Corporate Inversion Regs: Is the Cure Worse Than the Disease?
Fallout continues to happen from the Treasury Department's September regulation announcement on corporate inversions. It's now becoming increasingly clear that this regulation can be added to the list of jobs-killing initiatives from the Obama Administration. It joins a Hall of Shame which includes Obamacare, EPA regulations, Dodd-Frank, and many others.
Financial experts at the time were shocked at the size and scope of the regulations. Reuters went so far as to report that $12.3 billion in shareholder wealth was wiped out by the announcement of the regulations alone. How much more will each of us lose from our 401(k) plans and IRAs once this regulation actually goes into effect?
The surprise was warranted, since up until that point the Obama Administration and Treasury had been downplaying what could be done in this area absent Congressional action. Treasury Secretary Jack Lew said that Treasury "did not have the authority." President Obama remarked that "we can't solve the entire problem administratively." Most definitively, IRS Commissioner John Koskinen said "we've done, I think, all we can within the statute."
This reckless and extreme regulation has had serious consequences for U.S. companies and jobs. Since the announcement, a half-dozen international business deals have been scuttled. What does that mean? It means that the international profits of these companies--which have already faced taxation abroad--will continue to encounter double taxation from the IRS should the companies dare to bring that money back to the United States.
That's untenable. Predictably, action has shifted from corporate inversions to outright foreign takeovers of American companies. Even former Bill Clinton economic advisor Laura Tyson has said of this phenomenon, "the proposed anti-inversion measures would also make it more likely that U.S. companies are the target, rather than the acquirer, in cross-border M&A deals."
So great. Rather than letting U.S. companies simply pay tax on their foreign earnings once and only once, the Obama Administration would rather these companies be gobbled up entirely by their foreign competitors. What's going to happen to all the jobs at those companies then? They will quite literally be shipped overseas.
The real solution here is to simply end the double taxation of overseas corporate earnings. Let companies pay taxes over there, and then be done with it. That would make them more likely to bring earnings back to the United States, since they won't face a double taxation situation.
Until we solve our broken tax system, especially with regard to large multinational U.S. companies, the type of clown show we're seeing on corporate inversions is doomed to continue.
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The Conservative Argument for a Permanent Medicare Doc Fix
Whether it's in the lame duck after Election Day or early next year, Congress is once again going to have to address the so-called "doc fix" or "SGR" issue within Medicare. It's going to be a top fiscal and healthcare issue, so it's worth exploring in some depth.
What is this issue? Back in 1997, Congress adopted a Medicare cost savings formula called the "sustainable growth rate," or SGR. The idea was for Medicare reimbursements to no longer outpace the growth of the economy. SGR, though, was never put in place in any meaningful way.
After a one year stint living under SGR, in 2003 Congress decided to "temporarily" delay the provider cuts. This would be the first of 17 times Congress did so, most recently in March 2014. The total amount of "extra" Medicare spending as a result of these "patches" (popularly known as "doc fixes") is just under $170 billion.
It's pretty clear that when Congress delays something from happening 17 times that it's not going to happen.
What's the conservative argument for keeping SGR? It comes down to a budgetary one. Every time Congress does a doc fix patch, it's scored as spending new money. This despite the fact that all Congress did was preserve the old funding formula and stop a new (and never-used) one from coming into place.
What that means is that it appears that simply removing the never-gonna-happen SGR from the books increases government spending. According to the latest CBO estimate, a permanent doc fix (i.e., repeal of SGR) would "cost" $131 billion over the next ten years. Conservatives are against increasing the size of government, so opposition to SGR repeal is a natural instinct.
However, this instinct is incorrect for five key reasons:
1. The idea that repealing SGR increases government spending is derived from a faulty baseline assumption. The Congressional Budget Office (CBO) has to assume by law that SGR will be applied in full force, permanently, going forward. Common sense and history tells us this is a bad assumption from which to make budget policy.
Congress has delayed the onset of SGR 17 times over more than a decade. It is blindingly obvious to everyone who pays attention to this in Washington that Congress will continue to not impose SGR cuts. To pretend that it will, and then demand spending cuts to "pay for" repealing it, is cognitive dissonance of the highest order. It is reminiscent of Democrat calls to "pay for" extension of the Bush tax cuts, even though all that Congress was doing was keeping tax law current.
Under a reality-based baseline, or what CBO might call an alternative fiscal scenario closer to reality, the actual score of repealing SGR should be $0. That's because SGR has never really been put in place, Congress has delayed it consistently, and it never will be put in place again. So getting rid of it is simply not a budgetary event. In fact, we know that roughly a decade of patches have "cost" more than simply repealing it is projected to cost now. The question is merely whether you want to do this once a year, or do it once and for all.
Of course, if Congress wants to cut spending to feel better about an SGR repeal, that's a welcome development--spending cuts are always a good thing for conservatives. But strictly speaking, and using a correct baseline, they are not necessary in this case.
2. Medicare's own actuaries think SGR is phony and hides the true unfunded liability of Medicare. SGR is an assumed cut to Medicare spending which will actually never happen. But just like CBO needs to assume it will, so did the Medicare actuaries--until this year.
For the first time ever, the Medicare actuaries admitted that SGR was a sham, and that giving credit to its phony cuts does a disservice to the public. Including SGR cuts in long-range Medicare spending is to make long-range Medicare spending look pretty good by comparison. Here's what the actuaries had to say:
In addition, a further exception to current law is being made this year with regard to the sustainable growth rate (SGR) formula for physician fee schedule payment under Part B. Current law requires CMS to implement a reduction in Medicare payment rates for physician services of almost 21 percent in April 2015. However, it is a virtual certainty that lawmakers will override this reduction as they have every year beginning with 2003. For this reason, the income, expenditures, and assets for Part B shown throughout the report reflect a projected baseline, which includes an override of the provisions of the SGR and an assumed annual increase in the physician fee schedule equal to the average SGR override over the 10-year period ending with March 31, 2015. Since 2008, legislation overriding physician fee reductions has included provisions offsetting the 10-year cost of the overrides, but the division of those offsetsbetween Medicare savings and savings in other parts of the budget has varied. Because it is difficult to predict the extent to which policy makers will finance future overrides with other Medicare savings, the projected Medicare baseline does not include any offsets, which may result in overstating program costs.
If the top Medicare experts, whose job it is to accurately portray the health of the program, are willing to completely discount and ignore SGR, it's not worth the paper it's printed on and should be scrapped.
In addition to this, the Center for Medicare Services (CMS) has announced that it is ignoring looming SGR cuts when setting Medicare Advantage rates (the freer-market alternative to traditional Medicare).
In both these cases, the people who pay the closest attention to Medicare recognized the history of Congressional action to defer cuts, as well as the disruption it causes if one set policy based on formula, and then adjusted suddenly when Congress overrides that formula.
3. SGR smooths the path for bad policy outcomes, including and especially Obamacare. SGR is one of many elements that conservatives can blame for saddling the country with the broken government healthcare regime we have today.
First, the existence of SGR made the solvency and sustainability of Medicare look stronger than it actually was. That allowed for the Obama Administration and allies on Capitol Hill to justify the creation of Obamacare (paid for in large part by Medicare cuts, incidentally) because of this rosy long-term cost scenario for government in general. The trillions of dollars in higher Medicare spending over this century than was assumed by policymakers might have given pause to a stray congressman here or senator there.
Second, SGR has historically been a magnet for other healthcare spending, known as healthcare "extenders." No one ever bothers to scrutinize these extenders, and it's likely they've cost more than the sum total of "doc fix" patches to date. The Wall Street Journal calls one such extender "payola" included at the request of liberal Senator Chuck Schumer (D-N.Y.)
4. SGR and the resulting "doc fixes" get in the way of conservative health reforms on Capitol Hill. It bears repeating that Congress has delayed the onset of SGR 17 times in 11 years. Every time they do so, it's a Chinese firedrill of the highest order.
The healthcare staff of many members and committees have to be deployed for drafting, scoring, hearings, interminable meetings and conference calls, etc. It's a "timesuck" of epic proportions for these staffers and members.
That would be all well and good except that these are the very same conservative staffers and members who free market health reformers are counting on to do proactive improvements/repeal of Obamacare, Medicare, Medicaid, the Veterans' Administration, etc. There's only so much time on the Congressional calendar. By necessity, Congress doesn't get to to work on these reforms because their key personnel are busy rolling the doc fix rock up the hill for the eighteenth or nineteenth time.
If you're a conservative interested in repealing Obamacare, reforming Medicare, or block granting Medicaid to the states, removing the SGR kabuki theater from the Congressional agenda is absolutely essential. Put bluntly, we will never, ever get to do all the cool entitlement reforms we want to do if "doc fix" is on the Congressional agenda ahead of them every year. Clear it out.
5. SGR and annual doc fixes give occasion to campaign finance shakedown operations. Another widely known fact in Washington is that Congress loves doing the annual doc fix because it gives their fundraisers an opportunity to hit up doctors and others for campaign cash. If SGR went away as a threat, so goes the theory, the potential SGR victims might be less willing to write checks. It doesn't take much of a Google search to see that the impeding threat of SGR is very good for fundraiser commissions.
Conservatives should be repulsed by this effect. It's part of the corrupt, crony capitalist shell game in Washington, and it needs to stop. Congress sets up a fake crisis which everyone knows won't happen.
"Except, it might, Mr. Lobbyist, this year," says the senator. "Totally different subject, Mr. Lobbyist--did you know about my cocktail reception at Johnnie's Half Shell tonight? You'll be there? Great, I look forward to seeing you. Let's see what we can do about this doc fix nonsense, huh?"
On and on it goes. A small part of draining the swamp in the Beltway is getting rid of the phony SGR threat. Don't forget that SGR provides a vehicle for all sorts of other bad policies to become law.
There are conservatives of good will on both sides of this issue. Some of the smartest healthcare and fiscal minds in the conservative movement think that keeping SGR, or having to cut spending dollar for dollar to repeal it, is a no-brainer. Their arguments are serious and substantive.
But there's another side to the coin, and that's what's been presented here. There's a good conservative case to be made that SGR needs to go, and as soon as possible.
Obama Administration Still Not Getting It on Corporate Inversions
The big news in the tax world today is Treasury Secretary Jack Lew's speech on corporate inversions.
Unfortunately, it's clear that the Obama Administration still doesn't understand this easy issue.
Inversions are inevitable if you have a flawed tax system. Multi-national companies have offices around the world. They can set up headquarters in America, or in any number of different countries. No matter where they hang a shingle, they will have to pay the full U.S. corporate income tax rate on all U.S. profits. So what's the big deal here? The big deal is that our tax system is the worst in the world for these type of employers, and inversion is the entirely predictable result.
Worldwide vs. Territorial taxation. The U.S. is virtually the only country in the world that requires its companies to not only pay taxes on profits it earns here, but also exposes profits earned overseas to U.S. taxation when repatriated. This is known as a "worldwide tax regime." Other countries have what we should have, a "territorial tax regime," where taxes are owed only where they are earned.
The highest tax rate in the world. Combine this double taxation with the highest corporate income tax rate in the developed world (over 39 percent, compared to a developed nation average under 25 percent), and you have a recipe for corporate inversions to happen. Companies are simply not going to expose their profits earned overseas (and which already have faced taxation abroad) to even more taxation in the United States, which taxes more heavily than anyone else.
A simple solution: lower the tax rate, stop double taxing. Responsible policymakers know that there is a very simple, two-pronged approach to stopping inversions--dramatically lower the tax rate on businesses, down to the developed nation average of 25 percent (or even less).
That by itself will do most of the work.
Combine that with adopting a territorial tax regime, and the problem is solved. Companies not only won't want to move abroad to protect their shareholders, employees, and customers from unfair tax rules--we will actually see other countries' companies wanting to set up shop here.
The Obama Administration just doesn't get it. It's clear, unfortunately, from Lew's speech that the Obama Administration just doesn't get it. Let's break it down:
Lew calls for a phony corporate tax reform with a top rate of 28 percent and higher taxes than before. A top rate that high simply isn't enough to make America competitive around the world. We would still have a tax rate significantly higher than the developed nation average. Combine this with tax increases to pay for it even bigger than the rate reduction, and companies are worse off than before.
They want to use the net tax increase money for another round of stimulus spending on roads. If there's something we do know, it's that companies are doing inversions because they are overtaxed. Increasing their taxes, and then using the money to finance union-contract road deals, is only going to make the problem worse.
Where's the end to double taxation? You won't find it here. Not only does the administration not ending the worldwide double tax regime--they are actually proposing making it worse.
Retroactive tax increases on companies who should have hired psychics. Arguably, the most offensive part of the plan is that it would apply to companies who have already made the inversion decision, months or even years before the law is passed. Apparently, the companies who were making sound business decisions at the time neglected to hire psychics to divine what Congress might do (and apply backwards) months or years in the future. There's a reason the Constitution forbids "ex post facto" laws, and this is it.
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ATR Supports H.R. 3522, "Employee Health Care Protection Act"
The U.S. House of Representatives this week will vote on H.R. 3522, the "Employee Healthcare Protection Act," sponsored by Congressman Bill Cassidy (R-La.)
ATR urges all Members of Congress who want to prevent Obamacare from doing even more damage to their constituents to vote for this legislation.
H.R. 3522 actually implements for workers what President Obama famously promised about his signature healthcare law: "if you like your plan, you can keep it." Millions of Americans on the individual health insurance market now know this was not true, and those who get health insurance at work will find themselves in the same boat this year.
The bill allows any group health plan offered at work in 2013 to continue to be offered in 2014. It's as simple as that.
Starting this fall, up to 50 million American families could see plan cancelation or disruption due to Obamacare forcing their employers to adopt different health insurance plans. They won't have the chance to keep their old plan, because it won't be available to them anymore. H.R. 3522 would prevent that from happening.
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Coming to a Friday News Dump Near You: The Obamacare Individual Mandate Tax Form
The IRS recently released a batch of Obamacare-related draft tax forms for the 2014 tax year. Conspicuously absent from this collection is a form to calculate one’s penalty for noncompliance with Obamacare’s individual mandate.
ATR fully expects this draft tax form to be released in a Friday news dump during the dog days of the August recess.
It is clear from the new draft 1040 form already released that every American filing an income tax return will have to attest to their compliance with Obamacare’s individual mandate.
In the “Other Taxes” section of the draft 1040 form, line 61 reads: Health care: individual responsibility (see instructions)
Line 61 is underlined in the graphic below:
The expected Friday-news-dump individual mandate compliance tax form will, at a minimum, contain:
- The name and health insurance identification number of the taxpayer.
- The name and tax identification number of the health insurance company providing the “qualifying” coverage as determined by the federal government.
- The number of months the taxpayer was covered by this insurance plan.
- Whether or not the plan was purchased in one of Obamacare’s “exchanges.
When the draft tax form is finally released, it will be posted here.
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ATR Supports Bill Ending Marriage Penalty in Child Tax Credit
The U.S. House of Representatives this week will consider H.R. 4935, the "Child Tax Credit Improvement Act," sponsored by Congressman Lynn Jenkins (R-Kan.) This bill is a common sense update of the income tax's child tax credit provision, and we urge all Members to vote for it.
Under the tax code, filers with dependent children living with them receive a credit against tax of $1000 for each dependent child under the age of 17. This credit begins to phase out when adjusted gross income (AGI) exceeds $75,000 ($110,000 in the case of a married filing jointly couple).
There are two issues with the child tax credit which H.R. 4935 addresses:
The credit amount was never indexed to inflation. The child tax credit was first passed in 1997, and expanded in 2001 and 2003. Since that time, it has been set at $1000 and never indexed to inflation. H.R. 4935 corrects that beginning in 2015.
The phaseout limit was never indexed to inflation, and contains a marriage penalty. The phaseout limits ($110,000 for married couples, $75,000 for most others) were also never indexed to inflation. In addition, there is a marriage penalty in that the phaseout range for married couples begins at less than double the level for other taxpayers. The current credit phaseout range creates an incentive for parents to cohabitate rather than get married, even though the tax code should be neutral on such decisions.
H.R. 4935 corrects both problems. The married phaseout level is set to double the "other" phaseout level ($150,000 vs. $75,000). In addition, these phaseout rates are indexed for inflation starting in 2015.
Corporate Inversions Caused by High U.S. Tax Rate on Companies
There's a lot in the news this week about "corporate inversions." That's when a U.S. company with a foreign subsidiary becomes a foreign company with a U.S. subsidiary.
Not surprisingly, Congressional Democrats are out demonizing these companies for daring to look out for their shareholders, employees, and customers. What you won't hear many Democrats talk about is why these companies feel compelled to do an inversion in the first place.
In a word, it's all about the U.S. corporate tax rate, plus a few other details.
The U.S. has the highest tax rate on businesses in the developed world. Our corporate tax rate (including states) is 39.1 percent. Flow-through firms face an even higher rate, approaching 50 percent depending on their state.
Compare this to business taxes overseas, which average about 25 percent in the developed world.
Each of our major trading partners--Canada, Mexico, Japan, the United Kingdom, Germany, and France--have business tax rates lower than ours. There are also minor trading partners (Ireland and the Netherlands being good examples) who have significantly lower rates and have been attracting capital recently.
Combine this with the fact that the U.S. has a worldwide tax regime (exposing our companies' profits earned abroad to potential double taxation) and painfully slow cost recovery tax rules, and you have created an atmosphere where corporate inversions become very attractive.
If you want to reverse this trend, there's only one way to really do it--lower the tax rate that businesses pay. At the very least, companies here should not face a tax rate higher than the 25 percent average rate they would face elsewhere in the developed world.
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ATR Supports Bill Appointing Inspector General for Obamacare
Americans for Tax Reform is proud to support S. 2430, the "Special Inspector General for Monitoring the ACA (SIGMA) Act of 2014," sponsored by Senator Pat Roberts (R-Kan.)
Obamacare is a giant law which spans many government agencies. Congressional oversight has been stymied by the administration, and taxpayers frankly "don't know what they don't know" about how the government is implementing President Obama's healthcare law. What has leaked out has been a tale of woe involving broken websites, overpaid contractors, and late Friday afternoon bureaucrat resignations.
S. 2430 would create an inspector general that could knock on doors across the government, from Kathleen Sebelius' Department of Health and Human Services, to the Treasury Department, the Social Security Administration, the Pentagon, the Department of Homeland Security, the Veterans' Administration, the Department of Labor, and even the Peace Corps. No stone would be left unturned. Reports would start flowing to Congress and taxpayers on a quarterly basis.
This inspector general office would follow in the footsteps of other recent predecessors for Iraq reconstruction, Afghanistan reconstruction, and the TARP bailout. These inspectors general have recovered billions of dollars in savings for taxpayers, and resulted in prosecutions of hundreds of bad actors.
It's about time taxpayers got to the bottom of how Obamacare is being implemented. S. 2430 is a necessary step to get there.
ATR Supports Anti-Fraud Reforms in EITC
The Earned Income Tax Credit (EITC) is a refundable tax credit for low income American families with wage income. Almost without exception, these households do not have an income tax liability. The EITC, then, is really a check written by the IRS to keep households out of poverty. It is not income tax relief.
The EITC has a high error rate. The IRS itself admits that, in 2013 alone, 22 to 26 percent of all EITC payments were made in error. The erroneous payments totaled between $13.3 billion and $15.6 billion. This was spending, right out of the Treasury Department, to people who were never eligible for this money.
Congressman Cory Gardner (R-Colo.) will this week introduce legislation called the "Earnings Advancement and Recovery Now (EARN) Act." It makes four essential EITC reforms:
--increase the penalty for those who engage in willful or reckless content with regard to the EITC
--expand the EITC disallowance period to five years for willful or reckless EITC recipients
--expand the IRS' math error authority to cover EITC claims, and
--expand penalties for erroneous EITC claims
These measures are simple reform tools for an EITC which has completely failed in its mission. No private sector business could tolerate payment errors to a quarter of their payees, but that's exactly what's happening at the IRS with the EITC. ATR urges all Congressmen to co-sponsor and support this common sense EITC reform package.
House Should Pass Permanent Partial Expensing Tax Relief
The U.S. House this week will consider H.R. 4718, a bill introduced by Congressman Pat Tiberi (R-Ohio) to make permanent a tax provision providing for partial expensing of business tangible asset investment. ATR urges all Congressmen to support and vote for H.R. 4718.
Under tax law, most business expenses (wages, rents, etc.) can be deducted as costs against business income. Companies pay taxes on whatever profit is left. One big exception is when businesses invest in essential assets like computers and machinery. These assets are subject to long, muti-year deductions called "depreciation." A computer, for example, takes five years to fully deduct from business taxable income.
Under ideal tax policy, all business expenses--from wages to computers to paper clips--would be immediately deducted in full in the year of purchase.
For many years, the tax code has had a temporary provision which allows companies to deduct much of the cost of these asset purchases in the year they are made. H.R. 4719 would permanently allow a company to deduct half the cost of a new investment, meaning only the other half would be subject to long and complex depreciation rules.
Congress has a long history of support for this concept, so it makes sense to have it become permanent tax law on the way to full business expensing of all purchases.
--In 2002, Congress created a 30 percent partial expensing rule for asset purchases made through 2005
--In 2003, Congress raised this partial expensing level to 50 percent
--In 2004, Congress broadened the scope of what was covered under partial expensing
--In 2010, Congress created a 100 percent (i.e., full expensing) tax relief provision for 2010 and 2011, reduced to a 50 percent partial expensing for 2012 and 2013
--Unless Congress moves soon, there will be no partial expensing at all in the 2014 tax year.
There is a long history of Congress supporting partial expensing. For long-run planning purposes, however, businesses need to know that tax law won't keep changing on them. That's why it's so important to have the certainty that H.R. 4718 brings.
Business investment is ultimately what creates new business capital, and with it new jobs. If Congress wants to create an environment for job creators to thrive, passing permanent partial expensing is the best jobs package possible.