Author: Mamuka Jgenti - Founder, Georgian Institute of European Values (GIEV)

As commissioned by the Institute for Development of Freedom of Information (IDFI) the present paper analyses the challenges posed by recent amendments to Georgia's tax code, known as the "offshore law," which facilitates the transfer of offshore assets into Georgia. The analysis is considering/covering the country's commitment to creating a beneficial ownership transparency registry and the contemporary trend of increasing accountability for offshore companies and making beneficial ownership data more accessible.

Key aspects of the analysis include:

 - Economic Risks: How these amendments might impact the economy;

 - Transparency Risks: The potential reduction in transparency and accountability;

 - Money Laundering Risks: Increased vulnerability to money laundering activities;

 - Other Related Risks: Additional risks associated with these changes.

Furthermore, the paper explores how beneficial ownership transparency standards and the current amendments are interlinked and why they may be incompatible. This includes the presentation of ways in which these amendments could undermine efforts to improve transparency and accountability in Georgia.

Introduction

A recent amendment to Georgia's tax code, known as the “offshore law,” has raised serious concerns about the integrity of Georgia's financial system as it would make it easier to bring offshore assets into Georgia. Amendments to the tax code were passed by the Parliament on April 19 under a fast-track procedure. Georgian President Zourabichvili on May 3 vetoed controversial amendments to the tax code. But just after this, the Parliament reviewed and rejected the President’s motivated remarks on the Amendments to the Tax Code of Georgia. Following the rejection of the President’s motivated remarks by the Parliament, MPs endorsed the original version of the law.

An amendment to Georgia's tax code established a number of tax exemptions in the event of the transfer of assets of an enterprise registered in a country with preferential tax treatment (offshore area) to an enterprise in Georgia:  

1. As part of the transaction of transfer of assets, the income received by the foreign enterprise registered in an offshore area and the physical person who owns it are exempted from profit and income taxes;  

2. Bringing of an asset or goods into Georgia is exempted from import tax; 

3. An enterprise in Georgia that received assets from an offshore area is exempted from property tax until January 1, 2030. 

According to the explanatory note to the draft law, investments are often made in Georgia by enterprises registered in offshore areas that operate in Georgia through their subsidiary enterprises, which contains a risk of tax evasion, while the transfer of assets by an “offshore company” to Georgia is going to decrease this risk. It is also noted that this is going to ensure the transparency of economic activities.  

This analysis examines the implications of this amendment in the context of recent political and regulatory developments in Georgia, which have raised concerns about the potential risks of money laundering and sanctions evasion. In particular key aspects of this analysis include:

 - Transparency Risks: The potential reduction in transparency and accountability.

 - Money Laundering Risks: Increased vulnerability to money laundering activities.

 - Economic Risks: How these amendments might impact the economy.

 - Other Related Risks: Additional risks associated with these changes.

International Standards on Transparency and Beneficial Ownership

The Financial Action Task Force (FATF) is an independent inter-governmental body that develops and promotes policies to protect the global financial system against money laundering, terrorist financing, and the financing of proliferation of weapons of mass destruction. The FATF Recommendations are recognised as the global anti-money laundering (AML) and counter-terrorist financing (CFT) standards. The FATF Recommendations provide measures that address the transparency and beneficial ownership of legal persons (R24) and legal arrangements (R25).

To tackle these issues, the Financial Action Task Force (FATF) established the first international beneficial ownership transparency standard in 2003 and strengthened it in 2012. To respond to the significant misuse of legal persons and legal arrangements for money laundering, terrorist financing, and also for proliferation financing, the FATF strengthened its Recommendation 24 and Recommendation 25 in March 2022 and February 2023 respectively. Amendments to R.24 and R.24 and their Interpretive Notes require countries to prevent the misuse of legal persons and legal arrangements for money laundering or terrorist financing and to ensure that there is adequate, accurate, and up-to-date information on the beneficial ownership and control of legal persons and legal arrangements.

R.24 and R.25 require countries to assess the ML/TF risks linked to legal persons and legal arrangements and take mitigating measures. 

R24 explicitly requires a multi-pronged approach, i.e. to use a combination of different mechanisms, for the collection of beneficial ownership information to ensure it is available to competent authorities in a timely manner. It`s necessary to highlight that before the amendment of FATF Recommendations 24, FATF also recommended countries to follow a multi-pronged approach[1] (e.g. company, registry, and existing information approach), at the same time countries could choose whether to use only one or more of the mechanisms for collection of beneficial ownership information to ensure it is available to competent authorities in a timely manner and with the new amendment of R.24, all of these mechanisms/approaches, as highlighted above, became mandatory for all jurisdictions.

In particular, according to amended R24, countries should require companies to obtain and hold adequate, accurate, and up-to-date information on their own beneficial ownership and make such information available to competent authorities in a timely manner. Countries should also require beneficial ownership information to be held by a public authority or body functioning as a beneficial ownership registry or may use an alternative mechanism[2] if such a mechanism also provides efficient access to adequate, accurate, and up-to-date beneficial ownership information by competent authorities. Moreover, countries should apply any additional supplementary measures that are necessary to ensure the determination of beneficial ownership of a company. These additional measures include holding beneficial ownership information obtained by regulated financial institutions and professionals or held by regulators or in stock exchanges. 

R25 also recommends countries to use a combination of different mechanisms to ensure that adequate, accurate and up-to-date beneficial ownership information of the trusts or other similar legal arrangements are available to competent authorities, including the collection of beneficial ownership information by trustees, holding beneficial ownership information in a central registry of trusts (or other similar information sources), and collection of beneficial ownership information by other competent authorities and obliged entities.

The current standards of transparency and beneficial ownership in the EU (4^th and 5^th EU AML directive) are stricter in comparison to FATF and will become even more strict after the adoption of the new AML Package (6^th EU AML Directive). Article 30 of the existing AML directive, for example, contains the following requirements:

 - All legal entities are required to obtain and hold adequate, accurate, and current information on their beneficial ownership, including the details of the beneficial interests held (any breaches of this Article are subject to effective, proportionate, and dissuasive measures or sanctions). 

 - All entities are required to provide, in addition to information about their legal owner, information on the beneficial owner to obliged entities when the obliged entities are taking CDD.

 - The beneficial owners (including through shares, voting rights, ownership interest, bearer shareholdings or control via other means) are required to provide BO information to companies 

 - BO information should be accessed in a timely manner by competent authorities and FIUs. 

 - BO information must be held in a central register in each Member State. 

 - BO information held in the central register must be adequate, accurate and current. 

 - Obliged entities and competent authorities are required to report any discrepancies they find between the beneficial ownership information available in the central registers and the beneficial ownership information available to them (e.g. discrepancy reporting mechanism).

 - In the case of reported discrepancies, appropriate actions be taken to resolve the discrepancies in a timely manner and, if appropriate, a specific mention be included in the central register in the meantime. 

 - The information on the beneficial ownership is accessible in all cases: to competent authorities and FIUs, without any restriction; to obliged entities, within the framework of customer due diligence; and in specific situations, to members of the general public.

Transparency and Beneficial Ownership in Georgia 

Mutual Evaluation of Georgia on the compliance with the FATF 40 Recommendations and the level of effectiveness of Georgia’s AML/CFT system was conducted in 2019-2020. The report of the Mutual Evaluation (MER) was published by MONEYVAL[3] in September 2020 with two consecutive follow-up reports in 2022 and 2023.

Both FATF Recommendations that address the transparency and beneficial ownership of legal persons (R24) and legal arrangements (R25) were rated in the report as Partially Compliant (PC)[4], which is a negative rating according to FATF Methodology. 

In terms of effectiveness, Georgia was rated as moderate[5] for Immediate Outcome 5 (Legal persons and arrangements are prevented from misuse for money laundering or terrorist financing, and information on their beneficial ownership is available to competent authorities without impediments), which is also a negative rating according to FATF Methodology.

There have been two follow-up reports (FURs) for Georgia, at the same time, these reports did not include a re-rating of R.24 and R.25, and the rating indicated above remains current. 

MER for Georgia contains the following information about the shortcomings related to transparency and beneficial ownership:

R24 (Partially Compliant):

 - The risks connected with legal persons have not been comprehensively analysed. 

 - Also, the authorities have not been able to explain whether an agreement to a change in registered ownership could be enforced before its registration with NAPR (National Agency of Public Registry). 

 - Mechanisms in place to capture beneficial ownership information do not ensure that accurate and up-to-date information can be determined in a timely manner or that a designated person is responsible for maintaining beneficial ownership information or can be held accountable to the authorities. 

 - Finally, a mechanism was not in place to prevent the misuse of nominee shareholders in LLCs. 

R25 (Partially Compliant):

 - Professional trustees are not subject to an obligation to hold or update information, except where they are a lawyer or accountant.

 - Even in such cases, lawyers and accountants cannot be sanctioned for failing to hold or update information, and professional secrecy provisions will prevent lawyers from providing competent authorities with information relating to trusts, except where required under a court order.

It`s necessary to highlight that, during Mutual Evaluation, Georgia was assessed against the old versions of R.24 and R.25 and not all requirements of amended R.24 and 25 have been assessed and, in case of non-compliance, were raised as shortcomings/deficiencies (for example, absence of BO information in the register or absence of requirements for companies to collect information on their beneficial owners), as the FATF Standard related to the application of multi-pronged approach was different that time. 

Nevertheless, MER (R24, 25, and IO5) contains very important information with regard to shortcomings, deficiencies and the moderate level of effectiveness of Georgia`s transparency and beneficial ownership framework, in particular:

 - Due to the ease of founding a legal person, most register directly with the registrar of companies (NAPR), and “gate-keepers” (such as notaries, lawyers or accountants) are often not involved. Except for the aforementioned, TCSPs are not designated as obliged entities.

 - Nominee shareholdings are permitted for JSCs which must use a nominee that is an obliged person and regulated and supervised by the NBG. Nominee shareholdings are not prohibited for LLCs and there is no regulation of their use.

 - There is no general requirement for legal persons to hold their basic and beneficial ownership information, nor that this information should be held in Georgia.

 - All legal persons established in Georgia and branches of foreign legal persons operating in Georgia have to be registered with the NAPR. At the same time, only direct ownership information (on the first level of legal owners of a legal person) is registered. Beneficial owners of LLCs are not registered in the NAPR register. Thus, the NAPR register only contains information on the registered direct owners and shareholders of companies and not on ultimate beneficial owners. 

 - As legal ownership information included in the NAPR register may not necessarily match beneficial ownership information, the possibility to verify this information with the banks strengthens access to beneficial ownership information. Nonetheless, this source is not available for around one-third of legal persons which do not hold bank accounts in Georgia. 

 - There is no reference in the MER with regard to obligations to obliged entities to report BO discrepancy and regarding the functioning of the discrepancy reporting mechanism in Georgia.

 - Identification of beneficial owners of foreign legal persons can be problematic as in the register information would be available only on that legal person (BO information would not be available).

 - There is no a legal requirement for legal persons (except some JSCs) to maintain a relationship with FIs or DNFBPs in Georgia (~one-third do not have bank accounts)

 - A JSC which has more than 50 shareholders, or has issued public securities, uses a registrar that is regulated and supervised by the NBG to maintain its share register (and as such the registrar applies full CDD requirements to all direct shareholders). Whilst other JSCs have an obligation to maintain the register themselves, there is no obligation for BO information to be recorded (only the direct legal shareholder would be included in the register) or for this register to be kept in Georgia (and no supervision of compliance with this obligation). 

 - Three mechanisms are available to obtain information on beneficial ownership of legal persons established in Georgia: (i) through a public registry - NAPR (which records direct legal shareholders); (ii) through obliged entities (banks and registrars) (which are subject to CDD and record-keeping requirements); and (iii) directly from the legal person (which records direct legal shareholders and not BO information). Mechanisms used cannot be relied upon in all cases to provide adequate, accurate and current beneficial ownership information.

 - There is proven abuse of legal persons in Georgia, including through the use of “fictitious” companies. Measures have been taken to prevent this misuse, in particular through raising awareness of FIs and the application of dissuasive sanctions by the NBG when inadequate CDD measures have been applied to relationships involving such companies.  Nonetheless, the extent to which this vulnerability remains has not been demonstrated and cannot be addressed solely by improving the implementation of CDD measures by banks since not all legal persons hold a bank account in Georgia.

Offshore Financial Centers 

In recent years, international organizations such as the FATF and the Organisation for Economic Co-operation and Development (OECD) have taken a number of measures aimed at regulating offshore financial centers and ensuring transparency of beneficial ownership in these jurisdictions. Actions taken by FATF have been discussed above.

In 2023 the OECD, in collaboration with the G20, launched the Base Erosion and Profit Shifting (BEPS) project. BEPS refers to corporate tax planning strategies used by multinational companies to shift profits from high-tax countries to low- or no-tax jurisdictions where there is minimal economic activity. The BEPS Action Plan includes 15 actions aimed at addressing gaps and inconsistencies in international tax rules (OECD, 2013). The implementation of BEPS measures was coordinated through the BEPS Inclusive Framework, which includes more than 135 countries and jurisdictions working together to implement these measures. In particular, the BEPS project has led to significant changes in international tax rules, thereby strengthening cooperation between tax authorities and increasing transparency to more effectively combat tax evasion (OECD, 2020).

The European Union has also taken steps to combat tax evasion and avoidance and maintains a list[6] of non-cooperative jurisdictions for tax purposes. This list includes countries that do not meet the criteria for tax administration and is aimed at deterring unfair tax practices. There are currently 12 countries on the list, namely Panama, Russia, Antigua and Barbuda, American Samoa, Fiji, Guam, Samoa, Trinidad and Tobago, the US Virgin Islands, Anguilla, Vanuatu and Palau.

Many offshore jurisdictions have been forced to make significant changes to improve the transparency of offshore financial activity and beneficial ownership. For example, the British Virgin Islands (BVI) has made significant improvements to its regulatory framework. These changes include the abolition of bearer shares, the public availability of directors’ names, the creation of a framework for a public register of beneficial owners, and a requirement for most BVI companies to file annual financial returns. These reforms contributed to the BVI being removed from the EU’s list of non-cooperative jurisdictions for tax purposes in October 2023. 

Similarly, the Cayman Islands was removed from the FATF grey list in October 2023 after substantially complying with action plans that ensure sanctions compliance and the prosecution of money laundering. This also resulted in the Cayman Islands being removed from the EU’s anti-money laundering list in February 2024. 

Panama has also taken significant steps to ensure beneficial ownership transparency, including the creation of a beneficial ownership registry. As a result, Panama was removed from the FATF grey list in October 2023. 

A similar situation has happened with Mauritius. Mauritius was placed on FATF’s list of jurisdictions under increased monitoring (commonly known as the ‘grey list’) in February 2020.  As a consequence of this listing, Mauritius was also listed on the EU’s list of high-risk countries effective from October 2020.  A high-level political commitment was made by the Government of Mauritius to swiftly resolve the identified strategic deficiencies within agreed timeframes. Since then, a series of measures (including amendments to the legislative framework) forming part of an action plan have been undertaken to implement the necessary reforms. Mauritius was removed from the FATF grey in October 2021 list after implementing an enhanced AML / CFT framework including the creation of a beneficial ownership register in the country.

It`s possible to conclude that, in light of increasing international efforts to tackle tax havens, many (if not most) offshore jurisdictions have taken measures to improve the transparency of beneficial ownership. Beneficial ownership register, while not necessarily open to the public, was created in the Cayman Islands, British Virgin Islands (BVI), Bermuda, Jersey, Guernsey, Seychelles, Mauritius, Isle of Man, and in other jurisdictions historically referred to as offshore.

In general, today the level of compliance with FATF Recommendations R.24 and R.25 by most offshore financial centers and in countries that were historically called offshore is higher than in Georgia (see table below).

Consequences of Amendments to the Tax Code of Georgia

According to the explanatory note to the draft law, investments are often made in Georgia by enterprises registered in offshore areas that operate in Georgia through their subsidiary enterprises, which contains a risk of tax evasion, while the transfer of assets by an “offshore company” to Georgia is going to decrease this risk. And, in order to prevent tax evasion, ensure transparency of activities and simplify tax administration, it is important to promote the process of transferring assets from companies registered in a country with preferential tax treatment to Georgia.

In practice, as of today, the level of information disclosed on beneficial ownership and the quality of the beneficial ownership transparency standards in most “off-shore” jurisdictions are higher than in Georgia (see above table) taking into account that in Georgia, according to MER, even some very basic requirements are not yet fully available, such as the requirements for legal persons in Georgia to hold their beneficial ownership information, and the requirements for the register to collect not only information on the first level of legal owners of a legal person but also information on their ultimate beneficial owners.

In this respect, the consequences of amendments to the Tax Code of Georgia will not ensure the transparency of activities of offshore companies operating in Georgia. According to the Study conducted by Transparency International, Georgia already has around 3,200 companies that are fully or partially owned by offshore entities. 

According to the analysis conducted by ISET Policy Institute (ISET-PI)[8], the amendments to the Tax Code of Georgia appear to indirectly target increasing offshore money investments in Georgia, “since it provides several tax concessions for the transfer of ownership rights to assets of foreign enterprises registered in offshore jurisdictions to Georgian enterprises. Specifically, these transfer operations will be exempt from profit tax, personal income tax, property tax, and import duties on assets and goods brought into Georgia. Notably, these Georgian enterprises will be exempt from property tax until 1 January 2030 for the assets received as part of this operation. However, there are concerns and doubts about whether the imported capital will be invested into the real economy or if Georgia will simply act as a conduit, channeling offshore funds into other countries, such as Russia”.

Taking into account the weaknesses of Georgia`s beneficial ownership transparency framework, there is a very high probability that many shell companies operating all around the world will use this opportunity to migrate to new jurisdictions (e.g. Georgia) where the beneficial ownership disclosure standards are still not in line with international standards and are lower than in other jurisdictions.

Offshore financial centers have come under increasing scrutiny in recent years due to their links to financial crimes such as money laundering, terrorist financing, evasion of international sanctions, corruption, and tax evasion. International organisations such as the FATF and the OECD have made significant efforts to tighten regulation of these jurisdictions in order to increase their transparency and strengthen the fight against illicit financial activities. Recent legislative changes in Georgia appear to be inconsistent with and do not support these global efforts. Instead of improving the regulatory framework for beneficial ownership transparency as required by the amended R.24 and R.25, Georgia promotes the transfer of assets from tax jurisdictions to Georgia, provides extensive tax incentives for such assets, and leaves local beneficial ownership disclosure standards at the level that is below the common international standards and standards in most of the offshore financial centers and countries which were historically referred as off-shores (see the above table).

Georgia's decision to attract high-risk capital from offshore jurisdictions without adequate controls over beneficial ownership transparency may have significant negative reputational and economic consequences.

First of all, it can lead to negative future mutual evaluation results and inclusion of the country in FATF and EU “grey” lists.  Appearing on FATF or EU “grey lists” can have profound negative economic and reputational consequences for a country. It signals that the country’s anti-money laundering (AML) and counter-terrorist financing (CFT) frameworks are inadequate, leading to increased scrutiny and compliance costs for financial institutions operating within and outside the country. This heightened scrutiny can deter foreign investment and reduce access to international financial markets, resulting in capital flight and stunted economic growth. Local businesses may face difficulties in securing loans and engaging in international trade, further straining the economy. Reputationally, grey-listing tarnishes the country's image, making it less attractive to potential investors and international partners who are wary of legal and financial risks associated with poor AML/CFT standards. The combined economic and reputational damage can hinder the country's long-term development prospects, exacerbating socio-economic challenges and reducing its competitiveness on the global stage.

Second, even without the country being placed on the grey list, historical evidence suggests that investments from offshore jurisdictions do not contribute to long-term economic development. These investments are short-term and risky due to their potential links to financial crimes such as money laundering, terrorist financing, evasion of international sanctions, corruption, and tax evasion. The perception of Georgia as a hub for potentially illicit financial activity could deter legitimate investors and strain diplomatic relations with countries that have strict anti-money laundering and anti-tax evasion policies.

Third, attracting investments from offshore jurisdictions without having proper beneficial ownership controls in the country will have negative economic and reputational consequences for a country. Economically, such investments are often associated with higher risks of money laundering, tax evasion, and other illicit activities, which can destabilize the financial system and erode public trust in the economy. The influx of opaque funds can distort local markets, leading to unfair competition and disadvantaging legitimate businesses. This environment will discourage ethical investors, reduce foreign direct investment, and result in capital flight as investors seek more transparent and stable environments. Reputationally, the country may be perceived as a haven for illicit finance, damaging its standing in the international community and making it subject to enhanced scrutiny by foreign jurisdictions and global regulatory bodies. This negative perception can lead to economic sanctions, reduced access to international financial markets, and long-term harm to the country’s attractiveness as a destination for legitimate investment and business operations.

While the declared goal of the amendment to Georgia’s tax code is to stimulate foreign investment, in the long term, the reputational risks and negative economic consequences far outweigh the potential benefits. To achieve sustainable economic growth, Georgia should focus on attracting transparent investment from reliable sources, while bringing its legal framework into line with the FATF international standards on beneficial ownership transparency.

REFERENCES

• FATF (Financial Action Task Force) Recommendations (2012 as updated November 2023); 
• Methodology for assessing compliance with the FATF Recommendations and the effectiveness of AML/CFT systems (2021); 
• FATF Guidance on Beneficial Ownership of Legal Persons (2023); 
• FATF Guidance on Beneficial Ownership and Transparency of Legal Arrangements (2024); 
• FATF Best Practices on Beneficial Ownership for Legal Persons (2019); 
• MONEYVAL, Fifth Round Mutual Evaluation Report on Georgia (September 2020); 
• MONEYVAL, 1st Enhanced Follow-up Report & Technical Compliance Re-Rating of Georgia (November 2022);
• MONEYVAL, 1nd Enhanced Follow-up Report & Technical Compliance Re-Rating of Georgia (December 2023);
• ISET Policy Institute (ISET-PI), Policy Paper N2024/05, GEORGIA'S TAX CODE GAMBLE WITH OFFSHORE HAVENS (May 2024).

[1] FATF BEST PRACTICES ON BENEFICIAL OWNERSHIP FOR LEGAL PERSONS, October 2019

[2]  For these purposes reliance on basic information or existing information alone is insufficient, but there must be some specific mechanism that provides efficient access to the beneficial ownership information.

[3]  MONEYVAL is FATF-Style Regional Body (FSRB). The Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism (MONEYVAL) - is a permanent monitoring body of the Council of Europe entrusted with the task of assessing compliance with the principal international standards to counter money laundering and the financing of terrorism and the effectiveness of their implementation, as well as with the task of making recommendations to national authorities in respect of necessary improvements to their systems.

[4] PC is a negative rating. There are four possible levels of compliance: compliant, largely compliant, partially compliant, and non-compliant.

[5] Moderate is a negative rating. There are four possible ratings for effectiveness, based on the extent to which the core issues and characteristics are addressed: High level of effectiveness; Substantial level of effectiveness; Moderate level of effectiveness; and Low level of effectiveness.

[6] https://taxation-customs.ec.europa.eu/common-eu-list-third-country-jurisdictions-tax-purposes_en

[7]  Sources: https://www.fatf-gafi.org/en/publications/Mutualevaluations/Assessment-ratings.html; https://www.coe.int/en/web/moneyval/jurisdictions

[8] https://iset-pi.ge/en/publications/policy-briefs/3466-georgias-tax-code-gamble-with-offshores

The analysis has been developed under the framework of the project “Empowered Watchdog Community and Enhanced Transparency Standards for Government Accountability”, co-financed by the Governments of Czechia, Hungary, Poland, and Slovakiathrough Visegrad Grants from the International Visegrad Fund. It is also co-funded by the Ministry of ForeignAffairs of the Republic of Korea. The mission of the fund is to advance ideas for sustainable regional cooperation in Central Europe.

The content of the analysis is the responsibility of IDFI and the opinions expressed therein may not reflect the position of the International Visegrad Fund and the Ministry of Foreign Affairs of the Republic of Korea.