wtorek, 27 marca 2018

Exit Tax, Fluchtsteuer or the Way to Expropriation through the Ambigous Tax Law

I have had recently an opportunity to visit Sigmund Freud museum at Berggasse 19 in Vienna. It is one of the most modest and tiny museums I have ever seen. It was arranged in his last apartment in Vienna, consisting of at most of several rooms, the most prominent among them are the waiting room, consulting room and library. One can learn much about Freud's lifestyle and history of him and his family members, but relatively little about his scientific achievements. One detail of his past, however, drew my attention especially. Shortly after the annexation of Austria to the Third Reich like many Jews those days, he escaped to Paris and then to London. He was however forced to pay the so-called Reichfluchtstuer (escape tax) of about 50.000 DM what according to the current value reflects about 200.000 EUR! The huge amount if one takes into account that it did not refer to the wealthy entrepreneur but, despite fame, the humble Viennese doctor. Even more astonishing was the fact, that the tax accrual was negotiated, what suggested its strongly discretionary nature. Out of curiosity, I deepened my knowledge about this strange tax. It was introduced in 1931 before Hitler overtook the power in Germany, and in the beginning, it was meant to simply deter the outflow of capital from the country. In contemporary terms, it was an exit tax, which is quite common in many European countries and serves the similar purposes. Once a taxable person wishes to move abroad, she is obliged to pay tax on her unrealised capital gains. The problem with Reichfluchtsteuer was that in Nazi Germany it quickly corrupted, and it turned into the effective instrument of expropriation applied to Jews looking for safety abroad. Its expropriatory nature reveals itself in its excessive rates and its arbitrariness. No one could have calculated the tax in advance. Its final amount was at the end determined by officials. The more prominent the Jew was, and the more influential was his advocates, more tax was squeezed. Learning about this peculiar tax I experienced an unpleasant deja vu. It struck me how apparently innocent, the anti-avoidance measure can almost imperceptibly turn into the instrument of oppression. It does not even require the significant amendments to the law. It suffices that the government slightly changes the way in which the law is executed by its representatives. "They discover the thin red line that divides the sane from the mad...", the thin red line that divides just, morally grounded, anti-avoidance tax policy from the abusive burden. Governments all over the world are struggling with tax evasion, aggressive tax optimisation, harmful tax competition. Thomas Piketty is promoting a pervasive capital tax. Robert H. Frank is advocating in the USA for a consumption tax. All in the name of social justice. OECD and EU Commission worked out the set of actions which are to be implemented in the member states. Some of them may occur really tough for taxpayers. Polish ruling party is enthusiastically following this trend. After the most extensive amendments to the income tax law since its introduction more then 25 years ago, we are now waiting for the exit tax. The problem is not in the literal wording of the legal acts. I would hardly say that taxes in Poland are too high. The test if the tax system is just, fair and morally admissible should be run on two levels. The first, which often prevails is the analysis of the text of the legal act. The second which is much more important is its customary application by officials and courts. First and foremost we expect from the law to be predictable, to let us plan our investments, our spendings and savings, and enjoy our chosen lifestyle. The, at present almost non-existing Constitutional Court in Poland once expressed its view, that the state is not allowed to "set a trap for taxpayers". The predictability has also two sides. The one is the possible ambiguity of the legal provision, the second is the uncertainty of tax inspectors' decisions. Both go hand in hand. Anti-abusive clauses recommended by OECD and EU are by their nature ambiguous to include as many future wrongful scenarios as possible. But their inflation looks ominous for taxpayers. As long as we do not have the stable line of their interpretation we are condemned to this ambiguity. However, this is a natural process how the law evolves. More worrisome are the attempts at undermining the past transactions with the spurious interpretation of the law. Transactions once already determined as lawful. This the case of current practice in Poland. It expresses itself in the set of official warnings posted on the Ministry's of Finance website but foremost in the set of surprising and apparently selective decisions of the tax inspectors.
I must admit that I have often been confused recently. I am far from comparing the Third Reich tax system, and especially the Reichfluchtsteuer to the contemporary Polish tax policy. I understand the moral grounds. However, I see also the "red thin line" which is easy to trespass. In Poland, they have trespassed it many times since the political transformation in 1989, but until recently never with the blessing of the government, courts of law or parliamentary majority. It is being changed now.
The trap has already been set. It is up to the officials who will be caught and who will be set free. I fear that the new exit tax (Fluchtsteuer) will secure the forest not allowing animals to escape.

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