Two columns of interest emerged today [January 31, 2013] on the issue of corporate tax disclosure, plus another interesting public hearing in the UK, this time with the big four in the hot seat. Put all of this together and we can see very clearly the intense connection between tax reform and public understanding of the status quo. With the latter as to corporate tax being woefully inadequate and relevant information intentionally hidden from public view, the former can be neither informed nor meaningful. The answer is corporate tax transparency, particularly for multinationals, i.e., on the order of country-by-country reporting for listed companies. First, on the columns, both from the FT.In this one, John Gapper says "Companies are complying with laws that governments could change if they wished," and then explains:
"Starbucks' supposed immoral act is not to pay UK corporation tax that it does not owe, and would not owe even if it did not license its brand from the Netherlands. It obeys both the letter and the spirit of global tax law, which governments could reform if they wished."
That's 100% correct. And if you think there is some "spirit" in the transfer pricing law that isn't being acknowledged, then you are forgetting that the transfer pricing rules were effectively written by the industry they are meant to police. So I think the spirit is pretty much being well given its due. Gapper also nicely illustrates what I call the mercenary tendency of the tax state in an economically integrated world: agree with whatever seems politically expedient in principle, defect in practice:
"I look forward to Mr Cameron naming and shaming companies such as Google (also a target of British politicians) if they are drawn from Ireland to the UK by his tax arbitrage.
"...Governments must decide which regime is fair, and companies and individuals must comply.
"... most companies that place operations or intellectual property in low-tax countries - or even in tax havens such as Bermuda - are not breaching the spirit of global tax law. They comply with a structure established under the League of Nations in the 1920s.
"This allows - indeed, encourages - multinationals to split their operations among countries, paying taxes as if they were separate entities, in order to avoid double taxation. They have to make transactions at "arm's length" - as they would deal with others.
"It worked for a long time but is under strain because of the growing value of brands, intellectual property and intangibles to global corporations. 'Ideas are their biggest asset, and what generate profits, and it is far easier to shift intangibles than factories,' says Jeffrey Owens, of the Institute for Austrian and International Tax Law."
Well, this is mostly right, at least close enough for its purposes. However, I am just not sure what principles we should expect to emerge when reporters turn, as they too often do, to Mr. Owens, former director of the OECD's tax arm and the man who presided over the demise of the corporate tax on a global scale under the nurturing constancy of the OECD's business-driven tax policy making machine, a person moreover who has publicly called for governments to "avoid like hell" any taxes on corporations. He would seem to be the last person you would ask about how to make a corporate tax system function, again, unless we are talking about that movie. Gapper concludes:
"Politicians thus have the choice of indulging in easy rhetoric against companies that obey the laws they have passed or struggling to reform the tax regime for little reward, with lots of disruption. In their position, I might posture too."
If that's not an argument for greater public accountability of how transfer pricing works out in practice, I am not sure what is.That brings me to the second column of the day from the FT which illustrates why the public ought to know more about how these regimes work in practice, this one by Bruce Bartlett in which he asks, can publicity curb corporate tax avoidance? He lays out the case nicely for the runaway corporate tax base and he concludes:
"[L]ittle in the way of real economic activity, such as jobs or tangible investment, has shifted anywhere. All that has shifted is the tax base.
"...This makes the international tax regime a ripe target for reformers.
"... With reports of low domestic taxes paid by large profitable corporations such as Starbucks in the UK, the time may also be ripe for an international agreement to curb tax shifting. The US has recently implemented a law called the Extractive Industries Transparency Initiative [EITI] that requires companies to disclose their payments to governments from oil, gas and mining assets. Allison Christians of McGill University argues that the expansion of such information reporting to the transfer pricing of all multinationals is the first step towards capturing the revenue now lost to the shifting of business costs to high-tax jurisdictions and revenues to low-tax jurisdictions.
"There is growing evidence that corporations are sensitive to the public outcry when they are caught avoiding taxation excessively. Starbucks, for example, recently agreed to pay more taxes in the UK than legally required to quell the controversy over its virtually nonexistent tax bill. The same shaming technique may have broader application to multinationals generally.
"As Justice Louis Brandeis of the US Supreme Court once put it, "publicity is justly recommended as the remedy for social and industrial diseases."
First, thank you for the shout out, Mr. Bartlett! Second, this column demonstrates clearly the strong connection between tax reform and public understanding of the status quo, as I suggested above. Tax reform is not going to come from the only party that has all the info it needs right now, namely, the IRS. Tax reform comes from public expression. Right now, observers of tax policy need more information in order to offer meaningful reform proposals, and that information is being hidden because governments do not require it to be disclosed, plain and simple. That is a matter of regulatory choice, and these columns show the choice is bad for policy analysis.That then brings us to the UK's hearings today in which the public accounts committee taking on the big four accounting firms, trying to suss out what the letter and the spirit of the law is with respect to corporate tax on multinationals. What emerges is the "perfectly legal" nature of all of this tax avoidance, again confirming the editorials by Gapper and Bartlett. Here is the BBC's take on the hearings, worth reading in full. Richard Murphy declares it a win for the PAC but the question is whether that translates to a win for those who do in fact pay taxes in the UK and elsewhere.That question will be answered affirmatively if instead of killing EITI, which is currently apparently a high priority for many, we expand it to cover all listed companies.
Discover the features and benefits of LexisNexis® Tax Center
For quality Tax & Accounting research resources, visit the LexisNexis® Store