BATU, Indonesia. Photo by Jes Aznar

Tuesday, January 3, 2012

My two-part special report on tax evasion and smuggling

FIRST PART: Tax evaders, smugglers getting more sophisticated

By Iris C. Gonzales, The Philippine Star

Posted at 01/02/2012 7:12 AM | Updated as of 01/02/2012 2:29 PM

MANILA, Philippines - When President Aquino was elected into office, the nation wrapped itself in euphoria. Filipinos were filled with hope as Aquino promised that he would finally be that leader the country needed.

On June 15, 2010, under a gloomy weather, and as the whole nation listened in bated breath, Aquino took his oath at the Quirino Grandstand and promised that his administration would be free of corruption and would only tread the clean and right path - a governance framework he dubbed “Tuwid na Daan.”

He said the excesses of previous regimes had no room in his administration and that he would make the bold move of rectifying the bad practices.

There would be no new taxes as he stressed that he would focus on fixing the country’s tax leaks.
One year and five months into his term, the fight against tax evaders and smugglers remains an uphill battle.

Officials from both the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC) and from the Department of Finance’s Revenue Integrity Protection Service (RIPS) told The STAR that the schemes of tax evaders and smugglers have become more sophisticated and as such more difficult to fight.

RIPS executive director Romeo Tomas said the modus operandi of public officials have become more sophisticated as anti-graft agencies have also become tougher.

Topping the list of schemes used by corrupt officials is the formation of dummies.

Often these individuals set up corporations, law offices and third persons for their properties so that they do not have to declare these properties in their statement of assets, liabilities and net worth (SALN).

The dummies become the owners on paper of land assets, vehicles, and other accumulated wealth instead of the individuals themselves.

Along this line, the offenders also put the names of their illegally acquired wealth in their relatives’ names.

Tomas said there are many cases wherein the assets are listed under the names of a relative’s law office so that the link to the real owners is almost impossible to prove.

Those who declare their properties in their SALNs grossly undervalue their properties, which is another common scheme.

Based on the different cases it has filed, RIPS has found out that it is common for public officials to declare only a portion of their land properties in their SALN or reduce the value of the properties.

Wire transfers and money laundering are also common schemes used by public officials to conceal their wealth. These officials usually keep their money in banks in Hong Kong or Singapore.

“Some go out of their way to transfer money to other countries such as Hong Kong or Singapore,” Tomas said, adding that this makes it more difficult for authorities to trace the money.

For luxury vehicles, the practice among public officials is to put their fleet of expensive cars under the name of their children or trusted friends who are not from government.

Tomas cited an instance wherein a child was barely 23 years old and already has a number of luxury vehicles to his name.

Methods of tax evasion

The methods of tax evasion are also more sophisticated now, said BIR Deputy Commissioner for Legal and Inspection Group Estela Sales.

In a recent interview with The STAR, Sales said the BIR is trying to fight tax evasion every step of the way through the agency’s Run After Tax Evaders (RATE) program.

One common method of tax evasion is the non-issuance of receipts. This is the simplest form of evasion wherein the business owner or establishment does not issue receipts for the goods or services it has rendered.

Through non-issuance of receipts, the seller or business establishment is able to reduce the volume of declared sales as well as the tax liability.

Another common scheme is under-declaration of sales and over declaration of expenses so that the business would be able to deduct more through input value added tax (VAT).

Under BIR rules, a business establishment may deduct through input VAT the cost of its raw materials and supplies.

Under the amended VAT law of 2005, businesses can avail of tax credit on input purchases. These are the VAT paid for purchases of raw materials, supplies and capital goods. There is a cap on VAT credit for inputs up to 70 percent of output VAT.

To claim the tax credits, companies must present to the BIR invoices, which would detail their purchases.

VAT is the tax slapped on consumption and is levied on the sales of goods and services at each stage of production and distribution process.

It is collected using the invoice of the tax credit method. In computing for one’s VAT liability, a VAT-registered taxpayer can deduct input tax from output tax. Output tax is the VAT due on the taxpayer’s sale of goods and services

The more glaring form of tax evasion, Sales said is the non-filing of returns. It is also one of the easiest forms of tax evasion, she said.

Going along with this is another glaring form of evasion, which is the non-registration of the business.

There are also more sophisticated forms of tax evasion, Sales said.
One such scheme is the use of non-existent suppliers. Some businesses use smuggled raw materials for their supplies to save on costs.

Sales said that when the BIR asks for receipts or proof of payment to suppliers, these businesses would have nothing to show and would instead say they paid in cash.

“For example, one taxpayer said he paid in cash amounting to P20 million for his company’s supplies. How can you pay P20 million in cash?” Sales said.

Tax evasion is usually made in connivance with BIR insiders, ranking deputy officials said.

This is why BIR Commissioner Kim Henares said that in the agency’s fight against corruption, it is doing two approaches - external and internal.

“Internally, it is changing 107 years of bad habits,” Henares said.

When she took over on June 30, Henares made it clear to her people that she would not tolerate the “bad habits.”

She put in place a so-called performance management system wherein BIR employees know exactly what is expected of them.

“There will be a contract between BIR as an institution and individuals as employees stating what the performance indicators will be. For me, what’s important is that everyone’s contract will be related towards our goal,” she said in an interview months after she took over the agency.

The government’s main revenue agency has a staff of 12,000 people, headed by Henares and six deputy commissioners for the different groups: -- the Information Systems Group; the Legal and Inspection Group; Operations; Resource Management; Special Concerns and Tax Reforms.

The list of internal reforms is endless but one critical area of reform is the audit system a deputy commissioner of the BIR said rampant corruption happens in the audit system.

Auditing a company happens at random. Officially, a BIR examiner audits a company’s books if he or she suspects that the company may be dodging its tax obligations.

However, the finance official said the examiner could also choose to audit the company simply to harass the owner - especially if he thinks they have the capacity to pay a substantial amount of “grease money.”

Explaining the audit process, Wendell Ganhinhin, senior tax manager at the auditing firm Punongbayan & Araullo said in an article that the purpose of an audit and investigation is to uncover violations against and non-compliance with laws and regulations.

“In the process, even compliant and law abiding taxpayers have to go through an ordeal to prove their innocence if they are under suspicion,” said Ganhinhin.

With the burden of proof generally resting on the taxpayer, long hours and many resources often need to be devoted to refuting findings of discrepancies.

He also maintains that there could be inefficiencies in the audit approach and the lack of necessary tools, such as computers, databases and online references which prolong the process.

“Hence, the audit period becomes a long agonizing process, which some taxpayers describe as a dreaded nightmare that they would not wish to experience again,” he said.

It is because of this that the taxpayer sometimes chooses to ‘settle’ or enter into ‘under the table’ deals with the examiner to make “things easier for his business,” a Department of Finance official said.

BIR Deputy Commissioner for Operations Nelson Aspe said that as part of the fight against tax evasion is concerned, the
BIR also does regular rigodon or revamp of its examiners. Examiners or those who examine the books of companies are considered the front liners of the agency. They are the ones who deal with businesses.

There are different ways by which BIR examiners are co-opted so that they would turn a blind eye on the irregularities of tax evaders.

The bribes can range from P100,000 to a million, depending on the offense and the net worth of the company seeking to bend the rules, a BIR insider said.

No examiner accepted The STAR’s request for interviews. Aspe said it is difficult to prove connivance between examiners and businesses. He said there is usually no proof.

At the same time, he said there are dedicated and well-meaning examiners and BIR employees who fulfill their duties well.

Henares said it’s a long way to go in reforming the BIR but stressed that the situation is not hopeless.
Whether or not President Aquino’s Tuwid na Daan framework of governance would materialize and bear fruits remains to be seen.

To be continued

CONCLUSION: Connivance continues between smugglers, Customs staff

Posted at 01/03/2012 7:40 AM | Updated as of 01/03/2012 7:40 AM
(Continued from Monday)

MANILA, Philippines - The World Bank estimates that P200 billion is lost annually due to tax evasion and smuggling.
Smuggling is defined as the use of illegal channels of importation and exportation.

Smuggling has existed in the country for centuries, as traders attempt to bring in goods into the Philippines and skirt around existing Customs rules and regulations.

Through the years, smuggling has evolved and has become more sophisticated.

Up to this day, the problem of smuggling remains unresolved in the Bureau of Customs, the government’s second largest revenue agency.

There are different forms of smuggling, and  connivance between smugglers and Customs insiders is at varying levels as well.

 According to former Customs Commissioner Angelito Alvarez, it’s hard to pin down smugglers legally because there is always no paper trail that leads to the smugglers.

 Alvarez revealed that he has tried to offer insiders protection and assurance to get information about smuggling activities -- but nobody is willing to squeal.

Insiders, Alvarez said, feared there was no assurance he would stay long enough to protect them.

True enough, Alvarez had to resign from his post in September, paving the way for the appointment of Ruffy Biazon, a known associate of President Benigno Aquino III, way back during their time at the House of Representatives.

In a recent interview with The STAR, Biazon said he plans a revamp of collectors and Customs executives so that operations could be more efficient.

This would help avoid connivance with smugglers, he said.

He also plans to file charges against smugglers, but has yet to file a cases against any big smuggler.

Records of the Department of Justice show the Run After the Smugglers (RATS) program of Customs has not been able to file even just one smuggling case worth at least P1 billion since former Deputy Commissioner Gregorio Chavez had been put on 90-day suspension since October.

One case filed in October against onion smugglers amounted to only P27.3 million, while a similar case filed in December amounted to an even smaller P3.7 million.

A case filed against traders of misdeclared Asus computer laptops was worth P96.8 million.

Chavez used to head the RATS program and under his leadership, the program filed at least 44 smuggling cases before the Justice department with total claims worth almost P60 billion.

In October, however, the Office of the President ordered the suspension of Chavez and seven of his men following an administrative complaint filed by Sanyo Seiki Steel Corp. (SSSC).

Executive Secretary Paquito Ochoa signed the order which placed Chavez and his men under preventive suspension for 90 days.

The suspended members were Christopher Dy Buco, Edgar Quinones, Francisco Fernandez Jr. Alfredo Adao, Jose Elmer Velarde, Thomas Patric Relucio and Jim Erick Acosta.

Sanyo Seiki, in its complaint, said that the eight RATS officials were engaged in extortion activities and abuse of authority.

The connivance between Customs insiders and smugglers is one of the issues that needs to be addressed if a Customs
commissioner wants to put an end to such activities.

Former Customs Commissioner Guillermo L. Parayno Jr., for his part, said that smuggling would remain for as long as it is profitable and that the risks perceived are manageable.

“Smuggling is a profession and a way of life for a considerable segment of our society and the number of those who would be adversely affected by programs meant to curtail it magnifies tenfold if we include the smugglers’ conspirators and supporters. These individuals will resist any diminution of their incomes or any change in their lifestyles,” Parayno said in a paper titled “The Extent of Smuggling in the Philippines.”

Parayno believes that strong political will is needed to implement laws that would drastically reduce smuggling in the country.

Insiders interviewed by The Star including customs district collectors and former customs commissioners said that pay-offs from smugglers vary, depending on the goods and the rank of the customs employee involved.

A customs police – considered a middle-level employee in the agency of roughly 5,000 employees, gets anywhere from P5,000 to P20,000 a week, insiders said.

The higher-ranking officers can get anywhere from P100,000 to at least a million pesos, insiders said.
The different methods used by smugglers are as varied as the goods that they bring in, Parayno said in his paper.

Methods of smuggling

The common methods of smuggling are concealment, under-invoicing, mis-declaration, use of fake documents, swings, transshipment, and illegal withdrawals from customs bonded warehouses.

Concealment is when legitimate products conceal the prohibited, banned or regulated commodity.

Mis-declaration happens because at the end of the day, the commissioner is not the one who examines each and every container.

Under invoicing is done in cahoots with Customs assessors and examiners. It involves the submission of false invoices. Through this scheme, the quantity or the price is highly understated.

Misclassification, another smuggling scheme, is when the commodity may be properly described but placed under a different heading with a lower rate of duty.

The use of fake documents is also a common method used in smuggling, insiders said.

With this scheme, smugglers submit tax exemption papers, authority to import and other exemption papers to circumvent the payment of proper duties.

Swing is when importers take out the goods from the port outright without the duly processed documents. The volume of goods taken out is usually minimal but entails the connivance of Customs policemen who are asked to turn a blind eye on the removal of the goods.

Transshipment is another form of smuggling used by big-time smugglers. Here, the goods are manifested as transshipments to other ports from a port in Manila.

Smuggling takes place on the way to the port of destination when the contents of the container are replaced or removed before proceeding to the transshipment port, or the entire shipment disappears altogether.

In transshipment procedures, Customs police must escort the goods from the port of discharge all the way to the port of destination.

Unfortunately, sometimes this does not happen.

The police are just given P500 to P2,000 to “go watch a movie, take the day off or to just go home,” said a Customs insider.

In many instances, even without a bribe, Customs are not willing to escort goods to a port outside Manila because of the distance and the time it would entail.

Illegal withdrawals from customs bonded warehouses or CBWs are also common method of smuggling goods.

CBWs allow exporters to import, duty-free, raw materials and other inputs for export production.

However, insiders said, it is common for smugglers to form fictitious CBWs just to avail themselves of the duty-free privileges. As such, the goods find their way into the local market at marked down prices.

Thus, the Government’s battle against tax evasion and smugglers remains uphill.

The Bureau of Internal Revenue (BIR) needs to collect P940 billion this year, while the BoC has a revenue target of P320 billion.

Insiders from both agencies believe that if tax evasion and smuggling are drastically reduced, it would be easier to hit the respective collection goals set by the government for its two revenue offices.