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Dr. Ikramul Haq
On January 23, 2019, the Federal Finance Minister, Asad Umar, presented Finance Supplementary (Second Amendment) Bill of 2019 offering no concrete steps to harness the real tax potential, which at the federal level alone is not less than Rs. 8 trillion. The failure of Federal Board of Revenue (FBR) to meet the half-yearly target and Asset Recovery Unit in retrieving stolen money forced the Government of Tehreek-i-Insaf (PTI) to levy more taxes and borrow heavily internally and externally since the last few months.
The speech of Finance Minister in the National Assembly confirms that the efforts for retrieval of stolen/plundered/untaxed assets stashed abroad are no more a top priority of PTI. This is despite the fact that the Prime Minister stressed it once again while addressing the Pakistani community in Doha on January 22, 2019. In the Bill presented by Asad Umar, no legislative measure is proposed to deter economic offenders from evading the process of Pakistani law as Indians did in 2017 through the Fugitive Economic Offenders Act, 2017. Before the assumption of power, the PTI made it as its top most agenda but now failed to implement it.
According to a report, Pakistanis have non-declared assets of Rs. 43 trillion stashed abroad. For many, this figure is outlandishly exaggerated. Now data received by FBR under Multilateral Competent Authority Agreement (MCAA) show that the figure can be more than this. Many experts compare the figure of billion of dollars stashed abroad with recorded GDP of around $286.7 billion. They do not take into account the monstrous size of parallel economy that generates outflows of $20-25 billion annually. SBP told Supreme Court in Suo Moto Case 2 of 2018 that during fiscal year 2017-18 outward remittances alone from foreign accounts were $15.25 billion. If on average $10 billion were sent abroad annually since introduction of Protection of Economic Reforms Act, 1992 facilitating such transactions the total comes to $250 billion—it is believed that about the same amount was sent abroad through non-banking channels.
As regards figure of $200 billion in Swiss accounts, this was officially communicated to the Cabinet through a summary signed on August 26, 2013 by Tariq Bajwa, then Chairman FBR and now Governor SBP. It was contested by many, including some members of Parliament, but the then Finance Minister, Ishaq Dar (now a proclaimed offender and fugitive) stood by it! In ‘Retrieving Swiss money’, Business Recorder, July 25, 2014, it was mentioned that this figure was not based on any reliable source/document. In another article, ‘Probing Swiss accounts’, Business Recorder, August 15, 2014, the position was further clarified, but till today the myth of $200 billion persists! According to the official annual data released on June 28, 2018 by Swiss National Bank (SNB), the total funds held by all foreign clients of Swiss banks rose about 3% to CHF1.46 trillion in 2017. It is now for head of ‘Asset Recovery Unit’ Shahzad Akbar to ascertain the correct figure. He should summon Tariq Bajwa for giving its basis in the summary as well as to explain why on the directions of Ishaq Dar, he sabotaged the re-negotiated tax treaty with Switzerland—the complete detail of this sad saga is available in The Games Politicians Play, The News, March 26, 2017.
The officer who renegotiated the treaty with Switzerland in 2014 (after the Chairman FBR, for reasons best known to him, decided not to go to Switzerland at the eleventh hour as head of the delegation) was later issued show-cause notice to explain whether he was authorised to ink the treaty. He proved authorization by way of approval of summary by Cabinet and Prime Minister. In his reply, he exposed the ulterior motives behind the inquiry—facilitation of tax evaders to covertly shift funds from Swiss banks to new shadier destinations. His testimony is not used against the culprits by the PTI Government till today.
The spokesman of FBR in a hearing before the Senate Standing Committee on Finance on January 9, 2018, said: “We have requested the Swiss government to include name of Pakistan in the list of countries for exchange of information, which has been endorsed by the Swiss Parliament.” He concealed the fact that Switzerland by that time did not ratified the revised treaty inked on March 21, 2017 that delayed the exchange of information. It is strange that the PTI government has failed to take action against all the culprits who frustrated the 2014 revised treaty with Switzerland.
Through tax agreements, USA secured over $11 billion in backdated taxes and fines from Swiss bank clients and obtained documentary evidence to penalise lawyers and other facilitators. We lost a chance for similar recoveries in 2014 when tax treaty was renegotiated with Switzerland. Since 2014, huge funds have been transferred from Switzerland to many offshore centres—details are available in ‘Pakistani cash in Swiss banks pulled out’, The Express Tribune, February 22, 2017, Secretive Swiss banks face new crackdown , Independent, January 3, 2017and HSBC files: Swiss bank hid money for suspected criminals, The Guardian, February 12, 2015.
The Second Finance Supplementary Bill 2019 confirms that the government of PTI lacks legal expertise for retrieving lost tax in respect of assets stashed abroad using bilateral and multilateral tax treaties signed by Pakistan. They need to think beyond Mutual Legal Assistance (MLA) or the Stolen Asset Recovery (StAR) Initiative that is a partnership between the World Bank Group and the United Nations Office on Drugs and Crime (UNODC) to support international efforts to end safe havens for corrupt funds. The most viable method to retrieve untaxed funds is to seek actionable information using OECD Multilateral Convention (MLI) signed by Pakistan on September 14, 2016. We can also utilise Swiss Tax Administrative Assistance Act (TAAC) of 2012 that facilitates all countries to extract information on tax dodgers. The EU member countries, United States and many other countries recovered billions through ‘taxation agreements’ to retrieve the past funds siphoned off—an action that also checkmated any such future losses. Debate and actions for retrieval of untaxed assets from this perspective is missing in any official discourse and plan for economic revival unveiled by the Finance Minister on January 23, 2019.
Tragically, the last government of PMLN also did not follow the above path and instead resorted to amnesties even after getting actionable information from UK and elsewhere. Only 5,363 persons availed the Foreign Assets (Declaration and Repatriation) Act, 2018 disclosing foreign assets of Rs.1,009 billion with tax payment of $375.5 million.
The way forward for Asset Recovery Unit is to utilise OECD’s ‘Multilateral Instrument’ for retrieving evaded taxes vis-à-vis assets stashed abroad. For recouping corrupt money by public office holders, procedure under United Nations Convention Against Corruption (UNCAC) can be adopted—details are available in Text of petition about recovery of looted money, The News, November 1, 2011.
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The writer is Advocate Supreme Court and Adjunct Faculty at Lahore University of Management Sciences (LUMS). Email: ikram@huzaimaikram.com; Twitter: @drikramulhaq