Permanent solution to temporary tax extensions

Just as Congress has often been accused of “kicking the can down the road” when it comes to fiscal policy, the criticism can also be made about its management of the federal tax code. Rather than attempt the sweeping reform that U.S. tax laws need, members have spent decades opting to pass a series of patches and tax break extensions.

But after the Senate Finance Committee approved a bill in early April that would revive almost all of the 55 tax breaks that expired at the end of 2013, newly installed Chairman Ron Wyden (D-Ore.) said it would be the last bill of extensions the committee would approve as long as he is in charge. Rather, he called for a revamp of the entire tax code.

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Of course he’s right. For over 50 years the corporate tax structure has gone relatively unchanged. An overhaul could update obsolete laws, boost the economy and provide tax fairness. But by passing temporary tax breaks, Congress is actually making it difficult for corporate managers to plan when they are uncertain if a credit or exemption will be available in the future.

For public companies, the impact of an expiring tax provision can be felt in its stock price. The research and development credit, for example, has been expiring periodically since it became law in 1981. If a company doesn’t have the ability to take an R&D credit, that means they’re paying more tax, which impacts its income statement and lowers the value of its stock.

Then there’s the “look-through” tax rule, given to companies who move money from one overseas subsidiary to another. Since the Kennedy administration, the U.S. has been taxing companies when they move money from a holding in one foreign country to an affiliate in another. In 2006, Congress passed this look-through rule to allow companies to transfer money among offshore companies without being taxed. As originally enacted, this rule was set to expire at the end of 2008, but Congress extended it several times until finally it expired at the end of 2013.

The reform advocated by Wyden could address a myriad of problems present in today’s corporate tax code. Since the 1960s, the amount of income brought in by the corporate income tax has fallen roughly 50 percent to make up about 18 percent of all U.S. income tax revenue collected today. Developments in technology and where companies locate their operations have helped to erode corporate tax revenues.

Multinational companies such as Apple, Amazon and Google have reduced their effective tax rate far below the 35 percent corporate income tax rate set in the U.S. That’s prompted many members of Congress and a large segment of the public to accuse them of questionable practices and call for them to pay more in taxes.

But they’ve not done anything illegal. Rather, the outdated corporate tax structure hasn’t kept pace with 21st century technology and legal tax avoidance strategies. The U.S. corporate tax rate has become the highest among developed nations, because other countries have cut their rate well below the U.S. rate.  Apple’s headquarters are in California, but it has subsidiaries in low-tax countries such as Ireland, the Netherlands, Luxembourg and the British Virgin Islands. All of the offices they’ve opened are legal.

Corporate tax reform should not be limited to multinational giants. Small businesses, those with less than 500 employees, are often fast- growing firms that generate more new jobs than major companies. But when a corporate tax rate cut was proposed in 2013, they were deliberately ignored.

Small businesses are usually formed as S-Corporations, partnerships and sole proprietorships, while larger companies are set up as C-Corporations. C-Corp income is taxed at the corporate rate of 35 percent, then taxed again at the personal income tax rate when dividends are paid to shareholders. But owners of companies who operate their businesses as S-Corps, partnerships and sole proprietorships are not taxed at the corporate level. They pay business taxes as part of their personal taxes at a rate of up to 39.6 percent.

In 2013 President Obama proposed reducing the C-Corp rate from 35 percent to 28 percent, but did not endorse a cut in rates to S-Corps, partnerships and sole proprietors. Why? Because cutting taxes for small businesses would have meant renewing debate over the personal income tax rate less than a year after the bitter partisan fight in 2012 to raise the personal income tax rate on certain individuals. Still, our corporate tax structure should not include such obvious inequity.

The tax break package approved by the Senate Finance Committee in April still must be approved by the full Senate and the House of Representatives. But its future is not the most important development to emerge from that committee. Rather, it’s the possibility that Wyden will start permanent reform by putting a stop to temporary extensions.

Stransky is a U.S. international tax partner for the law firm of Sullivan & Worcester based in Washington DC, New York and Boston.

 

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