You could wonder what Matt Damon has been up to, there will always be reason to do this, not because he is an exceptional actor, even a celebrity on Mars. No, the reason here is his connection to documentaries. He was the narrator on ‘Inside Job‘, which got a well-deserved Oscar in 2011. I personally feel that this is the best documentary on the financial crises ever created. So let’s get started. Today, we see a number of news items reach the twilight of dawn.
The first one (at https://www.theguardian.com/world/2016/nov/08/panama-papers-22-people-face-tax-evasion-investigations-in-uk), gives us ‘Panama Papers: 22 people face tax evasion investigations in UK‘, with the added text “Philip Hammond also said a further 43 wealthy individuals were under review while their links to the offshore files were investigated further. He made the comments in a written answer to the House of Commons explaining what had happened since the offshore tax files emerged“. Now we might go all huffy and puffy on these tax evaders, yet when you consider the news from August (at http://www.bloomberg.com/news/articles/2016-08-31/ex-tesco-finance-chief-mcilwee-probe-closed-by-u-k-regulator), where we see “The U.K. accounting regulator closed an investigation into Tesco Plc’s former Chief Financial Officer, Laurie McIlwee, saying there wasn’t a “realistic prospect” that misconduct would be found in the case“, with the added “The Financial Reporting Council closed its case into McIlwee Wednesday, according to a statement from the regulator. It is still investigating the grocer’s auditor, PricewaterhouseCoopers LLP, and other individuals involved in Tesco’s accounts“.
This has been going on since 2014, they have not been able to find anything after two years and now you are going after ‘simple’ tax evaders?
My initial message (with all due respect) to the Chancellor of the Exchequer is “Mr Philip Hammond, are you out of your bloody mind?” You are still trying to get anything real on PwC, or were you ordered to let it die down?
When a company suddenly loses billions in value (also due to their own stupidity) and you cannot find anyone to prosecute and go to jail for overstating profits by £263 million ($345 million), whilst we also know that for that year PwC gave Tesco a 10 million pound invoice for auditing (annual) with an additional 3 million pounds for consultancy that year (Source: the Guardian). You cannot find anything and now you are going after people, where you cannot state whether they broke the law and you will rely on illegally obtained papers. How stupid is this?
How about you making the following change as per immediate!
a. Until the Tesco case has been satisfied, PwC and its senior employees cannot undersign any accountancy venue, or corporate balance for any UK corporation for 2016, 2017 and 2018 until the matter is solved.
b. In case wrongdoing by PwC employees is proven beyond reasonable doubt, PwC will not be allowed to operate within the UK.
How about them apples?
So far we have seen massive leeway by the press and the SFO has not achieved anything at all regarding Tesco. So it is time to adjust regulations and legal premises, until that point comes PwC will have to operate on non-British companies. Now, we can all understand that when we see the quote “McIlwee resigned as Tesco’s CFO in April 2014, prior to the discovery of the accounting errors, amid reports of disagreements with then-Chief Executive Officer Philip Clarke” seems to imply that McIlwee was not privy to, and not guilty of any wrongdoings, yet the fact that the SFO got nowhere in two years means that there is something massively wrong. When we know that so many millions were overstated, we seem to have a decently clear case of fraud, yet no one goes to jail. In addition, we also know that PwC was in on it (at least to some degree) and in addition, the subsequent Deloitte investigation showed more than initially was found means that there is no scenario where PwC can be absent from guilt in the first or second degree.
The SFO gave that Carl Rogberg, Christopher Bush and John Scouler were charged (source: BBC), they pleaded not guilty and at present the court dates are set for September 2017. It is my opinion that until all that is settled, the Chancellor of the Exchequer has no business whatsoever to dig into cases based on illegally obtained papers, whilst his branch as well as the SFO has no flipping ability at present to close a 2 year old case for at least another year (if ever). And as reported by the Times in September (at http://www.thetimes.co.uk/article/tesco-auditor-slips-back-into-retailers-aisles-0gm9xt8md) that “Tesco has appointed PwC as an independent adviser, despite replacing it as auditor with Deloitte“, which gives my emotional and slightly inappropriate response “Are you fucking kidding me?”
So, whilst the PwC issues were kept very low key by nearly all the press, whilst there is no condemnation on a daily basis by the press and even less success by the SFO, we should agree that PwC has no business being in the UK to begin with, especially as “Last week the FRC cleared Laurie McIlwee, Tesco’s former chief financial officer, of wrongdoing over the scandal, but added that its investigation into PwC and other unnamed individuals continued“, we could go by once bitten twice shy, or we could go by the fact that as the SFO is either unable or unwilling to prosecute PwC, why would we even consider their presence? In case some are considering a specific rebuttal, to them I would respond with the April article (at https://www.theguardian.com/business/2016/apr/14/brexit-could-lead-to-loss-of-100000-financial-services-jobs-report-warns), where they stated ‘PwC report estimates 70,000-100,000 fewer jobs in 2020 compared with estimated number if Britain stays in EU‘, so let’s start with theirs and let smaller accountancy firms continue and allow for growth. In addition, when we accept the news by the BBC in Feb 2015 (at http://www.bbc.com/news/business-31147276), where we see “We believe that PricewaterhouseCoopers’s activities represent nothing short of the promotion of tax avoidance on an industrial scale,” said Margaret Hodge, chairwoman of the Public Accounts Committee (PAC)“, so in that light, we could just send PricewaterhouseCoopers (PwC) packing, giving light that the facilitator of tax evasion have been dismissed from the country and as such the UK will see a decline in Tax evasion, no need for illegally held papers, no long and expensive investigation and the thorn in the UK economies side is equally removed. It will not mean that tax evasion is a thing of the past, but if PwC is send packing now, the other three might do a 180 degree on that clientele, which would at that point make the tax evasion issue moot, or at least deprive it from many options, which would amount to the same in the end.
So, you like apples?
If I am accused from persecuting PwC, then I would plead that I am not entirely innocent in that regard. I would bring the defence that the SFO has not gotten anywhere in 2 years and they are supposed to have the ability to find those culprits. Yet, as John Crace pointed out in the Guardian on April 5th that “Only last year, the public accounts committee reported that the accountancy firm PricewaterhouseCoopers (PwC) was promoting tax avoidance on an industrial scale. To make things worse, it was first in the frame to benefit from administering the windup of Tata’s steel operations in the UK. So where was David Cameron? At PwC’s offices in Birmingham. Some might call it a brave choice“, in that light, there is an additional reason to give PwC their walking papers.
In all this the exchequer has one final issue to deal with, you see, accountant at large, including (read: especially) those at PwC are really clever with what they do, meaning that there could be no broken laws to begin with, making the actions from certain parties from 2014 until 2018 even more questionable, with a strong need to truly scrutinise the rules that accountancy firms applied and how they were applied. As I see it, there is nothing worse than to paint a lovely target on a person only to learn that the laws fell short and none were ever broken. If you question that, then consider the following two options.
- The SFO has, as it embraced corruption onto a new level decided not to dig into PwC on the levels needed to secure evidence for the prosecution regarding Tesco.
- The SFO has found that even as it is clear that PwC assisted in these levels of Fraud and Misreporting, yet when the books and memos were investigated for these transgressions, there was more than a reasonable doubt that PwC was not fully aware, in addition, there are no papers filed by PwC to implicate them in any way in fraud or misrepresentation. As well as the established fact that no laws were broken at present.
When you look at the two options, which one is more likely than not the situation regarding PwC?
In my book, the fact that a person is not guilty, does not mean that they are innocent. I remain of mind that shutting PwC down in the UK is not the worst idea at present, yet is that point of view valid when we consider premise 2, which is actually the most likely scenario? When we consider that the spirit of the law has been violated by PricewaterhouseCoopers, at that point we still have the issue that no literal laws were broken. Here we could set forth that the government (read: parliament) created the foundations and the setting where industrialised tax evasion and fraud became legalised options. Even as we saw that there was a clear case for fraud, the law has been altered to the degree that the facilitators cannot be held accountable, as such, an issue was created and until that is resolved, and PwC cannot be prosecuted (which is wrong in many ways from the point of a simple taxpaying labourer).
So, we now have the issue of the letter of the law versus the spirit of the law, which should be seen as grammatical opposites, not just in grammar, it is that they are also opposites of the soul (read: soul of the law). When one obeys the letter of the law but not the spirit, one is obeying the literal interpretation of the words (the “letter”) of the law, but not necessarily the intent of those who wrote the law. Which is what black letter lawyers (and accountants) tend to do, because a nation of laws is about a nation with rules of playing the game. In our case, in Common Law, until a case is set as a precedent in law, there will be no adjustment and this can go on ‘ad infinitum’ and Intentionally following the letter of the law but not the spirit may be accomplished through exploiting technicalities, loopholes, and ambiguous language (at times a mere comma does the trick too).
Yet, when one obeys the spirit of the law but not the letter, one is doing what the authors of the law intended, though not necessarily adhering to the literal wording, which could get them automatically prosecuted if the District Attorney woke up on a Monday morning with a really foul mood.
So, whilst we might agree with Margaret Hodge, stating “We believe that PricewaterhouseCoopers’s activities represent nothing short of the promotion of tax avoidance on an industrial scale“, the fact that they are not breaking the law, implies that no corrections to the law have been made to correct for this. As such, you only have yourself to blame and admittance of this failure to the public at large is an essential second step. As I see it, making a lot of noise going after people who might have done something like this, whilst papers are absent and whilst all parties know that this is because of illegally obtained papers from the law firm Mossack Fonseca is even less intelligent, as the people behind this have leaked these papers for their own personal interest and ‘late taxation’ was not their goal, so to adhere to the promotion of such crimes is not the best way to get results.
Now that we see claims rising towards Tesco for misrepresentation from their investors for the amount of £100 million, which comes on top of the diminished value, so I feel that no matter what, there should be a negative impact on PwC one way or another, yet within the confines of the law of course. This takes us to ‘The letter versus the spirit of the law: A lay perspective on culpability‘ by Stephen M. Garcia, Patricia Chen and Matthew T. Gordon (paper here). The part that gives us the cakes are found in study 5 on page 486. “Study 5 sought to examine another instance in which the letter of the law is not broken but the spirit of the law may have been violated“, which is where I for the most stand with PwC in the Tesco matter as stated “We also wanted to control for various counter-explanations that underlie culpability such as violations of social and moral norms“, with references to Bicchieri & Chavez, 2010 as well as Mazar, Amir, & Ariely, 2008. Yet in the first there is Tonry, 2010, where he argues that “the foundations for disparity causing policy choices lie in the cultural and social forces that combined historically to shape U.S. society“, which is interesting as this implies that the policymaker and not PwC is the actual culprit and my rage was misguided. Yet, is that actually true? The spirit of the law is not equipped, or better stated should not be equipped to manage the input of self-interest, because the spirit of the will assume the setting for all people and as such will force the text and derail the letter of the law (as I see it). Tonry goes on into the racial destabilising side, yet in my view the racial part is not the real instance, I believe that the division is that we see two groups One is the (white) social enabled group who is set to the game with preparation (read: legal advice) to break the spirit of the law and not the letter of the law as long as self-interests are served. This setting will at that same time destabilise the (black) group, a group that is suffocating on the lack and lapse of social options and opportunities, where without proper and affordable advice the letter and the spirit of the law will be adhered to, yet at a massive cost through loss of opportunity. This now makes PwC a facilitator for the wealthy to avoid breaking the letter of the law and to optionally, when unavoidable adhere to the spirit of the law. From one point, can the facilitator be held to account? I believe so, yet the area is slightly too grey for my comfort. It is the policymaker that requires to shift the grey area, so that breaking the law is a more clear setting and as such the SFO could actually create a situation where conviction (let alone prosecution) becomes a reality.
I still believe that PwC has done great wrongs, yet as far as we can establish, not in the letter of the law. I find them guilty of knowingly set the stage for managed ‘breaking’ of the law. The spirit is as much a factor as the letter, either should be seen as breaking the law. Yet there is diminishment as the policymaker is seemingly also guilty, yet the reasoning for that flaw can never be easily determined, so we can tell it was wrong, yet to what degree is not a given, but an essential issue to address. When we look at the policymakers, we need to ascertain the application that the paper discusses. “This framework broaches a new language to understand complex situations such as those that are not technically illegal but seem wrong“, we can see that this applies to multiple incidents. In those cases it needs to be clear that these levels of protection do not make the cake edible. It makes for a sour venue where those with legal advice can abort too many payments whilst the underprivileged groups end up without support, protection and options. I am speculating here that this is the (read: speculated intentional) creation of the haves and have not, which is a policy drip down effect when you implement a prismatic system, which policymakers from business and sociological fields seemed to have resorted to as they (tried to) implement laws, on the premise of a non-legal mind. Which is what is pushing the issues. The political field needed the business view of opportunity and the resulting laws are toothless against larger corporations who end up getting a free pass here with PwC as the facilitating office.
In the end I am more correct than even I thought I was, yet this should not digress from handing out the penalties that are needed to give a clear signal that the party is over. We have learned the hard way from 2004 onwards that unless we make a massive shift, this will continue a few more decades, as such stronger language and harsher penalties are required, because continuing on this path is far too rewarding for all the players that can afford to play this game, which gave me the idea to give PwC their marching orders out of the UK. I don’t believe it is too harsh, especially as they made 35 billion last year alone. So the question to you becomes, do you have any idea how much taxation they paid? I have no idea how much exactly, but we do know that PwC was elemental in avoiding Lehman Brothers to pay an addition £1.2 billion in taxation, due to inconsistencies, we see the quote by Mr Justice Hildyard: “It is of real importance, both in terms of good governance and a fair market, that HMRC should make every effort to ensure that this sort of thing does not happen again“, (at http://www.theweek.co.uk/lehman-brothers/77510/lehman-brothers-creditors-to-avoid-12bn-tax-bill) giving rise that larger changes are needed to bring back fairness to all tax paying people, who have not seen a whole lot of fairness in that regard these last 12 years.
Judges will soon have to science the shit out of these tax laws, making them actually fair to all, not just large corporations, who seem to be judged on ‘the Principle of least accountability’.