مسئولیت اجتماعی شرکت و اجتناب از مالیات : توضیح و تأمل
|کد مقاله||سال انتشار||مقاله انگلیسی||ترجمه فارسی|
|13||2012||14 صفحه PDF||36 صفحه WORD|
Publisher : Elsevier - Science Direct (الزویر - ساینس دایرکت)
Journal : Accounting Forum, Available online 22 June 2012
اهمیت تمایز بین اجتناب از مالیات و فرار از پرداخت مالیات
تمایل بازیگر برای تطابق با کد مالیاتی
رویکرد تمایز بین اجتناب و فرار مالیاتی در S&M
نمونه ها، آمارها و حذف هر گونه بحث در مورد خط مشی در S&M
نتیجه گیری از سخنان
This paper is a response to Sikka's ‘Smoke and Mirrors: Corporate Social Responsibility and Tax Avoidance’. We believe that ‘Smoke and Mirrors’ (hereafter S&M) identifies an area of considerable importance but that it is misleading and problematic for several reasons. First, it glosses over the important distinction between tax avoidance and tax evasion. Despite using the term ‘tax avoidance’ in the title, to establish its conclusion, the paper relies predominantly on a handful of examples involving fraud, deceit and corruption, which are behaviors usually associated with ‘tax evasion’. In the context of corporate social responsibility, we explain why this distinction is crucial and offer directions for future research in this area. Second, Sikka's paper ignores voluminous extant research on tax compliance, corporate tax avoidance and its relationship with CSR. Third, the paper mis-reports key statistics on the tax gap in the UK and US, and finally, it omits a robust discussion of the considerable policy response to corporate tax avoidance, which has been promoted by numerous tax agencies and international organizations such as the OECD. In the current paper, while recognizing the merits of S&M, we highlight the problems listed above, seek to remedy them, identify additional areas of concern and encourage further research attention in this area.
This paper responds to Sikka's recent article, ‘Smoke and Mirrors: Corporate Social Responsibility and Tax Avoidance’ (Sikka, 2010; hereafter S&M), which was published in this journal. In Section 4 of S&M, it is stated that the purpose of the paper is to ‘encourage research into corporate claims of socially responsible conduct by examining their tax practices’ (p. 165) and that the ‘payment of democratically agreed taxes represents a litmus test for claims of social responsibility’ (p. 166). In Section 1 of S&M, there is a claim, which we dispute, that ‘comparatively little scholarly attention is paid to the payment of democratically agreed taxes’ (p. 154). In the course of establishing what many might consider an important conclusion, that is, ‘in essence, companies have developed elaborate practices to appropriate returns due to society on its investment of social capital’ (p. 165), S&M describes a number of instances in which corporations and advisors have engaged in activity that falls short of the standard of behavior that society might reasonably expect of such entities. The examples adduced in S&M, including Enron, WorldCom and Deutsche Bank, are acknowledged (at p. 157) as examples of deceit, fraud and/or corruption. Many of the examples provided in S&M demonstrate various types and aspects of fraud, deceit and/or corruption that were not voluntarily disclosed by the companies or organization identified. Very few of the examples in S&M represent tax-related behavior that is not an instance of fraud, deceit or corruption. We suggest that these examples provide very little information or insight concerning the tax-related behavior of the majority of companies and organizations and are therefore insufficient to justify the conclusion reached on p. 165 (see above). In addition, these examples say little about the relationship between tax-related behavior and the corporate social responsibility (CSR hereafter) practices of the majority of companies and organizations and why disclosure and transparency may be important for substantiating the CSR claims of corporations. It is a great pity that S&M takes this approach. We agree with S&M that the tax-related behavior of corporations and other organizations might, in certain circumstances, act as a litmus test both when considering the CSR claims of particular companies and when addressing various scholarly debates (see Avi-Yonah, 2008, Desai and Dharmapala, 2006b and Freedman, 2008a). However, the content and tenor of S&M, as well as the methods of reasoning and unstated assumptions that appear to us to be present in S&M, the lack of inclusion of citations to established prior theoretical and empirical scholarly literature, the use of non-peer-reviewed reports,1 the incorrect interpretation of existing tax gap statistics and the absence of any discussion of policy response by governments and tax agencies all are severe shortcomings. In this response, we address several aspects of S&M that, when taken together, call into question the reliability of the conclusion that is offered and suggest that the research approach employed fails to identify a number of important issues that are relevant to the discussion of these topics. This response is organized as follows. In the next section, we highlight the importance of distinguishing between the concepts of ‘tax avoidance’ and ‘tax evasion’ as well as discuss how such a distinction might be made and the relevance of the distinction when assessing the CSR behavior of corporations. In so doing, we acknowledge the difficulties that might be associated with such a distinction. We believe that a major failure of S&M is that by occasionally eliding the two concepts of tax avoidance and tax evasion, S&M fails to establish, however tentatively, any conclusion that is generally applicable to corporate activity. In our view, S&M also fails to identify, let alone discuss, important issues concerning the nature of certain categories of corporate behavior for which the distinction between tax avoidance and tax evasion is relevant and useful. A major reason for our view is that, while S&M identifies a handful of companies and other organizations that did not disclose their deceitful, fraudulent and/or corrupt activity, this information is of little interest. To then use these examples to draw conclusions about the tax-related behavior of companies in general is, in our opinion, unconvincing. What S&M does not consider are the merits of tax-related behavior that is not considered to be deceitful, fraudulent or corrupt by democratically elected governments and tax authorities. It is in this area of behavior that the relationship between tax-related behavior and CSR, whether considered on a national basis or with respect to the cross-border activity of multinational enterprises, raises important questions and may be of most interest. Given the number of headline corporate scandals in the past few decades, it is reasonably easy to identify what can be recognized as appropriate responses to deceit, fraud and/or corruption and these responses are accepted as appropriate by many of the parties contributing to the discussions taking place on these topics.2 It is more difficult to identify an appropriate and justified response or set of responses to tax-related behavior that is not deceitful, fraudulent and/or corrupt behavior, including behavior that some have characterized as creative compliance (Farber, 1999, McBarnet, 2005 and Shah, 1996). We suggest that the academy should be focusing on the identification of such a response or set of responses and how they should be reflected in CSR behavior and disclosure. As the actual title of S&M suggests, it is the relationship between CSR and tax avoidance that is interesting, not the relationship between CSR and deceitful, corrupt or fraudulent behavior that, we suggest, is commonly identified as tax evasion. Having argued that there is a useful and important distinction between tax evasion and other types of tax-related behavior,3 we then consider S&M's approach to the distinction in Section 3, arguing that even though the distinction between tax evasion and tax avoidance is not pursued, it is pertinent to S&M's argument. Section 4 considers, in summary form, the considerable scholarly attention paid to tax-related behavior, the payment of democratically agreed taxes and extant research (uncited in S&M) on the link between CSR and taxation. This research is wide-ranging and originates in many different parts of the academy. We believe that the omission of this literature is unfortunate and undermines claims made in S&M that imply a paucity of existing tax research, which is incorrect. In Section 5, we consider the use that S&M makes of some of its ‘evidence’, particularly the relevance of the examples cited, the selective and/or incorrect citation of reports on the tax gap and the dependence of S&M on statements that appear to be without foundation. We also briefly outline the policy approach to large business compliance currently undertaken by many tax authorities around the world and the regulation of tax accountants, which are topics clearly relevant to CSR and tax avoidance yet entirely omitted in S&M. In particular, we refer to the approach adopted by Her Majesty's Revenue and Customs (HMRC) to the behavior of large UK businesses with respect to their tax planning and tax positions and to the ‘Working with Tax Agents’ initiative (HMRC, 2009a and HMRC, 2009b). Section 6 concludes and offers brief observations on three matters that we consider to be relevant to this research area: (i) the obligations of directors, which are alluded to in S&M, (ii) the purported but disputed distinction between the ‘spirit’ of the law and the ‘letter’ of the law and (iii) the human rights of companies that are found in democratically adopted laws and that are relevant to any debate on CSR, before finally identifying opportunities for further research.
نتیجه گیری انگلیسی
Before concluding, there are three topics that we consider relevant to research in the area of tax avoidance and CSR, only one of which is briefly mentioned in S&M. The first is that of the duties of directors. The assets and other resources of any company are ultimately under the control and direction of the directors of that company and, at least in theory, when exercising that control, the directors must do so in accordance with their legal obligations.12 S&M states, ‘There is no legal or moral compulsion for company directors to indulge in tax evasion or avoidance.’ (p. 165); ‘There are no laws which require directors to specifically increase profits by avoiding taxes.’ (p. 155); and finally, ‘The use of strategies for tax avoidance/evasion is primarily a matter of executive discretion rather than any legal or moral compulsion.’ (pp. 155–156). S&M demonstrates an unfortunate lack of appreciation of the duties of directors, the relationship that directors have with their company, the importance of recognizing that a company is created under a particular body of company law, and that these aspects differ from sovereign state to sovereign state. This paper does not provide a detailed analysis of the content of the corporate codes of various countries,13 however, as noted in S&M (p. 155), Section 172 of the UK Companies Act 2006 requires a director of a company incorporated in the UK to act ‘in the way he considers, in good faith, would be most likely to promote the success of the company for the benefit of its members as a whole’, taking into account various matters including the interests of other stakeholders. It should be noted that the company law codes in the UK were recently reconsidered, and it is not readily apparent whether the company law codes of all countries will impose such obligations on directors. Moreover, given the obligation each director has, situations will arise that present each director and the directors collectively with a choice between event A and event B such that the ex post tax position under event A is more beneficial to the company. In such circumstances, with all other things being equal, it is difficult to see how the director(s) do not have a legal obligation to choose event A under the assumption that, if the directors have a moral obligation to fulfill their duties under democratically enacted UK law, the directors would also have a moral obligation to choose event A. On the other hand, another aspect that be considered relevant to the debate regarding tax avoidance and CSR is that directors have no obligation, legal or even moral, to select the event (out of a choice of more than one) under which their company will pay a maximum amount of tax and, importantly, that democratic societies do not insist that they do make such a choice. These are matters that are ignored or glossed over in S&M. The second observation is that on occasion, when the relationship and distinction between tax avoidance and tax evasion is discussed, a distinction is made between the ‘letter’ of the law and the ‘spirit’ of the law. The purpose of this distinction is to identify a class of tax-related behavior that, although complying with the ‘letter’ of the law, does not comply with the ‘spirit’ of the law (McBarnet, 2003, McBarnet et al., 2009 and Picciotto, 2007). Instances of tax-related behavior that only comply with the ‘letter’ rather than the ‘spirit’ of the law are condemned as being unacceptable. The ‘spirit’ of the law is often closely linked with what is referred to as the ‘intention’ of the lawmaker, in the case of the UK with the intention of Parliament. There are significant difficulties with this approach that need to be addressed when considering the relationship between CSR behavior and tax avoidance. Making reference to the ‘spirit’ of the law implies the existence of some form of shadowy parallel tax code to which only a privileged few have access while everyone else has to make do with the ‘letter’ of the law. Suggesting that the ‘letter’ of the law is distinct from the ‘spirit’ of the law, particularly in the context of the tax code (see the next observation), appears to ignore the purpose of the tax code, which among other purposes, is to identify in a reasonably clear manner events that are to be taxed or events that lead to a tax benefit or credit. To have a set of events that cannot be identified by the application of a reasonably clear tax code but that can be identified by those who have access to the ‘spirit’ of the law requires a view of a democracy operating within the rule of law that may not be as democratic as we would wish. We would suggest that there is nothing beyond the tax code. There is no need for a distinction between the ‘letter’ of the law and the ‘spirit’ of the law because there is no need to look any further than the actual legislation. It is almost certain that to look for an ‘intention’ that lies beyond what is to be found in the enacted tax code is a fruitless exercise. This position is elegantly expressed in the words of Hoffman (2005): ‘The only way in which [the lawmaker] can express an intention to impose a tax is by statute, which means that such a tax is imposed. If that is what [the lawmaker] means, the courts should be trusted to give effect to its intention’. The final observation relates to the protection provided to the property and resources owned by companies under human rights legislation. Under both the ‘Convention for the Protection of Human Rights and Fundamental Freedoms’ (as amended) and the UK Human Rights Act 1998, a company ‘is entitled to the peaceful enjoyment of his (sic) possessions’ (Protocol 1, Article 1), and this peaceful enjoyment of possessions, which includes using the possessions in accordance with the wishes of the company, cannot be interfered with except as set out in law. There is nothing under this human rights legislation that prevents a sovereign state from enacting tax laws that are considered to be for the benefit of the citizens of the country (in the ‘public interest’ or the ‘general interest’) but under which a company can be ‘deprived of his (sic) possessions’. Given the importance of the principle of the rule of law for democratic countries, as has been suggested, there is an assumption that the tax laws that impose tax will be more or less certain. The protection offered to companies under this human rights legislation means that subject to the confines of the general law, companies incorporated in countries that have adopted such human rights legislation almost certainly have a right to arrange their affairs as each company sees fit. In addition, given that the tax code of a sovereign state is enacted to identify certain classes of events and distinguish between classes of such events, such companies might well be considered to have rights that are protected by human rights legislation and that allow them to engage in tax-related behavior that seeks to reduce the amount of tax payable should the companies so desire. There is nothing sinister in this approach. Tax law offers incentives in the form of lower taxes to encourage particular activities, and companies are free to avail themselves of such incentives. In summary, we are concerned about weaknesses in the argument of S&M, whose approach seems to include (i) arguing that because some companies engage in tax evasion (i.e., the companies and advisors are deceitful, corrupt and/or fraudulent), all companies who engage in tax avoidance are suspect; (ii) failing to distinguish between tax evasion and tax avoidance; (iii) relying on non-peer reviewed literature; (iv) misrepresenting official statistics; and (v) ignoring extant scholarly literature and policy responses both within the UK and in the international tax community. However, like Avi-Yonah (2008) and others, we clearly believe that understanding the relationship between CSR and tax avoidance is important and worthy of ongoing scholarship and debate, but in addition to more empirical research, we suggest that a conceptual framework is also required because there is an element of confusion regarding the definition of tax avoidance. Although provided in a simplified form, we have proposed a set of three factors that may be applicable to tax-related behavior and that might assist in future discussion in this area. The conceptual framework will have to consider not only the different types of tax-related behavior but also the various rights and obligations to which a director is subject as well as the relationship between a democratically enacted tax code and the transactions and arrangements to which such a tax code applies. When considering CSR behavior, a crucial issue is the nature of the activities that a company can undertake or should undertake, where such activities can be labeled ‘tax-related behavior’. We believe that future research should not gloss over existing compliance-related research and should take into account policy and administrative responses by governments and national tax agencies (e.g., HMRC, IRS, Australian Tax Office). We hope that this response to S&M will assist other researchers in their future endeavors to investigate the relationship between CSR and tax avoidance.