A taxing headache from Congress

A taxing headache from Congress
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Just in time for tax day, the nonpartisan Congressional Budget Office is out with a new analysis of the Tax Cuts and Jobs Act. It is one of the many reminders that, as we file this year, we are already thinking about next year, thanks to the recent rewrite of the nation’s tax laws.

The CBO weighed in with estimates that are worth a serious review. They looked at, among other provisions, the international corporate tax changes and attempted to answer these questions: Will the new rules stop corporations from using accounting gimmicks to shift profits offshore? Will the law stop the gaming?

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In the past, corporations were taxed on all their profits, regardless of where they were booked, but they could defer paying what they owed if profits were shifted overseas. The policy of deferral led to widespread gaming. Just prior to passage of the tax law,  U.S. corporations held an estimated $2.6 trillion offshore. Apple alone had $250 billion overseas. Collectively, companies owed more than $750 billion in deferred taxes.

Under the new law, U.S. corporations no longer pay any tax on their foreign profits. That itself is a loss to American taxpayers and will continue to encourage multinational companies to look for ways to move profits offshore. The law does include provisions to try and prevent profit shifting, although experts question their effectiveness. The complex rules led the CBO to a few basic conclusions.

According to the CBO, “by locating more tangible assets abroad, a corporation is able to reduce the amount of [U.S. taxable income]. Similarly, by locating fewer tangible assets in the United States, a corporation can increase the amount of U.S. income that can be deducted [from U.S. taxable income]. Together, the provisions may increase corporations’ incentive to locate tangible assets abroad.”

In other words, if a U.S. company moves jobs and factories abroad, it can escape U.S. taxes. The CBO says this is not “gaming” because it is moving real operations, not just profit shifting through paper transactions. If we accept the CBO’s rationale, it should be noted that U.S. companies can continue to enjoy access to our markets, protections for patents and other rights through our legal system, and the stature and legitimacy of being a American business. They just get a massive discount on those benefits.

Adopting this form of international corporate taxation to stop the offshore gaming is, in the words of Jordan Weissmann of Slate, “like trying to fight shoplifting by making it legal.” For U.S. multinational companies that choose not to move operations overseas, the CBO estimates that profit shifting will continue, although at a slightly lower rate, dropping from $300 billion a year to $235 billion. That is still more money than what we spend annually on health care and other services for veterans.

This lower estimate does not include losses from companies that moved operations overseas. An overall estimate on combined losses to the U.S. taxpayer due to corporate tax avoidance is not possible as the CBO does not connect the dots between movement of real operations and paper profit transactions. What we do know is that the total losses are significant, and they far outpace any gains.

The new tax law is unnecessarily complicated but, surprisingly, fixes to the offshore problem are not. Bills have already been introduced in Congress to equalize tax rates between foreign and domestic corporate profits. That’s all we need to fix this. The rationale for such a policy is straightforward. We should not favor foreign over domestic profits, as the new law does by setting different rates.

Companies that operate entirely in the United States should have a level playing field when competing locally with multinational corporations. Equalizing rates will simplify the tax code and take away the incentive to employ questionable accounting gimmicks to move profits to offshore tax havens. It’s time we ensure that multinational companies pay what they owe just like their wholly domestic counterparts already do.

Gary Kalman is executive director of the Financial Accountability and Corporate Transparency Coalition, an alliance of organizations working toward a tax system that addresses the challenges of a global economy.