Corporation Tax Controversy of Global Organisations – a British Petroleum Case Study

Introduction

In our modern world, taxes are the basic source of task financing and public needs and they are a very important part of the country’s development and citizens. Tax is a historical phenomenon that appeared at a certain stage in the development of socio-economic relations and developed with the growth of these relations. This financial instrument is a performance that causes the flow of a certain economic value from the taxpayer's assets to the state assets. This flow is not neutral either on the microeconomic scale or on the macroeconomic one, being an important factor affecting the economy. The perception of the relationship between the tax system and the economy caused the tax ceased to be perceived solely as an instrument of state finances but it also becomes a very important tool in economic policy (polish source).

Primarily, it often happens that the tax collection amount is incorrect and far more often is too small than too high. Most often this happens in international companies that operate on several continents. Gaps in corporate income tax result from non-compliance with tax returns, understatement of the tax base and arrears with payments. Currently, companies to reduce the tax paid, among others hide revenues, overstate costs and make artificial foreign transfers.

On the other hand, the difficulties that result from a complicated tax system are an obstacle that inhibits the establishment of companies. Taxes in the form of the number of taxes paid, the time devoted to their settlement and the total amount of all taxes paid still constitute a major barrier for running a business.

In many national and international companies, there are irregularities in income tax settlements that are visible in the tax inspection report. This is mainly due to an improper settlement of revenues and costs of obtaining such revenues.

Existing corporate taxation rules no longer keep pace with economic changes. Legal regulations regarding the income taxation of international companies do not match the market requirements, which leads to many ambiguities and inconsistencies. The growing complexity of business models and corporate structures has made it easier to shift income from one country to another. Moreover, it is increasingly difficult to determine in which country an international company should pay corporate tax.

In October 2015 in the aftermath of the crisis and declining tax revenues in international companies, the Organization for Economic Co-operation and Development (OECD) launched a project that concerned corporate income taxation and tax evasion. The aim of this project is to reduce and prevent the negative effects associated with artificially reducing the tax base and transferring profits to countries with lower income taxation.

The financial crisis deepens the lack of public confidence in business and financial institutions, and this leads to a much greater public interest in tax matters. Press and non-governmental organizations contribute to revealing scandals related to tax avoidance. Detecting these scandals gives rise to a discussion regarding the disclosure of certain tax data, including the place and amount of tax paid by international companies.

All these activities create some kind of dispute, ambiguity and controversy therefore it is important to analyse the chosen problem. Based on an international petrochemical company, you can observe what practices global organizations use to reduce the amount of corporate tax paid to some extent. Currently, changes in regulations are necessary to combat tax fraud, ensure stable revenues and ever-better conditions for doing business in the single market. However, they will not solve all problems and controversy related to tax avoidance.

The main objective of this research is to analyse corporation tax and determine the possibility of controversy and tax avoidance and profit transfer among the largest oil and gas company in the United Kingdom, which is also the third-largest petrochemical company in the world. It is worth doing this research because it is an international and present problem that can be observed on the example of global organizations. The choice fell on the BP, because it is a well-known British company and is listed on the London and New York Stock Exchange.

Tax controversies concern all citizens because money that the state loses as a result of tax avoidance by companies with large capital could be used to carry out public tasks. This means that less money will be allocated, for example, to education or health service which are an important part of the residents' life.

Research questions:

• How do global organizations avoid taxation?
• How law and law enforcement authorities refer to the controversy of corporation tax?
• What practices the BP uses to lower corporation tax?

The corporation tax also called corporate income tax (CIT) and company tax is a direct income of the state budget through the collection of which it is possible to finance its tasks. The application of corporate income tax in this financing should be subject to general tax rules which should be consistent with the conditions that should be met by a well-constructed tax system. The tax principles include the principle of equality of taxes, the main assumption of which is to tax all taxpayers with a given tax on the same basis. There are exceptions to this rule and there is a set of possibilities to benefit from the exemption in corporation tax.

According to Stiglitz (1976) corporate income tax with immediate deduction of costs and the inability to deduct interest is irrelevant and basically a tax on net profits. Also, the described tax with appropriate depreciation and deduction of interest is a tax on purely corporate profits because the subject of taxation in the corporate tax is income.

Corporate tax rates vary considerably depending on the country. Some of them who want to increase investment within their borders can offer lower tax rates. These different tax rates are an incentive for companies to try to transfer revenues and profits from countries with higher tax rates to those ones with lower tax rates, thus maintaining a higher net profit for shareholders and managers (Starbucks).

There are currently several tax avoidance strategies. Some companies charge fees to subsidiaries for using intellectual property, such as brand name or business practices, and these types of solutions usually charge a few percent of revenue. However, other companies increase prices to transfer money to countries with lower taxation, which is permitted by transfer pricing regulations. Then, such enterprises may allocate profits to high-interest subsidiaries in areas where there are low tax rates.

Aggressive tax planning relates to an action may be legal, but contrary to the spirit of the law and is based on the fact that the taxpayers to reduce their tax obligations. This action includes the exploitation of gaps in the tax system and discrepancies existing between tax systems. It can also lead to double non-taxation or double deduction. Combating aggressive tax planning is essential to ensure tax revenues for public investment, education, health, and social care, and to ensure fair burden-sharing and tax discipline for taxpayers, and to avoid distortions of competition between enterprises. The European Union has taken a number of steps to combat aggressive tax planning, including the adoption of the anti-avoidance directive. Tax avoidance costs billions of euros annually. In the EU, it was estimated that the concealment of tax revenues resulting from the transfer of profits within the EU is around EUR 50-70 billion (Dover et al., 2015). The practices of aggressive tax planning in one territory have consequences for other territories. Moreover, aggressive tax planning disturbs the level playing field between companies that manage to avoid paying taxes and other enterprises that do not have access to the same possibilities of cross-border tax planning (mainly smaller or national organisations). The research shows that multinational corporations in countries with high tax rates pay about 30% lower taxes than comparable domestic enterprises (Egger et al., 2010). Aggressive tax planning used by large multinational corporations also has a negative impact on the general morale of taxpayers. People who fulfil their obligations and pay taxes, consider aggressive tax planning as a violation of the social contract. Awareness of unfair practices may encourage other taxpayers to stop fulfilling tax obligations. Recent scandals have caused public dissatisfaction over the issue of tax avoidance. There are many economic indicators that can be used to detect evidence of aggressive tax planning practices. For example, countries used in these practices usually have high financial flows. Foreign direct investment, which in itself is not an indicator of tax avoidance, reflects cross-border investments between related enterprises. Member States can counter tax fraud by strengthening the legal framework and reforming national systems that can lead to aggressive tax planning, as well as by developing cooperation and increasing transparency.

Transfer prices

Tax haven

Regulations regarding corporate income tax in the United Kingdom are included in the Corporation Tax Act 2010. The object of taxation is the income that is the sum of the excess of revenues over deductible costs achieved in the fiscal year. Tax revenues include, in particular, received money, cash values, exchange differences or the value of free-of-charge or partial payment of received items, rights or other benefits.

In the United Kingdom a corporation tax was introduced for the first time in 1965 and till this time

Corporate tax is an important contribution to Britain's overall tax revenues.

Currently, in the United Kingdom national corporate tax rate is 19%, the same as branch rate. However, in the United States the national rate is 21% but the branch rate is 21%/30%. Branch profits tax applies an additional 30% tax to foreign corporations that are involved in trading or operating in the US. In Russia the national and branch rate is 20% The 20% rate includes 3% paid to the federal budget and 17% to the regional budget (Deloitte, 2019).

Companies resident in the United Kingdom are usually subject to corporation tax on their global profits, but a few exemptions result in a corporation tax on UK-related activities. Tax is levied on the total amount of income received from all sources in the accounting period of the company, including possible capital gains. Nonetheless, the company may exempt the revenues and losses of UK non-UK branches from corporate income tax, subject to transitional provisions governing entry into the system. These elections shall be irrevocable and shall take effect from the accounting period subsequent to the period in which the elections were made (EY, 2018).

Companies that are not resident in the United Kingdom are usually subject to UK corporate income tax only when they operate in the UK through a permanent establishment.

Regarding corporate income tax, many provisions raise considerable controversy. The most problems of interpretation are caused by the catalogue of expenses included in the tax-deductible costs and the catalogue of exemptions in this respect. For example, in terms of tax-deductible costs, there are several thousand interpretations of tax authorities. A bit less, but also a lot is in terms of revenues. A large number of interpretations leads to serious tax problems. The consequence of the erroneous determination of the amount of tax-deductible costs may not only be a tax decision specifying the tax liability to pay along with interest, but also penal fiscal responsibility, e.g. tax evasion or attestation of an untruth in the preparation of tax declarations. In the case of entrepreneurs achieving high revenues, but also incurring high expenses, there is the highest risk of questioning the amounts reported in the declarations (Skarbiec, 2018).

Literature review

Taxes were already known and used in ancient times and from that time they took the form of tribute, contribution or even forced tribute. However, they were developed in the capitalist system in which they still constitute the main instrument of state intervention in the economic sphere. Wach (2006) defined tax system as a total number of taxes in force and applied at a given time in a given country. The tax system should be conducive to the country’s economic development and creation of new jobs, as well as to mobilize more complete professional activity and increase citizens’ trust in the law.

The tax system of industrialized countries is characterized by three basic features: strong tax pressure, the advantage of direct taxes in the structure of tax revenues, and the use of developed taxation techniques.

Furthermore, for a long time, corporate tax has been the subject of controversy in the field of finance and economics. Despite the numerous efforts made by national governments and other organizations, international corporations and their tax advisors consistently manage new regulations and discover new gaps that can be used. Promoting such behaviours contribute to the world-wide tax controversies. Already in the 1970s, corporation tax caused many controversies mainly due to its purpose and economic effects. Stiglitz (1976) suggests that the main reason for this controversy is that the tax impact depends critically on many details, including depreciation and interest deduction.

The House of Lords (2013) published a report on corporate tax in the United Kingdom. According to them, the UK struggles with the considerable problem of avoiding corporate tax, especially by international companies what is associated with serious social indignation. Currently, the tax system does not work properly and needs fiscal control and significant reform, the proposals of which have been presented in this report. Tax reform is first and foremost in the interest of the British government because corporate tax is an important component of the United Kingdom's total income. However, the current international corporate income tax system offers global companies an opportunity to transfer profits across countries to cut down tax liabilities and create unfair competition. One of the reform proposals is to reduce tax avoidance, to level the tax conditions between British and multinational companies and to restore citizens' trust in the tax system. Taxpayers suggest that the ideal tax system should be complex but not too oppressive (House of Lords, 2013).

There is a significant amount of evidence showing that effective corporate income tax rates have a strong impact on foreign direct investment (FDI). In previous research, Barry and Healy-Rae (2010) analysed the impact of corporate income tax rates on the location of FDI as well as on transfer pricing, corporate loans, and dividend payments in the European Union (EU). The article presents the decisions of the European Court of Justice that are relevant to international corporations and their choice regarding foreign direct investments. Furthermore, the European Court of Justice judgments have contributed to increasing the pressure on tax harmonization in the European Union and have encouraged the Member States to develop the Common Consolidated Corporate Tax Base (CCCTB). One of the problems that European Union bodies have to face is tax avoidance, the existence of different tax rates and reducing tax revenues by the Member States and the lack of a strong and effective tax supervision authority. As has already been mentioned, direct taxes fall within the competence of the state, however, national tax laws must respect Community law and all fundamental freedoms. In the conclusion of the article, Barry and Healy-Rae (2010) emphasized the need for greater and more effective harmonization in the tax aspect of the European Union. Effects of impressive European harmonization is visible in an article written a few years later by scientists from Kosovo (Morina and Peci, 2017).

A lot of attention has been focused on the subject of harmonization of corporate tax and its impact. Corporation tax harmonization within the European Union with the goals and challenges associated with it are analysed in the article by Morina and Peci (2017). The theory of international tax law has been specified which includes some methods used at the time of transferring the source of income from countries with high tax rates in countries with lower tax rates. This is linked with tax havens that were described in the earlier part of the work.

Also, the article mentions the Common Consolidated Corporate Tax Base (CCCTB) proposed by the European Commission which is a system for calculating the tax base for economic activities in the Community and strives to unify the rules for calculating the tax base in corporate income tax. Already at the beginning of the 21st century, the European Council set the goal to have the most competitive and dynamic economy in the world that will be favourable to entrepreneurs and encourage future investors (Morina and Peci, 2017).

In order to ensure sustainable economic development and growth in the European Union, as part of their strategy, some changes are needed regarding the elimination of all legal and fiscal barriers that hamper the integration of Member States' systems. As stated in the article harmonization of corporate tax in the European Union is a desirable and positive phenomenon and has an important impact on economic growth and sustainable development of the community. According to CCCTB companies are taxed on the basis of total income in all countries and a beneficial conclusion for some is the fact that economic losses in one will be offset by profits made in another to reduce the total tax base from all subsidiaries of the same taxpayer. Moreover, one of the advantages of this tax base is the elimination of the problem of setting transfer pricing for intra-group transactions. In line with the article it would be a good solution that the tax base should not be optional, but it has become compulsory for the majority of multinational companies and creates conditions that encourage a solid financing structure as well as greater stability and economic efficiency. However, ember States argue that the CCCTB violates their exclusive rights in the field of direct taxation. To somehow ensure the sovereignty of states, tax laws differ in individual EU countries, some to a very small extent and others to a large extent (Morina and Peci, 2017).

Picciotto (2013) focuses on the detailed concept of taxation in business in the international aspect. There are described problems regarding tax avoidance, double taxation, transfer price, and tax. Tensions in domestic tax systems and their differences on the international level have resulted in the need to apply fair, equal and effective taxation of international business. Since at least the First World War, economy have been dealing with the international interaction of tax systems however, the significant tax controversy and problems with international taxation took place in the 1970s in the United States and concerned Worldwide Unitary Taxation (WUT). It applied a division that was subject to taxation of a uniform entrepreneurial income for combined global operations. To avoid extending this method, a global campaign was launched that also focused on the issue of revenue allocation for globally integrated enterprises. This event led to increased control over the effectiveness of the enforcement of market pricing rules and to the development of the arrangements for the coordination of international business taxation. However, WUT met a lot of criticisms during that time but it was necessary to promote the system of international taxation and it had important consequences for international trade and investment. Administrative cooperation played a key role in the coordination of international corporation taxes because the government authorities wanted to avoid political problems, so they decided to use a more pragmatic solution like administrative processes (Picciotto, 2013).

Regarding the United Kingdom, Creedy and Gemmell (2009) analyse the increase in income from corporation tax and, according to them, this seems to be unstable in relation to the increase in profits. Moreover, the high volatility of the income elasticity is associated with the economic slowdown in those time. As far as the tax base is concerned, it has been shown that the changing revenues will be stable in the long run, but in the short term they will be unstable. The analysis shows the increase in the share of corporate profits in GDP, which increased the tax base in relation to GDP, was the key to the high level of corporation tax revenues since the mid-1980s in the United Kingdom (Creedy and Gemmell, 2009).

There is evidence that corporate tax controversies can be found in international companies such as Apple (Graham and O’Rourke, 2019) or Starbucks (Gay et al., 2017). These two controversies concern the British Isles, namely Ireland and the United Kingdom. Irish low corporation taxation caused quite a lot of issues, one of them is described by Sweeney (2010) and concerned to attracting foreign direct investment (FDI) principally US investment, through low taxation on corporate profits but also through Double Irish arrangement. It has been confirmed that Ireland hampered any action at EU level to coordinate corporation tax, however, in the last few years, the country has been trying to engage in a partnership with the EU to reach an agreement on a common corporate tax base. As stated in the article, the key industrial policy of the Irish government is low corporate tax, and it caused some dissatisfaction from other members of the European Union. Furthermore, this contributed to the race towards the bottom which is related to the rivalry of the corporation to pay fewer taxes (Sweeney, 2004). The reduction of corporation tax in Ireland has been very rapid, from 50% in 1976 to only 12.5% in 2003 and they have been tax innovators. Sweeney (2010) argues that Irish government is opposed to European tax coordination which results in dissatisfaction from other Member States that have asked the courts to get them to clarify and resolve the tax issues. Nowadays, as a result of tax competition between the Member States, the Irish corporate tax benefit has decreased, which has improved international relations. Nonetheless, Ireland no longer participates in the race towards the bottom, but other European countries have followed it and reduced tax rates. In addition, this article confirms the earlier view that, in an era of economic crisis, tax coordination must become a priority for the European Union to prevent corporate fraud (Sweeney, 2010).

Barry (2010) suggests that tax harmonization would be beneficial for the entire European Union and would lead to compliance of tax rates. Each country is equally attractive in terms of investment before tax considerations are taken into the account. However, harmonization at EU level can reduce its attractiveness and encourage future investors to invest outside its borders. It has been shown that the main competitors of Ireland are not other European countries, but states from another continent. It is worth mentioning that FDI is a large part of the Irish economy, so harmonization would have particularly damaging consequences for this country.

Likewise, Conefrey and Fitz Gerald (2011) argue that lowering the corporate income tax rate has made Ireland a more attractive and competitive localization for international high-profit companies. It also caused an increase in domestic production and exports. Notwithstanding, it led to a reduction in tax revenues to the state budget, but if it were not for the increase in transfer prices, the losses were much greater. Changing the corporation tax rate therefore does not only affect tax revenues but also transfer prices (Conefrey and Fitz Gerald, 2011).

Tax controversy of Apple Inc. has been noticed in Ireland and the European Union. In 1995-2007, Ireland experienced a period of dynamic economic development. At that time, the country had one of the most innovative and modern economies in the world. The European Commission has checked whether Ireland has established an illegal tax system with the American giant, allowing two branches of the company to pay fewer taxes. This was made possible by the so-called Double Irish, which allows companies to reduce the amount of taxes paid, according to which companies are subject to tax in the country in which they are based, and not in the one in which they are registered. Companies set up a company in such a country, and its branches invest in tax havens. However, the Irish government is gradually moving to end this model, so many international companies registered in Ireland will also be tax resident. Moreover, international companies that have so far used tax gaps will have time until 2020 to adapt to changes and modifications in the tax system will not apply to corporate income tax, which is unchanged at 12.5% (PAIH, 2018).

Graham and O’Rourke (2019) analysed the agreement of the European Commission on the corporate income tax between Apple Inc. and Ireland using the Critical Discourse Analysis (CDA) approach that is necessary to understand how economic and political decisions are revealed in everyday discourse. The analysis is intended to demonstrate a continuous crisis with regard to corporate income tax. As stated in the article Ireland has a neoliberal approach to the economy and is crucial in the study of neoliberal discourse. Moreover, it was a good example of a tax haven, so a lot of companies especially American ones chose this European country to save billions of euros in taxes. In defence of Apple's tax strategy, its CEO Tim Cook said, 'We do not stash money on some Caribbean island' (NBC News, 2013). This statement might be true because Apple found a new offshore and transferred its funds from Ireland to Jersey, an island in a Crown dependency which was considered a tax haven. However, the existence of small independent states in which there is no rule of law is not investigated but Apple, like any other company, will try at all costs to find a place where it will achieve the greatest financial benefits without breaking the law (Graham and O’Rourke, 2019).

Another interesting example of tax controversy by international companies has been analysed by Gay, Manwaring, and O’Rourke (2017) and concerns Starbucks in the United Kingdom. The protest group UK Uncut, which was founded to organize anti-tax evasion protests in the United Kingdom, began to boycott non-paying companies. In 2012, the organization began to protest against an American coffee company, which avoided paying taxes. This public outrage has attracted the attention of the Parliament, which called on Starbucks financial director to give evidence. According to UK Uncut, money that is lost as a result of taxation could be used to help homeless and needy people. The government should collect all due taxes so that social services can be provided, and that society can continue to enjoy its privileges. Despite the small number of quantitative data, the message of this article says that the state instead of deducting benefits and allowances from citizens should focus on the prosecution and enforcement of tax fraud because only then will it have enough funds to meet the needs of residents. Starbucks is an extremely popular cafe network in the world, so all the more it should take into the account public opinion. In the second part of the article, the answer of the financial director is unambiguous and says that Starbucks does not do anything illegal, pays all taxes and does not use tax havens. He also confirmed that the company pays a very high corporation tax and will not ask the tax relief, however, it did not stop boycotts and protests (Gay et al., 2017).

It has long been known that a more favourable corporation tax rate attracts international companies, and this affects their location decisions. Lawless, Mccoy, Morgenroth, and O”Toole (2018) investigated the impact of corporation tax on these decisions in newly established international companies in European countries. Corporate tax together with infrastructure, labour market costs, potential, and geographical factors are one of the most important factors when choosing the location of foreign corporations. Scientists (Lawless et al., 2018) suggest that some sectors such as financial one, are more sensitive to tax rates and in this case more than twice as sensitive. Despite the fact that the result suggests a negative impact of corporate income tax on the probability of location, public utilities, and the construction sector seem to be the least sensitive to tax changes. Furthermore, sectors that use advanced technology are less sensitive to changes than in low-tech usage places. Although the analysis takes into the account only the choice of location in Europe, but not the size of the investment, the quantitative and qualitative data contained in the article are presented in a detailed and precise manner, which allows for a better understanding of the issue (Lawless et al., 2018).

The results analysed by Romero-Jordán, Sanz-Labrador, and Sanz-Sanz (2019) show that corporate income tax has a negative impact on productivity growth in companies with the highest profitability. In many developed countries, lower thresholds for small enterprises are created in order to increase their number and encourage their establishment. Unfortunately, such a policy may also encourage larger enterprises to lower revenues for being one of these small companies and paying lower taxes. On the other hand, corporate tax prevents small and medium-sized enterprises from improving their performance and making investments that would result in higher productivity. The study focuses on Spain, which has more than any other European countries small and underdeveloped enterprises which understands the total factor productivity (TFP) of the country which was one of the causes of the economic crisis that began in 2008 (Romero-Jordán et al., 2019).

References

• Barry, F. (2010) 'The case against corporation tax harmonisation and tax-base consolidation: a view from Ireland', Transfer: European Review of Labour and Research, 6(1), pp. 71-80.
• Barry, F. and Healy-Rae, R. (2010) 'FDI Implications of Recent European Court of Justice Decisions on Corporation Tax Matters', European Business Organization Law Review, 11(1), pp. 125-146.
• Conefrey, T. and Fitz Gerald, J. D. (2011) 'The macro-economic impact of changing the rate of corporation tax', Economic Modelling, 28(3), pp. 991-999.
• Creedy, J. and Gemmell, N. (2009) 'Corporation tax revenue growth in the UK: A microsimulation analysis', Economic Modelling, 26(3), pp. 614-625.
• Gay, J., Manwaring, S. and O’Rourke, J. S. (2017) Starbucks Corporation: tax avoidance controversies in the United Kingdom A and B. [Online]. Available at: http://dx.doi.org/10.4135/9781526403407 (Accessed: 14th July 2019).
• Graham, C. and O’Rourke, B. K. (2019) 'Cooking a corporation tax controversy: Apple, Ireland and the EU', Critical Discourse Studies, 6(3), pp. 298-311.
• House of Lords (2013) Tackling corporate tax avoidance in a global economy: is a new approach needed?, London: the Authority of the House of Lords.
• Lawless, M., Mccoy, D., Morgenroth, E. L. W. and O”Toole, C. M. (2018) 'Corporate tax and location choice for multinational firms', Applied Economics, 50(26), pp. 2920-2931.
• Morina, F. and Peci, B

   

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