Tag: tax policy

Washington’s Disdain for Wealth Creators Is a Big Part of the Problem

Like too many other long-reigning fixtures on Capitol Hill, Senator Carl Levin (D-MI) doesn’t appreciate the magnitude of the challenge to the authority he presumes to hold over America’s job and wealth creators. Or maybe he does, and frustration over that fact explains why he besmirches companies like Apple, Google, Microsoft, and Hewlett-Packard.

Levin presided over a Senate hearing last week devoted to examining the “loopholes and gimmicks” used by these multinational companies to avoid paying taxes – and to branding them dirty tax scofflaws. Well here’s a news flash for the senator: incentives matter.

The byzantine U.S. tax code, which Senator Levin – over his 33-year tenure in the U.S. Senate (one-third of a century!) – no doubt had a hand or two in shaping, includes the highest corporate income tax rate among all of the world’s industrialized countries and the unusual requirement that profits earned abroad by U.S. multinationals are subject to U.S. taxation upon repatriation. No other major economy does that. Who in their right minds would not expect those incentives to encourage moving production off shore and keeping profits there?

Minimizing exposure to taxes – like avoiding an oncoming truck – is a natural reaction to tax policy. Entire software and accounting industries exist to serve that specific objective. Unless they are illegal (and that is not what Levin asserts directly), the tax minimization programs employed at Apple, Google, Microsoft, and Hewlett-Packard are legitimate responses to the tax policies implemented and foreshadowed by this and previous congresses. If Levin is concerned about diminishing federal tax collections from corporations (which, of course, reduces his power), the solution is to change the incentives – to change the convoluted artifice of backroom politics that is our present tax code.

Combine the current tax incentive structure with stifling, redundant environmental, financial, and health and safety regulations, an out-of-control tort system that often starts with a presumption of corporate malfeasance, exploding health care costs, and costly worker’s compensation rules, and it becomes apparent why more and more businesses would consider moving operations abroad – permanently. Thanks to the progressive trends of globalization, liberalization, transportation, and communication, societies’ producers are no longer quite as captive to confiscatory or otherwise suffocating domestic policies. They have choices.

Of course many choose to stay, and for good reason. We are fortunate to have the institutions, the rule of law, deep and diversified capital markets, excellent research universities, a highly-skilled workforce, cultural diversity, and a society that not only tolerates but encourages dissent, and the world’s largest consumer market – still. Success is more likely to be achieved in an environment with those advantages. They are the ingredients of our ingenuity, our innovativeness, our willingness to take risks as entrepreneurs, and our economic success. This is why companies like Microsoft, Apple, Google, and Hewlett-Packard are born in the United States.

But those advantages are eroding.

While U.S. policymakers browbeat U.S. companies and threaten them with sanctions for “shipping jobs overseas” or “hiding profits abroad” or some other manifestation of what politicians like to call corporate greed, characterizing them as a scourge to be contained and controlled, other governments are hungry for the benefits those companies can provide their people. Some of those governments seem to recognize that the world’s wealth and jobs creators have choices about where they produce, sell, and conduct research and development. And some are acting to attract U.S. businesses with incentives that become less necessary every time a politician vents his spleen about evil corporations. Not only should our wealth creators be treated with greater respect from Washington, but we are kidding ourselves if we think our policies don’t need to keep up. As I wrote in a December 2009 Cato paper:

Governments are competing for investment and talent, which both tend to flow to jurisdictions where the rule of law is clear and abided; where there is greater certainty to the business and political climate; where the specter of asset expropriation is negligible; where physical and administrative infrastructure is in good shape; where the local work force is productive; where there are limited physical, political, and administrative friction.

This global competition in policy is a positive development. But U.S. policymakers cannot take for granted that traditional U.S. strengths will be enough.  We have to compete and earn our share with good policies. The decisions made now with respect to policies on immigration, education, energy, trade, entitlements, taxes, and the role of government in managing the economy will determine the health, competitiveness, and relative significance of the U.S. economy in the decades ahead.

Since another hearing devoted to thanking these companies for their contriubtions to the U.S. economy is unlikely, perhaps Senator Levin should at least consider the perils of chasing away these golden geese.

IRS Can’t Manipulate Tax Code to Generate More Revenue for Itself

This blogpost was co-authored by Cato legal associate Matt Gilliam.

An American energy company called PPL bought one of many state-owned British utilities privatized in the 1980s. In 1997, PPL thus became subject to the UK’s new “windfall tax,” which was based in part on “profit-making value”—the utility’s average annual profit multiplied by an imputed price-to-earnings ratio.

Various American energy companies subject to this tax filed claims with the IRS for a “foreign income tax” credit, which the IRS denied in 2007, asserting that the British tax was not a creditable one under the “foreign income tax” provision of the Internal Revenue Code (Section 901). The IRS claimed that the windfall tax did not satisfy the “predominant character” standard (was not predominantly an income tax) because the British statute used the term “profit-making value” instead of “net income” and “gross receipts,” and the tax rate was defined “as a percentage of an imputed value … rather than directly as a percentage of net income.”

After the federal tax court held that PPL was entitled to the foreign tax credit, the U.S. Court of Appeals for the Third Circuit reversed. Explaining that a tax exemption is a privilege extended by legislative grace, the appellate court held the tax not to be creditable because it reached beyond realized profit and did not tax actual gross revenue. In a different case last year, however, the U.S. Court of Appeals for the Fifth Circuit held that the British windfall tax was indeed creditable because (1) it reached realized income and (2) gross revenue was an inherent part of the calculation. The Fifth Circuit explained that the form and label of the foreign tax are not determinative and that the predominant character standard requires the IRS to analyze the history and intent of a tax to assess whether it tries to reach some net gain.

Cato now joins Southeastern Legal Foundation and Goldwater Institute on an amicus brief in urging the Supreme Court to take PPL’s case because it implicates fundamental issues of property rights, free markets, and the arbitrary exercise of government power—and the circuit split creates uncertainty for American businesses overseas. We argue that taxpayers have the right to be free from double taxation and that here the IRS and Third Circuit improperly disregarded the substance of the windfall tax and applied an overly rigid construction of its terms.

Ultimately, a foreign tax’s form or label cannot mask its substantive character and intent for legal purposes. American businesses operating overseas should be able to rely on a stable, substantive application of U.S. tax law instead of arbitrary interpretations and constructions manipulated to generate payments to the IRS.

The Supreme Court will decide this fall whether to hear PPL Corp. v. Commissioner of Internal Revenue.

Democratic Tax Policy, Then and Now

My new piece at Daily Caller looks at how the Democratic Party’s approach to tax policy has changed over the decades.

The piece was prompted by a recent article from Norm Ornstein and Tom Mann claiming that needed bipartisan reforms are being blocked by the new “ideologically extreme” Republican Party.

Baloney. It’s the Democrats who have changed. The party’s leaders have moved far to the left on economic issues.

As evidence, I point to this Cato Journal article from 1985 by Democrat Richard Gephardt, who was a leader on tax reform. As a free-market guy, I agree with the great majority of what Gephardt said, yet I agree with virtually nothing that modern Democratic leaders say about tax policy.

Regarding ridding the tax code of special breaks, Gephardt says, “I confess that I am not qualified to act as a central planner and I do not know anybody on either committee who is.” Amen!

And Gephardt says, “We in Congress take pride in the free market system.” When was the last time you heard a Democratic leader say something like that?

Bush Was a Statist, Not a Conservative

A former White House speechwriter, Mark Thiessen, has jumped to the defense of his former boss, writing for the Washington Post that George W. Bush “established a conservative record without parallel.” Even by the loose standards of Washington, that is a jaw-dropping assertion. I’ve been explaining for years that Bush was a big-government advocate, even writing a column back in 2007 for the Washington Examiner pointing out that Clinton had a much better economic record from a free-market perspective. I also groused to the Wall Street Journal the following year about Bush’s dismal performance.

“Bush doesn’t have a conservative legacy” on the economy, said Dan Mitchell, a senior fellow at the libertarian Cato Institute. “Tax-rate reductions are the only positive achievement, and those are temporary … Everything else that has happened has been permanent, and a step toward more statism.” He cited big increases in the federal budget, along with continuing subsidies in agriculture and transportation, new Medicare drug benefits, and increased federal intervention in education and housing.

Let’s review the economic claims in Mr. Thiessen’s column. He writes:

The thrust of their argument is that Bush expanded the size of government dramatically – and they are absolutely right. Federal spending grew significantly on Bush’s watch, and this is without question a black mark on his record. (Federal spending also grew dramatically under Ronald Reagan, though he was dealt a Democratic Congress, whereas Bush had six years of Republican leadership on Capitol Hill.)

Since federal spending almost doubled in Bush’s eight years, it’s tempting to summarily dismiss this assertion, but let’s cite a few additional facts just in case someone is under the illusion that Bush was on the side of taxpayers. And let’s specifically compare Bush to Reagan since Mr. Thiessen seems to think they belong in the same ball park. This article by Veronique de Rugy is probably a good place to begin since it compares all Presidents and shows that Bush was a big spender compared to Reagan…and to Clinton. Chris Edwards has similar data, capturing all eight years of Bush’s tenure. But the most damning evidence comes from the OMB’s Historical Tables, which show that Reagan reduced both entitlements and domestic discretionary spending as a share of GDP during his two terms.  Bush (and I hope nobody is surprised) increased the burden of spending in both of these categories.That’s the spending side of the ledger. Let’s now turn to tax policy, where Thiessen writes:

Bush enacted the largest tax cuts in history – and unlike my personal hero, Ronald Reagan, he never signed a major tax increase into law.

Using the most relevant measures, such as changes in marginal tax rates or comparing the impact of each President’s tax changes on revenues as a share of GDP, Bush’s tax cuts are far less significant than the Reagan tax cuts. But there presumably is some measure, perhaps nominal revenues over some period of years, showing the Bush tax cuts are larger, so we’ll let that claim slide. The more relevant issue to address is the legacy of each President. Reagan did sign several tax increases after his 1981 Economic Recovery Tax Act, but the cumulative effect of those unfortunate compromises was relatively modest compared to the positive changes in his first year. When he left office, he bequeathed to the nation a tax code with meaningful and permanent tax rate reductions. The Bush tax cuts, by contrast, expire at the end of this year, and virtually all of the pro-growth provisions will disappear. This doesn’t mean Bush’s record on taxes was bad, but it certainly does not compare to the Gipper’s. But what about other issue, such as trade? Thiessen writes:

Bush enacted free-trade agreements with 17 nations, more than any president in history.

Those are some positive steps, to be sure, but they are offset by the protectionist moves on steel and lumber. I’m not a trade expert, so I don’t know if Bush was a net negative or a net positive, but at best it’s a muddled picture and Thiessen certainly did not present the full story. And speaking of sins of omission, his section on health care notes:

Bush created Health Savings Accounts – the most important free-market health-care reform in a generation. And he courageously stood up to Congressional Democrats when they sought to use the State Children’s Health Insurance Program (SCHIP) to nationalize health care – and defeated their efforts.

Conveniently missing from this analysis, though, is any mention of the utterly irresponsible prescription drug entitlement. There is no doubt that Bush’s net impact on health care was to saddle America with more statism. Indeed, I’d be curious to see some long-run numbers on the impact of Bush’s prescription drug entitlement and the terrible plan Obama just imposed on America. I wouldn’t be surprised to find out that the negative fiscal impact of both plans was comparable. Shifting gears, let’s now turn to education policy, where Thiessen writes:

Bush won a Supreme Court ruling declaring school vouchers constitutional and enacted the nation’s first school-choice program in the District of Columbia.

Bush deserves some credit on school choice, but his overall education record is characterized by more spending and centralization. Thanks in part to his no-bureaucrat-left-behind plan, the budget for the Department of Education grew significantly and federal spending on elementary, secondary, and vocational education more than doubled. Equally worrisome, federal bureaucrats gained more control over education policy. Finally, Thiessen brags about Bush’s record on Social Security reform:

Bush fought valiantly for a conservative priority no American president had ever dared to touch: Social Security reform, with private accounts that would have given millions of our citizens a stake in the free market system. His effort failed, but he deserves credit from conservatives for staking his second term in office on this effort.

This is an area where the former President does deserve some credit. So even though the White House’s failure to ever put forth a specific proposal was rather frustrating, at least Bush did talk about real reform and the country would be better off today if something had been enacted.

This addresses all the economic claims in Thiessen’s article, but we can’t give Bush a complete grade until we examine some of the other issues that were missing from the column. On regulatory issues, the biggest change implemented during the Bush year was probably Sarbanes-Oxley – a clear example of regulatory overkill. Another regulatory change, which turned out to be a ticking time bomb, was the expansion of the “affordable-lending” requirements for Fannie Mae and Freddie Mac.

And speaking of Fannie and Freddie, no analysis of Bush’s record would be complete without a discussion of bailouts. Without getting too deep in the issue, the most galling part of what Bush did was not necessarily recapitalizing the banking system (a good chunk of which was required by government deposit insurance anyhow), but rather the way it happened. During the savings & loan bailout 20 years ago, at least incompetent executives and negligent shareholders were wiped out. Government money was used, but only to pay off depositors and/or to pay healthy firms to absorb bankrupt institutions. Bush and Paulson, by contrast, exacerbated all the moral hazard issues by rescuing the executives and shareholders who helped create the mess. Last but not least, let’s not forget that Bush got the ball rolling on auto-industry bailouts.

If all of this means Bush is a “conservative record without parallel,” then Barack Obama must be the second coming of Ronald Reagan.

A Little Less Poetry, a Little More Economics

A good friend sent me an article on “patient-centered health care” written by Dr. Donald Berwick, President Obama’s intended nominee for administrator of the Centers of Medicare & Medicaid Services. What an improvement an administrator like this will bring compared to his predecessors! Right? The article is called What ‘Patient-Centered’ Should Mean: Confessions Of An Extremist (requires login).

I have no doubt of Berwick’s sincerity, but the essay gives me little hope for progress. It doesn’t mention, for example, parity in the tax treatment of employer-purchased and individually purchased health insurance.

Why don’t we talk about diner-centered restaurants or grocery stores? Because when consumers select restaurants and stores, choose their food, and pay for their choices, “diner-centeredness” is a given. To the extent non-diner-centered food outlets have come into existence, they’ve gone away again as a failed business model. Nobody has to discuss what it means or what artificial process they would use to deliver “diner-centeredness.”

“But health care is essential to life!” some might argue. ”Intellects and government officials must pay health care delivery special attention because without it people would die.”

Pray tell, good hearts, what is food other than an essential of life without which people would die? We regard food provision an “easy” problem because we haven’t made it hard by fettering the market for edibles the way we have health care.

Keep your eye on the ball. If you have to discuss how to get patient-centered health care, you’ve framed the problem wrongly. (The medical metaphor is talking about a symptom and not the disease.)

“Patient-centered” is implicit when the patient is actually at the center. Dr. Berwick should approach the health care delivery problem with a little less poetry and a little more economics.

The Fox Butterfield Effect and the Laffer Curve

A former reporter for the New York Times, Fox Butterfield, became a bit of a laughingstock in the 1990s for publishing a series of articles addressing the supposed quandary of how crime rates could be falling during periods when prison populations were expanding. A number of critics sarcastically explained that crimes rates were falling because bad guys were behind bars and invented the term “Butterfield Effect” to describe the failure of someone to put 2 + 2 together. We now have a version of the Butterfield Effect in tax policy.

Recent IRS data show that rich people earned a record amount of income in 2007 and also faced their lowest effective tax rate in almost two decades. Proponents of soak-the-rich tax policy complain about these developments, as seen in the Bloomberg excerpt below, but they seem oblivious to the Laffer Curve insight that rich people earned more income in part because tax rates were lower. So if they penalize the rich with higher tax rates, as President Obama is proposing, they will be disappointed to discover that they collect considerably less revenue than predicted for the simple reason that wealthy taxpayers will respond by earning less taxable income.

The 400 highest-earning U.S. households reported an average of $345 million in income in 2007, up 31 percent from a year earlier, IRS statistics show. The average tax rate for the households fell to the lowest in almost 20 years. …The statistics underscore “two long-term trends: that income at the very top has exploded and their taxes have been cut dramatically,” said Chuck Marr, director of federal tax policy at the Center on Budget and Policy Priorities, a Washington-based research group that supports increasing taxes on high-income individuals.

As an aside, it’s also worth noting that the IRS tax-rate numbers are very misleading. The tax burden on the rich has dropped largely because of lower tax rates on dividends and capital gains. But when the IRS says upper-income taxpayers had an average tax rate of 16.6 percent, this does not include the other layers of tax that are imposed. The corporate income tax is 35 percent (just counting the federal level), for instance, so the actual average tax rate on these forms of income is far higher. Double taxation is counterproductive to growth and competitiveness, though, which is why the correct tax rate on dividends and capital gains is zero. For more on the Laffer Curve, this three-part video series addresses theory, evidence, and the biased revenue-estimating process.

State of the Union Fact Check

Cato experts put some of President Obama’s core State of the Union claims to the test. Here’s what they found.

THE STIMULUS

Obama’s claim:

The plan that has made all of this possible, from the tax cuts to the jobs, is the Recovery Act. That’s right – the Recovery Act, also known as the Stimulus Bill. Economists on the left and the right say that this bill has helped saved jobs and avert disaster.

Back in reality: At the outset of the economic downturn, Cato ran an ad in the nation’s largest newspapers in which more than 300 economists (Nobel laureates among them) signed a statement saying a massive government spending package was among the worst available options. Since then, Cato economists have published dozens of op-eds in major news outlets poking holes in big-government solutions to both the financial system crisis and the flagging economy.

CUTTING TAXES

Obama’s claim:

Let me repeat: we cut taxes. We cut taxes for 95 percent of working families. We cut taxes for small businesses. We cut taxes for first-time homebuyers. We cut taxes for parents trying to care for their children. We cut taxes for 8 million Americans paying for college. As a result, millions of Americans had more to spend on gas, and food, and other necessities, all of which helped businesses keep more workers.

Back in reality: Cato Director of Tax Policy Studies Chris Edwards: “When the president says that he has ‘cut taxes’ for 95 percent of Americans, he fails to note that more than 40 percent of Americans pay no federal incomes taxes and the administration has simply increased subsidy checks to this group. Obama’s refundable tax credits are unearned subsidies, not tax cuts.”

Visit Cato’s Tax Policy Page for much more on this.

SPENDING FREEZE

Obama’s claim
:

Starting in 2011, we are prepared to freeze government spending for three years.

Back in reality: Edwards: “The president’s proposed spending freeze covers just 13 percent of the total federal budget, and indeed doesn’t limit the fastest growing components such as Medicare.

“A better idea is to cap growth in the entire federal budget including entitlement programs, which was essentially the idea behind the 1980s bipartisan Gramm-Rudman-Hollings law. The freeze also doesn’t cover the massive spending under the stimulus bill, most of which hasn’t occurred yet. Now that the economy is returning to growth, the president should both freeze spending and rescind the remainder of the planned stimulus.”

Plus, here’s why these promised freezes have never worked in the past and a chart illustrating the fallacy of Obama’s spending claims.

JOB CREATION

Obama’s claim:

Because of the steps we took, there are about two million Americans working right now who would otherwise be unemployed. 200,000 work in construction and clean energy. 300,000 are teachers and other education workers. Tens of thousands are cops, firefighters, correctional officers, and first responders. And we are on track to add another one and a half million jobs to this total by the end of the year.

Back in reality: Cato Policy Analyst Tad Dehaven: “Actually, the U.S. economy has lost 2.7 million jobs since the stimulus passed and 3.4 million total since Obama was elected. How he attributes any jobs gains to the stimulus is the fuzziest of fuzzy math. ‘Nuff said.”