We retired Tax Justice Blog in April 2017. For new content on issues related to tax justice, go to www.justtaxesblog.org
While most of us consider ourselves upstanding, taxpaying citizens, imagine if Uncle Sam had a rule that stated individuals must report all their income to the IRS–unless it’s “not practicable” or too difficult to do so. And imagine if the government left it entirely up to taxpayers to decide what “too difficult” means.
Under such loose standards, federal revenue from individual taxes likely would plummet and more taxpayers would take advantage and stash their income in such a way that they could claim it would be impractical to report it to Uncle Sam. The problem is that this “not practicable” standard is not imaginary. It actually exists and is applied to corporations’ offshore income.
While much media attention recently has focused on the tax loophole that permits inversions, or corporations changing their business address to a foreign postal code to avoid U.S. taxes, an equally toothless regulation from the Financial Accounting Standards Board (FASB) allows hundreds of Fortune 500 corporations and other highly profitable companies to avoid telling Uncle Sam how much money they have parked offshore and whether or how much they have paid in taxes to foreign governments on this cash. It’s an important issue to examine because rules that allow corporations to permanently hoard earnings offshore and technically never bring them to the United States means the U.S. Treasury is missing billions in needed tax revenue.
While loose rules mean we will never know exactly how much money all U.S. companies all holding offshore to avoid U.S. taxes, accounting rules require publicly traded companies to report their offshore earnings to shareholders. Among the Fortune 500, $2 trillion is parked offshore. A CTJ analysis of their financial filings finds that if this money were brought to the United States, these companies would owe $550 billion in taxes.
It’s worth taking a step back to discuss how we got here and what we can do to fix this. Regarding offshore profits, FASB rules state companies must either estimate the tax bill that it would pay on repatriation of their foreign profits, or must state that they are unable to calculate this bill. Not surprising, the vast majority of companies disclosing offshore cash take advantage of this loophole and claim, following the exact wording of the FASB rule, that it is “not practicable” to calculate their tax bill on repatriation. A recent CTJ report found that of the 301 Fortune 500 corporations that disclose holding offshore case, 243 use the “not practicable” loophole.
Tax experts long have suspected that this claim is absurd: multinationals typically employ an army of accountants to help monitor their tax strategies at home and abroad, and they very likely have a good idea of the potential tax hit from repatriating offshore cash. A recent informal disclosure by Medtronic—one of the companies currently attempting an inversion—backs this up. A Medtronic representative recently told the Minneapolis Star Tribune that the company has paid a foreign tax rate of between 5 and 10 percent on its “permanently reinvested” foreign income, which means the company would face a tax rate of 25 to 30 percent on repatriation. This disclosure is notable because it’s completely at odds with what the company has officially told shareholders in its annual reports (including the one released the same week as this informal disclosure): that it is unable to make this calculation.
The simultaneous disclosure and non-disclosure on the part of Medtronic illustrates perfectly what many have long suspected: that many if not all companies that refused to disclose the potential tax bill on repatriation know full well what they would pay, and choose not to disclose this information because FASB rules give them an easy way out.
But there’s an easy fix here. FASB could easily rewrite its regulations in a way that would require Fortune 500 corporations to disclose whether their offshore profits are in tax havens.
Regulations currently require companies to disclose “[t]he amount of the unrecognized deferred tax liability […] if determination of that liability is practicable or a statement that determination is not practicable.”
Removing the “if practicable” clause and simply requiring companies to disclose “the amount of the unrecognized deferred tax liability” would end the spectacle of companies like Medtronic concealing their use of tax havens from Congress and the public.
Improving disclosure of the potential tax bills on the offshore profits of multinationals is not an academic exercise: better information on this important topic would benefit millions of shareholders in these corporations and federal policymakers who are being asked to enact even more tax breaks for the biggest multinationals.
Disclosure of potential tax bills is equally vital for decisions currently being made in the halls of Congress. Corporations continue to lobby for all kinds of exceptions to the tax rules, including a tax holiday that would allow them to bring their offshore profits to the United States tax free. Congressional tax writers would presumably be much less interested in granting a so-called tax holiday for foreign profits if full disclosure revealed that much of these profits were being held in low-tax havens such as Bermuda and the Cayman Islands.