The Obama Administration’s action on Monday to crack down on corporate tax dodging by companies claiming to be foreign (corporate inversions) is the right decision, but Congress needs to act to address the significant problems that remain.
Current tax law blocks only the most outrageous attempts by American corporations to claim a foreign address for tax purposes. The administration's actions enforce the law more effectively but do not strengthen it in any fundamental way.
For example, after a U.S.-foreign merger, the law treats the resulting merged company as domestic if it is 80 percent owned by former shareholders of the U.S. company. The new regulations will prevent corporations from avoiding this rule by, for example, making a party to the merger appear smaller or larger than it really is to create the appearance that the 80 percent threshold is met.
But Congress should fundamentally strengthen the law by lowering the threshold from 80 percent to 50 percent, which the Stop Corporate Inversions Act would accomplish. Under this approach, an American corporation could no longer merge with a foreign company and claim to be a new corporation based abroad even though the majority of its ownership has not changed.
It is also important to eliminate tax benefits that American corporations receive if they become foreign for tax purposes, which motivate inversions. One relates to profits earned in the past (and booked offshore) while another relates to future profits that can be shifted offshore through earnings stripping. Tax experts like Stephen E. Shay, Victor Fleischer and others agree that the plain language of our tax law gives the administration the power to address both of these. Unfortunately the administration’s regulatory action addresses the first problem (avoiding tax on profits earned in the past and booked offshore) but not the second (earnings stripping on future profits).
Congressional action can fully address both problems. First, Congress should require any U.S. corporation that inverts or becomes foreign to pay U.S. taxes it has deferred on profits held offshore. This rule would be similar to the one requiring individuals to pay the income tax they have deferred on capital gains when they renounce their U.S. citizenship.
Second, Congress should end corporations’ ability to strip earnings out of the United States by enacting the strong proposal first introduced by President Obama in his fiscal 2015 budget and recently introduced as legislation by Rep. Mark Pocan of Wisconsin.
These steps, combined with the Stop Corporate Inversions Act introduced by Rep. Sander Levin and Sen. Carl Levin in May, would put an end to the inversion crisis.
While Citizens for Tax Justice agrees with lawmakers that the ultimate goal of Congress should be to enact comprehensive tax reform, the cost of waiting for both parties to come to a sensible agreement is too high.
Congress should immediately enact the anti-inversion reforms outlined here. A decision to wait is a decision to allow more American corporations to pretend that they are foreign simply because loopholes in our tax laws allow it. The victims of inaction will be ordinary patriotic Americans, who pay their taxes every year.