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Lawmakers May Find Consensus on Taxes Overseas

If there’s one part of the tax code that both parties want to overhaul sooner rather than later, it’s taxation of foreign profits.

The prospect looks promising because of the overlap between the Obama administration’s plan and the ideas that Michigan Republican Dave Camp put forward last year when he was chairman of the House Ways and Means Committee. He’s since retired.

The distance to a real deal remains long, however, and getting beyond just overlapping ideas will mean both sides will have to make hard choices that put numbers behind their ideal international tax structures.

Camp’s successor at Ways and Means, Paul D. Ryan, R-Wis., hasn’t released a specific tax plan, and it’s not clear where he parts from Camp. Ryan, who set a summer deadline for headway on a tax overhaul, said this month that the latest White House budget showed the administration had “taken a few steps in the right direction.”

While Camp designed the international tax element of his draft as a territorial system with base protections, in practice it would look something like the “smarter hybrid system” touted by the White House in this year’s “Economic Report of the President.”

Although the parties share some common ground on a broader corporate tax overhaul, a narrow revamp of tax rules just for multinational corporations may be more likely. It’s a piece that can be done on a revenue-neutral basis, and the recent spate of corporations moving abroad may pressure lawmakers to act.

“This is an area where we can make progress on a bipartisan basis, and it’s urgent for our workers,” said Sen. Rob Portman, R-Ohio, chairman of the Finance Committee’s working group on an international tax overhaul. “We’re getting left behind.”

U.S. lawmakers are struggling to revamp a tax system based on a brick-and-mortar economy to fit an age where capital can cross oceans at the click of a mouse. Over the past 20 years, corporations have developed complicated maneuvers to exploit the gaps between different countries’ tax laws, ushering in the phenomenon known as “stateless income.”

Both Democrats and Republicans want to overhaul U.S. taxation of multinational corporations. In general, officials want to lower the U.S. corporate tax rate, ensure that foreign firms don’t have an advantage over domestic firms within the U.S., stanch the flow of corporations moving overseas and curtail businesses’ ability to artificially shift profits by reporting them as coming from tax havens.

The Obama administration’s international tax plan “shows there’s a lot of room to work together,” Treasury Secretary Jacob J. Lew said this month.

Finding the Ideal System

The central issue separating the parties is the ideal system of taxation.

The United States currently employs a worldwide system, taxing foreign profits at the same rate as domestic profits, with deferral and credits for foreign taxes paid. The GOP would like to move the U.S. to a territorial tax system, which imposes little or no tax on foreign earnings, in line with competitors — 28 of the 34 countries in the Organisation for Economic Cooperation and Development now use some form of a territorial tax system, compared to just 13 in 2000.

In the past, Obama included proposals generally aimed at shoring up the worldwide system. This year, the White House is advocating a hybrid system based on a global minimum tax that “reflects a sensible compromise,” according to its economic report.

The differences with Republicans, in some ways, look like differences of degree rather than the underlying structure of the tax system.

The Obama fiscal 2016 budget plan includes a 14 percent tax on multinational firms’ accumulated foreign earnings and a 19 percent minimum tax on future foreign earnings. Camp had proposed a tiered system for accumulated profits, imposing a 3.5 percent rate on foreign earnings that have been reinvested in business operations and an 8.75 percent tax on foreign-held cash and cash equivalents.

By placing a minimum tax on foreign earnings regardless of whether or when they are brought back, the plan would take on the current deferral system’s so-called lockout effect, in which corporations keep earnings abroad to avoid triggering the 35 percent tax. The 9-point difference between the foreign rate and the overall corporate rate is also a nod to Republicans and the business community.

The Camp plan would exempt 95 percent of dividends from foreign subsidiaries from taxable income. But he also proposed a 15 percent rate on foreign earnings from intangible assets like patents. The proximity of Camp’s intangible tax rate to Obama’s 19 percent foreign earnings tax is significant, given the importance of intangibles assets to tax-limiting strategies.

“There are a lot of similarities” between the plans, Lew said, emphasizing that both the 14 percent transition fee and the 19 percent minimum tax would be lower for most firms once they receive credits for foreign taxes they’d already paid.

What’s more, Lew suggested that the 19 percent rate was a starting point for negotiations: “There are rationales for a number of different levels. The 19 percent number was in the zone of what we think it should be.”

Revising the Rules

Both plans seek to limit profit shifting that erodes the tax base.

Obama would subject transactions involving digital goods and services to existing anti-abuse rules, a provision included in last year’s budget. Other revived proposals include tighter rules allocating ownership of a controlled foreign corporation and restrictions on some hybrid arrangements and transactions. This year, the plan would temper those stricter rules by permanently extending breaks for “active financing” income from foreign banking, finance or insurance businesses and “look-through” rules for calculating taxes on income from controlled foreign corporations. The Obama plan would also restrict interest deductibility for related members of a corporate enterprise, roughly in line with Camp’s “thin cap” limiting a U.S. subsidiary’s ability to deduct interest where the enterprise’s debt-to-equity ratio exceeds a certain level.

And both plans take on corporations’ ability to shift assets such as trademarks and intellectual property between related branches at manipulated prices — a way to shift profits from a high-tax country to a tax haven, since the high-tax branch will then have to pay for use of the intangible asset.

The White House fiscal 2016 budget carries over an old proposal to expand the definition of “intangible property” to include “workforce in place,” “goodwill” and “going concern value” for rules regulating the way intangible properties are priced in intra- corporation transfers.

Of course, Camp’s plan went nowhere after he released it last February. But Ryan has more political pull with both House leaders and rank-and-file members, and this time around GOP leaders appear to be on board.

In the meantime, U.S. multinational firms do earn more overseas than they ever have, so the economic motivations for investing in foreign operations will remain high. That could give lawmakers another reason to rush to keep the corporations that are just leaving over taxes.

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