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Member States' Capacity to Fight Tax Crimes

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Member States' Capacity to Fight Tax Crimes Member States' capacity to fight tax crimes Ex-post impact assessment Member States’ capacity to fight tax crimes Member States' capacity to fight tax crimes Ex-post impact assessment On 20 October 2016 the PANA Committee requested a study to investigate cases of tax evasion, tax avoidance, tax fraud and money laundering at EU Member State level, and to provide a retrospective overview of the systems implemented by the Member States and an ex-post evaluation of the performance of the competent administrative and judicial authorities. The resulting analysis is supported by contributions received from the Member States following the Committee Chair's request (late 2016) for information, sent to the minister(s) responsible in each Member State, on the relevant national legal definition(s) of tax-related crimes, the organisation of tasks between national administrations and the judiciary, staff resources and working methods, as well as the results achieved to date. The analytical work was carried out in house by the Directorate–General for Parliamentary Research Services (DG EPRS) Ex-Post Evaluation Unit. Abstract This study investigates national provisions to combat tax avoidance and tax evasion, plus money laundering laws and their enforcement. It furthermore examines the administrative capabilities of Member States to tackle these challenges. To conclude, the study reviews the specific interventions of Member States in response to the publication of the Panama Papers. The main aim of this analysis is to evaluate whether the legal framework and the institutional arrangements in place are adequate, what are the deficiencies and how they could be addressed. PE 603.257 1 Ex-post impact assessment AUTHORS Elodie Thirion, Ex-Post Evaluation Unit Dr Amandine Scherrer, Ex-Post Evaluation Unit The authors would like to thank Maurice Hameleers, trainee in DG EPRS, who provided valuable help with background research and drafting. ABOUT THE PUBLISHER This paper has been compiled by the Ex-Post Evaluation Unit of the Directorate for Impact Assessment and European Added Value, within the Directorate–General for Parliamentary Research Services of the Secretariat of the European Parliament. To contact the unit, please email [email protected] LANGUAGE VERSIONS Original: EN This document is available on the internet at: www.europarl.europa.eu/thinktank DISCLAIMER AND COPYRIGHT This document is prepared for, and addressed to, the Members and staff of the European Parliament as background material to assist them in their parliamentary work. The content of the document is the sole responsibility of its authors and any opinions expressed herein should not be taken to represent an official position of the Parliament. Reproduction and translation for non-commercial purposes are authorised, provided the source is acknowledged and the European Parliament is given prior notice and sent a copy. Manuscripts completed in July 2017. Brussels © European Union, 2017 PE 603.257 ISBN 978-92-846-1256-7 doi: 10.2861/0761 QA-01-17-727-EN-N PE 603.257 2 Member States’ capacity to fight tax crimes Table of Contents List of abbreviations and acronyms ............................................................................................ 5 List of tables .................................................................................................................................... 6 Executive summary ....................................................................................................................... 7 Methodology .................................................................................................................................. 9 Part I: Legal analysis of national definitions, national laws, and the implementing provisions of EU laws relating to tax avoidance, tax evasion and money laundering .......................................................................................................................................... 12 Key findings .................................................................................................................................. 12 1. Developing international and EU legal frameworks ......................................................... 14 1.1. International action ............................................................................................................... 14 1.2. EU instruments and main EU legal acts ............................................................................ 15 1.2.1. EU non-legislative framework ......................................................................................... 15 1.2.2. EU legislative framework ................................................................................................. 17 2. Diverging national legal frameworks ................................................................................... 21 2.1. The grey zone of tax avoidance ........................................................................................... 21 2.2. Different legal mechanisms for fighting tax evasion ....................................................... 23 2.2.1. A mix of administrative and criminal offences .............................................................. 23 2.2.2. Differences between the persons who can be sentenced .............................................. 24 2.2.3. Tax evasion without intent ............................................................................................... 24 2.3. The fourth AML Directive ................................................................................................... 24 3. Conclusions ............................................................................................................................... 27 Part II: Member States' administrative capabilities in the area of tax crime ........................ 29 Key findings .................................................................................................................................. 29 1. Key institutional actors .......................................................................................................... 31 1.1. Tax administration and customs ......................................................................................... 31 1.2. Law enforcement authorities ............................................................................................... 34 1.3. Financial Intelligence Units (FIUs) ..................................................................................... 35 1.4. Financial regulators .............................................................................................................. 36 2. Inter-institutional cooperation models ................................................................................. 36 3. Challenges mentioned in the submissions ........................................................................... 38 4. Conclusions ............................................................................................................................... 40 Part III: Enforcement of rules ..................................................................................................... 42 Key findings .................................................................................................................................. 42 1. Non repressive compliance models...................................................................................... 44 1.1. Voluntary disclosure programmes ..................................................................................... 44 1.2. Settlement procedures .......................................................................................................... 45 2. Repressive compliance schemes ............................................................................................ 46 2.1. Tax evasion: a dual system of penalties ............................................................................. 46 2.2. Money laundering is always criminalised ......................................................................... 48 2.2.1. Enforcement of sanctions .................................................................................................. 48 2.2.2. Prosecution regimes........................................................................................................... 49 PE 603.257 3 Ex-post impact assessment 2.2.3. Efficiency of asset recovery ............................................................................................... 50 3. Conclusions ............................................................................................................................... 51 Part IV: Measures taken by EU Member States in response to the publication of the Panama Papers .............................................................................................................................. 52 Key findings .................................................................................................................................. 52 1. Nature of the information contained in the Panama Papers............................................. 54 1.1. Processing the Panama Papers data ................................................................................... 54 1.2. Analysing the Panama Papers data .................................................................................... 54 2. Supervisory activity and investigations initiated ...............................................................
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