Journalists at a handful of media outlets have, as a clever stunt, set up their own shell companies in order to illustrate just how lax international financial regulations are. Years before the Panama Papers leaked, the podcast Planet Money aired an episode in which the two hosts chronicled their relatively frictionless path to becoming the proud and anonymous owners of a shell company in Belize. More recently, Fusion produced a video titled “Watch how easy it is to start an anonymous shell company for your cat.”
Yes, it’s troubling that secretive companies can be set up so quickly and with such little oversight. And pointing to how simple it is for, say, an intern, to set up a Panamanian shell corporation without any documentation is a useful demonstration of a purposely obfuscated process.
But the ease with which shell companies can be created is not particularly consequential. Sure, anyone can set one up—but what would someone do with it? What matters isn’t the creation of shell companies, but how the world’s wealthiest are using them. Setting up a shell company, even a cheap one, “would be a colossal waste of money for a person with the median household income,” says Jeffrey Winters, a professor of political science at Northwestern University and the author of Oligarchy. After dropping several hundred or a couple thousand dollars on a shell company, the owner would be at a loss for what to do next. “It wouldn't help them in any way,” Winters says, “and it would actually bleed resources from them on an annual basis."
For the purposes of tax avoidance, shell corporations, along with other tools favored by what’s called the “wealth-defense” (known less euphemistically as tax avoidance) industry, are useful mainly to those making substantial amounts of money from owning assets, as opposed to working. Because the U.S. has a rigorous system for tracking people’s income—employers have to report it to the IRS—taxpayers are not able to hide their money before a tax authority is made aware of it. But, shell corporations don’t make sense for you if you’re earning only a little bit of money from assets; you have to be making a lot. “Just because I could buy a backhoe for cheap,” Winters says, “doesn't mean that a backhoe is useful for me, for my little garden in the backyard.”
So how big would your garden have to be for it to make sense to buy a backhoe? Winters says that individuals start being able to afford Mossack Fonseca-level wealth defense once their annual earnings (from both work and assets combined) cross a threshold of about $3 million to $5 million. The deductions that people of average wealth take are hard to fudge, but for the super-rich, it’s different: “As you move into these very complex structures, it becomes really up for grabs whether the tax payment is even legitimate or not,” Winters says. This means that with the proper legal handiwork, a lot of their income can avoid taxation.
Consider one lucrative tactic, the tax-opinion letter. At the upper tail of wealth, tax-opinion letters are thoroughly vetted documents that tax-law firms produce on behalf of their clients, and essentially what they say is that, in the expert opinion of the firm, the client owes little to no taxes. At the price of $1 million to $4 million—which also buys clients the peace of mind that the firm will defend its letter in court if pressed by the IRS—these documents are wildly out of reach for an American making median income, according to Winters. But for much wealthier people they’re worth it, because they can lead to tax savings in the tens or even hundreds of millions of dollars.
Shell companies, similarly, require the expensive expertise of tax lawyers to be of any use. “A shell corporation is only one part, it’s just an instrument, in a broader wealth-defense strategy,” Winters says. He says that a well-designed network of shell companies can make $30 million in gains look to the IRS like a $10 million loss.
So is wealth defense not worth it unless you are ludicrously rich?
It turns out that there is a market for selling cheaper but still effective wealth-defense services to people who are less wealthy but still rich—a group the industry calls “the mass affluent.” But those services aren’t available. Why? The idea of millions of people engaging in tax avoidance, instead of a much smaller group doing so more discreetly, didn’t go over so well when the accounting firm KPMG tried it in the early 2000s. KPMG, as Winters explains in his book, Oligarchy, decided to start marketing a watered-down version of their high-end wealth-defense services. For only about $300,000, a client could tap into the power of shell companies and tax-opinion letters—just ones that weren’t as customized as the ones sold to richer people. “They decided to try to produce hamburgers instead of filet mignon,” Winters says.
It was a good idea, business-wise, but what caused KPMG to run into trouble was that they tried to recruit new customers by cold-calling them. The idea of actively pitching people on tax-avoidance services—instead of letting uber-wealthy clients quietly request them—attracted attention, along with the fact that down-market services, overall, put a lot more tax revenues into play. “Because these were being mass-produced, that drew Congress's attention, and that outraged Congress,” Winters says. So it was shut down.
An even further down-market tax-avoidance strategy was once pretty common in the U.S., and it was decidedly DIY. Starting in the ‘70s and ‘80s, many small-business owners and self-employed professionals making a few hundred thousand dollars a year (or more) established what are called S Corporations. These weren’t used for purposes of anonymity, but since people were the sole proprietors of their own corporations, they could pretty easily route their paychecks through them, steering clear of certain tax obligations.
This loophole—now closed—matched the spirit of the tax-avoidance schemes seen in the Mossack Fonseca leaks, if not their scale. “It is an echo of something everyday Americans used to do, so it's not that weird,” says Sam Wilkin, the author of Wealth Secrets: How the Rich Got Rich, of the recent leaks. “Just the level of sophistication is what makes this so exciting.”
If politicians were motivated enough to close a loophole benefiting people making a few hundred thousand dollars a year, would it be possible to squelch the efforts of bigger fish too? Winters says that such a law is easy to write. But it is not easy to pass. “Only a very wealthy, powerful sliver of the American population has anything to do with this, and they fund—guess what—all the campaigns. And they lobby,” Winters says, adding, “they are also trying to cut the budget of the IRS so that it has even less capacity to go after [them].” (This week, in response to the Mossack Fonseca leaks, the U.S. Treasury did say it was planning a rule that would require banks to identify the owners of shell companies, but Winters calls this “too little, too late.”)
Missing from this account of tax avoidance is, to be fair, one thing that everyday Americans actually can use a shell company for. “Keeping in mind that hiding assets and transactions is one of the main functions of these vehicles, one way they can be used is to hide assets and transactions from one's spouse so that they cannot be taken at divorce time,” Winters says. It would be costly to maintain, but it indeed could be useful for some.
“How many people are thinking like that?” Winters wonders. “They shouldn't be married anyway.”