Chesapeake Energy Corp. (CHK) made $5.5 billion in pretax profits since its founding more than two decades ago. So far, the second-largest U.S. natural-gas producer has paid income taxes on almost none of it.
Chesapeake paid $53 million over its 23-year history, or about 1 percent of the cumulative pretax profits during that period, data compiled by Bloomberg show. That’s less than half of Chief Executive Officer Aubrey McClendon’s compensation, for example, in 2008 alone.
The company and other U.S. oil and gas producers can thank a century-old rule that allows them to postpone income taxes in recognition of the inherent risk of drilling wells that may turn out to be dry. The break may be outdated for companies such as Chesapeake, which, thanks to advances in technology, struck oil or gas in 99.6 percent of its wells last year.
“To the extent the world is a different place than it was when the policy was first devised, that’s a powerful reason to revisit the need for this subsidy,” said Edward Kleinbard, a former chief of staff on the congressional Joint Committee on Taxation who now teaches at the University of Southern California in Los Angeles.
While Oklahoma City-based Chesapeake is the biggest U.S. oil and gas producer with such low tax payments, it’s far from alone, according to the data that calculated several companies’ so-called long-run cash effective tax rates. Range Resources Corp. (RRC) paid income taxes of about 0.4 percent of pretax income over the past decade, the data show. Southwestern Energy Co. (SWN) paid 2.1 percent and EQT Corp. (EQT) paid 5.3 percent, the data show.
The U.S. corporate income tax rate is 35 percent.
Other companies whose tax strategies have attracted scrutiny in recent years have much higher rates than the oil and gas producers. Google Inc., which has used tax strategies with names like the “Double Irish” and “Dutch Sandwich” to minimize its tax bill, had a cash effective rate of 18 percent over the past 10 years, according to data compiled by Bloomberg.
General Electric Co., whose tax strategy the New York Times termed “aggressive” in a front-page article in 2010, paid 12 percent.
The biggest tax break, for Chesapeake and other independent U.S. oil and gas companies, is a rule that’s been around since at least 1916 that allows some producers to expense “intangible drilling costs.” Companies can count most of the cost of boring a new well against their taxes at the time the money’s spent, rather than recognizing it over several years. That allows them to effectively put off tax payments, even during years when they turn a profit.
Chesapeake has paid out more than $5 billion in cash toward taxes over the past 12 years, a figure that includes taxes other than income taxes, said Michael Kehs, a company spokesman. The income tax rate for accounting purposes has varied from 36 percent to 40 percent since 2000 in years that the company turned a profit, he said.
The rule on drilling costs “puts money back into the economy and helps drive innovation,” Kehs said. “Those are clear benefits for the economy.”
Chesapeake has lost more than $7 billion in market value in the past year amid falling energy prices and shareholder unrest about McClendon’s personal financial dealings. Chesapeake, which faces an estimated cash shortfall of $18.6 billion through 2013, replaced McClendon as chairman along with four directors after it was revealed that the CEO amassed more than $846 million in debt, including from from companies and banks also doing business with Chesapeake.
Chesapeake rose 0.7 percent to $18.73 at the close in New York. The shares have dropped 16 percent this year, the second- worst performance among the 17 members of the Standard & Poor’s 500 Oil & Gas Exploration & Production (4O1) index.
President Barack Obama has repeatedly sought, without success, to repeal the drilling-costs benefit in annual budget proposals. In its most recent plan, the White House estimated this year that the change would add $3.5 billion to federal coffers in 2013 and $13.9 billion over 10 years.
Ending the break would deprive the U.S. oil and gas industry of capital it depends on to continue paying for new wells, said Stephen Comstock, manager for tax policy at the American Petroleum Institute, a Washington-based trade association for oil and gas companies.
“Fewer wells would get drilled, and the economics of certain operations in the U.S. would not be able to compete with operations elsewhere,” he said. “We would have less energy production here in the U.S. and less jobs associated with it.”
When the tax policy first came into use, an average of 80 percent of all the wells drilled were dry holes, according to a 2008 Congressional Research Service report on the history of energy tax policy. The benefit was meant to increase domestic oil and gas reserves and production, the report says.
In recent years, much of the risk associated with onshore drilling has been reduced dramatically with the use of new technology. Using a combination of horizontal drilling and hydraulic fracturing, or fracking, companies can blast apart layers of shale rock with a mixture of water, sand and chemicals to free fossil fuels. Geologists had long known hydrocarbons were prevalent in shale, but lacked the technology to extract the oil and gas.
Chesapeake drilled or invested in 13 dry holes in 2011 out of 2,979 total wells drilled, a 0.4 percent failure rate, according to company filings. Exxon Mobil Corp. drilled or invested in 16 dry holes in 2011 out of a total of 1,334 wells in the U.S., a 1.2 percent failure rate, a public filing showed.
Companies that focus on domestic oil and gas production are best positioned to take advantage of the drilling-costs benefit. That’s because it applies to wells drilled within the U.S. and the full benefit is only available to so-called independent producers like Chesapeake that don’t refine or market fuel.
Ed Hirs, who teaches energy economics at the University of Houston and manages a small production company, said the break for intangible drilling costs is “probably not necessary anymore to encourage new drilling. But it’s a really helpful and very key consideration in a macro sense for the entire industry.”
Bloomberg analyzed the companies’ rates by comparing their cash income taxes -- what they actually paid -- to the pretax profits on their income statements over at least a decade. This long-run cash-effective tax rate was described by three accounting professors in a 2007 paper on tax avoidance.
The measure is different from the standard gauge of tax rates, which compares pretax income to the amount of tax the company accrues for accounting purposes.
Those figures can vary widely. In 2010, Chesapeake accrued $1.1 billion of income tax expense for accounting purposes and reported a 38.5 percent tax rate. But it didn’t pay any cash taxes that year, even though it had $2.9 billion of pretax income. Instead, it got a refund of $291 million.
Companies’ income tax disclosures include payments to federal, state, and local authorities and to foreign governments. They don’t include other types of taxes, such as sales tax.
When production from old wells outstrips the expense of drilling new ones, companies that postponed taxes will have to pay up. Chesapeake had a deferred income tax liability of $3.4 billion as of Dec. 31.
“If they’re a growing company, that deferral will get pushed out a long time,” said Michelle Hanlon, an accounting professor at the Massachusetts Institute of Technology and one of the authors of the 2007 study. “If you defer forever, it’s an exemption.”
The 2007 study, whose co-authors are Scott Dyreng of Duke University and Edward Maydew of the University of North Carolina, found that many oil and gas companies have unusually low long-term cash tax rates, because of breaks that benefit the industry.
“This is a purely commercial subsidy,” USC’s Kleinbard said of the drilling-costs policy. “It’s really inexcusable.”
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