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GAO-11-313 Illicit Tobacco: Various Schemes Are Used to Evade Taxes

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GAO-11-313 Illicit Tobacco: Various Schemes Are Used to Evade Taxes United States Government Accountability Office Report to Congressional Committees GAO March 2011 ILLICIT TOBACCO Various Schemes Are Used to Evade Taxes and Fees GAO-11-313 March 2011 ILLICIT TOBACCO Accountability • Integrity • Reliability Various Schemes Are Used to Evade Taxes and Fees Highlights of GAO-11-313, a report to congressional committees Why GAO Did This Study What GAO Found Federal and state governments have Tobacco products face varying levels of taxation in different locations, raised excise taxes on tobacco creating opportunities and incentives for illicit trade. Cigarettes are taxed at products to discourage tobacco use the federal, state, and in some cases, local levels. According to industry and increase revenues. Cross-border representatives, taxes and other fees make up significant components of the and illicit trade in tobacco products final price of cigarettes, averaging 53 percent of the retail price. While the can undermine these policy national average retail price of a pack of cigarettes was $5.95 in 2010, in New objectives by avoiding excise taxes York City, a pack can cost up to $13.00 or more due to high combined state and increasing the availability of and city taxes. In contrast, a pack of cigarettes in Richmond, Virginia, can cost these products to consumers at lower approximately $5.00, due to low state cigarette taxes there. The tax cost. differential between a case of cigarettes (typically containing 12,000 On June 22, 2009, Congress passed cigarettes) in New York City and Richmond is over $3,000, creating incentives the Family Smoking Prevention and for illicit trade and profits. Excise taxes and other fees on tobacco products Tobacco Control Act (Pub. L. No. can be evaded at numerous points in the supply chain. Law enforcement 111-31), which directed GAO to officials told us another incentive to engage in this activity is the fact illicit report on cross-border and illicit tobacco penalties are comparatively less severe than other forms of illicit trade in tobacco products. Cross- trade. border trade is defined in the Act as trade across a U.S. border, state, According to experts we spoke with and literature we reviewed, a wide range territory, or Indian country. Illicit of schemes are used by different actors to profit from illicit trade in tobacco trade is defined in the Act as any products, mainly through the evasion of taxes. Schemes can range from practice or conduct prohibited by law individual consumers purchasing tax-free cigarettes from Internet Web sites, which relates to or facilitates the to larger-scale interstate trafficking of tobacco products, to smuggling production, shipment, receipt, cigarettes into the country by criminal organizations. For example: possession, distribution, sale, or purchase of tobacco products. This A California distributor purchased approximately $1.4 million in other report is the first of two GAO tobacco products (e.g., cigars and chewing tobacco) from an out-of- products that will respond to this state distributor, who disguised the shipments using falsified mandate. documents and black plastic wrapping. The California distributor This report examines (1) incentives then sold it to customers and failed to pay state excise taxes. that are important for understanding A criminal organization attempted to conceal two containers of cross-border and illicit trade in counterfeit cigarettes and pass them through Customs at the Los tobacco products; and (2) different Angeles/Long Beach port by declaring them as toys and plastic goods. schemes used to generate profits A manufacturer evaded Tobacco Master Settlement Agreement (MSA) from cross-border and illicit trade in escrow payments. The manufacturer underreported its cross-border tobacco products. GAO interviewed sales to numerous states, including Virginia. By underreporting its government officials, industry sales to Virginia, the manufacturer evaded approximately $580,000 in representatives, and other subject escrow payments. matter experts. GAO collected and analyzed data from these sources and reviewed relevant literature. Law enforcement officials reported that patterns of schemes are dynamic and identified links between illicit trade in tobacco and other crimes. View GAO-11-313 or key components. For more information, contact Loren Yager at (202) 512-4347 or [email protected]. United States Government Accountability Office Contents Letter 1 Appendix I Briefing Pages 5 Background 5 Incentives 10 Schemes 16 Appendix II GAO Contacts and Staff Acknowledgments 23 Abbreviations ATF Bureau of Alcohol, Tobacco, Firearms, and Explosives CBP Customs and Border Protection MSA Master Settlement Agreement TTB Alcohol and Tobacco Tax and Trade Bureau This is a work of the U.S. government and is not subject to copyright protection in the United States. The published product may be reproduced and distributed in its entirety without further permission from GAO. However, because this work may contain copyrighted images or other material, permission from the copyright holder may be necessary if you wish to reproduce this material separately. Page i GAO-11-313 Illicit Tobacco United States Government Accountability Office Washington, DC 20548 March 7, 2011 The Honorable Tom Harkin Chairman The Honorable Michael B. Enzi Ranking Member Committee on Health, Education, Labor, and Pensions United States Senate The Honorable Fred Upton Chairman The Honorable Henry A. Waxman Ranking Member Committee on Energy and Commerce House of Representatives Tobacco use is the leading cause of preventable death in the United States and a significant contributor to health care costs in this country. According to the Centers for Disease Control and Prevention, smoking accounts for over 400,000 premature deaths per year—including almost 50,000 deaths among nonsmokers due to second hand smoke—and costs the United States an estimated $193 billion in health care expenditures and loss of productivity. Past federal and state legislation has aimed to discourage tobacco use and raise revenues by increasing excise taxes on tobacco products. However, cross-border and illicit trade in tobacco products can undermine these policy objectives by avoiding taxes and increasing the availability of these products to consumers at a lower cost, including youth smokers. Illicit trade in tobacco products, according to U.S. law enforcement agencies, is also a source of financing for both domestic and international criminal activities. In June 2009, Congress passed the Family Smoking Prevention and Tobacco Control Act,1 with the purpose of granting the Food and Drug Administration regulatory authority over the manufacture, marketing, and distribution of tobacco products.2 The Act also directed us to provide information on cross-border and illicit trade in tobacco products, including the monitoring of such trade; cross-border advertising of 1Pub. L. No. 111-31, Div. A, 123 Stat. 1776 (2009). 2Pub. L. No. 111-31, § 3. Page 1 GAO-11-313 Illicit Tobacco tobacco products; and the health effects resulting from cross-border and illicit trade in tobacco products, including the health effects from differing tax rates applicable to tobacco products.3 The Act defined cross-border trade as trade across the border of the United States, a State or Territory, or Indian country.4 This report examines (1) incentives that are important for understanding cross-border and illicit trade in tobacco products; and (2) the different schemes used to generate profits from cross-border and illicit trade in tobacco products. The results of our work are contained in appendix I. As discussed with your staff, we believe this information about the industry structure and the incentives for illegal trade as well as the different types of schemes used to generate profits is essential to the evaluation and design of policy measures that address illicit trade in those products. In accordance with our agreement with the Senate Committee on Health, Education, Labor, and Pensions, and the House Energy and Commerce Committee, we will issue a second report in 2011 that will provide additional information and findings on U.S. government efforts to monitor cross-border and illicit trade in tobacco products and will also address cross-border advertising and the health effects from cross-border and illicit trade, as directed by the Act. To address these objectives, we interviewed subject matter experts with varying backgrounds and points-of-view in order to understand the range of perspectives on illicit trade in tobacco products, including discussions on industry characteristics and varying incentives and methods of illicit trade, among other issues. Our criteria for selecting experts included the type and depth of experience; for instance, whether the expert had authored a widely referenced study or article on the topic, and whether the expert was referred to us by at least one other interviewee as someone knowledgeable about the topic. In addition, we sought representation of relevant organizations and sectors including, where applicable, representatives from government, academia, industry, and professional organizations. The subject matter experts we contacted included officials from the Departments of Health and Human Services, Homeland Security, Justice, and Treasury; the Federal Trade Commission and state agencies; representatives from nongovernmental organizations and major tobacco 3Pub. L. No. 111-31, § 302(a). 4Pub. L. No. 111-31, § 302(c). Page 2 GAO-11-313 Illicit Tobacco manufacturers;
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