Inversions, deferral and the US tax code

An earlier post  linked to today’s FT piece on inversions and other tax strategies.  The following is an amended comment to that post.

Ebay’s 8-K SEC filing made yesterday for Q1 2014 has some interesting outcomes that are related to some of the issues covered by the FT. The form is available here but all you really need is:

Non-GAAP earnings increased 11%, to $899 million or $0.70 per diluted share, over the prior year, driven by strong top line growth. A first quarter GAAP loss of ($2.3) billion or ($1.82) per diluted share, was due to a discrete tax charge of approximately $3.0 billion.

From the income statement it can be seen that Ebay’s effective tax rate for Q1 2014 was:

($3,199mn/$873mn) x 100 = 366%

The  $3 billion discrete tax charge was primarily because Ebay now intends to repatriate to the US around $9 billion of profits that were previously held ‘offshore’. EBay probably used versions of the ‘double-irish’ tax strategy to trigger a deferral of the US corporate income tax liability using subsidiaries in Luxembourg and/or Switzerland.

Tax payments such as this $3 billion will never appear in US BEA data on direct investment abroad by US MNCs as the tax payment is made by the US parent not the foreign subsidiary. The US BEA data only gives the corporate income tax paid by the subsidiaries outside the US. Under the current international tax regime most of the corporate income tax owed by these companies is owed on risks, assets and functions that are in the US (though the US offers extensive deferral provisions).  Effective tax rates based on this BEA data are a poor indicator of the actual tax rates as the US tax liability is not included.

This Ebay example is what is supposed to happen with tax deferral provisions such as the ’same-country exemption’ (which allows ‘double-irish’ type structures to work). Ebay could invest the money abroad free of making a US tax payment.   Alternatively it could choose to repatriate the profits to the US and the US corporate income tax payment up to the 35 per cent federal rate becomes due. This seems to be a case of this happening.

Apple with around $150 billion of retained earnings are going to return money to shareholders through a massive share buy-back but instead of repatriating offshore profits to do it are going to issue bonds to borrow the funds. If Apple does this outside the US it can ‘invest’ its retained earnings by repaying the bonds and the deferred US tax will not be paid.

Pfizer with $70 billion of retained earnings are going to use the money to buy AstraZeneca. This is fine from a US perspective and is what the deferral provisions are designed for – giving US companies interest-free loans to allow them to increase their non-US presence. The inversion to the UK that will come with the acquisition is not what the US wants and completely removes not only the retained earnings but the entire company from the US system.

The FT piece somewhat conflates the impact of inversions and the use of ‘double-irish’ type tax structures.  If a company inverts and re-headquarters to Ireland or the UK or any country it no can longer avail of the key benefits of a ‘double-irish’ scheme.  It can have the same corporate structure but the purpose of the ‘double-irish’ is to defer US corporate income tax by utilising the “same-country exemption” in Subpart F of the US tax code.  Under the “same-country exemption” passive income payments between two companies in the same country are not subject to the general anti-deferral provisions of Subpart F.

If a US company re-headquarters it is no longer a US company and therefore no longer subject to US corporate income tax on its global profits.  The “same-country exemption” becomes irrelevant as it only applies to US companies. 

The piece says the ‘double-irish’ “allows royalties paid by the Irish manufacturing subsidiary to end up in a company that is not taxable under either Irish or US rules.”  That is not correct.  The royalties are taxable under US rules but the ‘double-irish’  creates a deferral of the actual payment using US tax provisions until the profit is repatriated to the US.  In the case of Ebay we can see this repatriation and the triggering of the tax payment happening.

The US is more likely to act against the inversions than the deferral provisions. But even getting consensus on that may be difficult as Republicans will argue the inversions highlight problems with the US tax code and that it is the overall code which should be changed not the addition of roadblocks against inversions – the biggest of which seem to be to the UK not Ireland.

Finally, whatever is left of Pfizer’s retained earnings of $70 billion after the AstraZeneca acquisition will likely have a large once-off impact on UK GNP if the inversion does go ahead.

30 replies on “Inversions, deferral and the US tax code”

Jesse Drucker and Zachary R. Mider of Bloomberg News said in a report Tuesday on the world’s biggest drugmaker: “By switching its parent company from the US to the UK, Pfizer could take advantage of a number of tax benefits. The UK corporate tax rate is 21% – next year dropping to 20% – compared with 35% in the US In addition, the UK only taxes profits that companies say are earned within the country.

So earnings attributed to subsidiaries in tax havens aren’t then taxed when they are brought home. And the newest benefit: the UK is phasing in a 10% tax rate on profits attributed to UK patents, a big source of income for any drugmaker.”

It’s possible to have foreign-owned holding companies without substance in the UK and Ireland.

There is no 100% reliable data and the EBay example does not credibly undermine BEA data.

How reliable are GDP and GNP as metrics of Irish economic performance?

US companies have been lobbying for a repatriation scheme similar to the one a decade ago when there was a special rate of 5.25% but promises then regarding onshore job creation were not generally kept.

The EBAY income statement reveals a little more than the “discrete” tax charge.
It indicates a very ‘indiscreet’ under provision for Corp Tax (US or other country) on the income of prior year’s. Is it possible for many MNCs, that there are no provision at all for any tax, from any jurisdiction, on untaxed offshore income, sitting in tax havens!!

That would be a strange scenario, presuming as it does that the income would remain in tax free havens forever!
A bit strange to say the least.


Great post. Agree, EBay example does point to error in using BEA data.

Joseph Ryan — Making provisions for future tax liabilities is hard, so its always possible for a firm to under provision. But, its not true that US MNCs do not make provisions for tax liabilities from expected future re-partitions. As an example, go to the most recent 10-K filing of Apple for 2013. Look at the “income taxes footnote” in the 10-K. They have accrued an $18bn liability for future tax payments arising from “Unremitted earnings of foreign subsidiaries”

If apple are using Ireland to book earnings in subs that will never be taxed in any jurisdiction, then it is not clear to me why they are telling investors that they have a liability of $18bn for future tax payments on these earnings.

@Donal Byard

Thank you for your comment on the matter of US MNCs provisioning for tax on unremitted foreign profits, with the Apple example to back it up, and I do accept the difficulty of making precise provisions in this area. In the case of EBAY, the tax charge was approx 75% of annual income, so it seemed a worthwhile question to ask.
[It is not my area, but I cannot recall the point you have made being brought out clearly in discussions on the subject, in Ireland at least.]
The decisions on the amount of provisions required must make for an interesting set of assumptions and calculations in many MNC offices!

@ Joseph Ryan,

This comment on recognised tax charges and deferred tax liabilities in a previous thread might be helpful. Apple have indicated they may repatriate half their offshore retained earnings and so have recognised a deferred tax liability of around $16 billion on their balance sheet. They haven’t paid it but because they tax liability of recognised they will not have to make an additional tax charge on their income statement if they do actually repatriate the money. Apple also note that there is an unrecognised tax liability of around $18 billion for offshore retained earnings that they do not intend to repatriate. This is tax the US could collect absent the plethora of deferral provisions. These recognised tax charges and deferred tax liabilities does not mean Apple have to follow that strategy but merely shows what they might do and this is reflected in their accounts.

Ebay had $9 billion of offshore retained earnings that they did not recognise a tax liability for. It now seems that have decided that this $9 billion might be repatriated. After making that decision they then had to recognise this with a tax charge of $3 billion. We will see in future quarters if Ebay actually go ahead and pay it. If they have merely decided that they could repatriate the profits the $3 billion will be a deferred tax liability of their balance sheet. If they do actually repatriate the money it will be reflected in a $3 billion reduction in retained earnings. All it really shows is that the tax is due to the US but the actual payment of it is a complicated mess.

@ Donal Byard

Apple has been declaring a higher effective rate in its years of super profits with an eye on less spectacular times.

According to the US Congress’ Joint Committee on Taxation: “If the company accrues the tax expense in the year the profits are earned, it may later decide that those funds will not be repatriated after all. At that later time it may then reverse the tax expense and shift financial statement income from the prior period into the current period.”

Michael Hennigan

Like any accounting estimate that is subject to managerial estimates, the deferred tax liability can be manipulated. But, at the other extreme, it is simply impossible that apple would be recording a fake $18bn liability and get this past the SEC review. Also, since that would be fraud, one would run the risk of a substantial prison sentence.

The eventual liability will be something different from $18bn (since its an “estimate” that has to be the case), but the financial statements clearly show that it is expected to be substantial. That is what the SEC wants them to tell their investors because this the most likely outcome (in their view). The SEC has designed these footnote disclosure, like their other disclosure requirements, to get firms to provide investors with the true economic position of the firm (as best as it can be estimated).

@ Donal Byard

The FT reported last year:

“Apple would have paid a tax rate of about 15 per cent last year, far below the 25.2 per cent it reported, had it not used a form of reserve accounting that sets it apart from other big US technology companies.

The rare accounting treatment has helped to distract attention from Apple at a time when the tax-avoidance strategies of other cash-rich US tech companies, notably Google, have come under public attack, according to tax experts.”

@Michael Hennigan

Accruing for deferred tax liabilities is a standard form of accounting here in the US. Any major US corporation does it. Its mandated by FAS 109, the US GAAP rule relating to income taxes. Apple has to follow US GAAP like any other US company. If they were doing a non-standard accounting treatment they would have to disclose this in Footnote 1 on accounting policy choices in the 10-K. Nothin there. And, all this is reviewd by the SEC.

If this journalist is taking about FAS 109 provisions, then he/she does not understand US accounting rules.

Joseph Ryan

Thanks. I don’t have a good answer for the question you had about EBay’s under-accrual. Generally US accounting work so they firms over-accrue liabiities for expected future tax payments: the US accounting rules force them to over-accrue. Not sure how EBay ended up under-accruing to such a big degree.

@ Donal Byard

What is reported in respect of tax in the financial accounts can differ from what’s on the IRS tax return.

Like it or not, Apple’s accounting for tax differs from other comparable US companies.

1. If the FT made errors in its report on Apple’s accounting, it’s strange that neither Apple Inc., tax professionals working with MNCs nor academics specialisng in this area, would not have queried it.

2. Tax Analysts is a longtime US publisher of newsletters and research for tax professionals.

Martin Sullivan, a former Treasury official, outlines here how Apple can report a high effective rate while doing what it always has done – minimizing its actual tax paid. Whether in tax or in other areas, boosting accruals if you can get away with it, is an old game.

Apple books a relatively small percentage of its worldwide profits in the United States – about 30% – even though most of its profit-making operations take place in the US. It also has had a very low single digit effective tax rate for years.

@Seamus Coffey

“This comment on recognised tax charges and deferred tax liabilities in a previous thread might be helpful…..”

Thanks for reply and explanation. I have not been as attentive to the detail in the arguments made as I might have been!

Following this thread the thought has occurred to me that from a US point of view, it is far better to have unremitted foreign earnings, (that MNCs have accrued taxes against with the potential for the earnings being remitted and the taxes collected) rather than have the tax collected abroad by a foreign jurisdiction and no benefit accruing to the US Treasury.
I am beginning to understand the points you are making.

That said, the Apple share buy-back mechanism that you have described above will certainly ruffle some feathers, and is very unlikely to win any friends in Congress. On the subject of inversion, often a more blatant form of tax avoidance, it is hard to see the US government standing idly by and doing nothing to counter it.

[In the Irish tax code Section 811 was introduced, following the McGrath case to counter tax avoidance mechanisms that have no economic substance. To my knowledge it has rarely been prosecuted, though I could stand corrected on that.

Michael Hennigan

Again, Apple have to follow the same accounting rules as any other US company. In their case they are a large accelerated filer, so they are subject to annual review by division of corp fin of SEC. If Apple were not following the accounting rules or engaged in massive massive mis-reporting as you seem to think, then this would be easy to spot. For example, what would they write in the tax section of the MD&A in the 10-K?

The treasury guy, like the FT reporter, is just picking up on the fact that Apple has a relatively large book-tax difference because their timing differences are larger than other comparable firms. Under the standard application fo FAS 109, the correct accounting rules, this will lead to the outcome he points to. That is, following the correct accounting, that is what you get.

Look, if you want to quote people who actually know what they are taking about, go to the SEC. They are the agency responsible for all the relevant rules and regulations here. I used to work there.

Michael Hennigan

When accounting numbers diverge from tax reporting numbers, this is a sign of the degree of tax aggressiveness of a firm. So, the FT quote and the Treasury person are saying “hay, look the financial reporting numbers are very different from the tax reporting numbers”

This could be a sign of a more tax aggressive structure than competitors. Or, it could just be a different operating structure. Its not a sign that they are not following the correct accounting. That’s mixing up issues.

But, one certainty can look at book-tax differences and if they are larger than peer firm conclude that a firm is being relative tax aggressive.

@ Donal Byard

Look, if you want to quote people who actually know what they are taking about, go to the SEC. They are the agency responsible for all the relevant rules and regulations here. I used to work there.

Just to make a final point here…I’ll pass on the SEC.

You guys missed out on Apple diverting huge sums over three decades through “stateless” mailbox companies, which provided it with a rate of 2% on most of its profits in 2012.

Maybe Congress was bought by such companies but against that backdrop, arguments that Apple had met all the SEC requirements on accounting standards and footnotes etc. are not of consequence.

@ MH,

What exactly have the SEC missed out on? Apple’s most recent 10K filing has a deferred tax liability of $16.5 billion (on profits that might be repatriated) and an unrecognised tax liability of $18 billion (on profits it intends not to repatriate).

If we go back to Apple’s 2011 10K filing it says:

The Company’s consolidated financial statements provide for any related tax liability on amounts that may be repatriated, aside from undistributed earnings of certain of the Company’s foreign subsidiaries that are intended to be indefinitely reinvested in operations outside the U.S. As of September 24, 2011, U.S. income taxes have not been provided on a cumulative total of $23.4 billion of such earnings. The amount of unrecognized deferred tax liability related to these temporary differences is estimated to be approximately $8.0 billion.

The SEC don’t set the tax code. If Apple tells that SEC that it has $23.4 billion of profits on which tax is never likely to be paid what is the SEC supposed to do about it?

1. If the FT made errors in its report on Apple’s accounting, it’s strange that neither Apple Inc., tax professionals working with MNCs nor academics specialisng in this area, would not have queried it.

It would be strange if these people filled their time going around correcting all the mistakes that appear in the media. If they were to attempt to do so they would never get any other work done and likely wouldn’t succeed anyway.

From the Bloomberg item.

“For the past 20 years, Congress and the Internal Revenue Service have repeatedly targeted the practice, which tax experts call inversion. Each rulemaking effort has made inversions more difficult though not impossible.

Nowadays, most companies use an exception to a 2004 anti-inversion law that allows them to take a foreign address during the course of a merger with a non-U.S. partner that’s at least 25 percent of their market value.

Highest Rate

Congressional leaders now say they want to address inversion as part of broader tax-code changes. The U.S. corporate income tax rate of 35 percent is the highest among developed countries, and lawmakers in both parties advocate lowering it.”

Will it take another 20 years? That is the question.

Michael Hennigan

The SEC has no role in writing, interpret or enforce any part of the U.S. tax code. The relevant agencies are the IRS and Treasury.

The only area where the SEC has jurisdiction on anything relating to international tax is in terms of the disclosures firms like apple provide to their shareholders with respect to their tax affairs. The commission has increased these disclosure requirements in recent years. Of course, one could always argue that they should require greater disclosure/transparency on this issue.

@ Seamus Coffey

Those offshore Irish tax avoidances entities are an embarrasment and should be abolished.

Besides Jim Stewart’s argument that the “control and management” rule is an exception in international tax rules, the distinction between the “control and management” function that an operations hq (in particular the CFO) has in respect of onshore affiliates and offshore affiliates, is bogus.

Good news on the tax evasion front. Switzerland and Singapore have agreed to modify bank secrecy rules and share information with tax authoirities of other countries.

It is a huge step for the Swiss who made breach of bank secrecy a crime in 1934.

@ MH,

Nobody can dispute that the use of Irish-incorporated in the tax structures of US MNCs is damaging for Ireland’s reputation.

But the “management and control” rule is not so unusual to make Ireland exceptional. The test of incorporation is the most commonly applied residence rule but not universally used. Here are some selected corporate residence rules:

Barbados: A company is deemed to be resident if it is centrally managed and controlled in Barbados

Brunei: A company is resident in Brunei if it is managed and controlled in Brunei

Cyprus:A company is resident in Cyprus if its management and control is exercised in Cyprus.

Gibraltar: A company is resident if it is managed and controlled in Gibraltar

Guyana: A corporation is resident if it is managed and controlled in Guyana

Korea: A corporation is resident in Korea if its headquarters or place of effective management is located in Korea

Malaysia: A corporation is resident in Malaysia if its management and control are exercised in Malaysia

Mexico: An entity is resident if it is managed and controlled in Mexico

Paraguay: Residence is determined in order of priority according to: (1) the place of a company’s management or direction; (2) the place where its main activities are carried out; and (3) the location of its representative address

Singapore A company is resident in Singapore for income tax purposes if its management and control are exercised in Singapore.

Slovakia: A company is resident if its seat or place of effective management is in Slovakia

Slovenia: An entity is resident if it has its business seat or place of effective management in Slovenia

Sri Lanka: A company is resident in Sri Lanka if its principal office is in Sri Lanka or if it is managed and controlled there.

Taiwan A profit-seeking enterprise is resident in Taiwan if its head office is in Taiwan

The use by these countries doesn’t make the test of management and control right but it doesn’t make any country that uses it exceptional either.

Most countries use the test of incorporation to determine residency with some combining it with a test of management and control. Double tax agreements will be used if two countries deem a company to be a resident – the test of management and control is the usual tie-breaker.

If two countries have the following tax residency rule:

A company is resident if it is incorporated in the country or its place of central management and control is in the country

This means that a company incorporated in one of the countries and managed and controlled in the other would be deemed resident in both. How is this resolved? The tie-breaker from the current OECD model tax treaty is:

Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident only of the State in which its place of effective management is situated.

Again this doesn’t make the use of the test of management and control right but does mean that the use of it is not exceptional. Under the OECD model treaty it is possible for a company to be incorporated but not resident in a country.

The point about control is true and Sen. Carl Levin called Apple’s tax structure a “sham”. He is correct. The Apple key subsidiaries have almost nothing to do with Ireland. They are fully controlled from Cupertino, California.

“Apple is exploiting an absurdity, one that we have not seen other companies use. The absurdity need not continue. Although the United States generally looks to where an entity is incorporated to determine its tax residency, it is possible to penetrate an entity’s corporate structure for tax purposes, and collect U.S. taxes on its income, if the entity is controlled by its U.S. parent to such a degree that the shell entity is nothing more than an “instrumentality” of its parent, a sham that should be treated as the parent itself rather than as a separate legal entity. AOI, AOE and ASI all sure seem to fit that description.”

The problem as he sees is not that Ireland doesn’t collect tax from companies that are only registered here. The problem is the US doesn’t collect tax from companies that carry out all their operations there.

Should Ireland abolish the ‘trading’ exemption and make all Irish-registered companies resident in Ireland (unless deemed otherwise by the ‘treaty’ exemption)?

It certainly is an option that can be considered. I don’t think it would have a massive effect of the tax outcomes for US MNCs, particularly now that the stateless ruse has been tidied up. The key parts of the well-known tax strategies of US MNCs are parent/subsidiary cost-sharing agreements and the deferral provisions of the US tax code. Ireland has nothing to do with the former but does facilitate the use of the latter.

However, the role of Irish residency rules can be overstated. They undoubtedly help to avail of the “same-country exemption” to the general anti-deferral provisions to Subpart F. But the “look-through rule” with “check-the-box” can be considered the “any-country exemption” – residency rules don’t really matter. Of course if the “look-through rule” is not extended (it expired on Dec. 31) then they do matter as the “same-country exemption” remains as a permanent provision in the US tax code.

The actual residency rules might not matter hugely but changing them does. Companies want stability. It really is a judgement call whether one wishes to see the ‘trading’ exemption removed. There seem to be plenty who are calling for that.

It probably wouldn’t change a whole lot and as long as the US MNCs have operations here the story would just move on to other alleged tax reasons for their decisions to locate here. So barring a virtual cessation of US MNC investment in Ireland this is likely to continue. Should Ireland change its tax rules after every furore? That would be one way to stop investment coming here.

I don’t wish to rehash all this again.

1) Ministers have suggested that they are not happy hosting brass plate type operations or ones with very limited real world operations.

2) Ending Double Dutch etc schemes and the massive distortion of the national accounts should be welcome.

3) I read Jim Stewart’s paper yesterday. His point about being exceptional at least applies to the EU.

Apart from Korea, there is no significant economy on your list.

4) As there is no regulation of these companies, whether used by residents or not, we cannot know if they are used for money laundering etc. To other jurisdictions they can seem very legit. The connection with a resident company requirement can easily be abused.

It’s unlikely that there is no abuse.

@ MH,

1) This is why the re-headquartering is an issue. There is no tangible benefit to Ireland of a company re-headquartering here through a “brass-plate” operation. That is not what the CT regime was designed to attract which is a “presence of substance” and all that.

2) Ireland’s national accounts are distorted because the US MNCs have operations here. If the purpose is to make Irish national accounts more readable then the US MNCs need to be removed from the economy.

The need for a “Dutch Sandwich” component of certain tax strategies was removed in the 2010 Finance Act. As long as Google have their sales operations here the impact they have on the national accounts will be present. Absent the cost-sharing agreement with a Bermudan holding company Google’s sales operation in Ireland would still be remitting the royalties somewhere and having the same impact of exports and imports, though a relatively small impact on GDP. In fact, if their are changes to the global tax regime it could be that the impact of US MNCs on Irish national accounts will be greater not less.

The distortions are there but there are pretty well understood:
– foreign-owned companies earn around €40 billion of profits/year
– foreign-owned companies account for 90% of exports
– the top-10 exporters accounts for 33% of exports
– the top-50 companies account for 60% of profits
– foreign-owned companies employ around 250,000 people

What is the objective? Is to change the tax outcomes for (mainly US) operating in Ireland? Or is it to change Ireland’s reputation as a perceived tax haven? If it is the former then there is close to nothing that can be effected in Ireland that will change the tax outcomes for these companies.

3) On what criteria is significance been judged? Ireland seems equally insignificant is set against the countries listed except Korea. Why would our rules matter and not theirs.

4) That is somewhat separate issue. Money laundering and/or abuse is possible in any environment and should not be permitted.

The Irish Corporation Tax regime is relatively straightforward. What is it exactly you want to see changed? And I don’t mean change of outcomes; what rules/regulations/rates should be changed?

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