Corporate Inversions: A Policy Primer
October 24, 2016
Over 50 multinational corporations have reincorporated in foreign countries since 1982 to avoid paying American corporate income taxes. Of these, 20 reincorporated in the last four years. In 2014, Burger King Worldwide Inc. purchased the Canadian doughnut chain Tim Horton’s Ltd. to move its tax residence to Canada. Shortly afterward, Pfizer Inc., the largest American pharmaceutical company, attempted to merge with Allergan PLC to relocate to Ireland. Pfizer abandoned the deal when the Treasury Department introduced new corporate tax rules. But these foreign mergers and acquisitions motivated by tax planning, known as corporate inversions, continue to threaten U.S. tax revenues and speak to the private sector’s frustration with a lack of progress on corporate tax reform.
What is a Corporate Inversion?
Corporate inversions, also known as tax inversions, are transactions in which American companies relocate their legal and tax domiciles to other countries to reduce their tax liabilities on foreign income. To execute an inversion, an American corporation merges with or acquires a foreign company to create a new parent company that is incorporated in the foreign country, while the old American company becomes a U.S. subsidiary. This permits foreign profits to be filed directly under the parent company to avoid U.S. taxes.
Often after execution, the company’s operational structure does not change. They may claim a “change in headquarters,” but this can be done by holding board meetings at the new location and does not require employees or officers to move. Though inverted corporations circumvent much of the American tax system, they retain access to American markets, consumers, workers, intellectual property rights, and other legal protections.
Politicians frequently denounce corporate inversion as if it were a form of tax evasion. This is misleading. Tax evasion is a federal crime committed when an individual or organization does not pay its true tax liability. For corporations, this generally involves misreporting information on tax returns and hiding profits. Inversion may not be socially responsible, but it is not criminal. As a form of tax avoidance, it allows a company to legally reduce its tax liability, instead of criminally dodging it. So in terms of legality, these transactions are no different than claiming tax deductions or credits.
President Barack Obama refers to inversion as the “unpatriotic loophole” and portrays inversions as grand betrayals of the American people. This rhetoric is stirring but relatively substanceless. We should remember that corporations have no inherent allegiance to the United States. Despite controversy over its morality, inverting is a business decision like any other, executed to yield returns for shareholders. As a result, corporations will invert so long as it is profitable. Therefore, policymakers can curb inversion by either (1) increasing the cost or (2) reducing the benefit of executing such a transaction.
Why are Corporations Inverting?
American companies invert to take advantage of the asymmetries between the U.S. corporate tax code and foreign systems. All tax codes in the developed world tax corporate net profits, and most employ progressive systems. But at 38.9%, the top marginal corporate tax rate (including state and federal) in the U.S. is the highest in the Organization of Economic Cooperation and Development (OECD) and the third highest in the world, exceeded only by rates in Puerto Rico (39%) and the United Arab Emirates (55%). The average top marginal rate among OECD nations is 22.6% or 31.4% weighted by GDP. Ireland—the target country of many recent inversions—has a rate of just 12.5%.
The differences between these rates and the U.S. rate allow corporations to decrease their tax bills by performing earnings stripping maneuvers after inverting to tax havens. Earnings stripping allows foreign corporations to reduce their U.S. tax liability by saddling their U.S. subsidiary with debt from the parent company in a tax haven then deducting the interest payments from their taxable income in the U.S. In the last decade, this practice has become even more profitable as the average global corporate tax rate has fallen. But on October 13th, 2016, the Department of the Treasury finalized a set of new rules designed to prevent earnings stripping. It remains to be seen whether these rules will truly curb the practice or simply force corporate lawyers to become more creative.
The Cost of Tax Avoidance
In any case, tax experts do not expect the new Treasury rules to reduce inversions because avoiding high U.S. corporate rates is not considered the primary purpose of inversion. In fact, most firms manage to avoid paying the statutory, or legally imposed, rate without leaving the U.S. at all. Deductions, exemptions, and other such income tax expenditures allow legally savvy firms to dramatically reduce their tax liability. As of late 2015, the median effective tax rate (actual portion of income paid on domestic earnings) for S&P 500 companies was 29%, according to data from S&P Capital IQ. The Government Accountability Office reported that all American corporate tax revenue amounted to just 12.1% of global profits in 2010, and the Citizens for Tax Justice found that 26 profitable Fortune 500 companies paid absolutely no federal income tax from 2008 to 2012. Clearly, companies do not have to move abroad to reduce the burden of our high statutory rates.
That being said, domestic tax compliance and avoidance are costly. Our Internal Revenue Service (IRS) code is over 2.4 million words, our collection of tax regulations is over 7.6 million words, and this does not even include all of the relevant case law. Most businesses employ accountants and lawyers to, first and foremost, comply with the law. Larger firms are able to pay for more professionals in the pursuit of lower tax liabilities; GE, for instance, employs almost a thousand people in its tax department. These professionals work to comply with tax laws while simultaneously uncovering and taking advantage of loopholes in the tax code. But the legal gymnasts who can understand and exploit the intricacies of the code do not come cheap, and the cost of their services effectively acts as a tax on US corporations. However, this cost is much smaller than the burden imposed by the U.S.’s worldwide tax system.
Worldwide Tax System
Apart from the U.S., almost every developed country in the world utilizes a territorial tax system. Under these systems, income is only taxed by the country in which it is earned. By contrast, the U.S. taxes the income its corporations earn abroad. Under this worldwide system, corporate income is first taxed by the country in which it is earned, then again by the IRS when companies repatriate, or return, the earnings to the U.S. The repatriation tax rate equals the difference between the foreign and U.S. federal corporate tax rates. But firms can avoid paying this tax by deferring repatriation—saving or investing earnings in foreign operations instead of bringing them home to the U.S.
For an applied example, consider two legal firms—one American, the other German—with offices in the U.K. The U.K. will tax both firms’ local earnings at 21%. Under Germany’s territorial tax system, the German firm will incur no further taxes no matter what it does with its earnings. But under the American worldwide tax system, the IRS subjects the American firm’s U.K. earnings to an additional 14% tax when it repatriates its earnings to the U.S. To avoid paying the additional tax, the firm might opt to reinvest its earnings in its U.K. office instead of in the U.S., or it might simply save the money in a foreign bank.
As the example illustrates, the worldwide tax system leaves American firms with much less income after taxes, incentivizing them to invert to countries with the more competitive territorial tax system. Increasingly, however, firms are deferring repatriation to avoid paying American taxes on foreign earnings. In April 2016, Credit Suisse estimated that S&P 500 companies were sitting on more than $2.3 trillion dollars of unrepatriated earnings overseas. Inversion allows American firms to access these unrepatriated earnings without paying any taxes on them at all.
The increasing popularity of inversions and the growing amounts of unrepatriated earnings have galvanized the political dialogue surrounding the issue. Both parties regret the revenue losses inflicted by inversions and hope to tap into the stockpiles of unrepatriated earnings to increase domestic business investment as well as Treasury revenues. Clearly, inversions must be stopped and unrepatriated cash must be brought home, but conservative and liberal policymakers have found little common ground for solutions.
In the short term, liberals support erecting legal and financial barriers to inversion to make the practice too costly to be profitable. For example, Hillary Clinton’s platform calls for the imposition of an “exit tax” on the unrepatriated profits of firms when they invert. The Democratic Presidential nominee also supports prohibiting inversion unless the foreign merger partner would be at least 50% of the combined company. Previous Democratic legislative proposals have included banning inversion for firms managed primarily in the United States. If passed, these proposals would force firms to physically relocate when redefining their tax domiciles. But without control of Congress, the Obama administration has made extensive use of the Treasury’s rulemaking authority to erect barriers to inversion.
Republicans have opposed these rule changes on the grounds that they represent an abuse of executive authority. More broadly, conservatives argue that the liberal proposals fail to address the root cause of inversion–that high corporate taxes leave American firms at a competitive disadvantage. Because foreign firms have greater post-tax profits, they can reinvest and grow more quickly than American firms. This disadvantage and the direct cost of the taxes both depress American capital investment, job creation, and wage growth. The OECD has also reported that corporate taxes are the most harmful type of tax to economic growth. Conservatives claim that by failing to resolve high corporate tax burdens, liberal reforms only perpetuate this suffering. They believe that instead of making sure that there is nowhere to hide profits, the only long-term solution to make sure that there is no reason to hide by reducing corporate tax bills.
One short-term conservative proposal is known as the “innovation box” provision. Other countries have been creating these “innovation boxes,” or special, lower tax rates for intellectual property-related income—typically between 5 and 15 percent. The current congressional proposal states 10 percent rate with the goal of promoting domestic research and development and preventing the outsourcing of well-paying research positions to foreign countries. Although proposed by Republicans, this policy proposal has garnered support from both sides of the aisle.
Long-term conservative anti-inversion policies also target high corporate taxes. In June 2016, Speaker of the House Paul Ryan released an ambitious tax reform proposal that would decrease the top federal corporate tax rate from 35% to 20%. It would also reduce the number of income tax expenditures that lower true tax liability in order to help offset the lower statutory rates. This, as a net effect, would lower the cost of tax avoidance, which we explained earlier acts as an effective tax. The proposal calls for a move to a territorial system in line with the majority of developed nations. Currently unrepatriated profits would be automatically taxed at a rate of 8.75 percent, but future foreign earnings would no longer be subject to American taxation under a territorial system.
The Tax Foundation estimates that their full tax reform plan would lead to a $191 billion loss of federal revenue on a dynamic basis over the next decade. This takes into account a 9.1 percent higher GDP, 7.7 percent wage growth, and an additional 1.7 million jobs, which help balance out a static loss in revenue. Liberals characterize the conservative reforms as ineffective because these projected revenue losses exceed the projected revenue cost of allowing inversions.
They also argue that reducing corporate tax rates and adopting a territorial system will fail to prevent corporate inversions in the long-run. In the short-term, conservative reforms will certainly prevent inversions because American corporations’ tax liabilities will be comparable to those of other countries. But liberals say that overtime other countries will further reduce their corporate tax rates as they compete to be the “tax domicile du jour”. Eventually, Congress will be forced to respond by lowering our own rates again. Instead of capitulating to international pressures and participating in this “race to the bottom,” liberals say we should prevent it from occurring at all by synchronizing international tax policy through trade agreements. Conservatives retort that the need to adapt our corporate tax system to globalization outweighs the risk of possibly triggering a “race to the bottom” in the process.
Ultimately, inversion policy disputes arise from fundamental differences in political philosophies. Liberals, who tend to be critical of business, interpret corporate inversion as a market failure, so they respond to it with corrective regulation. Conversely, conservatives, who tend to be more critical of government, interpret corporate inversion as evidence of a flawed regulatory scheme, so they answer it with deregulation. For conservatives, inversion is a symptom of a disease; for liberals, inversion is the disease. Any effective solution to the problem must involve some rectification of these belief templates. Yes, Congress is currently paralyzed and polarized. But at least we can take solace in the fact that Democrats and Republicans can agree that due to years of inaction, inversion has become a major problem and should be a primary issue in 2017.
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