Burger King Worldwide Inc. says its decision to buy Tim Hortons Inc. and put the new headquarters in Canada has little to nothing to do with avoiding U.S. taxes. That's good, because President Barack Obama quite likely will make good on his threat to create a regulatory thicket to deter such acquisitions.
In a speech Monday, Treasury Secretary Jacob Lew said he still was reviewing his options, but promised a response to tax "inversions" like the one Burger King is planning "in the very near future." Mr. Lew said he sees the increasing popularity of the strategy as a threat to the U.S. tax base, compelling him to act. He also spoke of the practice in moralistic terms, calling it "wrong."
There is room to debate both these points. Corporate taxes represent about 10 per cent of all federal revenue, suggesting Mr. Lew is facing something less than a fiscal crisis. And the notion that companies are breaking the social compact by seeking to lower their tax bills ignores the fiduciary responsibility executives have to their companies' shareholders. Daniel Schwartz, Burger King's chief executive officer, could also consider it "wrong" that America's elected representatives refuse to co-operate to fix a tax system that all agree is a mess.
As Treasury Secretary, Mr. Law has broad authority to decide how to apply the country's tax laws. He can't lower the corporate income tax rate on his own, but he can do things such as reclassify debt as equity, according to Stephen Shay, a tax expert at Harvard Law School. That's one of the esoteric ways the Treasury could make inversions less attractive, since the ability to deduct interest payments in the U.S. is one of pillars on which the inversion strategy is built. There is an incentive to move intercompany debt to the U.S. to lower the tax bill there, and send dividends to the new, lower-taxed home country to retain a greater percentage of overall profits.
Theoretically, Mr. Lew could shred this web by writing some new definitions, or excluding newly inverted companies from benefits in the tax code. This is a fraught business. Every company of any size is deploying some kind of strategy to minimize its tax bill; excessive tinkering by the Treasury to attack one perceived problem risks creating many more. John Samuels, senior counsel of tax policy at General Electric Co., said on a panel hosted by the Urban Institute Monday that the Obama administration should be patient and fix the tax system properly.
Mr. Samuels probably is right. However, Mr. Obama likely is under too much political pressure to take the most sensible approach. The President already has punted on a pledge to address the immigration system, pushing a self-imposed deadline of the end of summer to after the Nov. 4 midterm elections. Mr. Obama has taken heat for that decision. However, too many of the Democratic senators fighting to keep their seats let it be known that a unilateral move by an unpopular president on such a sensitive issue would cost them control of the Senate. Put that way, Mr. Obama had no choice but to suffer the embarrassment of failing to make good on his word.
It's hard to imagine Mr. Obama doing that again, especially when the politics are vastly different. There is no outcry within his own ranks to rethink his position on inversions; if anything Democratic lawmakers want him to act because they know the odds of coming to a legislative compromise with Republicans are extremely low.
Control of the Senate will come down to the ability of Democratic senators to hold states such as North Carolina, Louisiana and Arkansas. Any voters in these places who would be angered by the Democratic President doing something to block corporate tax dodgers already were against him and his party. The political incentive to move on inversions outweighs the risk of making a messy tax system messier.