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Foreign Bribery Expense Legality

Oracle Tips by Don Burleson

September 9, 2015

Question:  I work in a European country where there is systemic corruption at all levels of government and it's necessary to "tip" in order to get the most basic services such as telephones and visas. 

I know that the United States Foreign Corruption Protection Act (FCPA) makes it a federal offense to give money of gifts to high-level officials in order to influence their buying decisions. 

Is there such a distinction in bribery of low-level and high-level officials and is so, how does one account for bribery expenses?

Answer:  As researched and reported by Jennifer Burleson, MBA, the essence of the US Foreign Corruption Protection Act is that it is illegal for US corporations to make or offer payments to foreign entities under certain conditions.  The payments cannot be considered significant, and they cannot be offered for the purpose of enticing recipients to misuse their positions to help the offering corporation aid in obtaining, maintaining or retaining business.  The FCPA covers dealings with foreign political parties, candidates and government officials.

However, the law does allow for small payments to lower level figures, which many would consider "tips".  These tips must not sway high-level people to make decisions they would not otherwise make.  The company must also keep records of all such transactions and be diligent about self-reporting questionable payments.  

In some countries, bribery is technically illegal rather than expected.  India, for example, issues Zero Rupee bills to give bribers, in order to shame the offender:

Zero Rupee notes remind corrupt officials that bribery is illegal.

So yes, depending on the recipient, purpose, and amount, it does appear that bribery is illegal even where it is customary and expected.  Keep in mind that even if it's expected in another culture, it is often illegal there as well.  

As for accounting of bribery expenses, check with the latest ruling of the Financial Accounting Standards Board (FASB) and treat bribers as you would other ordinary business expenses.

 
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