Investigations force politicians to approve minimum tax

As Senate-led probes signal dwindling tolerance for business practises, tax administrators are ready for examination of the gains garnered under the 2017 US tax laws.

According to sources, the most recent report from the Senate Finance Committee's investigations into the pharmaceutical business might have an impact on the ongoing Build Back Better bill deliberations.


Important international tax reforms, including an OECD-backed global minimum tax to be adopted by 137 nations by the end of 2023, would be implemented by pending legislation.


The preliminary report issued by the Senate Finance Committee on July 7 examined how pharmaceutical giant AbbVie reported 99 percent of its profits in overseas companies despite generating 75 percent of its sales in the United States.



This was not an unusual incident, according to the research, which faulted provisions of the 2017 Tax Cuts and Jobs Act (TCJA) that allowed AbbVie and other pharma corporations to legitimately reduce their US tax bills.


A tax executive at Procter & Gamble in Ohio suggests that the study might serve as a stepping stone for the enactment of the more stringent tax policies now being considered in Congress. The findings might also impact the Senate's minimum tax talks, which appear to be at a halt until August 5 when the legislative session ends.


"AbbVie and others have been scrutinised for years for their techniques, so this is not a new trend, but Congress is attempting to do something about it now," he adds.


99 percent of AbbVie's income in 2020 was reported by its controlled foreign corporations (CFC), meaning the company benefited from the reduced global intangible low-taxed income (GILTI) rate of 10.5% instead of the federal corporate tax rate of 21% in the United States.


Oregon's Ron Wyden, the chairman of the Senate Finance Committee, stated that the committee is also investigating similar techniques employed by Merck and Bristol-Myers Squibb.


The investigations increase political pressure on legislators to modify existing US international tax policies, especially the GILTI laws, at a time when the majority of other nations are changing their international tax rules to accommodate a global minimum tax.


Global ratings


In the midst of current bipartisan deliberations, which are evenly divided between Democrats and Republicans on whether to implement OECD-backed minimum taxes norms, a vote in the Senate has been delayed due to the strain of ongoing investigations.


Foreign agreement exists to grandfather the GILTI system under the OECD's minimum tax framework, thus international tax adjustments under the TCJA will not necessitate a complete rewrite of the law.


Manal Corvin, principal in charge of KPMG's national tax practise in Washington, DC, states that the future of key tax adjustments, notably the corporate minimum tax accord, is questionable.


She adds, "Democrats have not determined which tax increases on businesses and the rich will be implemented, and international taxation policy remains in flux."


To align US international tax standards with the new global minimum tax framework, the GILTI rate must be increased from 10.5% to 15%. Existing statutes stipulate that the rate will climb to 13.125 percent in 2026.


Wyden, who is contributing to the drafting of the BBB bill and its worldwide tax revisions, is also in charge of the Senate's tax investigations.


"Policies the Finance Committee has developed, such as a minimum tax on corporate profits and reforms to the international tax system, would both address this issue and fulfil our pledge to ensure corporations pay their fair share," said Wyden at a press conference following the release of his interim report.


Disputes within the Democratic party and competing legislative agendas reduced the breadth and scope of the measure. In 2022, the proposal needs just a simple majority to pass both the Senate and the House through the budget reconciliation procedure of Congress.


The plan proposes comprehensive reforms, including a 15 percent minimum tax on corporate earnings. The minimum tax on corporate book income would prevent corporations from using tax code loopholes under international standards to artificially reduce their tax obligations.


Party government


Donald Maher, vice president of tax for the American flooring producer Mohawk Industries in Michigan, believes that the probes might increase the political pressure on Republicans to accept the BBB legislation and minimum tax structure pushed by Democrats.


The power to enact the law ends on September 30, after which Congress will begin a new cycle of legislation and negotiations.


Maher states that the AbbVie report is an opportunity to reapply pressure to the other side (Republicans).


"I anticipate it would be more difficult to pass this [BBB legislation] through Congress next year if the Republicans win the midterm elections," he says. On November 9, midterm elections take place.


The House has already approved the BBB proposal to align GILTI with minimum tax regulations, while the Senate remains opposed to the Biden administration's BBB strategy.


"The BBB bill's 15 percent minimum in each nation where a firm operates might be amended following the conclusion of the continuing discussions with other members of the Senate Finance Committee," adds Maher, referring to the ongoing bipartisan negotiations, which could include tax probes.


Industry studies


Officials of the Senate Finance Committee stated that they would continue to investigate the pharmaceutical business by examining Abbott Laboratories and Merck's tax operations until they have a comprehensive understanding of offshore tax strategies in the industry.


Nonetheless, some taxpayers believe the Senate's investigations may provide a skewed perspective of the international tax regime, given that certain pharmaceutical companies experienced even higher tax obligations following the 2017 amendments.


These reforms included a reduction in the federal corporate income tax rate from 35% to 21%, the introduction of the GILTI regime, and the introduction of a number of other noteworthy corporate tax initiatives.


The tax head of Procter & Gamble explains, "Politicians are cherry-picking situations that show the flaws in the rules, but there are numerous aspects of the tax reform that try to balance the tax burden as well."


For instance, the TCJA strengthened anti-inversion measures to prevent corporations from relocating their headquarters overseas. Through acquisitions, inversions can move the tax base to an offshore location.


Kathy Michael, pharmaceutical and life sciences tax leader at PwC in New Jersey, says, however, that the manner in which a firm organises its overseas structure might impact its US tax responsibilities under the TCJA.


AbbVie and other multinational corporations that make items abroad but sell them in the United States, where they have a tax presence, can profit from the reduced GILTI rates introduced under the 2017 amendments.


"The quick answer as to whether the US tax change benefited or damaged a firm depends on the drug manufacturer's total footprint," adds Michael.


A typical tax structure for pharmaceutical corporations includes subsidiaries in low-tax nations such as Ireland and Switzerland. Bristol Myers Squibb utilised one of these agreements to shift earnings to Ireland. The IRS has challenged a number of similar arrangements over the years.


Regarding AbbVie


According to yearly reports, AbbVie has never declared a profit in the United States, despite generating more than half of its $28.2 billion in 2017 revenues and locating the majority of its research centres there.


"While big pharma's strategy to dodge taxes is not a secret, the magnitude of AbbVie's tax evasion is astounding," added Wyden.


The most recent report from the Senate indicates that more than 75% of AbbVie's 2020 sales were made in the United States, but just 1% of the company's profits was declared in the nation for tax reasons.


Wyden continued, "Until today, we had not seen the extent. When 75% of a corporation's sales occur in the United States, the system is flawed if it permits the company to record practically all of its revenue abroad.


According to the Senate investigation, part of the reason for this tax gap is that AbbVie owns hundreds of patents in Bermuda but no corporate tax responsibilities because the business has no Bermuda-based workers.


According to the article, the Bermuda subsidiary AbbVie Biotechnology also maintains a factory in Puerto Rico that produces pre-filled syringes of its most popular medicine, the rheumatoid arthritis treatment Humira. The syringes are sold to a different corporate company, which packages and sells them.


Humira is also manufactured by AbbVie's subsidiaries in Singapore and the Netherlands. None of the medication production occurs in the United States.


The inquiry of the Senate reveals that pharma corporations store patents in tax havens and then pay royalties to CFCs to manufacture medications in profitable markets like as the United States. According to the research, AbbVie does not mention patent locations on conference calls or in SEC filings, and the firm refuses to share its accounting processes and yearly losses with the ITR team.


AbbVie's effective tax rate was slashed in half by the 2017 tax revisions, and 99 percent of the company's taxable income is reported by offshore subsidiaries, according to the inquiry.


AbbVie was only one of the corporations that benefited from the tax change in the United States; others included Amgen, Pfizer, Eli Lilly, Roche, and Gilead.


Several aspects of the Senate's study might impact congressional negotiations on the BBB bill's minimum tax regulations and attract attention to deficiencies in the TCJA's other foreign tax policies as political discussions continue.

By fLEXI tEAM