Last month the Treasury Department released details of new policies which were intended to curb the actions of American corporations seeking to reduce their tax load through mergers with foreign business entities, commonly known as corporate inversion. The poster-child case for these questions was the Burger King – Tim Hortons deal, which was fodder for talking heads and comics alike. So how effective are these new “tests” which have been put in place? According to this CNBC report… not so much.
These new Treasury regulations are likely to act like administering antibiotics to a sick patient. It will kill off the deals that were designed to comply with old rules, but new deals will quickly sprout up that are even more resistant to regulation. Investors have clearly lost their squeamishness at owning a company that is organized under Canadian, Dutch or Irish law. So long as U.S. corporate tax rates are so much higher than those in competing nations, there will always be a strong financial incentive for U.S.-based multinationals to figure out a way to move their corporate citizenship overseas.
There is an old joke in tax practice. “What is the difference between legal tax avoidance and illegal tax evasion? One year.”
I’ll just start off by saying that I completely disapprove of the Burger King merger deal. Not because they shouldn’t be able to obtain the best legal tax structure deal possible – they should – but because Tim Hortons donuts are terrible. Give me Krispy Kreme any day. (Sorry, Canadians.) But in terms of their financial structure, Burger King is a for profit company with an obligation to its shareholders to reduce costs and maximize returns. As long as the US corporate tax rate remains at 35% (one of the highest in the industrialized world) and their business deal is legal, there is scant room to criticize them.
Rather than creating new and comically ineffective rules intended to limit their options, Congress could quickly squash such moves by bringing the corporate tax rate more in line with other nations so our businesses can remain competitive. But returning to the original story, did the new Treasury rules stop Burger King? Not so much.
The U.S. government’s new regulations on companies seeking reduced U.S. tax bills by way of foreign acquisitions are unlikely to slow the $12-billion merger of Burger King Worldwide Inc. and Tim Hortons Inc., even as the move by the U.S. Treasury casts a shadow over future deals…
The Tim Hortons and Burger King combination is the biggest deal in the crossfire for Canada, and is reportedly one of the tie-ups that sparked the regulatory change, but observers argue that the deal is unlikely to buckle under the new pressures.
The good news about a frequently ineffectual administration is that they also tend to fail when they’re trying to do things you don’t like. See? There’s a silver lining to every cloud.