Last year at this time, more than a dozen U.S.-based corporations were threatening to move their legal residence to foreign tax havens in a paper transaction known as an inversion. Facing a wave of public opposition, some corporations abandoned these inversion attempts—notably, drugstore chain Walgreens put its plans on ice, and Pfizer could not complete its inversion—but other corporations succeeded in shifting their corporate addresses abroad to avoid U.S. taxes.
One of these companies, the generic drug maker Mylan, successfully merged with a foreign branch of Abbott Laboratories earlier this year to form a Netherlands-based company, also named Mylan. The company's CEO made it clear that the prospect of paying an income tax rate “in the high teens” to its new Dutch homeland was a big driver in this decision.
Now the company is facing an unwanted hostile takeover bid from Teva Pharmaceuticals, and it has suddenly rekindled its love affair with Uncle Sam, or at least with the regulatory protections the U.S. government provides. Turns out that if Teva Pharmaceuticals had launched such a takeover a year ago at this time when Mylan still had a U.S. passport, the anti-trust division of the Federal Trade Commission (FTC) would have had to okay the deal for it to go forward. It now appears that the FTC is content to allow Mylan’s new Dutch benefactors to oversee the process. But Mylan’s leadership is now realizing, too late, that the FTC’s oversight authority could be pretty helpful.
Mylan’s leadership admitted last year that it was shifting its headquarters to the Netherlands for tax purposes, but now they are saying with a straight face that they’d actually like to remain American citizens in ways that don’t subject them to the U.S. corporate tax structure. They also really think there shouldn’t be any hard feelings. “We know the inversion has invoked a lot of emotional and political banter but the reality is we remain a U.S. issuer under all of the formal and informal guidelines,” Mylan's CEO Heather Bresch said earlier this week in a Bloomberg news report.
Unintentionally admitting that its inversion was a farce simply for tax purposes, Mylan argued that “it should pass the test of being treated like an American company under federal regulations because its principal offices are in Canonsburg, Pennsylvania,” Bloomberg reported.
Even before Mylan renounced its U.S. citizenship, it was hardly a model taxpayer: a 2014 Citizens for Tax Justice analysis found that Mylan had 40 tax haven subsidiaries, from Bermuda to Switzerland, and was holding $310 million in profits offshore for tax purposes—income on which the company may have paid little or no tax to any country.
In years to come, Mylan’s leaders will hopefully discover the many joys of their new Dutch identity. But, like any other company that chooses to engage in chicanery to avoid U.S. taxes, Mylan should not expect access to the full legal protections offered by the U.S. government.
Moreover, Mylan’s inadvertent admission that its primary operations are still in the United States underscores the need for Congress to act to prevent corporations from changing their corporate addresses simply to dodge U.S. taxes.