Wednesday, August 17, 2022

Ten thoughts about the new book minimum tax

 Now that the Inflation Reduction Act has been signed into law, I thought I'd add some quick comments about it - or specifically about the book minimum tax. which reaches the "adjusted financial statement income" (AFSI) of "applicable corporations." In general, an applicable corporation has had annual AFSI averaging $1 billion over the last three years. (But this is a bit of a one-way ratchet - once on, something extra is needed to get one off the list of companies subject to the tax.)

AFSI is the net income or loss reported on the company's "applicable financial statement," but with certain adjustments. Perhaps the biggest adjustment is that accelerated depreciation deductions, to the extent in excess of those already taken into account in the book measure, are subtracted from AFSI and thus do not lead to minimum tax liability.

For a U.S. company, this is in effect a worldwide tax at a 15 percent rate, with foreign tax credits being allowed. So the marginal reimbursement rate (MRR) for foreign taxes paid generally is 100% until one reaches the limit. There are also rules for foreign-parented multinational groups that have either US subsidiaries or foreign subsidiaries with a US trade or business. In general, affiliated groups are taxed as if they were a single company. However, as got a lot of attention in the press, Senators Sinema and Thune succeeded in removing from the final version a provision that would have aggregated the income from unrelated portfolio companies under common ownership of an investment fund or partnership. This may help, e.g., with their avoiding the $1 billion AFSI test.

With that as background, here are ten quick comments:

1) From an empirical standpoint, it will be very interesting to see how this works out. Who ends up paying how much under it? We are going to learn a lot from what happens in the next few years - not just the payment of minimum tax, but also effects on how much US and foreign tax one pays because the provision affects the payoff to minimizing them.

2) For big companies that are guaranteed to meet the $1 billion AFSI test, the most obvious tax planning idea is manipulating AFSI. That, in turn, would most obviously involve manipulating reported book income.

Accounting professionals almost unanimously HATE the incentives that this creates. But it is worth noting that the managers in publicly held companies often appear to be interested in overstating financial statement income relative to "true" or economic income. This pushes the other way, so it doesn't automatically need to result in overall distortion being worse. More complicated, certainly.

Studies of the book income preference that was in the corporate AMT for the years 1987-89 showed a lot of increased manipulation, leading (the authors concluded) to a less informative measure for financial markets. But note that the provision at issue there was pre-announced as being for 3 years only. An ostensibly "permanent" measure may play out differently.

3) A second way of reducing one's minimum tax liability is to make more investments that can be expensed for tax and thus also for AFSI. But if these are real investments then there are certainly issues of expected pretax profitability that will be important to the resulting behavior.

4) Paying more foreign taxes, or at least not incurring costs to avoid them, is another tax planning response. A 100% MRR for foreign taxes does not on its face make one want to pay more of them, and note that the minimum tax also in effect has a 100% MRR for US corporate income taxes otherwise paid. But there are still various margins here that tax planners will explore. Beyond being less willing to incur real costs in avoiding foreign taxes, one may also have extra reason to try to incur taxes in lieu of other expenses that would merely be deductible from AFSI.

5) The tax presumably discourages mergers that would lead the parties to collectively meet the $1 billion AFSI test (where they would individually fall short). But it encourages mergers between companies that would be subject to the minimum tax and those that are paying more than 15% globally. In effect, the latter's "excess" global tax payments go to offset the former's minimum tax liability instead of being "wasted."

6) There is an AMT credit, so that if one (say) has a 10% global rate in Year 1 and a 20% global rate in  Year 2, one gets to offset the Year 1 minimum tax liability against one's Year 2 US regular corporate tax liability. But I gather that a Year 2 minimum tax credit couldn't be used against Year 1 liability. Plus, one doesn't get a US minimum tax credit against foreign tax liabilities that proved to be high in the "wrong" year.

7) Companies subject to the tax will have an incentive to do careful planning under the provision. E.g., they may want to ensure that their global rate on AFSI, as computed under the rule, stays at about 15% annually rather than fluctuating up and down (although the AMT credit does address this issue to a degree).

8) I have written elsewhere about my view that, all else equal, minimum taxes are generally not a great approach. But there is a "compared to what" issue in the provision's defense (just as there is with respect to its use of book income) given that other, arguably superior, provisions were not going to be passed.

9) While the new book minimum tax is not identical to Pillar 2 of the OECD/G-20 global tax  reform framework, Reuven Avi-Yonah and Bret Wells have recently argued that it moves significantly in the direction of increasing US compliance therewith.

10) One thing we learned from the 1986 Act's corporate AMT is that these provisions may tend to die the death of a thousand cuts over time. Lobbyists seeking to narrow the corporate AMT base often find that this is sufficiently lacking in salience to be easy pickings legislatively. Hence the 1986 corporate AMT moved far in the direction of undoing itself even before it was officially repealed. I would certainly be unsurprised if this happened again. Indeed, it has arguably already started with the depreciation change, which might conceivably prove to be a harbinger of future legislative efforts taking out additional items.


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