GOP's plan for taxing foreign income is opaque, possibly perverse

GOP's plan for taxing foreign income is opaque, possibly perverse
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So much for simplicity.

The tax bill released last Thursday by House Ways and Means is a tangle of untested changes. Far from clearing up existing law, as promised, the bill piles on a new layer of complexity.

Worse than this, as one works through the new provisions and they begin to come vaguely into focus, one can’t help wondering whether some of the obscurity was intentional. The features that begin to emerge from the fog certainly don’t sell themselves.

Take, for instance, how the bill changes the taxation of U.S. multinationals on their foreign earnings. This is a prime example of how the bill multiplies the complexity of current law with proposals that only seem to grow more questionable the better they are understood.

Here in a nutshell is how U.S. multinationals are currently taxed:

When Apple, for instance, earns income abroad, it is generally liable for foreign tax on those earnings. Apple has arranged its affairs so that this foreign tax is lower, often much lower, than it would be were the income earned in the U.S. (or any other major economy).

The U.S. then charges Apple enough in U.S. tax to “top off” Apple’s tax bill to what it would have been had the income been earned in the US. However, this topping-off is delayed until Apple’s foreign subsidiaries — the ones who technically earn the foreign income — send the income to Apple as a dividend. This delay generates a tax benefit.  And this benefit is why Apple’s foreign subsidiaries are bursting with retained earnings, and why Apple does what it can to seek low foreign tax rates in the first place.

The House bill makes two key changes to this structure.

First, the House bill removes the topping-off altogether. Apple, through its subsidiaries, pays whatever foreign taxes there might be on the foreign income, full stop. This feature of the House bill is called, quite unrevealingly, “participation exemption.”

Of course, if Apple has any incentive to shift income to low tax jurisdictions now, when the topping-off is merely delayed, it will certainly have an incentive to do so when the topping off is completely eliminated. So, the House bill, like every serious proposal for participation exemption, has a backstop provision. That backstop is the House bill’s second key feature.

A backstop of this kind amounts to some kind of minimum level of tax on foreign earnings accomplished through some kind of topping-off provision similar to that in current law. The main questions in this regard are: What is the minimum tax rate and how is the minimum tax base calculated?

These questions should be easy to answer from the text of the House bill. They are not. The House bill provides a complex formula in which the top-off is affected by, among other things:

  • the mix of foreign assets as between plant and equipment on the one hand and intellectual property, like patents and brand on the other;
  • the level of foreign tax that is being topped-off; and
  • the current short term interest rate in the U.S.

Perhaps more importantly, the few implications of this complex provision that can be readily glimpsed seem ill-advised. Consider two simple scenarios:

Suppose, first, that a foreign subsidiary has no plant and equipment and pays no foreign tax. In other words, it’s a zero-tax shell. In that case, under the House bill, the U.S. tops-off the (zero)  foreign tax to half the U.S. corporate rate.

But why only half? It is one thing to argue for setting the minimum tax rate on foreign income below the U.S. rate if the U.S. imposes a high corporate tax rate relative to the rest of the world. Arguments based on U.S. competitiveness are at least colorable in that scenario, if not entirely coherent. But the House bill, in other provisions, lowers the U.S. corporate rate from 35 percent to 20 percent. Twenty percent sits several percentage points below the average among competitor nations. If competiveness is taken care off by lowering the generate corporate rate, why not set the minimum tax rate to 20 percent as well?

Now imagine that the zero-tax subsidiary starts buying or building plant and equipment abroad — with its own cash or new cash contributed to it by Apple. Under the House bill, the top-off is thereby reduced to some amount below 10 percent. Precisely how much it is reduced is difficult to determine, depending as it does on a complex formula involving current U.S. interest rates. But what is important is the fact that it is reduced. This means that the U.S. parent is effectively being encouraged to build or buy plant and equipment abroad.

That seems a little perverse. GOP lawmakers lambast the current tax system for supposedly incentivizing U.S. companies to shift jobs overseas. This is largely political theater. Most of the shifting encouraged by the current system is not of bricks and mortar, but of paper: the papers that determine where economic activity is taxed, wherever it may actually be occurring. The real casualty of the current tax system is U.S. tax revenue, not U.S. jobs.

Rather than fixing this shifting incentive, the House bill seems to make it more real. Under the current system actually moving the plant and equipment abroad does not further reduce the multinational’s tax bill if the papers have already been shifted. Under the House bill, as best one can make out, reducing one’s tax bill seems to require that plant and equipment actually move, which seems to make it more likely that it will.

Better to impose a simple minimum tax and set it at the now-reduced general U.S. corporate rate. Then there is no incentive to shift income abroad — in any sense — and revenue and jobs are both safeguarded.

Chris William Sanchirico is the Samuel A. Blank Professor of Law, Business and Public Policy and co-director of the Center for Tax Law and Policy at the University of Pennsylvania Law School.