Successive pieces of legislation introduced in the 1970s made it more attractive for a person willing to risk being a non-compliant taxpayer to move money offshore illicitly and then borrow against those funds, Mr Justice Moriarty said yesterday.
His comments came as he summarised evidence given by a former tax partner with Stokes Kennedy Crowley, Mr Don Reid, who outlined the historical background and tax law changes which formed the backdrop to the Ansbacher accounts.
The legislation in question included the introduction of capital tax, exchange controls and the lowering of interest provisions, Mr Justice Moriarty said.
Mr Reid had explained that, prior to 1974, a taxpayer could write off all interest on borrowings against his tax liability. In effect, a taxpayer could borrow as much as he could and write off all interest against his liability.
Under the "back to back" arrangements, money borrowed was invested in untaxable entities, with the result that investors did not pay tax on their money but got full interest relief on it.
Such money did not necessarily have to be invested abroad, according to Mr Reid. It could be invested domestically as taxpayers could use the money borrowed to buy certificates of deposit. If these certificates were sold shortly before maturity, the gain was a capital gain and not a revenue gain. This meant they received a tax-free gain before the introduction of Capital Gains Tax and also received tax relief.
However, these favourable circumstances were ended by the 1974 Finance Act, which introduced legislation against the transfer of assets abroad and restricted interest relief. Post-1974, each beneficiary of a trust was obliged to declare dispersement of funds from the trust for income tax purposes, Mr Reid said.
Up to 1979, it was legal to establish trusts in countries within the sterling area. After 1979, such trusts would require the permission of the Central Bank under exchange control regulations. Central Bank permission would also be required under transfer of assets regulations introduced in 1974. Since 1972, the bank's permission was also needed for the movement of assets to Cayman.
However, Mr Reid said he did not believe it would be worth even seeking Central Bank permission to establish such trusts as they were set up for "pure tax avoidance purposes".
The design and structure of discretionary trusts was a feature of the 1960s and 1970s, used to deal with death and asset duties, according to Mr Reid, who was tax consultant to Guinness & Mahon bank from the early-to mid-1970s until the late 1980s.
"As you stated, of course, the type of advice you were giving was to people who were up front in disclosing the assets they had and the arrangements that, if necessary, they were prepared to contest with the Revenue," Mr Justice Moriarty told the witness.
Mr Reid is currently chairman of The Irish Times Ltd and governor of Irish Times Trust Ltd.