Giuseppe Sandro Mela.
2016-09-28.
«Caro professore, lei guadagna miseramente poco per poter pensare di eludere il fisco. Se lei guadagnasse normalmente, diciamo almeno venti milioni al mese, allora non pagherebbe un centesimo. Si rassegni».
Così il mio commercialista mi ha liquidato con un oceano di tasse da pagare.
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«Such trades are all about the acquisition of shares with (cum) a dividend on or just before the dividend record date and delivery of these shares after that date without (ex) dividend payment. The practice obviously made it possible to obtain multiple refunds of capital gains that had only been paid once to the German fiscal authorities.»
«What is ‘Cum Dividend’
Cum dividend, which means “with dividend,” is when a buyer of a security is entitled to receive a dividend that has been declared, but not paid. A stock trades cum-dividend up until the ex-dividend date, after which the stock trades without its dividend rights. Cum dividend is used to describe a share in which the investor who purchases it is entitled to the next dividend scheduled for distribution.
BREAKING DOWN ‘Cum Dividend’
With cum dividend, the seller is not only selling the right to the share, he is also selling along with it the rights to the next distribution. Often, this determination is made more by the timing of the sale than by a specific choice on the part of the seller.
In order to purchase a share sum dividend, it must be purchased by a certain point in the dividend period, to complete the recording of the transaction in time to receive the distribution. If the deadline is not met, the share may be sold ex-dividend, meaning without the right to the next distribution. The dates are set based on the declaration date and recording date chosen by the company whose stock is involved.
There is no specific schedule for the release of dividends, so the dates can vary from company to company. Some companies may offer quarterly dividends, while others may only pay dividends once or twice a year. While it is not considered common, some companies even pay dividends monthly.
Declared Dividends
Cum dividend rights include those associated with the next declared dividend. A declared dividend is the amount that has been agreed upon by the board of directors, through a motion authorizing the payments, and effectively functions as a liability for the company. As dividends are portions of a company’s profit, these amounts have the potential to fluctuate.
Once the dividend is declared, the company sets a recording date that must be met in order to receive the dividend. Often, a share must be purchased a minimum of two business days prior to the recording date to be entitled to the dividend. This cutoff date is referred to as the ex-dividend date, or ex-date. If the share is purchased after the ex-date, it is being sold ex-dividend instead of cum dividend.» [Fonte]
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Quindi, di per sé il problema risulterebbe essere semplice.
Il problema nasce dal fisco locale, che peraltro non saprebbe come tassare quello che crederebbe fosse tassabile, anche perché in realtà non saprebbe nemmeno dove fosse.
Non è un gioco di parole.
«The German and international financial industries and their advisors have come under new pressure to investigate so-called ‘cum/ex’ trades conducted between 2000 and 2012. For many years, tax authorities and criminal prosecutors have pursued banks and their advisors for claiming tax refunds in connection with stock trades conducted around the time of a company’s dividend date. According to some estimates, cum/ex trades generated more than USD 10 billion in tax refunds for banks, investors and other counterparties in the financial industry. Now, new risks for the financial industry are emerging as a result of a series of recent events.
Cum/ex trades raise multiple legal, compliance and regulatory issues for a variety of institutions and individuals. Banks, brokers, clearing houses, tax advisors, lawyers and investors could find themselves confronted with tax reimbursement claims, criminal prosecution, fines and imprisonment, and damages claims. Moreover, cum/ex trades carry reputational risk for anyone involved in such transactions.
Banks and other financial institutions should set up an inventory of all trades in German stock and ancillary transactions conducted around the time of dividend payment dates between 2000 and 2012. Based on this, a thorough analysis should be carried out to evaluate tax and criminal law risks for the company and its employees, directors and officers. It is advisable to assess the necessity of amending past tax declarations (section 153 of the German Fiscal Code (Abgabenordnung)), and of opting for voluntarily disclosing tax liabilities (sections 371, 378 of the German Fiscal Code).
Before we highlight the key legal issues, we will first provide a brief overview of recent events in this area that some observers believe have the potential to be game changing.» [Fonte]
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Il fisco di un paese vorrebbe, ma in realtà non può, tassare una qualche operazione avvenuta fuori dal suo territorio, non contabiizzata, non contabilizzabile.
Ciò sarebbe possibile soltanto se vi fossero chiare leggi e regolamenti internazionali, che però non solo non ci sono, ma che nessuno vorrebbe. E se ci fossero, ben pochi rispetterebbero.
Infine, i mercati sono diventati talmente complessi che il fisco non riesce a categorizzare tutte le possibili evenienze.
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Adesso immaginatevi la scena.
Al tavolo di riunione stanno seduti da un lato cinque dipendenti del fisco, duemila euro al mese ed una laureetta con 65/100 conseguita in una oscura università per corrispondenza. Dall’altra cinque tra avvocati e commercialisti, laurea ad Harvard, master alla Colombia, dieci anni di esperienza a Shanghai ed altrettanti al London Stock Exchange, dieci milioni al mese di guadagno netto.
Fate Voi.
Authorities in the western German state of North Rhine-Westphalia have intensified their investigations into a possible large-scale tax fraud. More than 100 banks may have been involved in so-called cum-ex trades.
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Media reports said Monday that fiscal authorities in North Rhine-Westphalia had stepped up their efforts to investigate whether scores of domestic and foreign banks had been involved in a fraudulent scheme stripping the state of more than 10 billion euros ($11.2 billion) in tax revenue.
According to German daily “Süddeutsche Zeitung” and public broadcasters NDR plus WDR, the target of the investigations were lenders in the US, the UK, Switzerland and France.
Current investigations are being pursued on the basis of sensitive data contained on a CD that German authorities bought from an industry insider a couple of years ago.
No one will be let off the hook
Among the banks in the firing line are JP Morgan, Morgan Stanley, Barclays, HSBC as well as UBS and BNP Paribas.
Authorities are looking into so-called cum-ex trades, which are tax-driven share transactions made around dividend record dates.
Such trades are all about the acquisition of shares with (cum) a dividend on or just before the dividend record date and delivery of these shares after that date without (ex) dividend payment. The practice obviously made it possible to obtain multiple refunds of capital gains that had only been paid once to the German fiscal authorities.
The finance minister of North Rhine-Westphalia, Norbert Walter-Borjans, said the suspected culprits “should not expect the state to let the valuable data on the obtained CD rot away in some drawers.”
He noted that some of the banks in question had already started talks with the authorities, declaring their willingness to cooperate. He called on all the others to follow suit.
The Panama Papers have revealed a vast network of dubious offshore companies, ostensibly used to hide depositors’ money from tax authorities. Politicians have been trying for years to shut down such oases.
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It all began in 1998 with an attempt to list all the countries whose tax laws violated the principle of fair competition. At the time, the Organization for Economic Cooperation and Development, a club of the world’s richest countries, spearheaded its “Harmful Tax Competition” initiative, which aimed to combat tax havens. It didn’t take long for OECD member states Switzerland, Austria, Belgium and Luxembourg to start making a fuss. They saw their models of banking secrecy endangered. But they finally came around – albeit only slightly – once the OECD’s requirements were loosened.
When the European Savings Directive was adopted in 2005, however, the four staged a successful resistance. Instead of sharing information on foreign depositors with authorities back in their home countries, the four were able to push through a measure that foresaw them charging a so-called “withholding tax,” which applied to capital gains. The result was that any hoped-for transparency fell by the wayside.
The financial crisis turns up the heat
It wasn’t until the global financial crisis struck in 2009 that the dynamic changed in the fight against tax evasion. Suddenly, countries were scrambling to align their tax laws in order to prevent potential tax revenues from slipping through their fingers. Governments – and by extension, taxpayers – were being saddled with the cost of bailing out banks, and their patience with countries that had been black-listed by the OECD for maintaining strict banking secrecy was wearing thin. That atmosphere eventually led countries like Lichtenstein, Andorra or Monaco to relent and loosen their policies of secret keeping.
The end of banking secrecy
On October 29, 2014, 51 countries effectively agreed to abolish banking secrecy, signing an agreement that had been written according to OECD standards. There were 100 other countries that weren’t signatories, but they had at least expressed their support for the measures outlined in the agreement.
Among those onboard were important financial hubs, such as Switzerland, Lichtenstein and Singapore. There were also several countries in the Caribbean and the Channel Islands, which had traditionally been a hub for so-called letterbox companies.
Panama and the US distinguish themselves
It’s worth mentioning that Panama was as dismissive of the new OECD standards as the United States. “Panama was initially willing to participate, but it changed its mind when it saw that the US wasn’t onboard,” Markus Meinzer of the Tax Justice Network was quoted by Spiegel Online as saying. The Americans were cracking down on tax fraud as long as it was lucrative for them, but states like Nevada and Delaware are still home to many shell companies, according to Spiegel Online.
The agreement binds the signatories to informing each other about the foreign accounts of individuals. The automatic exchange of information was aimed at making it easier for tax authorities to control the flow of money abroad and fight tax evasion.
Exchanging data and information
Banks and other financial institutions are still required to report on interest, dividends, account balances or proceeds from the sale of financial assets to domestic authorities. This happens if the beneficiary of such transactions lives abroad.
Furthermore, the agreement also sets the rules for special and spontaneous requests from authorities of another state. It foresees allowing authorities to deny such requests from their counterparts on the grounds that the relevant information is in a bank’s possession.
The new regulation applies to accounts that were opened from January 2016 onward. Starting in September 2017, countries will be able to exchange data among themselves.
Closing tax loopholes
Meanwhile, some of the world’s leading industrial nations have come up with an action plan for closing tax loopholes exploited by multinationals. In mid-January, representatives from more than 30 countries signed their first detailed agreement. The deal foresees internationally active companies reporting about their business undertakings and proceeds in various countries. This information would then be automatically exchanged between national tax authorities. The aim is that corporations are then taxed appropriately in all countries – another one of the OECD’s ideas.
The OECD spoke of a “milestone,” referring to its successful bid at pushing through its so-called BEPS initiative. BEPS stands for “base erosion and profit sharing,” which is jargon used to describe the negative effect that multinational companies’ tax evasion has on countries’ tax bases. It refers to the practice of firms like Google, which managed to avoid paying any taxes on its profits using subsidiaries in Bermuda, Ireland and the Netherlands.
G20 is onboard
An action plan to rein in such practices was formally adopted at the G20 summit in Antalya last year. Specifically, summit attendees focused on point 13 of the 15 that the OECD’s BEPS plan had laid out. The requested country-specific reports are to be compiled by parent companies in the country in which they reside. Those reports will then be automatically exchanged with tax authorities in other countries – although they won’t be made public. But only companies with foreign subsidiaries and annual revenues of at least 750 million euros ($854.4 million) are subjected to the new rules. In Germany, fewer than 1,000 companies are expected to be affected.
Money laundering directives
Since the summer of 2015, the EU’s fourth Money Laundering Directive has been in effect. It is aimed at hindering terrorism financing and transactions on the black market by, first and foremost, compiling exact records of people and their bank accounts. In order to combat money laundering, the German finance ministry also monitors cash payments – a controversial issue as it concerns the privacy of individual citizens.
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