Month: August 2014

You’d have to be living under a rock at this point (or mysteriously uninterested in tax policy – but then why would you be reading this) to not know about the fiscal crisis in Kansas. This recent USA Today article (which quotes smart folks at Missouri Budget Project and the Kansas Center for Economic Growth) does a really splendid job of relaying the absolute latest happenings in Missouri and Kansas (sneak peek – Missouri may be a little better off because their tax cuts are dependent on revenue growth, and Kansas has just gotten a fiscal vote of no confidence from another bond rating agency).

Here’s the drama in a nutshell: Governor Sam Brownback declared that his 2012 plan to gradually repeal the state’s income tax would be “a real live experiment” in supply-side economics. He pushed through two consecutive years of income tax cuts that disproportionately benefited the richest Kansans (while actually hiking taxes on the state’s poorest residents), assuring the public these cuts would pay for themselves. (ITEP has done a ton of work analyzing the various tax cut proposals; peruse them here, here, and here.) Yet, Kansas ended this fiscal year $338 million short of total projected revenue, forcing the state to drain reserve funds to pay the bills.

The news continues to be grim.  And now, the inability of Brownback and the legislature to make these tax cuts add up has created a new problem: bond rating agencies think Kansas’ poor recent fiscal management makes the state less credit-worthy. Standard and Poor’s downgraded the state’s credit rating this week, meaning that every time the state chooses to borrow money to fund long-term capital investments such as roads and bridges, it will cost the state more to do so.

So, perhaps not surprisingly, Governor Brownback is in a close fight for reelection and even a number of notable fellow Republicans aren’t supporting him. Kansas seems to be sputtering and on a downward spiral, but in a move that leaves many tax analysts scratching our heads it appears that Missouri wants a little of what Kansas is laying down.  

In fact, lawmakers in Jefferson City enacted mammoth income tax cuts this spring that overwhelmingly benefit high-income taxpayers. The income tax cuts that were contentiously passed this year included a drop in the top income tax rate and a new deduction for business income. ITEP found that under this legislation the poorest 20 percent of Missourians will see a tax cut averaging just $6, while the top one percent of families will enjoy an average tax cut of $7,792 once the cuts are fully phased in.

This story isn’t going away anytime soon and it’s good to see journalists like those from respected newspapers covering this story in such depth.

According to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), an estimated $7 and $10 billion is lost in federal and state tax revenue annually due to cigarette smuggling, which is astounding considering that total federal and state tobacco tax collections were about $32 billion in 2013. This means that as much as a quarter of all tobacco tax revenue is being lost each year.

One of the biggest drivers of the extensive cigarette smuggling is the substantial differences in state excise taxes. For example, Virginia’s state tax is only 30 cents on a pack of 20 cigarettes, whereas New York’s combined state and city excise tax is 19.5 times higher at $5.85 per pack. From a practical perspective, this means that an individual could evade $166,500 in tobacco taxes by simply buying up 50 cases of cigarettes in Virginia, driving them to New York City and then illegally reselling them to retailers in the city.

While some level of smuggling may be inevitable due to the high profitability of this enterprise, the good news is that there are a host of simple measures that state governments can take to combat the flow of cigarette smuggling, including simply increasing the quality of tobacco tax stamps and better record keeping by retailers. Lawmakers in Virginia and Maryland, for instance, have already started to crack down on cigarette smuggling by stepping up enforcement and increasing criminal penalties on smugglers.

On the federal level, Rep. Lloyd Doggett has proposed the Smuggled Tobacco Prevention (STOP) Act, which would require unique markings on tobacco products for tracking purposes, ban the use of tobacco manufacturing equipment to unlicensed persons, require better disclosure by export warehouses and increase the penalty on tobacco smuggling offenses. Taken together, these measures provide the critical framework needed for federal and state authorities to significantly stem the flow of cigarette smuggling.

Taking a step back, it’s important for state and federal lawmakers to remember that tobacco taxes are most useful as a mechanism to discourage smoking, rather than a particularly desirable revenue source given that they are regressive and the amount of revenue they generate declines over time. Still, allowing tax evasion to erode this revenue source at the state and federal level is simply unacceptable.

What’s the biggest difference between small and large cigars or pipe and roll-your-own tobacco? Their level of taxation, according to the Government Accountability Office (GAO), which estimates that tobacco companies have managed to dodge an estimated $3.7 billion in federal excise taxes since 2009 by superficially repackaging their products to fit within the legal definitions of the least taxed forms of tobacco.

A Senate Finance Committee hearing last week examined the egregious methods tobacco companies use to accomplish this. One panelist related in his testimony (PDF) that Desperado Tobacco had literally pasted a label saying “pipe tobacco” onto its existing roll-your-own tobacco packages so it could avoid the higher rate on roll-your-own tobacco. Perhaps even more stunning, another panelist noted during the hearing that some companies had added cat litter to small cigars to add enough weight to their product so that it fit the definition of the lower taxed “large cigars.”

What’s driving these outrageous tactics is the substantial difference in the way each product is taxed. For example, roll-your-own tobacco is taxed by the federal government at a rate of $24.78 per pound compared to the $2.83 per pound rate on pipe tobacco. Similarly, small cigars are taxed at a rate of $50.33 per thousand, whereas large cigars are taxed as a percentage of the manufacturer’s price, which in many cases results in a tax of about half that for small cigars. These differences in tax levels are so significant that according to the GAO, over the past few years there has been a dramatic rise (PDF) in both the purchase of large cigars and pipe tobacco along with a simultaneous collapse in the market for small cigars and roll-your-own tobacco, as consumers flock to the lower-priced alternatives.

The best way to solve this tax avoidance by tobacco companies would be for Congress to equalize the level of taxation of the varying tobacco products, which would once and for all end the incentive for companies to repackage their product to fit the different product definitions. In the event of congressional inaction, the Alcohol and Tobacco Tax and Trade Bureau (TTB) also has authority to issue clearer definitions between the varying tobacco products. For example, TTB could require that large cigars be defined as being six rather than three pounds per thousand. But it’s unlikely that any definitions the bureau could issue would adequately solve the problem of companies gaming their products.

While tobacco taxes are not the best source of revenue given that they are regressive and decline over time, they still provide billions in much needed revenue at the state and federal level to offset some of the social costs of smoking. For these reasons, lawmakers should put an end to the ridiculous games tobacco companies are playing to avoid paying taxes.

While Congress’s attention has been riveted on the saga of a handful of corporations making high-profile attempts to invert to foreign countries, Microsoft’s recent announcement that it’s holding a staggering $92.9 billion offshore is a stark reminder of the far more consequential tax avoidance practiced by Fortune 500 companies that remain based in the United States.

Microsoft admits in its annual financial report that it would owe $29.6 billion if it paid taxes on the cash it’s stashing offshore. In the past year, Microsoft moved $16 billion offshore, which is more than the total amount the much-maligned inverter Medtronic currently holds abroad. Only General Electric and Apple disclose having more offshore cash than Microsoft.

Even more important, the company’s annual report essentially admits that the vast majority of its offshore profits are being held (at least on paper) in jurisdictions with tax rates very close to zero. Microsoft estimates that if these profits were brought back to the United States, it would pay an effective tax rate of just under 32 percent. Since the U.S. tax on repatriated profits is 35 percent minus any taxes previously paid to foreign jurisdictions, this suggests that the company has paid an overall tax rate of about 3 percent on these profits to date.  

While the company is required to disclose all its “significant” foreign subsidiaries, none of the 12 subsidiaries the company now discloses are in places with 3 percent tax rates. As the Wall Street Journal reported last year, Microsoft used to disclose “more than 100” subsidiaries. Academic research suggests that in at least some cases, large multinationals that disclose fewer subsidiaries are doing so not because the subsidiaries no longer exist, but because they don’t want to disclose them.

As we have recently noted, companies know they can get away with this because of a loose accounting rule that only requires they disclose “significant” subsidiaries. It’s within the power of Congress and federal regulators to require big multinationals to disclose all of their foreign subsidiaries—including the beach tax haven subsidiaries that tech companies have found so helpful in shifting their U.S. profits abroad.

The wall-to-wall media coverage that has been lavished on corporate tax inversions has shed welcome light on the topic of offshore income shifting, and Walgreen’s recent decision to at least postpone its inversion suggests that this attention has had a positive effect. But for every company currently contemplating an inversion, there are 10 major multinationals that continue shifting their profits offshore the old-fashioned way. Congress shouldn’t lose sight of this broader, worrisome trend.

Yesterday voters in Missouri soundly defeated Amendment 7, a ballot measure that would have raised the sales tax by three-fourths of a cent to fund transportation needs.

Sales taxes are largely regressive, capturing a larger share of income from the poor than from more affluent people. The move to temporarily raise the state sales tax to pay for roads and bridges comes just months after the state legislature overrode Gov. Jay Nixon’s veto and passed income tax cuts that overwhelmingly benefit high-income taxpayers.

The vote defeating the sales tax increase sends a message to lawmakers to go back to the drawing board in terms of finding ways to pay for needed infrastructure. Lawmakers projected the new sales tax to generate $5.4 billion over ten years for transportation projects across the state. Now that the sales tax hike has been defeated critical work won’t begin on the more than 800 projects the Missouri Department of Transportation identified as “critical safety improvements.”

In what has been called “a study in bad behavior” the fact that lawmakers put a tax hike before the voters after just passing income tax cuts boggles the mind. Lawmakers in Jefferson City recently approved mammoth income tax cuts that overwhelmingly benefit high income taxpayers, yet seemed to have few qualms about asking voters to support a regressive sales tax hike that would have actually raised taxes on low income families. The income tax cuts that were contentiously passed this year included a drop in the top income tax rate and a new deduction for business income. ITEP found that under this legislation the poorest 20 percent of Missourians will see a tax cut averaging just $6, while the top one percent of families will enjoy an average tax cut of $7,792 once the cuts are fully phased in.

Lawmakers clearly see the need for increased transportation funding–why put a sales tax on the ballot if that isn’t so–but they arguably wouldn’t need to raise $500 million in new sales tax revenue if they hadn’t just cut an even larger amount of income tax revenue.

Lawmakers’ procrastination on this issue is the root cause of Missouri’s transportation funding shortfall. The state’s has raised it current 17-cent gas tax in 18 years, and it isn’t generating the revenue necessary to keep up with demands on Missouri’s infrastructure. If lawmakers don’t act, ITEP estimates that Missouri’s gas tax rate will reach an all-time inflation-adjusted low by 2020. In 2011, ITEP found the state’s gas tax rate would need to be increased by 9.6 cents just to return its purchasing power to the level it had when it was last raised back in 1996. Right now, Missouri’s gas tax is lower than the tax in all of its neighboring state except Oklahoma. Increasing and indexing the gas tax is a better solution for Missouri’s transportation woes because fuel taxes are a very good proxy for the wear and tear vehicles put on the road. However, the gas tax would also have a worrying impact on tax fairness that can be overcome by introducing a targeted low-income tax credit.

Given the defeat of Amendment 7 what’s to happen to Missouri’s crumbling infrastructure? Transportation commissioners are set to meet to discuss next steps. Let’s hope Missouri lawmakers also regroup and look toward other funding alternatives. Surely it’s not too much to ask that Missourians have safe bridges and quality roads that are paid for in fair and sustainable ways.

Voters in 36 states will be choosing governors this November. Over the next several months, the Tax Justice Digest will be highlighting 2014 gubernatorial races where taxes are proving to be a key issue. Today’s post is about the race for Governor in Illinois.

The outcome of the Governor’s race in Illinois will have major  and immediate implications on the state’s ability to provide adequate funding for education, health care, transportation and other important services.  The context for this heated race is especially important. The state currently has one of the nation’s most regressive tax systems, applying the same income tax rate to minimum wage workers and millionaires. To make matters even worse, the state’s temporary 5 percent income tax rate is set to fall to 3.75 percent in January leaving the state with a $2 billion budget gap.

This year Illinois lawmakers adjourned without making the temporary income tax rate hike permanent.  The legislature also failed to enact legislation that would have allowed Illinois voters to weigh in on a ballot question in November that would amend the state’s constitution to allow a graduated income tax.  Yet, the budget passed assumes the higher 5 percent rate is allowed to continue and leads Illinois down the path of deeper program cuts if lawmakers cannot agree  to increase the rate by the end of the year.  It’s largely agreed that the budget Governor Pat Quinn signed into law was the equivalent of “kicking the can down the road” and that election year politics got in the way, with lawmakers not wanting to cast tough votes in favor of maintaining current tax rates ahead of November.   According to the Fiscal Policy Center at Voices for Illinois Children, the budget was also balanced “by borrowing and by underfunding existing obligations, which will further add to the state’s backlog of unpaid bills.”

Given this backdrop the choice between Governor Quinn and businessman Bruce Rauner couldn’t be more stark. Quinn has said that he supports making the temporary 5 percent income tax rate hike permanent. In his 2014 budget address he stressed the harm that will come if the income tax rate is allowed to expire and new revenue isn’t raised, “mass teacher layoffs, larger class sizes and higher property taxes.” Quinn has gone beyond saying that the income tax rate should be 5 percent-  he’s also been a long-time supporter of a graduated income tax.

Rauner initially proposed allowing the temporary income tax hike to immediately expire, but he changed his position once the reality set in that as governor he would need to fill the $2 billion hole created in the budget once the rate hike expired. More recently Rauner has said that he will allow the temporary tax increase to expire over four years and will keep property taxes at their current level. Rauner would make up $600 million of lost income tax revenue by broadening the sales tax base to include many business services like advertising, printing and attorney fees. Sales tax base broadening makes good sense in terms of modernizing a state’s tax structure and making it more sustainable over the long term. But Rauner’s plan is regressive and taxing business to business services is problematic. For more on applying the sales tax to services, read this ITEP brief. Stay tuned. This gubernatorial race is one to watch.

Some will rob you with a six-gun,
And some with a fountain pen.
Woody Guthrie, “Pretty Boy Floyd” (1939)

Short of cash, you decide to rob a bank at gunpoint. But on your way out the door, the cops arrest you. You say, “Sorry about all this. I’d sure appreciate it though if you let me keep the money.” Fat chance.

But for big multinational corporations that are caught stealing from the U.S. Treasury, letting them keep the money seems to be exactly what Republicans in Congress favor.

Case in point involves the recent wave of American corporations renouncing their U.S. citizenship, on paper, to avoid billions of dollars in taxes. Almost everybody says they agree that this sleight of hand has to be stopped. But Senator Orrin Hatch, the ranking Republican on the Senate Finance Committee, says he’ll support closing this huge new corporate loophole only if the result is “revenue-neutral.” In other words, only if the big corporations get to keep the money.

Hatch is not an outlier. In fact, his screwball position reflects the general view of his party in Congress. Republicans in both the House and Senate are blocking legislative action to stop corporate foreign “inversions” unless the needed reforms are accompanied by a reduction in the statutory corporate tax rate.

“As through this world I’ve wandered,” sang Woody Guthrie, “I’ve seen lots of funny men.” Unfortunately, too many Washington politicians don’t want to make the corporate “funny men” play by the same rules as real people.

In another defection from the corporate income tax base, last Tuesday Windstream Holdings, Inc. announced that it will be spinning off part of its telecommunications assets into a Real Estate Investment Trust (REIT) after it recently received a Private Letter Ruling (PLR) from the IRS approving the transaction. The company, whose 5-year effective federal income tax rate for 2008-2012 was already a paltry 11 percent, will be able to lower its tax rate even more through use of the REIT.

A REIT is to real estate what a mutual fund is to stock and bonds: a way for smaller investors to diversify their holdings by owning a share of a large pool of assets rather than owning individual stocks or properties directly. A REIT, just like a mutual fund, doesn’t pay an entity-level tax. Instead it distributes its income to the REIT shareholders who pay tax on their respective shares.

REIT rules were added to the tax code in 1960 so small investors could invest in pools of real estate (or mortgages on real estate). To qualify as a REIT, the trust must have at least 100 shareholders. Seventy-five percent or more of the REIT’s assets must be related to real estate: real property or mortgages on real property. Traditional REITs hold property such as office buildings, warehouses, and shopping centers. Another requirement for REIT tax status is that at least 75 percent of the REIT’s income must be from real estate (such as rents or interest on mortgages).

Windstream Holdings is a Fortune 500 company that, according to its website, “is a leading provider of advanced network communications, including cloud computing and managed services, to businesses,” and offers “broadband, phone and digital TV services to consumers.”

It shouldn’t qualify as a REIT. As Windstream itself said, the company is putting its copper and fiber networks into the REIT along with “other” real estate. The Internal Revenue Service opened this can of worms with PLRs allowing wireless communications companies, billboard owners, data centers, and prisons to elect REIT status. Casinos, too. Prison operators argued they were receiving rent for holding prisoners.

Is Windstream in the business of providing communications services or owning and managing real estate? Is Corrections Corporation in the business of operating prisons or holding real property? Are casino operators in the business of real estate or emptying your wallet? The answers seems pretty clear to me.

We don’t need these companies to spin off their “real estate” assets so small investors can own a piece. These companies are already publicly traded and investors can buy stock or mutual funds that hold the stock.

Many states are losing tax revenue. First, unlike corporate dividends, there’s no corporate income tax paid first. Then, after the REIT pays dividends to its shareholders, they pay tax to their resident state, say, New York, rather than in the state where the properties are located, say, prisons in Mississippi. Companies are also using REIT subsidiaries to dodge state-level income taxes. Mega-retailer Wal-Mart was assessed $33 million in 2005 by North Carolina related to its use of a 99-percent owned “captive” REIT (executives owned the other 1 percent to reach 100 shareholders); its REIT strategy cut its state income taxes by 20 percent during a four-year period.

The initial motivation behind enacting special tax treatment for REITs might have made sense. But give someone a tax break and other folks, for whom it was not intended, will try to figure out how to use it. This is why we continually argue in favor of a simple, broad-based tax system that has few exceptions. Limit the exemptions, credits, and other special rules and you limit the opportunities for taxpayers to game the system. Until we have a tax system that works like that, Congress should close as many of the loopholes as it can. This is one of them.

The Windstream ruling opens the floodgates for REIT spin-offs for all kinds of companies, from Amazon to Zynga, with AT&T, Comcast, and Verizon in between.  Congress should enact rules to prohibit REIT spin-offs from publicly-traded companies and limit the favorable REIT treatment to the types of activities it was originally intended to benefit.

Following is a statement by Robert McIntyre, director of Citizens for Tax Justice, regarding emerging reports that Walgreen Co. will announce Wednesday that, although it still plans to buy Switzerland-based Alliance Boots, it will not use legal maneuvers to reincorporate as a Swiss company to avoid U.S. taxes.

“Reports are stating that Walgreen Co. has decided to set aside — for now — plans to avoid U.S. taxes by reincorporating as a foreign company. Only the proverbial fly on the boardroom wall truly knows what led the company to reach this decision. But a single company backing off plans to exploit loopholes in our tax code to dodge U.S. taxes does not fix the fundamental problem.

“Congress and the Obama Administration still need to act quickly because many other American corporations such as Medtronic, AbbVie and Mylan are still pursuing corporate inversions, while other major companies such as Pfizer have indicated that they may pursue inversion in the near future.

“Walgreens is a quintessentially American company and an easy scapegoat. But the company’s initial plans to dodge U.S. taxes were merely a symptom of a larger problem. The loopholes in our tax code are so gaping that corporations can simply fill out some papers and declare themselves foreign companies that are mostly not subject to U.S. taxes.

“Congress needs to, at very least, enact the legislation proposed by Sen. Carl Levin and Rep. Sander Levin that would disregard, for tax purposes, attempts by American corporations to claim a foreign status that only exists on paper.

“Refusing to address inversions except as part of comprehensive tax reform would be like refusing to put out a house fire until there is a detailed blueprint for rebuilding the house. Quick action is needed while there is still something to save.”