May 23, 2014 | By Carolyn Burstein, NETWORK Communications Fellow
Corporate tax-dodging deals known as “inversions,” in which a U.S. multinational shifts its tax domicile to a lower-tax country, would be restricted for two years under legislation proposed in both houses of Congress on May 19, 2014. Representative Sander Levin and Senator Carl Levin, brothers from Michigan, proposed both bills, each of which had more than a dozen co-sponsors, all Democrats. The rationale behind the two-year moratorium would give Congress time to pursue broad changes in the corporate tax code. As Senator Ben Cardin (D-MD) said, “I look forward to redoubling our efforts on broader tax reform legislation that can fix our corporate tax code and make it more competitive.”
How does “inversion” work? Under current tax law, companies can create the deal of inversion and move overseas if foreign shareholders own 20% or more of their stock. Even if most of the business activity and corporate headquarters of the “new” company are in the U.S., the company would still be a “foreign” corporation for tax purposes. Many U.S. companies climb the 20% barrier by acquiring a foreign rival. The Levins’ bills would increase the threshold to 50% for two years, a threshold much more difficult to achieve. This proposal mirrors one in the President’s 2015 budget submission, which the Treasury estimates would raise $17 billion in revenue over the next decade.
Once a corporation is foreign, any profits earned in the U.S. are subject to U.S. taxes, but offshore profits are not. According to Citizens for Tax Justice, inversion makes it easier for a corporation to avoid U.S. taxes because corporate inversions are often followed by “earnings-stripping,” which makes U.S. profits appear, on paper, to be earned offshore. Corporations load the American part of the company with debt owed to the foreign part of the company, and the interest payments on the debt are tax deductible, thus reducing American profits “on paper.”
“These transactions are about tax avoidance, plain and simple,” said Senator Carl Levin (D-MI) chairman of the Senate Permanent Subcommittee on Investigations, who is the bill’s lead sponsor, in introducing the bill in the Senate. “Our legislation would clamp down on this loophole to prevent corporations from shifting their tax burden onto their competitors and average Americans while Congress is considering comprehensive tax reform.” Tim Kaine (D-VA) also stated: “This is about leveling the playing field and rooting out flagrant tax abuse in our system that could lead to billions of dollars of lost revenue.”
A splurge of deals resembling those of Pfizer (who recently made a bid to acquire the British pharmaceutical Astra-Zeneca, but was recently rebuffed and made it clear the company would not pursue a hostile takeover) or the U.S. advertising firm Omnicon Group Inc. might increase the chances of enactment of the Levins’ bills, but the odds are not bright that the bills will pass in either house. Not only is the opposition coming from Republicans in Congress, but also outside organizations, such as the Alliance for Competitive Taxation, the Rate Coalition and Right Wing News argue that the U.S. corporate tax system is unnecessarily complicated and global rivals pay less than the U.S. corporate rate of 35%. (As a matter of fact, both parties agree on these facts). However, Fortune 500 corporations that were consistently profitable from 2008 through 2012 paid, on average, just 19.4% of their profits in federal income taxes over that period. In fact, 26 corporations paid nothing in taxes over that 5-year period.
Most Republicans say they want to address inversion as part of broader tax code changes. Democrats respond that they (Republicans) ran away as fast as they could from Dave Camp’s (R-MI) bill to revise taxes. Democrats themselves have problems with several parts of Camp’s bill, e.g., moving to a territorial system under which 95% of the foreign earnings of U.S. companies would not be taxed at all. However, since the U.S. corporate rate of 35% is the highest among developed countries, lawmakers in both parties advocate lowering it, but disagree on the particulars. With the two parties deadlocked over how to proceed on tax revision, it’s highly unlikely that any changes will occur this year, leaving a window for firms like Pfizer and others considering a move.
Citizens for Tax Justice point out that no matter what the U.S. corporate tax rate is, there will always by a few countries with tax rates that are lower than ours – maybe even 0 – and these countries are definitely tax havens. In 2011, 40% of U.S. foreign profits were booked in Bermuda, Luxembourg, Switzerland, the Netherlands and Ireland, all of which are tax havens. Is it fair for American companies t