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KEY NOTE ADDRESS BY PROFESSOR ANNET WANYANA OGUTTU AT THE ATAF-OECD-UNECA VIRTUAL WORKSHOP ON “COMBATING ILLICIT FINANCIAL FLOWS” (2-4 JUNE 2020)

African Tax Administration Forum • Jun 04, 2020

Annet Wanyana Oguttu*

University of Pretoria

Countries need finances to ensure the welfare of citizens by providing public goods and services, financing the labour force and promoting economic development. Although many African governments have historically relied heavily on foreign aid funding, the dwindling foreign aid has forced many of them to realise that the only way to ensure sustainable financing for development is through domestic resource mobilisation from public and private sectors. Resources from the public sector are largely mobilised through taxation1 which is essential for structural transformation to address social and economic challenges such as: poverty, inequality and unemployment so as to achieve the United Nations 2030 Agenda for Sustainable Development. 2 African leaders have committed to establish an enabling framework for domestic revenue mobilisation3 as articulated in the African Union Agenda 2063, 4 the Common African Position on the post-2015 Development Agenda and the Addis Ababa Action Agenda. 5


However the single most impactful stumbling block to domestic revenue mobilization in Africa is capital flight, 6 through illicit financial flows (IFFS) which are estimated between $50billion and $80 billion per annum and that revenue lost exceeds the level of foreign aid received. 7 The Organisation for Economic Development and Cooperation (OECD) stresses that while IFFs occur in all countries – and are damaging everywhere – the social and economic impact on developing countries is more severe given their smaller markets and resource base.8

However, there is scarcity of research on the linkages and transmissions of IFFs from Africa. This is in part blamed on the fact that there is no universally agreed definition of IFFs and its boundaries are still disputed.9 UN Economic Commission for Africa (UNECA) highlights two main interpretations of what makes up IFFs; the legalistic interpretation and the normative interpretation.10

The legalistic interpretation suggests that IFFs comprise of money earned, transferred, or used in contravention to existing laws. In some cases, this money is earned illegally; such as through organized crimes, money laundering, drug trafficking embezzlement, terrorist financing and bribery.11 In other cases, money is earned legally, but the tax on the same is evaded.12 In other cases, the money is earned legally but it is transferred out of the country illegally by for instance circumventing currency controls or through trade mis-invoicing which is a customs fraud that involves presenting fraudulent documentation to customs officials.13 United Nations Conference on Trade and Development (UNCTAD) notes that trade mis-invoicing accounts for nearly 99% of illicit financial outflows from Africa.14 The OECD ascribes to this legalistic interpretation of IFFs, which it defines as cross-border capital transactions that conceal illegal activities or facilitates them by using methods, practices and crimes aimed at transferring financial capital out of a country in contravention of national or international laws.15

But there a normative interpretation of IFFs which suggests that financial flows become illicit because they are deemed illegitimate from the perspective of existing social norms. 16 In terms of this interpretation, some base erosion and profit shifting (BEPS) practices, like transfer mispricing which are considered legal, are deemed illegitimate because they border criminal tax evasion; especially when money is route money through shell companies in tax haven jurisdictions. 17 The OECD conceded in its BEPS Reports that although some MNEs generally comply with the legal requirements of the countries involved in, there are cases of illegal abuse, which it claims are the exception rather than the rule.18 It is these exceptional cases which blur the dividing line between illegal tax evasion and tax avoidance19 that have prompted some civil society organisations to come up with proxy estimates that equat BEPS to illicit financial flows. The 2015 UN High-Level Panel Report20 on Illicit Financial Flows from Africa adopts a broad definition which includes BEPS activities like transfer mispricing as part of IFFs.

The 2017 World Bank Report on “Governance and the Law” 21 classifies the source of earnings from IFFs under two categories: flows from money earned legally and flows from money earned illegally. 22 The World Bank considers profit shifting by MNEs as a component of IFFs even if the money is earned legally. It asserts that both legal and illegal IFFs involve a complex network of actors, including domestic and foreign state institutions, domestic and foreign public officials as well as foreign financial institutions, all influenced by different factors for moving money abroad, using various channels (such as bulk cash smuggling, shell corporations, informal value transfer systems, or trade-based money laundering). 23 The World Bank notes that whether IFFs are from legal or illegal sources, they foster the existing inequalities that are detrimental to the poor and they deprive developing countries of resources that could be used for financing public goods. 24 The African Development Bank also asserts that IFFs widen the deficit for public investment funding of infrastructure and social policy measures for poverty alleviation. 25

International cooperation is required to address both legal and illegal capital flight. However, any effective cooperation must address deficiencies in both the developed countries and in Africa that facilitate illicit capital from Africa. 26 For every country losing money illicitly, there is another country absorbing it. While governance remains an issue for many African countries, structural deficiencies in the financial systems of developed economies are just as responsible for driving the outflow of illicit capital. The burden for curtailing these illicit flows must be shared equally by policymakers in the in developed economies and in Africa for it to be effective. 27

At the 2015 UN “Third International Conference on Financing for Development”,28 Heads of State affirmed that they would redouble their efforts to reduce illicit financial flows by 2030, through strengthened national regulation and increased international cooperation. UN sustainable development goal 16.4 commits countries to reduce IFFs as a key goal in furthering domestic resource mobilisation and advancing sustainable development.29 Thus Heads of state agreed to work together with the International Monetary Fund, the World Bank and the UN to assist both source and destination countries to prevent IFFs by enhancing information-sharing among financial institutions. 30

Despite these commitments, the torrent of data leaks over the last years shows that the problem of IFFs is still at large. The 2016, Panama Papers released by International Consortium of Investigative Journalists31 leaked close to 12 million leaked documents of financial information from of a law firm in Panama which showed how high net worth individuals, former and current leaders (including those in Africa) had set up shell companies in secrecy jurisdictions to hide their great fortunes. The 2017, “Paradise Papers” 32 exposed a further 13.4 million documents from a Bermuda law firm, of companies and individuals that hid their wealth in shell companies. Then there were the 2019 “Mauritius Leaks” 33 and most recently the January 2020 “Luanda Leaks”, 34 which have exposed how the family lies of politicians were exploited to invest in offshore shell companies, which have left Angola stripped of hundreds of millions of dollars. What all these leaked documents reveal is just the tip of the iceberg of both legal and illegal capital flight that is enabled by the active collusion of the world’s biggest banks, specialized law and accounting firms. 35

There is no doubt that the economic fall out as a result of the Covid-19 economic fallout,36 which is compelling countries to consider new sources of revenue such as wealth taxes37 and solidarity taxes on high income earners, 38 will see an exponential rise of schemes to hide monies in tax shelters. Covid-19 has made it apparently clear that cash-strapped developing countries with constrained borrowing capacity, need to put in greater effort to curtail both legal and illegal capital flight so as to raise revenue to build their health systems and ensure sustainable economic recovery post the Covid-19 crisis. 39

It is therefore important that countries intensify efforts to track and measure illicit flows. This has however been very challenging, since by their very nature illicit flows are not transparently or systematically recorded. It is encouraging that in 2019, the United Nations Office on Drugs and Crime (UNODC) and UNCTAD, developed a conceptual statistical framework for the measurement of IFFs which is now included SDG indicator 16.4.1 and will be helpful to countries in tracking and measuring illicit flows. 40

Countries also need to intensify efforts to combat corruption as envisioned in international instruments, such as:
  • The UN Convention against Transnational Organised Crime (UNTOC);41
  • The UN Convention against Corruption (UNCAC) which came into force in 2005, enforces international cooperation against corruption, by enforcing asset recovery, accountability and proper management of public property.42
  • The OECD Anti-Bribery Convention which came in force in 1999, to combat bribery by foreign public officials in international business transactions;43
  • OECD also provides guidance in its “Public Integrity Handbook”44 on the effective implementation of public integrity which deals with matters such as conflict of interests and procurements.
  • The OECD Development Assistance Committee (DAC)45 promotes development aid cooperation that contributes to implementation of the 2030 Agenda for Sustainable Development. The DAC has a monitoring and evaluation system that ensures accountability and integrity in the use of donor aid which is instrumental in tracking the source, transit and destination countries of IFFs.
  • The OECD International Academy for Tax Crime Investigation46 (which is running today’s workshop), is instrumental in training tax administrations to tackle IFFs.
Countries also need to intensify efforts to enforce financial transparency and combat the secrecy IFFs. This can be enforced under the Financial Action Task Force (FATF) which set global standards on “Beneficial Ownership of Legal Persons and Legal Arrangements”.47 The FATF standards were endorsed by the G20 countries which set up the High Level Principles on Beneficial Ownership Transparency48 that are supposed to be enforced by G20 countries like South Africa. The challenge is that in many countries is that, beneficial ownership information is only partially public, different transparency rules apply for different business arrangements and there are legislative hinderances for governmental bodies to share information with each other.

The OECD has also carried out work to foster tax transparency:
  • OECD Global Forum, set out standards for exchange of information in tax matters, upon request which are instrumental in curtaining banking secrecy; 49
  • The OECD common reporting standards foster automatic exchange of financial account information; 50
  • The OECD BEPS Action measures can ensure that MNEs pay taxes in the countries where their economic activities occur and where value is created. One of the key pillars of these measures is improving tax transparency; for example under country-by-country reporting minimum standards in Action 13. 51
The effectiveness of all these measures depends on effective implementation. At domestic level, authorities (such as law enforcement, policy makers, the judiciary, elected leaders) must have the ability to act upon the information and create the conditions for accountability. At international level, the Peer Review mechanisms are under the various instruments can ensure a mutual accountability framework. For example: 
  • The UN Convention against Corruption (UNCAC) has an implementation Review Mechanism; 52
  • FATF conducts Peer reviews to ensure that countries have the institutions and capacity to combat money laundering and terrorist financing;
  • The OECD Global Forum conducts peer reviews on the agreed standard on exchange of information for tax matters53 and,
  • The OECD Inclusive Framework conducts peer reviews to ensure coherent and coordinated action of the BEPS minimum standards.54
The challenge of these peer reviews however, is the uneven implementation of the measures especially in developing countries that lag behind in enacting the required legal frameworks and administrative frameworks party due to other competing priorities and the lack of resources.55 This hampers their ability to fully benefit from these global initiatives. But even where developing countries have put in place the mandated legal and institutional frameworks, some developed countries slow, ignore or refuse to extend cooperation to them. 56 In such cases, there is no recourse to ensure such countries comply with their commitments to exchange information.

There are however non-compliance measures for jurisdictions that practice harmful tax practices, for example by imposing sanctions, penalties, black listing or messages that signal risks to the international community and financial institutions. The OECD for instance maintained a “List of Uncooperative Tax Havens” for failure to implement transparency and effective exchange of information or tax purposes. 57 Since 2017, the European Council, also prepares a “list of non-cooperative jurisdictions for tax purposes”,58 which are subject to measures such as reduced access to funding from EU countries.

However when it comes combating corruption and financial crimes under the UN instruments, such as UN Convention against Transnational Organised Crime and UN Convention against Corruption, there are no formal sanction beyond the potential international reputational damage that can be suffered – this has hampered enforcement. The only possible option is to file a case before the International Court of Justice (ICJ)59 but its role is to settle, international legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by United Nations organs and specialized agencies. The ICJ has no powers of enforcement.

Finally, one should not underestimate the importance of involving all stakeholders in addressing these concerns, this includes the private sector and civil society.60 When civil society is sensitised about the ills of IFFs they can be the tipping point for igniting the political will to bring about required change.

* Professor, Department of Taxation and the African Tax Institute in the Faculty of Economic and Management Sciences at the University of Pretoria. Qualifications: LLD in Tax law (UNISA), LLM with Specialisation in Tax Law (UNISA), LLB (Makerere University, Uganda), H Dip International Tax Law (University of Johannesburg) and Dip in Legal Practice (Law Development Centre Makerere). Email: Annet.oguttu@up.ac.za
1 North-South Institute “Domestic Resource Mobilisation in Africa: An Overview. Available at http://www.nsi-ins.ca/wp-content/uploads/2012/10/2010-Domestic-Resource-Mobilization-in-Africa-An-Overview.pdf accessed 3 December 2014.
2 The 17 SDGs are listed in Appendix A. See https://www.un.org/sustainabledevelopment/development-agenda/ for more details on the SDGs and the 2030 Agenda for Sustainable Development.
3 A Waris “Tax and Development” Law Africa (2013).
4 UNCTAD Report “Economic Development in Africa” (2007) in Chapter 1.
5 UN “Addis Ababa Action Agenda of the Third International Conference on Financing for Development” (2015) available at http://www.un.org/esa/ffd/wp-content/uploads/2015/08/AAAA_Outcome.pdf accessed 12 April 2017.
6 B Raymond, President Global Financial Integrity, serves on the UN High Level Panel on Illicit Financial Flows in Africa and the author of Capitalism’s Achilles Heel: Dirty Money and How to Renew the Free-Market System, published by John Wiley & Sons and cited by the Financial Times as one of the “best business books of 2005.” 
7 African Tax Administration Forum “Twenty One African Countries finalise Mutual Agreement in Collecting Taxes”. Available at http://www.ataftax.net/news/ataf-in-the-media/twenty-one-african-countries-finalise-mut... accessed 26 June 2013. 
8 OECD Measuring OECD Responses to illicit financial flows (2013 Paris: OECD) 15. 
9 P Chowla & T Falcao “Illicit Financial Flows: Concepts and Scope” (2016), Discussion Paper for the Inter-Agency Taskforce Expert Group Meeting on Illicit Financial Flows – Mapping out a Way Forward on Tax Avoidance and Evasion, UNDESA and UNECA. 
10 UNECA “Base Erosion and Profit Shifting in Africa: Reforms to Facilitate Improved Taxation of Multinational Corporations” (2017). Available at https://www.uneca.org/publications/base-erosion-and-profit-shifting-africa-reforms-facilitate-improved-taxation 
11 G Rowe, F Bolger, R Payne & E Shubert “Policy Options for Addressing Illicit Financial Flows: Results from a Delphi Study” (2014) at 4. 
12 D Meyerowitz Meyerowitz on Income Tax (2009) in para 29.1 
13 Times Live “Billions of Rands leave SA under the Radar” (1 November 2015). Available at http://www.timeslive.co.za/thetimes/2015/01/11/Billions-of-rands-leave-SA-under-the-radar accessed 14 December 2016.
14 UNCTAD “Trade and Development: Global Governance and Policy Space for Development” (2014). 
15 OECD Measuring OECD Responses to Illicit Financial Flows (2013 Paris: OECD) 
16. 16 S Blankenburg & M Khan “Governance and Illicit Flows” in Draining Development? Controlling Flows of Illicit Funds from Developing Countries, edited by Peter Reuter (2012) at 32, Washington, DC: World Bank. 
17 C Froberg & A Waris “Bringing Back the Billions” Global Studies (2012) at 17 
18 OECD Addressing Base Erosion and Profit Shifting (2013 Paris: OECD)
19 United Nations Ad Hoc Group of Experts on International Co-operation in Tax Matters International Cooperation in Tax Matters Guidelines for International Cooperation Against the Evasion and Avoidance of Taxes (With Special References to Taxes on Income, Profits, Capital, and Capital Gains) (1984, Department of International Economic and Social Affairs, United Nations New York) at 18. 
20 UN High-Level Panel on Illicit Financial Flows from Africa Track it, Stop it, Get it (2015). Available at http://www.uneca.org/sites/default/files/PublicationFiles/iff_main_report_26feb_en.pdf accessed 12 April 2017. 
21 World Bank Group World Development Report: Governance and the Law (2017) at 279.
22 P Janský “Illicit Financial Flows and the 2013 Commitment to Development Index” CGD Policy Paper 034 (December 2013) Center for Global Development, Washington, DC. 
23 World Bank Group World Development Report: Governance and the Law (2017) at 280. 
24 World Bank Group World Development Report: Governance and the Law (2017) at 278. 
25 African Development Bank, United Nations Development Programme and UNECA (United Nations Economic Commission for Africa African Economic Outlook 2012 (Paris: OECD 2012) 69ff. 
26 Global Financial Integrity “GFI Welcomes New US - Africa Partnership to Combat Illicit Finance” 6 August 2014). Available at https://gfintegrity.org/press-release/gfi-welcomes-new-u-s-africa-partnership-to-combat-illicit-finance/ 
27 Global Financial Integrity “GFI Welcomes New US - Africa Partnership to Combat Illicit Finance”. 
28 United Nations “Outcome document of the Third International Conference on Financing for Development: Addis Ababa Action Agenda” (13 to 16 July 2015) para 23. Available at http://www.un.org/ga/search/view_doc.asp?symbol=A/CONF.227/L.1 accessed 17 August 2015.
29 UN Sustainable Goal 16. Available at https://unstats.un.org/sdgs/tierIII-indicators/files/Tier3-16-04-01.pdf 
30 United Nations “Outcome document of the Third International Conference on Financing for Development: Addis Ababa Action Agenda” (13 to 16 July 2015) para 23. Available at http://www.un.org/ga/search/view_doc.asp?symbol=A/CONF.227/L.1 accessed 17 August 2015. 
31 ICIJ “Panama Papers Helps Recover More Than $1.2 Billion Around The World”. Available at https://www.icij.org/investigations/panama-papers/ accessed 4 April 2019. 
32 ICIJ “Paradise Papers: Secrets of the Global Elite” (27 December 2017). Available at https://www.icij.org/investigations/paradise-papers/ accessed 4 April 2019. 
33 Shiel F and Fitzgibbon W, ‘About The Mauritius Leaks Investigation’; available at: https://www.icij.org/investigations/mauritius-leaks/about-the-mauritius-leaks-investigation/. 
34 ICIJ “How Africa’s Richest Woman Exploited Family Ties, Shell companies and Insider Deals to Build an Empire”. Available at https://www.icij.org/investigations/luanda-leaks/ 
35 UN General Assembly “UN Urged to hold Conference on Abolishing Tax Havens” (2016). Available at http://nation.com.pk/international/16-Oct-2016/un-urged-to-hold-conference-on-abolishing-tax-havens accessed 21 November 2016.
36 Tania Ajam and Denis Davis “The consequence of near-total cessation of economic activity and then a somewhat haphazard partial opening up of the economy is wreaking havoc with South Africa’s tax base” (14 May 2020). Available at https://www.dailymaverick.co.za/article/2020-05-14-unprecedented-tax-collapse-endangers-post-covid-recovery/ accessed 26 May 2020. 
37 Blomberg Tax “Countries Seek New Revenue Sources to Pay for Virus Relief (1)” (15 May 2020). Available at https://news.bloombergtax.com/daily-tax-report-international/countries-hunt-for-new-revenue-sources-to-pay-for-virus-relief accessed 26 May 2020. 
38 Blomberg Tax “Countries Seek New Revenue Sources to Pay for Virus Relief (1)” (15 May 2020). 
39 Blomberg Tax “Countries Seek New Revenue Sources to Pay for Virus Relief (1)” (15 May 2020). 
40 UNCATAD “Task Force meeting on statistical methodologies for measuring illicit financial flows” (2019). Available at https://unctad.org/en/pages/MeetingDetails.aspx?meetingid=2218 
41 UN Office on Drugs and Crime “UN Convention against Transnational Organised Crime”. Available at https://www.unodc.org/unodc/en/organized-crime/intro/UNTOC.html 
42 UN Office on Drugs and Crime “UN Convention against Corruption”. Available at https://www.unodc.org/documents/brussels/UN_Convention_Against_Corruption.pdf
43 OECD “Convention on Combating Bribery of Foreign Public Officials in International Business Transactions”. Available at http://www.oecd.org/corruption/oecdantibriberyconvention.htm 
44 OECD “Public Integrity Handbook”. Available at https://www.oecd.org/corruption-integrity/reports/oecd-public-integrity-handbook-ac8ed8e8-en.html 
45 OECD Development Assistance Committee”. Available at http://www.oecd.org/dac/development-assistance-committee/ 
46 OECD “International Academy for Tax Crime Investigation”. Available at https://www.oecd.org/tax/crime/tax-crime-academy.htm 
47 FATF “International Standards on Combating Money Laundering and The Financing of Terrorism & Proliferation: The FATF Recommendations” (June 2019). Available at http://www.fatf-gafi.org/media/fatf/documents/recommendations/pdfs/FATF%20Recommendations%202012.pdf 
48 G20 “High-Level Principles on Beneficial Ownership Transparency”. Available at https://star.worldbank.org/sites/star/files/g20_high-level_principles_beneficial_ownership_transparency.pdf
49 OECD “Improving Access to Bank Information for Tax Purpose” (2000); OECD ‘Model Agreement on Exchange of Information on Tax Matters’. Available at http://www.oecd.org/dataoecd/15/43/2082215.pdf (last accessed on 18 May 2019). 
50 OECD “Standard for Automatic Exchange of Financial Account Information: Common Reporting Standard” (2013) in para 4. 
51 OECD/G20 BEPS Project, Transfer Pricing Documentation and Country-by-Country Reporting: Action 13 (2015 Final Report), para 2. 
52 UN Office on Drugs and Crime “UN Convention against Corruption”. Available at https://www.unodc.org/documents/brussels/UN_Convention_Against_Corruption.pdf 
53 OECD “Global Forum on Transparency and Exchange of Information for Tax Purposes: Peer Review”. Available at https://www.oecd-ilibrary.org/taxation/global-forum-on-transparency-and-exchange-of-information-for-tax-purposes-peer-reviews_2219469x accessed 7 March 2019. 
54 OECD “Country-by-Country Reporting: Update on Exchange Relationships and Implementation” (February 2019). Available at http://www.oecd.org/tax/beps/country-by-country-reporting-update-on-exchange-relationships-and-implementation.htm accessed 13 March 2019.
55 Annet Wanyana Oguttu “Implementing Country-by-Country Reporting in Developing Countries and the Case for Making Public Country-by-Country Reporting Mandatory” World Tax Journal 2020 (Volume 12), No. 1. 
56 Global Economic Governance Africa “Fighting BEPS in Africa: A Review of Country-by Country Reporting” Policy Briefing (May 2017) at 3. 
57 OECD ‘Towards Global Tax Co-operation: Report of the 2000 Ministerial Council Meeting and Recommendations by the Committee on Fiscal Affairs: Progress in Identifying and Eliminating Harmful Tax Practices’ (2000). Available at http//www.oecd.org/dataoecd/9/61/2090192.pdf (last accessed on 17 November 2019). 
58 EU “Common EU List Of Third Country Jurisdictions For Tax Purposes”. Available At Https://Ec.Europa.Eu/Taxation_Customs/Tax-Common-Eu-List_En Accessed 10 September 2019. 
59 International Court of Justice. Available at “https://www.icj-cij.org/en/court”
60 See generally Annet Wanyana Oguttu “Implementing Country-by-Country Reporting in Developing Countries and the Case for Making Public Country-by-Country Reporting Mandatory” World Tax Journal 2020 (Volume 12), No. 1
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