U.S. companies looking for lower tax bills are heading for the exits, and Congress is doing nothing to stop them.
Pfizer Inc. (PFE) is the latest corporation to consider reducing its tax bill by moving its legal address outside the U.S., proposing an acquisition of London-based AstraZeneca Plc (AZN) that would allow Pfizer to reincorporate in the U.K. while top executives remain in New York.
Pfizer would join at least 19 other companies making or contemplating similar transactions, including Chiquita Brands International Inc. (CQB) and Omnicom Group Inc. (OMC), the largest U.S. advertising firm. A stalled proposal from President Barack Obama to limit such deals would raise $17 billion over a decade.
U.S. lawmakers have responded with little outrage and no plans for a quick law to limit the transactions, known as inversions. Instead, they cite the deals as fuel for a revamp of the tax code that’s probably years away. That inaction gives companies a window to look for offshore mergers.
“Members of Congress are not swayed as easily nowadays by all the rhetoric about corporate tax cheats and companies being traitors because they’re moving to Ireland,” said Herman Bouma, a Washington-based senior tax counsel at Buchanan, Ingersoll & Rooney P.C. “There doesn’t seem to be that many members upset about the inversions happening. They’re more upset about the way their tax code is, that causes companies to want to do that.”
These transactions have become attractive in part because of the increasing disparity in countries’ marginal corporate income tax rates, which are typically higher than what companies actually pay.
Ireland, which will be the new home address for Charlotte, North Carolina-based Chiquita, the banana distributor, has a 12.5 percent rate. The U.K.’s rate is 21 percent and will decline to 20 percent next year, with no tax on active businesses outside the country.
In addition, the U.K. offers a 10 percent rate on profits attributable to U.K. patents, which is attractive to companies such as Pfizer, the largest U.S.-based drug company and maker of Advil and Viagra.
In contrast, the top U.S. corporate rate is 35 percent. Companies also must pay U.S. taxes when they repatriate foreign profits, after receiving credits for foreign taxes.
Those disparities create an incentive for U.S. companies to look overseas for takeover targets. In many cases, executives can continue running their companies from the U.S.
“The way we’re structuring this is, it’s fully compliant with the appropriate laws,” Ian Read, the chief executive officer of New York-based Pfizer, told analysts on a call yesterday after the company made its interest in AstraZeneca public. “It’s in my fiduciary responsibility to maximum return to shareholders, and I don’t actually see that that is a conflict with the interest of the U.S. government.”
Last year, Pfizer reported an effective tax rate of 27 percent. The company’s rate would be lower after acquiring AstraZeneca; Read and other corporate executives wouldn’t quantify the benefit.
The spate of inversion deals mirrors what happened in 2001 and 2002, when companies including Ingersoll-Rand Plc (IR) and Cooper Industries Plc moved abroad.
Then, Congress effectively imposed a moratorium as the top members of the Senate Finance Committee announced plans to advance legislation and said any bill would be retroactive to that date.
Two years later, the ensuing law prevented companies from receiving the tax benefit of an overseas merger if their existing shareholders still owned 80 percent or more of the company’s stock after the deal.
In the budget plan Obama released this year, he proposed lowering the 80 percent threshold to 50 percent. That plan hasn’t moved forward in Congress. While the Internal Revenue Service has made a few changes to tighten the rules, that hasn’t stopped most of the deals.
Instead, U.S. lawmakers have focused on international tax policy changes as part of a broader -- and stalled -- effort to revamp the entire tax code.
“How many more companies have to be based in lower-taxed jurisdictions before we get the message?” Representative Dave Camp, the chairman of the House Ways and Means Committee, told reporters today.
Camp supports cutting the corporate tax rate and imposing lighter taxes on U.S. companies’ foreign income, proposals he put into a draft bill earlier this year.
Though Obama and Republicans agree that the corporate rate should be cut, they disagree on details of other tax changes.
The president prefers a global minimum tax. Republicans want what’s known as a territorial tax system, in which active foreign profits wouldn’t be taxed by the U.S.
They haven’t been able to bridge that gap, let alone resolve other disagreements needed to enact the biggest tax code changes since 1986. Top lawmakers, including Camp, a Michigan Republican, want to address business and individual tax changes together.
“For me, it’s just a question of when as opposed to if” Congress acts on inversions, said Edward Tanenbaum, a New York-based partner at Alston & Bird LLP. “It probably will capture the attention of Congress. I’m just not sure what’s going to get done in the next term or so, with the House and Senate not in synch most of the time.”
Senator Jeanne Shaheen, a New Hampshire Democrat, has introduced a measure that would require companies based abroad to be treated as domestic if they are managed and controlled in the U.S. The proposal, which would raise $6.6 billion, hasn’t been scheduled for a vote.
Any sense that Congress or the IRS may be moving toward changes could cause companies to rush to make deals, said Justin Simon, group head of health-care research at Height Securities LLC in Washington.
“A lot of these companies don’t want to deal with moving outside the U.S., but if we’re incapable of becoming more competitive on the tax code, they’re left without a choice,” he said. “It could turn into a positive. It’s untenable for politicians to continue to ignore the tax code if very large, Fortune 500 companies continuously move out of the country.”
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