The US Treasury is re-examining its policies regarding shell companies, which can serve as tax havens for the rich, in the wake of the leak of 11.5m documents from the Panama-based law firm Mossack Fonseca. Experts, however, are worried that instead of limiting the ability to hide wealth, one rule under review could actually enhance it. At the moment, firms like Mossack Fonseca can provide their clients with officers and shareholders for their shell companies. These officers â while serving as owners in name only â are likely to appear on the paperwork collected by US financial institutions, hiding the true owners who benefit from the companyâs existence.
The beneficial ownership portion of the rule, as proposed by the US Treasury in 2014, is too broad and is easy to circumnavigate, say critics including the International Monetary Fund. On Tuesday, two days after the first batch of Panama Papers revelations had been published, Obama took the stage in the White House briefing room and described tax avoidance as a âbig global problemâ that is ânot unique to other countriesâ. âA lot of itâs legal but thatâs exactly the problem,â he said. âItâs not that they are breaking the law, itâs that the laws are so poorly designed that they allow people â if theyâve got enough lawyers and accountants â to wiggle out of responsibilities that ordinary citizens have to abide by.â
By Wednesday, the Treasury let it be known it would soon release a rule that would require banks to obtain the names of people at the helm of shell companies seeking to open accounts with them. The problem? Experts say itâs another one of those âpoorly designedâ laws that Obama spoke of. And this time itâs being implemented by the Obama administration itself. Last summer, after evaluators from the International Monetary Fund reviewed the proposed rule, they said it did not comply with recommendations laid out by the Financial Action Task Force, of which the US is a member. âThe evaluators found that the United Statesâ compliance with the two recommendations dealing with the transparency of legal persons and arrangements was very weak and rated both as non-compliant,â according to the IMF report.
The rule, which is years in the making, would require companies to disclose c-suite officers such as CEOs, chief financial officers and presidents. (Such officers have in the past been provided by firms such as Mossack Fonseca.) The rule would also require companies to disclose shareholders who have 25% or more equity interest in the company, which critics say is too high a threshold. âSpecifying a disclosure threshold is generally an ineffective approach, since it simply invites wrongdoers to arrange their affairs to come in below the specific threshold,â former Michigan senator Carl Levin, at the time chairman of the Senateâs permanent subcommittee on investigations, wrote in a letter to the Treasury in December 2014. He recommended that if the Treasury were set on having a threshold, it ought to consider one closer to 10% than 25%. âWrongdoers can simply issue more shares of stock or identify more trust beneficiaries, using nominees, to avoid triggering financial institution oversight. Under the proposed rule as currently drafted, a criminal would have to find only five people to agree to serve as âequityâ owners of the relevant legal entity in order to avoid having the names of any beneficial owners included in financial institutions records.â
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