Financial Times FT.com

Corporations cry foul over tax fix

By Tom Braithwaite in Washington and Francesco Guerrera in New York

Published: May 4 2009 21:00 | Last updated: May 5 2009 00:54

In his quest for a $210bn tax boost, President Barack Obama will look as far afield as the Cayman Islands and Amsterdam, but the toughest fight is back in Washington with the serried ranks of corporate and conservative America.

Anticipating reform, which was mooted by Mr Obama during his campaign for the White House, US multinational companies from Caterpillar to Pfizer are already engaged in fervent lobbying efforts to prevent more profits made in lower-cost jurisdictions being taxed at home.

“It is the wrong idea, at the wrong time for the wrong reasons,” said John Castellani, president of the Business Roundtable. “It will cripple economic growth, reduce the competitiveness of US companies overseas and destroy jobs.”

Clint Stretch, a tax partner at Deloitte, said the proposal rested on “a continuing belief that there’s a substantial pot of easy money in the international tax rules . . . a pretty tired idea”. He estimates the raft of changes would represent an 8 per cent increase in the corporate tax burden but much more for multinational companies. “This is not consistent with the tax policies of other industrialised countries,” he adds.

The president sees things differently. On the campaign trail and in office he has not been shy to take aim at multinationals who expand overseas using the tax code or avoid tax by making foreign subsidiaries disappear using legal but convoluted means.

“Even as most American citizens and businesses meet these responsibilities [to pay a proper level of tax], there are others who are shirking theirs,” Mr Obama said on Monday. “And many are aided and abetted by a broken tax system, written by well-connected lobbyists on behalf of well-heeled interests and individuals.”

He plans to end the rule that lets companies take immediate tax deductions for expenses incurred in overseas investment but to defer – sometimes forever – paying US tax on the profits made from those investments.

The target is not new – President John F. Kennedy made a strikingly similar speech 48 years ago. And Reuven Avi-Yonah, at Michigan University Law School, argues the changes are “much more limited in scope” than other options such as removing the right to deferral altogether.

But while the impact on US jobs is contentious, the size of the tax take at stake is incontrovertibly large. By curtailing deferral and the practice of inflating the size of tax credits gained for paying overseas taxes, the Treasury calculates it will generate an additional $103.1bn (£69.5bn) in revenue between 2011 and 2019, balm to the budget deficit.

A smaller part of the mooted tax grab comes from “getting tough on overseas tax havens”, with the administration targeting $95.2bn over 10 years by reforming the “check the box” rules that allow US companies to shift US taxable income to tax havens and by making it harder for individuals to hide money overseas.

“US multinationals are going to be $190bn less competitive than their foreign competitors – it’s about that simple,” said Ken Kies, a tax lobbyist at Federal Policy Group, whose clients include Microsoft and General Electric. “This would be a dramatic departure. Most countries in the world don’t tax the active trade or business income of multinationals earned outside their borders, ever.”

Tim Geithner, Treasury secretary, said the measures were “balanced” and noted increased taxes would be partly offset by making permanent a research and experimentation credit, which he said was worth $75bn over the course of 10 years, and allowing research exemptions for the change to the deferral rule.

While the traditional tax havens such as Bermuda and the Cayman Islands are targeted by plans to stop tax avoidance, larger jurisdictions that simply recoup revenue from US companies – Mr Obama mentioned the Netherlands and Ireland by name – will also face stronger competition for that money.

“Once you are competing overseas, because that’s where the markets are, you also seek to reduce your foreign taxes,” says Raymond J. Wiacek, a tax lawyer at Jones Day. “For example, once in the EU, you likely base your operations in Ireland or the Netherlands...and not one of the higher tax countries. What is wrong with that?”

On Capitol Hill, the move to take more foreign-earned profits is set to spark a battle that could last two years.

If multinationals can persuade Democrats that the measures will cost US jobs, productivity and competitiveness, they could block the legislation. But if the administration can tie the tax take to specific policies such as healthcare reform, it could keep would-be Democrat defectors on side.

Additional reporting by Jonathan Birchall

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