Barclays tax-planning under investigation

The bank's tax planning has been described as a "sham" in a New York court briefing

In a court case starting today, the US Internal Revenue Service is facing off with the Bank of New York Mellon (BNY) over whether or not controversial tax planning measures that were designed by Barclays are legal.

The IRS claims that cross-border deals that Barclays prepared for the bank, as well as several other mid-sized ones like it, were in fact tax evasion, designed to exploit loopholes that exist in the difference between British and American laws.

The deal designed by Barclays is known as "structured trust advantaged repackaged securities" – STARS, for short – and it really is Byzantine:

Barclays required Petitioner [BNY] to transfer assets that produced income to a trust that would have a U.K. trustee so that the U.K. trustee, as a U.K. resident, would owe and pay U.K. income tax on that income. Of course, from Petitioner's perspective, Petitioner wanted a favorable borrowing rate but did not want to pay taxes twice on the same income. As between the U.S. and the U.K., Petitioner was neutral as to whom it paid its income tax; it just wanted to avoid being double-taxed.

That's BNY's description of the STARS deal. The IRS's is marginally simpler, and significantly more damning:

A U.S. taxpayer who pays $1 of foreign tax and claims $1 of foreign tax credit pays the same amount of tax as if it had paid the $1 to the United States. A U.S. taxpayer who pays $1 of foreign tax, is reimbursed for 50 cents of it by a counterparty, but still claims $1 of U.S. foreign tax credit comes out ahead by 50 cents.

If the counterparty simultaneously recovers the $1 of foreign tax through the foreign tax system, uses 50 cents of that to reimburse the u.s. taxpayer, and keeps the other 50 cents, then both parties are now ahead, each by 50 cents. But the US government has given $1 of foreign tax credit when no foreign tax was in fact paid.

Blown up to size, this is STARS.

Simplified, the case is over whether STARS existed to get BNY a good interest rate by borrowing in the UK, or whether it was a "sham" designed purely to pump the US government for tax credits. Between 1999 and 2006, the IRS claims that the six banks which were involved in STARS took $3.4bn in foreign tax credits. Five of those banks are now included in lawsuits with the IRS, although Barclays itself hasn't been implicated in any wrongdoing.

Despite this, it looks like life will be difficult for the bank, which is one of the leaders in the high-stakes tax planning world. The IRS crackdown follows HMRC retroactively forbidding Barclays from using a tax loophole in a "highly abusive" manner to buy back its own debt tax free. With governments worldwide facing pressure to pay down debt, and the "tax gap" being blamed for much of the difficulty, the bank is going to be facing an unprecedented level of scruitiny in its actions.

People queue to close their accounts. Credit: Getty

Alex Hern is a technology reporter for the Guardian. He was formerly staff writer at the New Statesman. You should follow Alex on Twitter.

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Leave campaigners are doing down Britain's influence in Europe

As the third biggest country, Britain has huge clout in the EU.

Last week the Leave campaign's Priti Patel took to the airwaves to bang on about the perils of EU regulation, claiming it is doing untold damage to small businesses in the UK. Let's put aside for one minute the fact that eight in ten small firms actually want to stay in the EU because of the huge benefits it brings in terms of trade and investment. Or the fact that the EU has cut red tape by around a quarter in recent years and is committed to doing more. Because the really startling thing Patel said was that these rules come to us "without the British government having a say." That might be forgivable coming from an obscure backbencher or UKIP activist. But as a government minister, Priti Patel knows full well that the UK has a major influence over all EU legislation. Indeed, she sits round the table when EU laws are being agreed.

Don't take it from me, take it from Patel herself. Last August, in an official letter to the House of Lords on upcoming EU employment legislation, the minister boasted she had "worked closely with MEPs to influence the proposal and successfully protected and advanced our interests." And just a few months ago in February she told MPs that the government is engaging in EU negotiations "to ensure that the proposals reflect UK priorities." So either she's been duping the Parliament by exaggerating how much influence she has in Brussels. Or, as is perhaps more likely, she's trying to pull the wool over the British people's eyes and perpetuate a favourite myth of the eurosceptics: that the UK has no say over EU rules.

As the third biggest country, Britain has huge clout in Europe. We have the most votes in the EU Council alongside France, Germany and Italy, where we are on the winning side 87 per cent of the time. The UK also has a tenth of all MEPs and the chairs of three influential European Parliament committees (although admittedly UKIP and Tory sceptics do their best to turn their belief the UK has no influence in Europe into a self-fulfilling prophecy). UKIP MEPs aside, the Brits are widely respected by European counterparts for their common sense and expertise in areas like diplomacy, finance and defence. And to the horror of the French, it is English that has become the accepted lingua franca in the corridors of power in Brussels.

So it's no surprise that the UK has been the driving force behind some of the biggest developments in Europe in recent decades, including the creation of the single market and the enlargement of the EU to Eastern Europe. The UK has also led the way on scrapping mobile roaming charges from next year, and is now setting the agenda on EU proposals that will make it easier to trade online and to access online streaming services like BBC iPlayer or Netflix when travelling abroad. The irony is that the Europe of today which Eurosceptics love to hate is very much a British creation.

The Leave campaign like to deride anyone who warns of the risks of leaving the EU as "talking down Britain." But by denying the obvious, that the UK has a major role in shaping EU decisions, they are the ones guilty of doing our country down. It's time we stood up to their defeatist narrative and made the case for Britain's role in Europe. I am a proud patriot who wants the best for my country, and that is why like many I will be passionately making the case to remain in the EU. Now is not the time to leave, it's time to lead.