Despite Donald Trump’s “America first” rhetoric, many suspected that the tax plan he would support would actually increase the incentives for U.S. multinationals to move both profits and operations overseas. I wrote about this inevitability a few weeks ago, before the details of the Trump-GOP tax plan emerged.
Now that the bill is advancing, it’s clear that things aren’t as bad as many feared. They’re worse.
As discussed in the previous piece, Trump administration economic officials argue that by lowering the corporate tax rate from 35 percent to 20 percent and moving to what is called a territorial system—mainly, companies pay taxes on foreign earnings only to the foreign nation where those profits are booked and never owe anything to the U.S. no matter how low the foreign nation’s tax rate is—would lead to more jobs and profits staying in or coming back to the United States.
Yet, it is clear that a territorial system could have just the opposite impact: It could give a permanent preference to foreign income and lead companies to shift more profits to tax havens knowing that they could permanently avoid virtually all taxation on such profits. One crucial safeguard against that perverse impact is to apply a strong minimum tax on the profits of U.S. multinationals in each country (a “country-by-country” minimum tax). If a U.S. company had to pay a minimum tax of, let’s say, 19 percent (as President Obama had proposed), even if they engaged in complex tax planning to book $100 million in profits in zero-tax Bermuda, they would have to pay $19 million in U.S. taxes to ensure the 19 percent minimum tax was enforced. Under such a country-by-country minimum tax, you can run, you can shift profits to tax havens, but you cannot hide from paying a 19 percent minimum no matter where you are. Under this type of true minimum tax on foreign earnings, U.S. multinationals would have little incentive to engage in the ongoing race to the bottom.
As discussed in my previous Atlantic piece, the GOP plan was rumored to use only a 10 percent minimum tax, and to make it worse, would make the minimum tax determination based on the average of a company’s total global profits. What was problematic about this design was that it not only encouraged companies to move profits to tax havens, but it actually encouraged them to simultaneously move jobs and operations such as manufacturing to industrialized countries that had typical tax rates and to shift more profits to tax havens. Why? Because if you had $100 million of profits in Bermuda facing no tax, you might have still had to pay $10 million in U.S. taxes to meet the new global minimum tax. But if you moved a factory to Germany that made $100 million and paid 20 percent in taxes there, you could still pay zero on your profits in Bermuda because the average taxes paid on your global profits (from both Bermuda and Germany) would be the global minimum rate of 10 percent. This perverse design means the more a U.S. multinational shifts jobs and operations to industrialized nations with similar tax rates to the U.S., the more it can get away with shifting more and more profits to tax havens.
So how did it look in the fine print? As several tax experts including the Tax Policy Center’s Steve Rosenthal, Brooklyn Law School’s Rebecca Kysar, and Reed College’s Kimberly Clausing have written, it is even worse than anticipated on at least two additional grounds. First, it turns out that the Republican idea of a minimum tax is that it only taxes what you make over what they think is a “routine” profit, deemed to be 10 percent in the Senate bill, on “tangible” investments (think factories and equipment, including for manufacturing). As Rosenthal notes, “because ‘routine’ returns are not subject to U.S. tax, this definition of ‘routine’ returns could give U.S. firms a perverse incentive to shift more tangible assets to lower-taxed overseas locations.” That means, under the GOP bills, if you shift less profitable operations to a tax haven you would pay zero taxes on those operations as long as you are only making 10 percent a year—whether that is $10 million or $100 million—while you would pay 20 percent if the operations were located in the United States. So, the “minimum” tax is really a much lower rate than 10 percent, and would essentially be an invisible, non-existent tax except on highly profitable operations and income from intangibles.
Second, this limitation to only excess profits encourages even more shifting of operations and jobs overseas through complex efforts to blend different income streams. How? Profits from “intangibles” like patents do not receive the 10 percent exemption for “routine” returns, so the minimum tax is seemingly designed to at least capture those well-known cases where major technology companies shift intangibles to low-tax nations and book their profits there. If a company does that and earns extraordinary profits, a global minimum tax would capture some piece of that. But again, here is where the GOP bill’s global “averaging” actually creates the incentives to move jobs and operations overseas.
Let’s say a U.S. multinational has highly profitable intangibles located in a tax haven that earn $50 million in income without any tangible investment. If the company has no other foreign profits or operations, then that income would face a mere $5 million in U.S. taxes from the 10 percent minimum tax under the GOP plan. But if the company decides to build a new $1 billion factory overseas that earns profits of only 5 percent ($50 million) from the factory, the company will not pay a penny in U.S. taxes on its income from the factory or the intangibles. Why? Because when you add the income together, the $50 million from the intangibles plus the $50 million from the new factory, it equals the “routine” profit of 10 percent on the $1 billion of new tangible investment, which will allow it to completely avoid paying taxes on any of the above mentioned profits.
This shows how deeply the tax plan fails when it comes to incentives to shift profits and operations overseas and to curtail the obsession of major multinational companies with international tax arbitrage that has nothing to do with innovation, productivity or job creation. Indeed, the ability to blend income from intangibles and routine profits, and from investment in higher tax nations with tax havens with zero taxes, leads to a worst of all worlds scenario: an even greater corporate focus on international tax minimization through a careful mixture of shifting profits and operations overseas.
If there was one thing the GOP international tax bill was advertised to accomplish, it was that it would favor locating jobs and profits in the United States. It does just the opposite—expanding the degree our tax system tilts the playing field against American taxpayers and American workers.