Sri Lanka’s ripped income tax net

Sri Lanka collects less tax than countries in sub-Saharan Africa. The problem is weak income tax compliance

Poor countries struggle to raise adequate tax revenue to pay for public infrastructure. This is a cost of being poor; most people are penniless and much economic activity is in the informal sector, which puts it beyond the taxman’s reach.

Businesses and wealthy people who should pay tax on profit or income don’t feel compelled to do so because government is usually corrupt, infrastructure derelict and nobody else is paying taxes anyway.

Income tax, which businesses and the self-employed pay on their profit and those with jobs pay on their income, is relatively easy to dodge. Although tax dodging – also called evasion – is a criminal offence, gathering evidence to prove a case is impossible where cash transactions are the norm and companies don’t keep detailed records.

The other major tax source is consumption. A country with enough resources invested in administration can successfully enforce consumption tax by requesting companies to pay a portion of turnover as tax. Enforcement is easy because it’s a simple, efficient and difficult-to-evade tax.

Sri Lanka is no longer a poor country. It rose above abject poverty ranks after the economy was opened to market forces in the late 1970s and collecting a share of business revenue as turnover tax became more and more viable. Soon enough, the equivalent of more than 20% of GDP was being collected in income tax, turnover tax and import levies combined.

In the last decade-and-a-half things have gone horribly wrong. In 2015, tax collections as a percentage of GDP declined to 12% – lower than levels seen in most of Sub-Saharan Africa. The Center for Tax and Development estimated three years ago that the average tax takes in Sub-Saharan Africa had risen from 12% of GDP in 1990 to 15% by 2010. The turnaround in Sub-Saharan Africa is due to implementation of value added tax (VAT) and the creation of autonomous tax agencies.

Sri Lanka’s challenge is that, at the equivalent of two percent of GDP, income tax contribution to revenue is low. Prime Minister Ranil Wickremesinghe set the goal to increase income tax contribution to total tax revenue from 18% to at least 40% when he announced the medium term economic plan.

Sri Lanka’s income tax-to-GDP, at two percent, is much lower than that of some peers in the middle-income group: Georgia and Mongolia have nine percent, Bhutan 7.7%, Samoa 5.6% and even troubled Egypt has six percent.  Sri Lanka’s total tax income as a percentage of GDP fell from nearly 20% in the 1970s to 11.4% in 2014, lagging behind several developing country peers: Georgia has 24%, Samoa 23%, Ukraine 18%, Armenia 17.5% and Tunisia 21%, according to International Monetary Fund (IMF) data.

There are three reasons for this. First, income tax evasion here is widespread for an economy in Sri Lanka’s state of development. Second, the tax code has too many loopholes, making it easy to avoid taxes (without committing a criminal offence). Third, Sri Lanka’s revenue department is not an autonomous agency.

If the income tax to consumption tax ratio is to improve from 18:82 to 40:60 (which is widely regarded as a comfortable level for equitable growth), income tax-to-GDP must reach at least six percent – assuming no taxes and rates are changed.

Tax-Grpahic

“If tax evaders are brought into the net we could collect another 1.5% of GDP,” says former Inland Revenue Department (IRD) Chief and a member of the 2009 Presidential Taxation Commission, R. P. L. Weerasinghe.

The IMF estimates that Sri Lanka loses tax revenue equivalent to 1.33% of GDP from tax holidays and concessions to businesses – many of which the government has agreed to discontinue for new investors. Roping in evaders and discontinuing tax holidays and concessions over the next few years will still leave another 1.2% gap.

“Professionals and businesses are probably not paying a fair share because of loopholes in the law,” a tax consultant for a Colombo office of one of the top four global audit firms said. “Either that, or they are smarter than the IRD.”

In Sri Lanka, as in many other countries, individuals and corporates assess their own taxable incomes and liability. Tax rules are complicated. Different income items are taxed at different rates and not all expenses can be deducted. A tax consultant can help unravel these. In Sri Lanka, detecting tax evasion is difficult and proving it is tougher.

The IRD collects data from several agencies and manually sifts and compares this to try and find income tax evaders. Customs and excise departments share information with the IRD, on import and other taxes they collect. The Registrar of Companies and the Registrar of Motor Vehicles send records on new companies and vehicle purchases each month.

“We get import data from Customs daily, but it takes a month for us to compare it with other data. And by the time we decide to investigate, the trail has already turned cold,” IRD Assistant Commissioner Gamini Waleboda, President of the IRD Executive Officers Union, says.

The IRD also receives vehicle leasing data from finance companies. When expensive vehicles change hands, tax investigators again cross-reference their own database. The same goes for land transactions in which cases the Land Registry shares information with the IRD. Tax investigators track down possible tax evaders, but collecting enough proof is difficult. Banks won’t share information with the IRD without a warrant, but to prepare a warrant the IRD must know specific account numbers. The possible evader may give the IRD an account number maintained for normal banking activities.

“Proving that a person is earning enough to pay income tax is the most difficult thing. We cannot assume anything,” IRD Deputy Commissioner Upali Abeysingha says.

Companies evade taxes by maintaining two separate sets of books, one with overstated costs and understated revenue to minimize profits so that the tax liability will be minimal. Traders have been caught in the Pettah, Colombo commercial hub, running meager stores as a front with sprawling stores elsewhere in the city. Expensive vehicles and houses are registered under family members’ names.

Professionals are the other big income tax evaders. Weerasinghe says doctors and lawyers in particular were adept at evading taxes.

Private hospitals don’t always accurately disclose payments made to doctors. Abeysingha claims that the IRD has evidence of hospitals understating the number of patients treated by doctors and not issuing vouchers for doctor payments. Some hospitals issue multiple sets of consultation numbers from one to 20 to dupe the tax authority into believing a particular doctor saw only 20 patients that day. When it comes to lawyers, tax officers know some of them mint money but cannot prove it. They have no access to court registries and, in the case of corporate lawyers, the IRD cannot trace payments for legal services.

“Only when these doctors or lawyers invest in something like a house or vehicle do they get captured in the system,” Weerasinghe says, “but then, details must be manually referenced to come up with a credible pattern to build a tax evasion case.”

Family-owned businesses often charge personal expenses to the company to understate profits and reduce tax liability. The income tax law only allows expenses directly related to a business to be deducted for tax purposes.

Professionals and businesses are probably not paying a fair share because of loopholes in the law,” a tax consultant for a Colombo office of one of the top four global audit firms said. “Either that, or they are smarter than the IRD

“This rule is often violated,” Abeysingha says, but tax officers have to rely on audited accounts, and making sure all tax filings are clean can be a daunting task.

The IRD audits only three percent of tax files each year. It does not have the capacity to dig deeper into existing taxpayers let alone uncover the evaders outside the income tax base.

Tax evaders are let off with a light sentence in Sri Lanka, unlike in other countries. Spain, for example, gave football superstar Lionel Messi a 26-month jail term for tax fraud. In Sri Lanka, tax evaders are made to pay one to two years’ taxes and a penalty of Rs50,000.

“Our policy is not to harass people into paying taxes so our penalties are not that tough,” Abeysingha explains.

Sri Lanka’s tax code is complex and in constant flux. Making use of loopholes is not illegal. Tax avoidance is the deliberate misuse of legal loopholes to wriggle out of paying a fair share of taxes. There are several ways in which companies minimize their tax liabilities.

Former IRD Chief, Weerasinghe, other IRD officials and the tax consultant who spoke to Echelon on condition of anonymity agree that the most common way in which companies avoid taxes is through inter-group transactions.

Companies making a turnover below Rs250 million or profit below Rs5 million are taxed at 12%. “When they near this threshold, we’ve seen companies open subsidiaries to stay below the range and avoid the higher tax,” IRD Deputy Commissioner Upali Abeysingha says, adding that “this is permissible by law”.

Companies above the turnover or profit limits are taxed at 17.5% and 28% in the case of a trading company.

Intergroup fund transfers are another common avenue of tax avoidance, especially when one of the companies in the group falls within the 12% tax rate limit or enjoys tax concessions such as those granted to Board of Investment (BOI) approved companies.

“We constantly see goods and service being sold below market price to such companies within a group,” IRD Assistant Commissioner Gamini Waleboda, President of the IRD Executive Officers Union, says.

Although the group profits may not change, the taxes are charged separately. Liability of the group to taxation can thus be reduced by deflating profits at the entities within the higher tax margins and inflating profits at those within the lower. The tax code prohibits this practice but it is not easy to capture when IRD officers only have audited final accounts to go by.

Many BOI companies were engaged in this practice when their tax holidays lapsed several years ago. They then opened new companies with new tax holidays and concessions.

Multinationals use intergroup transactions or transfer pricing to evade taxes in countries where rates are higher, by overstating profits in countries offering tax holidays or lower rates. Developed countries have introduced transfer pricing laws to prevent tax evasion of this nature.

In 2006, Sri Lanka introduced transfer pricing rules applicable even to domestic groups of companies, to its tax code. But the rules were vague, requiring companies to conduct intergroup transactions at arms-length – at market rates, in other words.

“We plugged the transfer pricing loophole, but it was not easy to implement because there was no direction on how goods or service can be priced,” Weerasinghe says.

Transfer pricing rules were tightened in 2013 and again in 2015, requiring companies to list all transfer pricing transactions and have them certified by auditors. “The rules are not applied across the board,” the tax consultant said.

IRD’s Waleboda says it is not easy detecting irregularities because the IRD still depends on information provided by the taxpayer.

Interest expenses on borrowings are tax deductible anywhere in the world. But when a company borrows from a bank and transfers the funds to other companies within the group which fall under a lower tax threshold, there is room to avoid taxes. The tax code imposes a limit on how much of the interest expense can be written off when a company borrows funds to transfer to another company within the group which nevertheless pays income tax at a lower rate. Companies keep pushing the limit hoping it can continue undetected.

With BOI tax holidays and concessions to be phased out, inter-group transactions will no longer be widespread. They will nevertheless continue to be a concern with the three-tiered (12%, 17.5% and 28%) income tax structure for companies.

Companies where ownership is closely held by an individual or a family are particularly tricky. Director salaries are liable for PAYE (Pay As You Earn) tax, but profits are enjoyed by owners in other ways. Companies provide directors with housing, vehicles and other personal expenses while overseas travel expenses are also charged to the company.

The tax code does not allow directors or owners to expense deductions for tax purposes except under specific conditions. The company must prove these benefits are directly related to the profit-generating operations of the company. Even if they are, the director must still pay personal income taxes for these benefits.

“Making a call on these is not always easy,” Waleboda says. “The law is complicated and interpretations can vary.”

Tax-dodgers not only gamble on the incompetence of tax officers, but also get inside help. Waleboda admits there are IRD officers who can be bought.

There is no point having the tools to deal with evasion and avoidance if they are not used and you can keep dancing to the tune that lowering tax rates will widen the base, but this will never happen. You must first fix the institutional weaknesses, former IRD chief Weerasinghe says

“We need to see changes and this must start from the top,” he says. “We need competent, creative and bold professionals to give leadership to the department. Individuals cannot change in a vacuum; the institution must be strengthened.”

It is hoped that the Revenue Administration Management Information System (RAMIS) which is expected to come online before the end of 2016 will tilt the income tax evasion and avoidance game in the IRD’s favour. But tax officials are not enchanted by RAMIS; their optimism is subdued.

The onus is on the 23 other agencies linked with the system to ensure accurate data entry and that deliberate tampering is avoided. The 2009 presidential taxation commission has already raised concerns with the old information system used by the IRD – there were too many data entry errors.

For RAMIS to work, data entry at each of the 23 government agencies will need keen oversight and laws will have to be introduced allowing these agencies to share information with the IRD. There are also operational hurdles to overcome. For example, the Registrar of Companies does not have an IT system of its own so IRD had to release its own staff to catalogue and classify registered company data.

RAMIS will also take care of another problem in the IRD: the movement of individual tax files will be monitored by the system, whereas in the past there was poor oversight. Files could be move from person to person, allowing taxpayers to game the system with inside help.

Once the new system comes online, tax officials will not have to manually reference data from other agencies: RAMIS is programmed to make the connections and flag potential tax evaders. But this won’t solve the IRD’s biggest problem – finding evidence for tax evasion that will stick and containing smart tax avoidance moves. RAMIS must also be programmed to leave an audit trail so that the credibility of the data is secure.

“Don’t expect results overnight. It could take us ten years before we see a more tax compliant nation,” an assistant commissioner working closely with the RAMIS project said.

But others are optimistic.

“RAMIS will help us identify the good tax payers so we can focus our resources on going after the rest,” Waleboda, the IRD union leader says. According to the IMF, the government’s proposals to increase income tax revenue share from 18% of total government tax revenue to 40% will likely fall short.

The latest IMF report on Sri Lanka says the proposed tax reforms will increase income tax revenue to four percent of GDP by 2020 from the current two percent.

The tax reforms proposed in the Prime Minister’s medium-term economic plan and its proposals to the IMF don’t dwell too much on administrative reforms. Tax administrative reforms will have to come before the income tax problem can be fixed.

“There is no point having the tools to deal with evasion and avoidance if they are not used,” Weerasinghe says. “We’ve had rules on transfer pricing, intergroup fund transfers and how director benefits are taxed, but these are not implemented widely. And you can keep dancing to the tune that lowering tax rates will widen the base, but this will never happen. You must first fix the institutional weaknesses.”

 

[Cover illustration by Ruwangi Amarasinghe]

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