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80 • Fifty Shades of Tax Dodging<br />
Tax treaties<br />
Luxembourg has 75 tax treaties in force. 832 This is below the<br />
average for the countries covered in this report. However,<br />
Luxembourg has been rapidly expanding its treaty network<br />
in recent years. In the first quarter of 2015 alone, seven new<br />
treaties entered into force with countries that Luxembourg<br />
did not previously have a treaty with. 833 Equally telling,<br />
Luxembourg had 19 pending treaties waiting to enter into<br />
force in January 2015. 834 Many of the new treaties are with<br />
developing countries, including Laos, Botswana, Egypt, Sri<br />
Lanka, Pakistan, Senegal, Uruguay. 835<br />
Looking at two of the most recent treaties with developing<br />
countries, there is evidence that Luxembourg is negotiating<br />
for lower withholding tax rates. For example, while the<br />
statutory withholding tax rate on dividends in Laos is 10 per<br />
cent, the rate in the treaty between Luxembourg and Laos is<br />
5 per cent. 836 Similarly, for Sri Lanka the domestic statutory<br />
rate on dividends is also 10 per cent, while the rate in their<br />
treaty with Luxembourg is 7.5 per cent. 837<br />
According to the Minister of Finance, all of Luxembourg’s<br />
treaties follow the OECD model and analysis of two of the<br />
most recent treaties show that this is indeed the case. 839 In<br />
the 2010 commentaries to the OECD model tax convention,<br />
the Luxembourg Government made it clear that it applies<br />
a restrictive interpretation of the OECD model when it<br />
comes to the application of domestic anti-abuse provisions<br />
and controlled foreign corporation (CFC) rules of its treaty<br />
partners. 840 The Minister of Finance in 2015 stated that<br />
Luxembourg’s treaty format could be updated and that the<br />
ministry would be ready to bring existing treaties in line with<br />
OECD BEPS recommendations. 841 As such, there seems to be<br />
no plans for using the UN model.<br />
Financial and corporate transparency<br />
A 2010 review by the Financial Action Task Force found<br />
Luxembourg to be ‘non-compliant’ or ‘partially compliant’<br />
on 12 factors related the international standards on antimoney<br />
laundering, and a 2013 OECD review similarly rated<br />
Luxembourg as ‘non-compliant’ on corporate transparency<br />
and exchange of tax information. 842 Since then, the<br />
Luxembourg government has been busy trying to ensure<br />
that the country’s compliance improves. A follow-up review<br />
in 2014 found that the country was now ‘largely compliant’<br />
on anti-money laundering standards. 843 Following moves<br />
to abandon the country’s banking secrecy laws that had<br />
become “a handicap”, according to the Minister of Finance, 844<br />
and its support for automatic exchange of information, 845 a<br />
2015 OECD review is expected to improve the country’s rating<br />
on transparency and tax information exchange. 846<br />
Public reporting for multinational corporations<br />
The power of country by country reporting is becoming<br />
clearer as banks across Europe have started publishing this<br />
information in line with EU requirements. Using the newly<br />
published information, journalists at the UK’s Guardian<br />
newspaper noticed that Barclay’s Bank had booked £593<br />
million in profits in their Luxembourg branch, which<br />
employed just 30 people and paid only £4 million in tax,<br />
giving them an effective tax rate of less than 0.7 per cent in<br />
the Duchy. 847 It is perhaps due to stories such as these that<br />
Luxembourg has been less than excited about the prospects<br />
of having public country by country reporting. The Minister<br />
of Finance in March 2015 stated that, while Luxembourg was<br />
in favour of country by country reporting, the government did<br />
not support making the information public. 848<br />
New transfer pricing legislation in 2015 confirmed this<br />
stance as it introduces country by country reporting based<br />
on OECD’s BEPS recommendations. This would imply that<br />
the reporting is for tax administrations only, and only covers<br />
very large multinational groups. 849<br />
Ownership transparency<br />
With anonymity no longer guaranteed for banking clients<br />
due to international efforts to reduce banking secrecy, some<br />
are increasingly seeking to shield their wealth from the<br />
tax authorities by using corporate vehicles such as trusts<br />
or similar structures that can help conceal the identity<br />
of the real owner. This is also reported to be the case in<br />
Luxembourg, where it is noted that assets are moving to<br />
family wealth-holding companies 850 and into the country’s<br />
so-called Freeport, a giant vault where high-value assets<br />
can be stored. 851 In light of these changes, it is troubling<br />
that Luxembourg’s business register does not capture the<br />
beneficial owner in all cases, according to a 2014 review. 852<br />
In 2013, Luxembourg introduced a draft bill to adopt a new<br />
type of wealth fund (the patrimonial fund – also known as the<br />
‘Luxembourg trust’ 853 ) that offers a high level of confidentiality<br />
and low tax treatment. 854 The bill was supposed to have been<br />
passed in 2014 but was delayed in order to bring it further<br />
in line with the content of the EU’s anti-money laundering<br />
directive and is pending finalisation. 855<br />
The government’s position on allowing public access to<br />
beneficial ownership information remains unknown.