A little over a year ago, the two most powerful tax writers in the U.S. Congress led an entourage on a visit of smaller companies in New Jersey and Philadelphia. Max Baucus, a Democratic senator, and Dave Camp, a Republican congressman, were stoking excitement about their intention to release a bipartisan overhaul of the tax code. The cynics in Washington were worried. Mr. Baucus and Mr. Camp seemed to truly believe they were on the cusp on doing something productive.
How naive the optimists were. A couple of months later the Tea Party Republicans had shut down the government. Soon after that Mr. Baucus accepted President Barack Obama's invitation to become U.S. ambassador in Beijing. Mr. Camp announced earlier this year that he wouldn't seek re-election in November. He said his own party's rejection of his proposed rewrite of the tax code had nothing to do with his decision to quit politics.
American companies are tired of waiting. In November of 2013, Endo Health Solutions, a pharmaceuticals company from Pennsylvania, bought a smaller Canadian drug maker called Paladin Labs and moved the headquarters for the new company to Dublin. The birth of Endo International PLC is an early example of what now is a rush of U.S. companies that are seeking another passport by purchasing international rivals and shifting its home base to the country with the lowest tax burden. These days, that's almost never the United States, which has the highest base corporate tax rate of any major economy in the world.
Mr. Obama decided that the excitement over this emerging business strategy has become a clear and present danger to America's tax base. That's debatable, since corporate taxes represent only about 10 per cent of federal revenue With Capitol Hill on recess until after the midterm elections in November, Treasury Secretary Jacob Lew on Monday evening took the initiative, announcing several rule changes meant to discourage what tax lawyers call "inversions."
Mr. Lew said he wanted companies to "think twice" about pressing ahead with a manoeuvre that the Treasury Secretary called "wrong" and the President has described as unpatriotic. Inverting remains perfectly legal, however; meaning the Obama administration's efforts at obstruction will impede only the most egregious examples of the practice. Burger King Worldwide Inc. said Tuesday that its plan to purchase Tim Hortons Inc. and locate the headquarters in Canada would proceed as planned.
Almost every news report on Mr. Lew's announcement featured an image of either Burger King, Tim Hortons, or both. It was a poor choice to illustrate the issue. Burger King is purchasing a bigger company, and the shareholders of Tim Hortons will retain a major stake in the merged company. The "evil" inversions resemble what they are: blatant attempts to slip the yoke of the U.S.'s bafflingly uncompetitive tax structure. The fact that no one is quite sure whether the Burger King agreement with Tim Hortons is an inversion suggests that taxes are a minor factor. The company has insisted the deal is being done for strategic, rather than tax purposes, and various analysts have weighed in to say that any potential tax savings would be modest anyway.
Steven Rosenthal, a former tax lawyer who is now a senior fellow at the Urban Institute, a think tank in Washington, said Mr. Lew is on solid ground in attempting to slow inversions. Even if corporate taxes represent a relatively small percentage of overall revenue, the sight of companies getting away with legal tax dodges that are unavailable to average taxpayers undermines confidence in the system. The country's tax laws give the Treasury Secretary the authority to impede what they see as abuse, and, according to Mr. Rosenthal, most of the inversions are obvious attempts to flout the spirit of the law.
The value of shares in publicly traded drug makers slumped Tuesday, suggesting investors question the viability of pending and future inversion arrangements. (The pharmaceutical and health care industries tend to be well suited to exploit the strategy.) Michael Faulkender, an associate professor of finance at the University of Maryland, said in an interview that he expected some agreements would be rewritten or even fall apart. But he expects Mr. Lew will get only a temporary reprieve. "The bankers and the lawyers will figure out how to get around it," Prof. Faulkender said. "The Treasury always will be running behind."
That's the history of inversions. American companies have been inverting since the 1990s, always finding a way around whatever barrier the politicians erect. "It's whack-a-mole," said Mr. Rosenthal.
Mr. Lew likely has ended the inversion wave until early November. That is when bankers, lawyers and executives will assess the outcome of the midterm elections. At a minimum, the Republicans will narrow the Democratic advantage in the Senate, and they could possible take control. Could a Republican Congress and Mr. Obama agree on broad tax overhaul?
"Everyone knows it has to happen, but we might have to wait for a new president," said Prof. Faulkender. Get ready for inversion mania to resume in a month's time.