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A minimum tax on foreign earnings, proposed in the Republican tax framework, might mean multinational companies would pay more taxes than they face today, tax lawyers and lobbyists say. But there isn’t enough information yet for them to judge.
“If a minimum tax is at a rate that’s not sufficiently low, there’s real concern about whether you’ve really been given the benefit of a territorial system and whether you’ve really cured the inversion problem,” Paul M. Schmidt, tax chair of Baker & Hostetler LLP, told Bloomberg Tax.
The nine-page framework released Sept. 27 would set up a territorial system, exempting dividends from foreign subsidiaries, but also would “protect the U.S. tax base by taxing at a reduced rate and on a global basis the foreign profits of U.S. multinational corporations.” The framework doesn’t specify what the minimum tax rate would be or how such a tax would work.
Peter A. Furci, a partner and co-chair of Debevoise & Plimpton LLP’s global tax practice, said he interpreted the proposal to mean the minimum tax would be a current tax, applied whether or not the foreign earnings are actually distributed out. “If that’s the case, in some respects, the new regime may be less favorable than the current regime, which does effectively permit you indefinite deferral,” he said.
House Ways and Means Committee Republicans agree that a foreign minimum tax on overseas corporate earnings will likely be a necessary part of moving to a territorial tax system, Rep. Pat Tiberi (R-Ohio) said.
Ways and Means Chairman Kevin Brady (R-Texas), however, has cautioned that the committee hasn’t landed on a specific plan and that members continue to work with Treasury Department officials on the issue.
The minimum tax proposal recognizes that while moving to a territorial system and a lower corporate rate may help prevent inversions, companies will still have an incentive to move assets—especially intangible assets—outside the U.S. as long as other countries have lower rates, said Schmidt, former legislative counsel to the Joint Committee on Taxation.
“There has got to be an anti-base erosion solution,” Rep. Peter Roskam (R-Ill.), the Tax Policy Subcommittee chairman, told reporters. “As you move to a territorial system, we want to make sure you don’t exacerbate a problem of companies moving their IP offshore.”
Schmidt said the concern for multinationals arises from the lack of detail on how the tax proposed in the framework would work.
Past proposals, including plans from former Ways and Means Committee Chairman Dave Camp (R-Mich.) and President Barack Obama, included a minimum tax on foreign earnings, he said. Most of those proposals were based on a country-by-country approach, Schmidt said.
For example, if a U.S. multinational earned income in a country that doesn’t meet a specific minimum rate, the company would have to pay a certain amount of tax to reach the minimum threshold, Schmidt said. Another option under a country-by-country approach would be to treat low-taxed income as Subpart F income, meaning it’s treated as currently taxed income, he said.
However, “we’re also hearing some discussion that this may be on an aggregate approach—looking at the effective rate of all of your foreign income,” he said.
Where Congress will land on the minimum tax remains fluid, as the Senate Finance and House Ways and Means committees continue to debate the tax and get input from a variety of sources, said a tax lobbyist who requested anonymity to protect clients’ interests.
Multinationals largely oppose the idea, but are somewhat resigned that it will happen, the lobbyist said.
Corporations are now pushing to find an acceptable compromise, such as a targeted expansion of Subpart F or a reduced dividends-received deduction. The Subpart F provisions of the tax code eliminate deferral of U.S. tax on certain categories of foreign income by taxing U.S. persons on their pro rata share of the income earned by controlled foreign corporations.
Obama’s proposal included a 19 percent minimum tax on foreign income and a one-time 14 percent transition tax on previously untaxed foreign income—a non-starter for the business community, the lobbyist said.
Another central focus among companies is how to transition to a new system, Liam Donovan, a lobbyist at Bracewell LLP, told Bloomberg Tax.
“If that’s what we are going to do, how are we going to get from A to C? What’s the in-between step?” Donovan asked. “Those decisions need to be made based on current law,” he said. “How do we grandfather things to not create disruption and uncertainty?”
Schmidt said multinationals and lobbyists are aware they may not have much time to comment on proposed changes. “I think people are really gearing up to try to comment and get their voices heard as much as they can now—even in advance of seeing things—because there’s a real recognition that things could go from draft to legislation very quickly.”
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