Overview

News reports in the late 1990s and early 2000s drew attention to a phenomenon sometimes called corporate inversions or expatriations : instances where U.S. firms reorganize their structure so that the parent element of the group is a foreign corporation rather than a corporation chartered in the United States. The main objective of these transactions was tax savings, and they involved little to no shift in actual economic activity. Bermuda and the Cayman Islands (countries with no corporate income tax) were the location of many of the newly created parent corporations. These types of inversions largely ended with the enactment of the American Jobs Creation Act of 2004 (JOBS Act, P.L. 108-357), which denied the tax benefits of an inversion if the original U.S. stockholders owned 80% or more of the new firm. The act effectively ended shifts to tax havens where no real business activity took place. However, two avenues for inverting remained. The act allowed a firm to invert if it has substantial business operations in the country where the new parent was to be located; the regulations at one point set a 10% level of these business operations. Several inversions using the business activity test resulted in Treasury regulations in 2012 that increased the activity requirement to 25%, effectively closing off this method. Firms could also invert by merging with a foreign company if the original U.S. stockholders owned less than 80% of the new firm. Two features made a country an attractive destination: a low corporate tax rate and a territorial tax system that did not tax foreign source income. Recently, the U.K. joined countries such as Ireland, Switzerland, and Canada as targets for inverting when it adopted a territorial tax. At the same time, the U.K. also lowered its rate (from 25% to 20% by 2015). Several high-profile companies had more recently indicated an interest in merging with a non-U.S. headquartered company, including Pfizer, Chiquita, AbbVie, and Burger King. This second wave of inversions again raises concerns about an erosion of the U.S. tax base. Chiquita and AbbVie have canceled their plans in the wake of new Treasury regulations, but Burger King and other firms are continuing merger plans. Pfizer subsequently terminated its planned merger with Allergan after Treasury regulations issued in 2016. Two policy options have been discussed in response: a general reform of the U.S. corporate tax and specific provisions to deal with tax-motivated international mergers. Some have suggested that lowering the corporate tax rate as part of broader tax reform would slow the rate of inversions. Although a lower rate would reduce the incentives to invert, it would be difficult to reduce the rate to the level needed to stop inversions, especially given the effect of the revenue loss on the budget. Other tax reform proposals suggest that if the United States moved to a territorial tax, the incentive to invert would be eliminated. There are concerns that a territorial tax could worsen the profit-shifting that already exists among multinational firms. The second option is to directly target inversions: H.R. 1931, H.R. 3434, and S. 1636 would treat all mergers as U.S. firms if the U.S. shareholders maintain control of the merged company, as well as impose other restrictions. S. 1673 would tax accumulated earnings of inverting firms. H.R. 1932 and S. 851 would include anti-inversion provisions as part of a broader proposal to address tax havens and deferral. H.R. 3603 would address earnings-stripping of inverted corporations. H.R. 3424 would disallow federal contracts for inverted firms. H.R. 1451 and S. 586 would make major changes in the tax treatment of foreign source income and tighten existing anti-inversion rules. On September 22, 2014, the Treasury announced regulatory measures to limit some of the benefits of inversions. Evidence from news accounts and statistical data suggest that inversions have declined.

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