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Offshore: the legal and the not so legal

Arthur Sullivan
November 6, 2017

The Paradise Papers data release shines a light on the tax activities of politicians and some of the world’s richest people. But it appears for now that most of the questions raised are ethical rather than legal.

Paradise Papers, a man carrying a black briefcase
Image: Imago/STPP

First it was the Panama Papers, now it's the Paradise Papers. The lid has well and truly been lifted on the exotic but shady world of offshore accounting, where firms serve some of the world's wealthiest and most powerful clients within whistling distance of martinis, marinas and docked pleasure craft.

The massive 'Paradise Papers' leak, detailing some of the off-shore tax avoidance methodsused by some of the world's richest and most powerful companies and individuals, mirrors the Panama Papers leaks of April 2016. 

Like with that dramatic data leak, the Paradise Papers story will dominate the news agenda for weeks and months and will bring embarrassment and intense scrutiny to people and firms long used to keeping troublesome secrets well out of the spotlight.

Read more: Paradise Papers sends shockwaves aruond the world

But how much of what will be revealed, however startling, is actually illegal? Will the prevailing questions that arise be more ones of ethics and morality, rather than strictly ones of legal or regulatory probity?

The law is an ass?

The Panama Papers leaks lifted rocks all over the place that were, in the eyes of those who wanted them there, never supposed to be lifted. The implications were widespread and are still developing. Yet as then US President Barack Obama wryly noted at the time: "There is no doubt that the problem of global tax avoidance generally is a huge problem. The problem is that a lot of this stuff is legal, not illegal."

Therein lies the rub — much of what has been revealed and will be revealed is, in the eyes of many, distasteful and unedifying, perhaps even immoral and unethical. But is it illegal? In most cases, no.

Read more: Paradise Papers — what you need to know

Take what has been released so far. Yes, around £10 million ($13 million, €11.3 million) of Queen Elizabeth II's money has been invested in companies in the Cayman Islands and Bermuda but as of yet, there is no suggestion that the law was broken. Likewise, the revelation that Stephen Bronfman — close advisor to Canadian Prime Minister Justin Trudeau — helped move millions of dollars to offshore accounts and funds is a question of ethics more than anything else.

Biggest data leaks in a graph

A high school economics student will learn that tax avoidance is legal whereas tax evasion is illegal and that's the line which offshore corporate service firms such as Appleby and Mossack Fonseca — the firms at the center of the Paradise and Panama releases respectively — have learned to tread so expertly over the last few decades.

The Paradise Papers reveal not just those hiding wealth, but also the myriad and increasingly complex ways in which tax is being avoided and wealth is being hidden in offshore tax havens.

Many of the 'investment' methods used in offshore are dizzyingly complex and labyrinthine, from set-ups designed to help an individual avoid paying tax on a private jet or superyacht to corporate structures of multitudinous dimensions, aimed at getting just the right amount of wealth into the right fund at the right time.

The wrong kind of client

But for how much longer can much of what has gone on remain legal? The storm that surrounded the Panama release and which will inevitably engulf the Paradise release means politicians will be put under increasing pressure to regulate what is becoming an especially problematic area. Yet it very much remains to be seen if any effective action will be taken.

There are many legal and moral issues, beyond strictly literal taxation concerns, that arise as a result of the shady culture inherent in many tax avoidance schemes and structures.

As the lead article accompanying the data release from the International Consortium of Investigative Journalists puts it: "While having an offshore entity is often legal, the built-in secrecy attracts money launderers, drug traffickers, kleptocrats and others who want to operate in the shadows. Offshore companies, often "shells" with no employees or office space, are also used in complex tax-avoidance structures that drain billions from national treasuries."

Then there are the aforementioned ethical and moral issues that arise when powerful figures — particularly politicians or those with influence in the political world — are seen to be shepherding often obscene amounts of wealth out of the reach of their own national exchequers, whilst supposedly asking others to act in the national interest.

Tax avoidance network in a graph

The Panama Papers release prompted more than 300 economists to write a letter to world leaders urging a change in global taxation policy. "The existence of tax havens does not add to overall global wealth or wellbeing; they serve no useful economic purpose," they wrote.

Another angle is the uncomfortable proximity the links reveal between the offshore firms and several less than savory foreign regimes. One of Appleby's clients for example was Glencore, a firm which secured mining rights in the highly corrupt Democratic Republic of Congo but which Appleby has not commented specifically on.

Change we can believe in?

The Panama Papers release prompted plenty of furrowed brows and much troublous wringing of hands on the part of politicians, from Barack Obama to David Cameron, and the Paradise Papers release has already set off several politicians across the world. The rhetoric which says "something needs to be done" is likely to continue.

Yet the reality is that while much of what it is revealed through the data leak is ethically, morally and politically compromising, so far not much has been revealed to be illegal. Offshore tax havens are an accepted part of life and the very fact of their continued existence for decades is proof of that.

The Paradise Papers, like the Panama Papers before them, are likely to make a great many rich and powerful people more than a little uncomfortable in the weeks and months ahead. Whether it will go beyond that and into the courts remains to be seen.