASHE’s wife, as a “climate change consultant” for NGO-1, in the amount of $2,500 per month” (Greenfield, 2015).

Afterthought:

If this wasn’t interesting then something must be missing. The corruptness is worrying that now even cracks in the UN system, that the World Bank President talks like he does is natural, that their been shady deals in South Africa isn’t new anymore; More like how much the deals are between the Government of South Africa between a Certain Company and then which MP or Minister who earns extra for it. The Mauritius clear-out is happening with a former PM having issues while the former President is behind bars, something is fishy on that island. Another island has two brief and new cases of corruption and that is on the Dominican Island. But the whole total of money discussed in these matters is big and terrifying for the state of the places and people involved in the matter. Like the quote from Hemmingway, I am sure that the persons are over time more easily doing the corrupt business and actions. Because over time it got easy and made the persons feels like insider. Though it still not right! Thieving and stealing is the same, and corruption is a malpractice and a form of stealing money. Peace.

Reference:

Dominican Today – ‘Suicide uncovers widespread graft at notorious agency’ (06.10.2015) link: http://www.dominicantoday.com/dr/local/2015/10/6/56703/Suicide-uncovers-widespread-graft-at-notorious-agency

Dominican Today – ‘Supreme Court justices bicker over embezzlement case’ (05.10.2015) link: http://www.dominicantoday.com/dr/local/2015/10/5/56695/Supreme-Court-justices-bicker-over-embezzlement-case

Kenney, Martin – ‘Hitachi’s South Africa $19m bribery fine’ (02.10.2015) link: http://www.martinkenney.com/articles/hitachi-south-africa-19m-bribery-fine/

Fellstrom, Carl & Peachey Paul – ‘Ex-Prime Minister of Mauritius under investigation by UK anti-corruption unit’ (04.10.2015) link: http://www.independent.co.uk/news/uk/crime/ex-prime-minister-of-mauritius-under-investigation-by-uk-anti-corruption-unit-a6679111.html

Greenfield, Daniel – ‘MAJOR UN CLIMATE ACCORD, AGENDA 21 NEGOTIATOR ARRESTED FOR CORRUPTION’ (07.10.2015) link: https://www.frontpagemag.com/point/260376/major-un-climate-accord-agenda-21-negotiator-daniel-greenfield

Hinz, Greg – ‘Ex-CPS chief Byrd-Bennett indicted on federal corruption charges’ (08.10.2015) link: http://www.chicagobusiness.com/article/20151008/BLOGS02/151009840/ex-cps-chief-byrd-bennett-indicted-on-federal-corruption-charges

Trace International – ‘Trace Compendium – Hitachi Ltd’ (28.09.2015) link: https://www.traceinternational2.org/compendium/view.asp?id=686&utm_source=TRACE+Compendium+Alert%3A+Hitachi+Ltd.+9.28.15&utm_campaign=COMPENDIUM+ALERT%3A+Hitachi+Ltd.+9.28.15&utm_medium=email

Tax Justice Network – ‘World Bank president: corporate tax dodging ‘a form of corruption’’ (02.10.2015) link: http://www.taxjustice.net/2015/10/02/world-bank-president-corporate-tax-dodging-a-form-of-corruption/

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