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Talking Tax Reform, Repatriation & $2.6 Trillion Overseas

Talk of tax repatriation holidays and foreign profits held overseas often accompany the conversation of corporate tax reform. Currently, congress is working with politicians and business leaders to make a plan by year-end. While there is widespread agreement that tax avoidance strategies employed by multinational corporations are a growing problem, there is considerable disagreement in congress over how to solve this problem. Therefore, this article will examine the vast sums of foreign profits currently held by American corporations overseas, the effect of the last U.S. tax repatriation holiday in 2004, and the conflicting objectives between businesses and government over the highest and best use of funds.

In March of 2017, the Institute on Taxation and Economic Policy (ITEP) reported that 322 of Fortune 500 companies collectively held a record $2.6 trillion offshore. It is well documented that the business decision to keep foreign profits overseas is driven by tax avoidance strategies, with the goal of minimizing a firm’s tax liability. As it stands today, companies that repatriate foreign profits do so at a 35 percent U.S. tax rate (minus a tax credit equal to taxes the company paid to foreign governments). Since many corporations strategically stash their cash in countries that are deemed tax havens with low corporate tax rates, the U.S. tax credit they would receive upon repatriation may be insignificant. Therefore, companies strategically keep foreign profits overseas, and they become taxable in the U.S. only if and when a company chooses to brings funds home at their discretion.

To put the enormity of these foreign currency denominated cash reserves in context, the top 3 companies alone held more than half a trillion dollars at the end of 2016. Specifically, Apple reported more than $230 billion, Pfizer reported more than $197 billion, and Microsoft reported roughly $124 billion based on the figures in their 2016 annual reports (10-K). The diversity of companies employing tax avoidance strategies is industry agnostic and includes the world’s largest technology, pharmaceutical, financial, and energy companies among other sectors. Overall, the information from SEC filings clearly proves that American companies are holding vast sums of money overseas largely to avoid taxes, and the tax rules and accounting standards as they are written today provide several loopholes and opportunities that help facilitate and exacerbate these strategies.

Apple clearly has the biggest stake on the corporate side of the debate, and CEO Tim Cook recently stated in an interview with Lester Holt of NBC News that “the biggest issue with corporations in this country is that if you earn money outside of the United States, which most companies increasingly will, and it’s taxed in those countries by the way, the only way that you can bring it into the U.S. and invest, is if you pay 40% - for us. This is kind of a crazy thing to do, so what do people do? They don’t bring it to the United States.” Apple is perhaps the most vocal and recognizable brand among many other technology giants that spent a record amount on lobbying for a lower corporate tax rate in the second quarter of 2017.

The proposed solution is a repatriation tax holiday, which would provide a temporary reduction in U.S. corporate tax rates to encourage bringing profits home to invest in the domestic economy and create jobs. The Trump Administration, the House Committee on Ways and Means, and the Senate Committee on Finance recently released a Unified Framework for Fixing Our Broken Tax Code that claims it will end “the perverse incentive to keep foreign profits offshore by exempting them when they are repatriated to the United States.” It is reported that the most recent bill proposes a one-time tax of 12 percent on U.S. companies’ accumulated offshore earnings that are held as cash and 5 percent for non-cash holdings.

Historically, a tax repatriation holiday was enacted in 2004 as part of the American Jobs Creation Act of 2004 (AJCA). Specifically, section 965 allowed multinational corporations to repatriate foreign profits to the United States at a 5.25% tax rate, rather than the existing 35% corporate tax rate. The result was that corporations repatriated $362 billion back to the U.S., and the largest multinational companies only brought back approximately 9% of their overseas cash positions. In turn, companies used these funds to pay dividends, repurchase shares, and acquire other companies rather than invest in the economy and create jobs. The corporate actions fueled by the legislation set a poor precedent for encouraging politicians to support future proposals of a similar nature, and a second repatriation tax holiday was defeated in the United States Senate in 2009.

While most business leaders and politicians can agree on the problem, finding the right solution remains an ongoing challenge. As it relates to the highest and best use (HBU) of funds, government is most interested in using taxpayer resources to achieve steady economic growth and low unemployment whereas business is most interested in using capital to minimize risk and maximize short and long term profits for shareholders. As a result of these conflicting objectives, businesses that utilize repatriated funds to invest in jobs and innovation may be taking on additional risk and sacrificing profit maximization opportunities. On the other hand, governments that offer tax repatriation holidays may be sacrificing shorter term tax revenue opportunities in exchange for longer term economic growth and job creation that may never materialize.

It has been over 13 years since the last tax repatriation holiday, and businesses and politicians will continue to debate the costs and benefits of new legislation. With a new administration in the White House, newsmakers are reporting a renewed sense of optimism that a potential deal can be reached that benefits multinational corporations and taxpayers alike. Gary Cohn, the director of the National Economic Council and President Donald Trump's top economic adviser, states that he wants tax reform done this year. The 2017 calendar of the U.S. House of Representatives shows the last legislative session will be held on December 14th, 2017, which leaves them with 20 sessions to reach an agreement and get tax reform done this calendar year.

If you were involved in the corporate tax reform debate, how would you approach the topic of repatriating foreign profits held overseas? From a taxpayer perspective, how would you encourage businesses to use these funds to invest in the economy and create jobs? From a shareholder perspective, how would you expect a corporation to use repatriated funds responsibly? What incentives or penalties would you impose to promote the best possible outcome for all parties? These are tough questions to answer, and finding a mutually agreeable solution between taxpayers and shareholders is at the center of the debate. As congress continues the conversation, join the discussion and share your thoughts and comments.

FX Initiative is an independent informational platform focused on foreign exchange. We help multinational corporations assess and mitigate foreign currency risk. The strategic and unbiased advice we provide global companies helps them proactively plan for events such as tax repatriation holidays. Whether you are looking to preserve the U.S. dollar value of your foreign currency cash reserves, hedge the net investment position in your foreign subsidiaries, or analyze the cash flow and accounting implications of a proposed repatriation strategy, we have the expertise, tools, and resources to efficiently and effectively optimize your plan. To benefit from FX Initiative’s advisory services or to learn more about foreign exchange risk management and repatriating foreign profits, contact us today by emailing support@fxinitiative.com or visiting our website at https://fxcpe.com.