By Bernie Becker - 09/22/14 08:26 PM EDT
The Obama administration on Monday unveiled long-awaited executive actions aimed at rolling back a recent rash of offshore tax deals.
Treasury Secretary Jack LewJack LewWar over the estate tax returns Obama administration officials ramp up push for Pacific pact Overnight Finance: Lawmakers float criminal charges for Wells Fargo chief | Scrutiny on Trump's Cuba dealings | Ryan warns of recession if no tax reform MORE said the new rules would at least lead companies to second-guess the benefits of shifting their legal addresses abroad — and slashing their tax bills in the process.
“These transactions may be legal, but they’re wrong,” Lew told reporters on Monday.
“For some companies considering deals, today’s action will mean that inversions no longer make economic sense.”
Still, Lew also stressed the new rules, which would go into effect for deals that close Monday or after, don’t eliminate the need for Congress to act when it returns to Washington after November’s elections.
The secretary added that the department would consider further rules if Congress remains deadlocked on how to stop the deals.
This ensures that offshore tax deals will continue to be a potent political debate this year, after Democrats have questioned the patriotism of companies that move abroad.
“I believe America does better when hard work pays off, responsibility is rewarded, and everyone plays by the same set of rules,” President Obama said in a Monday statement praising Lew and the new rules.
The Treasury’s announcement could give a new spark to a Democratic campaign issue that has yet to catch fire with voters.
Democrats have hammered companies like Burger King, medical device-maker Medtronic and pharmaceutical company AbbVie for seeking to reincorporate abroad.
But while Democrats believe the issue fits in well with their broader election-year theme of economic fairness, they have also found the politics of inversions to be complicated.
Warren Buffett, the billionaire investor and informal adviser to Obama, is involved in Burger King’s merger with the Canadian doughnut chain Tim Hortons. Proposed Democratic legislation to curb the deals would also be unlikely to stop that inversion.
Still, top congressional Democrats said Monday that they’d press ahead with legislation and acknowledged the Obama administration can only do so much to stop the deals.
The Treasury Department’s move also drew quick criticism from Republicans, who have long accused Obama of executive overreach. Top GOP officials have insisted that Obama needs to do more to fix what both sides agree is a factor in the recent string of deals: the U.S.’s outdated tax code.
“The answer is to simplify and reform our broken tax code to bring jobs home — and help grow our economy and create even more American jobs,” Michael Steel, a spokesman for Speaker John BoehnerJohn Boehner3 ways the next president can succeed on immigration reform Republican Study Committee elders back Harris for chairman Dems to GOP: Help us fix ObamaCare MORE (R-Ohio), said Monday.
Senior Treasury Department officials said the new rules seek to limit the ability of companies to use creative accounting techniques known as “hopscotch” loans and the “de-controlling” strategy.
In both those cases, companies can tap into their offshore profits without paying taxes. The U.S. taxes corporate profits made anywhere in the world, but only when the cash is brought back.
To make it harder for companies to move abroad, the administration is putting in stronger rules against the use of offshore “cash boxes” and the use of so-called “skinny-down” dividends that essentially allow corporations to fiddle with ownership percentages. Those techniques are used to make a foreign company seem bigger than it really is, or for a U.S. company to get smaller and meet the requirements to legally move abroad.
Under current law, U.S. companies can move abroad after a merger if the owners of the American company own less than 80 percent of the blended corporation.
Treasury officials said the new rules would stop companies from fiddling with ownership percentages to complete an inversion.
Congressional legislation would be needed to make it essentially impossible for U.S. companies to merge with a smaller foreign competitor and move abroad, as the administration has proposed.
The rules do not include new limits on companies’ ability to take interest deductions that effectively allow them to shift income to low-tax countries, one of the more heavily discussed possibilities.
Tax experts have been divided over how much authority the Obama administration has to act to curb inversions and whether the White House should act on its own.
Treasury officials said Monday that they tried not to target mergers undertaken for legitimate business reasons and that projecting how much revenue the rules would save is difficult.
While the Treasury rules would go into effect for deals completed starting Monday, anti-inversion legislation proposed by Democrats would be retroactive to May, when the pharmaceutical giant Pfizer sought to take over AstraZeneca, sparking Washington’s renewed interest in inversions.
Lew had previously said that only Congress could take actions to stop the deals, before announcing in August that his department would see what rules it could put into place.