FEATURE ARTICLE

Alessandro Fusillo
Alessandro Fusillo

Public Pillory For Tax Evaders
 
Alessandro Fusillo 
Date: 01-04-2016
Subject: TAXES: Federal

Spain's general elections of December 20th put an end to the two-party system that dominated the Iberian Peninsula for decades. Almost unnoticed among the information about the impending political struggle between old and new parties, the Spanish Agencia Tributaria (the local Internal Revenue Service) published the first list of big fiscal debtors and purported tax fraudsters. The Spanish press reported about the publication matter-of-factly if not with a hidden satisfaction and schadenfreude at the plight of the bad guys who don't contribute their fair share[1].

The publication happened according to article 95 bis of the Spanish tax code recently modified in order to provide the possibility for the tax agency to inform the general public about the names of the Spanish citizens and companies owing more than 1 million Euros in taxes and fines to the Spanish Kingdom[2]. Before, the tax code set forth exactly opposite principles, to wit that the tax agency had free access to personal and financial information, but only in order to enforce the payment of the taxes and under a strict duty to keep the acquired information confidential. After the law was passed Cristobal Montoro, Spain's Minister for tax affairs, declared that it was a powerful instrument aimed at fighting frauds and enhancing the certainty of the law. 

Spain, exactly as almost all other European countries, has a general rule against tax frauds. These encompass not only positive frauds (like the use of false invoices to artificially increase the costs), but also the use of legal means in order to achieve the effect of paying less taxes. In other words, the use of loopholes can be considered illegal and even criminal according to most European legal standards. A very frequent example is the establishing of a firm's registered offices in a low tax country (e.g. Ireland); this firm, acting as a parent company, then sets up a subsidiary in a high tax country (e.g. Italy, Spain or Germany), but most of the profits of the subsidiary are absorbed by the costs invoiced by the parent company to the subsidiary. The parent company may license its trade mark or sell its products to the subsidiary for a cost. Hence, the subsidiary pays a little amount of taxes, due to the fact that its net revenues are low or non-existent, whereas the parent company makes profits and pays low taxes in the more favorable country that it chose. Now, this kind of organization may be questioned by the tax authorities – and even considered criminal – although nothing illegal really happened. The sole scope to avoid paying higher taxes is considered a sort of evil intention that has to be punished. The only way out for the firms that got into an antifraud proceeding is either to strike a deal with the tax agency and pay a more or less reduced amount of the taxes that would have been due if the purported fraud scheme didn't exist or to demonstrate (usually in Court) that the scheme had a sound entrepreneurial reason besides and beyond the aim to pay lower taxes.

Now, as the great majority of the purported fraudsters that were published online by Mr. Montoro's Ministry are firms, it may be a plausible supposition that a substantial number hereof are companies that were charged of a fraudulent scheme.

Moreover, the Tax agency doesn't deem it to be necessary to wait for the end of judicial proceedings initiated by the alleged tax debtors in order to challenge the tax claims, but – giving in to an observation by Spain's State Council – an administrative supreme body whose function is to advise the government on legal matters – it agreed only to refrain from publishing the data of the purported debtors if a Court suspended the tax claim or if they agreed to a payment in installments that is regularly serviced. According to a recent study (2012), the percentage of citizens' and firms' victories versus the tax authorities amounts to 40% in the first instance and, respectively to 23% and 31% in the appeal procedures before the tax appeal courts and the Supreme Court. Hence, there is a serious possibility that a big percentage of the persons and firms exposed to the public shame may win their cases and that the courts will ascertain that they don't owe any taxes to the fiscal agencies.

Before the publication the prospective victims hereof had the possibility to file a brief with their objections. These were limited, though, only to clerical errors regarding calculations and identification of names and numbers. The first publication refers to the debtors as of July 31st 2015 and henceforth the tax agency will publish a new list during the first six months of each year with the names of the debtors as of December 31st of the previous year.

As an additional measure the tax agency is planning to publish excerpts of irrevocable decisions regarding criminal tax frauds, albeit in this case without the names of the condemned persons.

The Authority for the Protection of Personal Data (AEPD – Agencia Española de Protección de Datos) found the new initiative of Mr. Montoro's Ministry compliant with the law regarding the protection of privacy and personal intimacy as well as with art. 18 of the Spanish Constitution that states the fundamental right to honor and privacy[3], because the duty to pay the taxes was deemed to be more important than such fundamental rights. Moreover, the Authority expects that the publication will have the effect to deter prospective evaders and to give rise to a sentiment of public reprimand against tax evasion. The same expectation is expressed in the preamble of the new law, where the Spanish parliament declared its intention to educate the citizens to an attitude of complete and voluntary compliance with the tax laws and with the obligation to pay taxes. The adopted means' conformity with the Spanish Constitution and with the legal principles set forth by the Constitutional Tribunal as far as rationality and proportionality of sanctions are concerned seems to be questionable in the opinion of Spanish legal experts[4]. Besides, most of the tax evaders that have been exposed to the public contempt and disapproval probably are insolvent companies or persons that simply cannot pay their taxes, especially because the Spanish tax authorities have very efficient ways to take the monies due even against the will of the debtors[5].

The publication of the tax evaders' list by the Spanish government reminds of medieval punishments that exposed debtors and fraudsters to the public disapproval[6]. Insolvent debtors were exposed naked or stripped to their underwear in the Courts and exiled after the public had an occasion to vent its anger throwing rotten vegetables (or worse) at the sinners. Other laws provided that they had to wear funny hats (e.g. in the shape of a fox's head) along with a poster with the mention of their insolvency. The most used and effective punishment was the pillory. The condemned person was secured in a wooden or metal framework with holes for hands and head and exposed in the public marketplace with a cartel stating the crime. The public could verbally and physically abuse the prisoner before he was executed or delivered to the further punishment to which he had been sentenced.

The new Spanish law is a modern and technological version of the pillory, just a little bit more humane.

It is interesting, though, that usually the pillory and other punishments where the condemned person was exposed to the public shame were aimed at the protection of private property. Typically the insolvent entrepreneur or banker damaged the private property of his clients and business partners and the medieval States intervened with harsh sanctions that our feelings of humanity and justice instinctively repel as disproportionate and cruel. On the contrary, the modern pillory is aimed at protecting the State's fiscal interest to achieve the swift and unquestioning compliance with confiscatory tax laws.

The Spanish law about the publication of the tax evaders' list is an excellent example of the double moral standard that characterizes every modern State[7]. What would be a criminal action if performed by an individual is generally accepted as legitimate and just if the authors are the State's representatives. Who attempts to appropriate other people's revenues and private property against their will is considered a thief and the simple idea that such thief could publish a list of victims that didn't accept to surrender their property voluntarily branding them as evaders and sinners is obviously ridiculous. Yet, not only the State arrogates such right, but even has the impudence to present this initiative as due and just in order to educate the citizens to an attitude of voluntary compliance with the fiscal obligations.

The double moral standard that condones the States' criminal actions (as wars, conscription, taxation and the like) serves the interests of the class of persons who reap a net advantage from the State's existence, i.e. the political class in a broader sense, to wit all those who receive their means of subsistence not by the production and sale of their goods and services on the market, but by the coercive appropriation of other people's wealth[8]. The double moral standard is furthered by a fundamental logical error, that of confusing a legal fiction with an existing being with its will, its rights and duties[9], namely the State, which on the contrary is nothing more than a group of persons that asserts a right of supremacy on all other persons. Such right of supremacy is only psychologically funded on the voluntary acceptance of this authority by the great majority[10]. If the majority should recognize the fiction (the king's nakedness) there wouldn't be any hope for the continuing existence of the State. As von Mises noted[11], "the worst enemy of clear thinking is the propensity to hypostatize, i.e., to ascribe substance or real existence to mental constructs or concepts". The State is exactly such a mental construct. If it were clear that the State is nothing but a group of persons who live by the by the spoils of their plunder, no one would silently accept to be exposed to the public pillory if he refuses to bow to his overlord's arrogance and to sheepishly pay the taxes he claims to extort.

[1]  http://www.eldiario.es/economia/lista-grandes-morosos-Hacienda_0_465803540.html

http://economia.elpais.com/economia/2015/10/26/actualidad/1445860307_270141.

html

http://cincodias.com/cincodias/2015/10/08/economia/1444329518_153020.html

[2]  http://www.agenciatributaria.es/AEAT.internet/Inicio/_componentes_/_Le_interesa_conocer/Publicacion_del_listado_de_

deudores_a_la_Hacienda_Publica__art__95_bis_LGT_.shtml

http://www.larazon.es/economia/el-gobierno-aprueba-la-ley-que-permite-publicar-la-

lista-de-morosos-y-defraudadores-cd9476598#Ttt1W7IlDIMJu2XH

[3]  http://www.privacidadlogica.es/2015/07/06/que-opina-la-aepd-sobre-la-publicacion-de-listados-de-morosos-fiscales/

[4]  http://www.lawyerpress.com/news/2015_05/2005_15_003.html

[5]  http://juanramonrallo.com/2015/12/contra-la-vergonzosa-lista-de-morosos-fiscales/

[6]  A. Lattes, Il diritto commerciale nella legislazione statutaria delle città italiane, Hoepli, Milano 1884, p. 315.

[7]  Huemer, The Problem of Political Authority: An Examination of the Right to Coerce and the Duty to Obey, University of Colorado, 2013, p. 240 and passim

[8]  Oppenheimer, The State; A.J. Nock, Our Enemy, the State; Calhoun, A Disquisition on Government; Rothbard, Anatomy of the State; Hoppe, Democracy, the God that Failed

[9]  Weber, Wirtschaft und Gesellschaft

[10]  E. de la Boétie, Discourse de la servitude volontaire ou le Contr'un

[11]  L. von Mises, The Ultimate Foundation of Economic Science, 4, The Pitfalls of Hypostatization