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“DODGING” TAXES AND B CORP STATUS

There has been a growing controversy surrounding Etsy’s much-publicized B Corp status and Etsy’s recent move to save (“dodge”???) taxes by using an Irish subsidiary. Stories have appeared in Bloomberg Business, the WSJ, and even The Irish Times. The advocacy group, Americans for Tax Fairness, requested in an August 28, 2015, letter to B Lab that Etsy’s B Corp designation be made “contingent upon its elimination of the use of its subsidiary in Ireland to dodge taxes” (emphasis added). The pressure on Etsy apparently has been so strong that Chad Dickerson, Etsy’s CEO, felt the need to publish a blog post defending the company’s tax strategy.

Today, one of the country’s leading publications for tax professionals, Tax Analysts, reported on the controversy. (See Tax Notes Today, Sept. 2, 2015.) As a result of the Tax Analysts story, we may see the broader tax community begin to comment and, perhaps, become more familiar with B Corps. According to Tax Analysts and Americans for Tax Fairness, a few already have commented—apparently supporting the notion that Etsy’s tax strategy either is inconsistent with its B Corp status or is inconsistent with one of Etsy’s core values of being “a mindful, transparent, and humane business.” Specifically:

  • Professor Omri Marian (University of Florida): “Many people will tell you that Google shouldn’t do it. So if Google shouldn’t do it, a corporation that presents itself as supporting social sustainability definitely shouldn’t.” (Ars Technica, Aug. 13, 2015)
  • Professor Neil Buchanan (George Washington University): Regarding Etsy’s disclosure of the use of an Irish subsidiary in its June 30, 2015 SEC filing: “Translation: We figured out a technically legal way to cut our tax bill, and it doesn’t bother us that doing so reduces the ability of our government to fund programs that we otherwise claim to support. We’ll get back to you when we’ve figured out any other ‘operational efficiencies’ that we might exploit.” (Ars Technica, Aug. 13, 2015)

I respectfully disagree with Americans for Tax Fairness and the sentiments of my colleagues Professors Marian and Buchanan. B Corp status is determined by a company’s score on a 200 point scale. Although I am not intimately familiar with the B Corp scoring system, I understand that only two questions pertain to a company’s tax positions: one concerns whether a company has paid any tax fines or penalties and the other relates to tax-saving strategies (the subject of the Etsy controversy). I wouldn’t think that two unfavorable answers, much less one, should disqualify a company from B Corp status.

Moreover, B Corp status does not signify perfection. B Corp status does not even signify “beyond reproach.” B Corp status merely signifies that a company scored 80 out of 200 points on B Lab’s impact assessment scale. That’s it. If you like B Lab’s scale, then maybe you like B Corps. But, if you don’t like B Lab’s scale, then you may not like B Corps. I bet Walmart does not get 80 points on B Lab’s scale; however, Walmart’s failure to qualify as a certified B Corp should not automatically lead us to the conclusion that Walmart either is “bad” or is a tax “dodger.” (Although, Americans for Tax Fairness believes that Walmart is in fact a tax dodger.) I’m not ashamed to admit that I’ve shopped at Walmart many times.

Finally, as far as I am concerned, saving taxes in compliance with applicable law is admirable. If saving taxes means “dodging” taxes, then I suppose I’m just as guilty as Etsy. Every year when I file my tax return I look for every possible deduction I can take. In fact, those deductions always include charitable contributions to causes that I feel do “good” in this world. Am I “dodging” taxes when I take a big fat deduction for those charitable contributions? If so, that’s one tax “dodge” I don’t feel “bad” about.

Granted, many companies use elaborate tax-saving techniques that comply with the letter of the law but that violate the spirit of the law or that exploit loopholes. I do not like or condone those strategies any more than Americans for Tax Fairness or my above-quoted colleagues. AND, I agree that the government needs to be vigilant about monitoring, auditing, and punishing those companies that abuse the system.

On the other hand, consider this: If enough companies become B Corps or other well-behaving corporate citizens, perhaps our need for government programs and subsidies (and thus taxes) will diminish. Imagine that! (Yes, I’m sure I’ll get plenty of push back on that last assertion.)

In any event, let’s ease off on Etsy. Don’t let the perfect be the enemy of the good. Viewed from a wider perspective, the growing social enterprise movement, which includes B Corp and other “good company” certifications, is a positive development. Saving taxes is neither inherently bad nor good and, besides, it is really the government’s job to make that call. It is entirely legitimate for a social enterprise to employ tax-saving strategies, even with an Irish subsidiary.

Comments (2)

  1. Jeff Kadet

    September 5, 2015 at 8:31 am

    Cass, thanks for your blog post. Good reading.

    I’d like to make a couple of comments and suggest you at least scan through an article that’s focused at this type of profit shifting that Etsy might well be conducting. The link to the article is:

    http://ssrn.com/abstract=2636073

    First, though, I should say that I think that most of us are on the same page, which you expressed in the following two places in your posting:

    “Finally, as far as I am concerned, saving taxes in compliance with applicable law is admirable.”

    “Granted, many companies use elaborate tax-saving techniques that comply with the letter of the law but that violate the spirit of the law or that exploit loopholes. I do not like or condone those strategies any more than Americans for Tax Fairness or my above-quoted colleagues. AND, I agree that the government needs to be vigilant about monitoring, auditing, and punishing those companies that abuse the system.”

    I’m sure you will recall that there have been some Congressional hearings, both by the House Ways and Means Committee and by the Senate Homeland Security and Governmental Affairs Permanent Subcommittee on Investigations (PSI). With the exception of the 2010 House W&M Committee hearing, which was on an anonymous basis, the PSI hearings in 2012, 2013, and 2014 examined in some detail and provided many internal company documents on the profit shifting conducted by three well-known named companies. The three companies were Microsoft, Apple and Caterpillar. A fourth company, H-P, was also covered, but for a different issue from our subject here.)

    As you’ll see from the article, which is pretty much wholly based on the information and documents provided from these hearings, it appears that the companies named (and presumably many many others, perhaps including Etsy), have put their profit shifting structures in place through legal entity and intercompany contract structuring rather than through any meaningful change in their actual operations. The PSI report on Caterpillar was particular clear on this, saying on page 1:

    “Where Caterpillar once reported on its U.S. tax returns the vast majority of its worldwide profits from the sale of Caterpillar-branded replacement parts to non-U.S. customers – parts that were manufactured by third party suppliers located primarily in the United States – after the adoption of a Swiss tax strategy in 1999, it reported 15% or less of those profits in the United States and shifted 85% or more of the profits to Switzerland. Caterpillar accomplished that profit shift without making any real changes in its business operations. It continued to manage and lead the parts business from the United States.”

    That “changes were made on paper, but not in how the replacement parts business actually functioned” is spelled out in significant detail in the report. For example, from page 59:

    “The 1998 and 1999 planning documentation prepared by PWC and Caterpillar indicated that altering the invoices was the primary change needed to implement the Swiss tax strategy, and that no other substantive changes in Caterpillar’s parts operations were planned or expected. The original PWC proposal, for example, described the “Benefits/Costs” of the Swiss tax strategy has involving “[r]elatively simple re-invoicing requirements.”” [Footnote omitted.]

    This report and other documents in connection with this hearing on Caterpillar are available at:

    http://www.hsgac.senate.gov/subcommittees/investigations/hearings/caterpillars-offshore-tax-strategy

    My review of the detailed information provided in the various hearing reports and exhibits allowed an identification of certain common characteristics within these profit shifting structures. The following is from the article:

    “There is a common feature in the [seven] examples [included in this article] below: Crucial value-drivers that allow the CFCs to generate significant income appear to be predominately performed by U.S. group members rather than the CFCs themselves. Those value-drivers include:

    • the bulk of research and development that create new technologies and products;

    • management and detailed control of the product purchase and production processes; and

    • management of and direct participation in the product sales process.

    “MNCs use contractual mechanisms such as cost-sharing agreements, license agreements, and service agreements to move the apparent commercial risk of those activities to the CFCs. Although these often appear to be normal commercial agreements, the control and decision-making that remain within the U.S. group members far exceed what would be found in typical unrelated-party situations. This is particularly true for service agreements under which the U.S. group member performing the services makes business decisions and conducts management activities that effectively represent conduct of the CFC’s business.

    “In many cases, offshore personnel within the CFCs are incapable of managing the CFC’s businesses or they lack the experience, knowledge, and authority necessary to direct the U.S. group member service providers. Further, there may be no offshore CFC management personnel or directors capable of even negotiating or understanding the terms of the various intercompany agreements. Instead, U.S. group management simply directs the contractual terms of those vitally important agreements.

    “The hearing documents provide convenient examples that admittedly do not represent a random cross-section of U.S.-based MNCs. They nonetheless show for many MNCs that:

    • critical value-drivers are performed predominantly by U.S. group members;

    • extensive U.S.-located control and decision-making go far beyond what would be found in typical unrelated-party situations; and

    • there is a lack of capable offshore CFC management personnel.

    “This understandably reflects the belief that many MNCs have implemented tax-motivated structuring with a minimum of operational change, as is evident from some of the hearing documents.”

    Normally, unless one is within a company’s in-house legal or tax function or is an outside advisor retained to work on a profit shifting arrangement, it’s impossible to really know the details of how a profit shifting arrangement is actually carried out and to see some of the relevant documents. Fortunately for these cases, there are some details and documents.

    Cass, as you’ll see from scanning the article, it appears that many of these profit shifting arrangements were very carefully structured to pass muster with respect to subpart F and transfer pricing, but frankly, it appears that little or no attention was paid by the companies concerned or their advisors to the Code’s sourcing and effectively connected income rules (generally §§861-865 of the Code).

    As you’ll see from the article, where these ECI rules are applicable so that there will be direct U.S. taxation on a CFC, the tax rate will be up to 54.5% or higher. This of course is much higher than the 35% U.S. tax that would have been paid had the income been reported when earned within a U.S. company.

    I look forward to your thoughts. Please let me know if you have any questions.

    All the best,

    Jeff
    [email protected]

  2. Cass Brewer

    September 5, 2015 at 9:44 am

    Thanks for your comment. Extremely informative with some great information. Thanks again. Any idea why Congress, Treasury, or the IRS has not taken steps to curtail this activity? For example, it reminds me of tax-exempt entities using offshore blocker corporations to avoid paying unrelated business income taxation: http://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=2897&context=lawreview. This too is merely paper shifting, but it has become standard tax planning. Cass

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