Friday, August 10, 2012

Romney and Marriott

Much ongoing controversy over the last couple of days re. the fact that Romney headed Marriott's Audit Committee in 1994, when the company did a $70 million Son-of-BOSS tax shelter.

The essence of the deal was: I pretend to pay you $70 million, you pretend to pay me $70 million (most of it just being fake circular cash flows of supposedly borrowed funds on paper), I claim that as a technical matter I can deduct the $70 million I "paid" and ignore the $70 million I "received." And i reject or ignore the undeniable application of anti-tax shelter doctrines (from Supreme Court cases decided in 1935 and 1960) requiring economic substance and business purpose, I cross my fingers and hope that the IRS doesn't figure it all out. If they do, I presumably have a fake opinion I paid someone good money to write for me, permitting me to claim bogus good faith.  (Although, in fairness, non-tax lawyers may have thought this actually worked if they didn't get actual tax advice to double-check the promoters' canned opinions.)

Given the $70 million deduction Marriott was claiming, this would have implied claimed tax savings of almost $25 million (at a 35% corporate rate). It is plausible to me that deciding to do this would have been by far the single biggest issue that Romney's audit committee would have faced.

I can't say that he did see and understand the issues this way, and make the call to go the sleazy route of hoping the IRS would miss the issue, but this is indeed what would have had to happen if the Marriott audit committee was doing its job in a properly functioning process.


Eric Rasmusen said...

Would the Audit Committee have anything to do with a company's tax policy? It's not a typical role of such committees. Audit committees ar set up so directors can see if the CEO is reporting information to the board of directors honestly (and, incidentally, to the government and the public). Their job is accounting, not tax strategy.

Daniel Shaviro said...

Kleinbard and Canellos say they had tossing off. This makes sense given the accounting implications of deciding how to score aclaimed$25 million tax benefit.

Daniel Shaviro said...

Oops, make that "to sign off." I am using an iPad with bad Internet connection.