GE Just Lost a Tax Break – and Congress Will Probably Fix That

General Electric has long been a flashpoint in corporate tax reform debates. As long ago as 1984, CTJ’s revelation that GE and other large companies had managed to avoid paying even a dime of tax on billions in US profits prompted President Ronald Reagan to push for loophole-closing tax reform. And as our more recent research has shown, GE remains a topflight tax avoider, paying about two percent of its profits in US federal income taxes over the decade between 2002 and 2011.

So anytime one of the biggest tax dodges available to GE disappears, it should be seen as a victory for tax reform.

Why, then, is there so little excitement about the expiration, on December 31 of 2013, of the “active financing exception” that GE relies so heavily on to reduce its tax bill? Perhaps it’s because its expiration was an accidental byproduct of lawmakers’ inaction, and because Congressional tax writers have every intention of bringing this lamentable tax loophole back from the dead, as they have multiple times in the past decade. Repealed as part of the loophole-closing Tax Reform Act of 1986, the active financing loophole was temporarily reinstated in 1997 after fierce lobbying by GE and other multinational companies, and has been extended numerous times since them, usually for one or two years at a time.

The active financing exception is usually extended as part of the so-called “extenders,” the legislation that Congress enacts every couple of years to extend a package of (ostensibly temporary) tax breaks for business interests. The last extenders package was enacted as part of the fiscal cliff deal at the start of 2013, and it extended the active financing break retroactively into 2012 and prospectively through 2013. The two-year extension cost over $11 billion, making it the third most expensive of the extenders.

American corporations are allowed to indefinitely “defer” paying U.S. taxes on their offshore profits, but there is a general rule (often called “subpart F” in reference to the part of the tax code that spells it out) that corporations cannot defer U.S. taxes on dividends, interest or other types of “passive” income because these types of income are easy to shift around from one country to another to avoid taxes. The “active financing exception” is an exception to subpart F. As a result of this ”exception,” companies like GE can indefinitely avoid paying taxes to any nation on their financing income, simply by claiming that their US-based financing income is actually being earned in offshore tax havens.

GE won’t disclose just how valuable the active financing rule is to their bottom line. But when the tax break was set to expire in 2008, the head of the company’s tax department infamously went down on one knee in the office of the Ways and Means Committee chairman Charles Rangel to beg for its extension. And the company’s 2012 annual report’s discussion of risk factors facing the company’s bottom line says that “[i]f this provision is not extended, we expect our effective tax rate to increase significantly.”

And GE’s not the only company that is chomping at the bit to bring this tax break back. The active financing exception also plays a significant role in the ability of other large U.S.-based financial institutions to pay low effective rates. As a group, the financial industry has one of the lowest effective rates of all industries, averaging only 15.5% for the years 2008-2010.

With the lobbying power of GE and the financial services industry at their doors, it’s sadly no surprise that Congressional lawmakers are likely to ride to the rescue of these low-tax multinationals once again. But the $11.2 billion two-year price tag of the active-financing giveaway should be a good enough reason for Congress to sit on their hands and let this tax giveaway stay dead.