Empathy games: should they be played? Enforcement at any cost!

Carlene Wynter, Aston University

Tax authorities are empowered by the state to enforce tax compliance.  They have this wonderful task to ensure that enough tax revenues are collected for the provision of public services. Of course, it is well known that large numbers of taxpayers, including corporations, would hope that they do not have to pay tax.  This does not sit well with the tax authorities, leading some tax authorities, especially in developing nations, to perhaps resort to unconventional enforcement methods to enforce compliance. 

Developing nations are sometimes plagued by weak institutions, challenging socioeconomic environments, over-burdened court systems, outdated tax registers, insufficient or poorly crafted tax legislation and resource constraints. Not that these are unique to developing nations only.  But these issues may be more pronounced in developing nations. Despite these issues, tax authorities must meet their targets of raising revenues for the state. 

Generally, they apply enforcement styles on a continuum from legalistic, that is, strictly adhering to the rules, to accommodative, where they are sympathetic to the evader’s circumstances. But sometimes these accommodative approaches take on a different hue where administrators get involved in game playing, using what we call a practical sense approach. In this scenario, tax administrators develop a feel for the game by becoming acutely aware of the ‘ins’ and ‘outs,’ or the game playing of the field, making sense of evaders’ actions and how these may impact tax compliance.  In this way, they develop an orientation of the impending outcome for tax evaders giving them the capacity to know what is at stake in the field. This practical sense approach gives tax administrators the ability to have an acquired system of preferences; they are able to discern and know how to classify these games. 

They have what I would call a system of durable cognitive structures and schemes of action that orient their perceptions, so they are able to give appropriate responses to various situations.  In other words, they come up with all the possible ‘coulds’- the various possibilities or the games they can play to enforce compliance.  Mind you, these games may not be rule or principle based, as a practical sense approach does not shackle itself with rules or principles.  What is remarkable is that this practical sense, or game playing, may result in the development or invention of new practices.  Game playing or practical sense in some scholarships, like economics, is associated with objective rational choices, where agents tend to self-regulate with absolute power to determine preferences. However, this may not be a complete portrayal of social practices like taxation, accounting and politics. Within these disciplines, agents, including tax administrators, do what is necessary, sometimes resorting to game playing. 

One of these games that is played is empathy. Empathy is an everyday concept but does not carry a coherent definition. Some scholars say the concept is personal, messy, complex and challenging to explain or interpret. Others argue it’s a core human capacity, and still others see it as a basic capacity or skill which can be fostered. Since it can be fostered, it stands to reason that it can be neglected and or developed in different ways in various circumstances. There are also debates as to whether empathy is a moral virtue and whether it can be tied to the moral make-up of an individual such as a tax administrator. Others contend that empathy is contextual.  

After saying all of this, what is empathy? Empathy entails a perspective on another person’s thoughts and feelings, as if you are experiencing and understanding the world from the other person’s viewpoint (Hollan and Troop 2011). It is as if you are walking in the shoes of the other but while doing so, you maintain your own identity.  Having empathy enables agents to establish and maintain social bonds, as well as understand and negotiate social relationships. It would seem to suggest that when a person has empathy, s/he is able to show concern, demonstrate compassion towards others, compounded with moral agency and ethical behaviour based on mercy and justice.  However, empathy may not in all cases be identified with the foregoing ‘empathetic identifications’, with the goal of shared understandings, altruism, selflessness, consolation, intersubjective compassions, care or social cohesion as I will discuss later on. 

I will now talk about empathy as game playing; discussing two types of these games that are known to be used in tax enforcement in some developing countries: assimilated and cynical empathy. Each of these used by the tax authority is connected to the type of evader encountered by the tax authority. 

Assimilated empathy is understanding the other’s (evader’s) mind-set, driving emotions or outlook, but without necessarily sharing or approving of the other’s (evader’s) thoughts, feelings, and perceptions.  Here, the tax authority attempts to develop a deep understanding of the different or diverse information about the evader in a genuine attempt to walk in their shoes. Cynical empathy on the other hand, is the strategic use of an impression of empathy in order to achieve a specific objective. The tax authority here, lacks emotional engagement and meaningful understanding of the other, displaying a sort of detachment.   Concern for the evader is switched off, and empathy in this case may become a sort of intellectual exercise. In this situation, the tax authority remains solely in the position of ‘getting, acquiring,’ such as meeting their performance targets. The irony of the situation is that although cynical empathy is used, an objective is achieved. 

Here are two scenarios to demonstrate how each is used by the tax authority.

Assimilated empathy is normally applied to  evaders who are more responsive to the overtures of the tax authority, while cynical empathy is more likely used with evaders who are more resistant.  

Scenario 1 – Assimilated empathy:

In keeping with the tax authority’s vision of being customer centric, Compliance Officers visit evaders and call them by telephone to ascertain their circumstances.  They carefully listen to and record every detail of the evaders’ conversations, noting their various circumstances including personal reasons why they have not complied. Compliance Officers explain that they often act as social workers, just listening to evaders’ problems. But why would Compliance Officers do this? This is because they want to know how to devise the best means to enforce compliance. Their intention is to collect from them any amount of money.  Any amount above zero helps them to meet their targets. Whilst listening and interacting with evaders, they interpret and imagine evaders’ situations, to gain a first-person perspective on the evaders’ thoughts, feelings and experiences, so as to come up with strategies to enforce compliance.

Compliance Officers sometimes become intrigued by their circumstances of having some level of compassion and concern for the evaders.  Evaders may discuss their tax arrears as being too large or they may say, ‘I simply forgot to pay,’ or ‘I did not pay because I was sick,’ or ‘I did not know I could pay in instalments.’ Whilst complaining, Compliance Officers absorb and assess the facts given, they step back, and look behind the statements to see the world through the evaders’ eyes. In other words, they step into their shoes. Identifying with their circumstances. Some Compliance Officers remarked,  ‘we know they are fighting hard times, so we are flexible and willing to work with them.’

Evaders are accommodated outside of the legislative requirement.  They are given extended periods to pay their tax arrears, even though the grace period for paying is long past. Evaders are allowed to pay in very small portions, based on any funds held by the evader.  Of course, a small amount is better than nothing. Some evaders are even micro-managed and coached into planning and budgeting.  They are encouraged to save small amounts on a regular basis so as to meet their tax bill.  In such coaching sessions, Compliance Officers draw parallels between tax and regular household bills. It is found that evaders planned for everything else, even parties, except budgeting for their tax payments. One could say that these actions reflect Compliance Officers’ sensitivity to evaders’ difficult circumstances, giving them some compassionate space, but at the same time ensuring that some money is collected. Some evaders welcome this practice, whilst others mocked the tax authority for having ‘no teeth and for being weak.’

Even though these practices may be seen as expressions and outcomes of empathy, questions are raised as to whether the tax authority is fulfilling its ethical mandate to bring justice to the tax field.  Evaders may feel they are treated fairly, listened to, given a voice, all of which improves trust, loyalty and commitment to the tax authority, resulting in compliance. However, note is to be taken that since the law is broken, the full weight of the law should be applied. Yet, evaders are allowed to negotiate payment terms, which means they are consuming services used by compliant taxpayers. Where is the retributive and distributive justice? Additionally, empathetic actions may not amount to tax justice as they potentially affect other taxpayers, contributing to evasion by otherwise compliant taxpayers … What are your thoughts on this? 

Scenario 2 – Cynical Empathy

I’d like to turn to another type of empathy: cynical empathy. This type of empathy does not always take on the colour of moral agency, with behaviour of mercy and justice.  It carries a dark side.  Compliance Officers use their understanding of evaders to project themselves using subtle coercive tactics, which come out as a sort of detached concern.  Cynical empathy is normally reserved for more resistant and less cooperative evaders:  identified as those who just don’t want to pay, missed agreed payment deadlines etc. For these types of evaders, the tax authority accepts no excuse, having no mercy.   For example, when an evader misses an agreed deadline, the tax authority calls them incessantly: ‘we put them under pressure …we simply continue calling the evader until the evader comes in and pays,’ according to one administrator. 

Where the legislation seems inadequate, Compliance Officers use persuasion and veiled threats.  This does not work for some evaders though. But where it does work, evaders are sometimes bluffed. For example, a mayor told us that sometimes sale signs are placed on evaders’ properties.  What happens here is that when evaders see the ‘for sale’ sign, they contact the tax authority immediately.  Another tactic used is that those who owe tax for more than 6 years are made to think  that they are still required to pay the outstanding tax beyond the statute bar of six years, along with the fines and penalties.  

Compliance Officers  will seek to get information to understand evaders’ circumstances, then without due regard for their circumstances, they prosecute evaders for the arrears. For example, one taxpayer defaulted because he and his wife were ill and owed J$1m in tax. Their illness made it impossible for them to pursue their farming business from which they would use the proceeds to pay their outstanding tax.  Even though the tax authority empathized with them, they were hauled before the courts. ‘It was a lot of money,’ they said.  

These actions seem less than benevolent than ‘cajoling’ evaders to pay. What appears to be happening here is that empathy seems to be a filter for the tax authority, or a means of  selecting what it is that they react to.  Their concern for others appears to be switched off, making securing their objective paramount. The tactics of incessant calling, veiled threats, bluffing and taking evaders to court when both partners are ill are designed to create stress and fear among evaders and other non-compliant taxpayers. But most importantly, they are geared to meet their performance targets, instead of it being  about taxpayer compliance or accountability!! 

What cannot be overlooked though is that a moral good was done, that of having evaders be tax compliant! So, is compliance, under any circumstance, a moral good?

Further reading