跨国公司如何合法避税？（上）
How companies keep tax low within the law
Government budgets are under strain across much of the developed world. Finance ministries and tax authorities are under pressure to maximise the taxes they collect from the corporate sector. Various initiatives, including a European Commission proposal to harmonise the tax base in a number of EU states, aim to limit the erosion of the corporate tax yield.
Yet evidence produced by a Financial Times investigation into corporate tax avoidance suggests that revenue authorities are fighting a losing battle against tax arbitrage, whereby multinational companies locate revenues, costs, borrowing and profits in the most favourable jurisdictions for overall group profits.
The authorities' problem is compounded by the increasing importance attached to shareholder value. Corporate tax charges have a huge bearing on the bottom line of the profit and loss account and company executives, especially in English-speaking countries, have felt obliged to manage tax charges very aggressively. This has led to the use of increasingly complex and artificial tax avoidance strategies.
Part 2 - How transfer pricing threatens global tax revenues
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The FT's research suggests that erosion of the tax yield is more dramatic than generally appreciated. As shown by this article, and by a second to be published tomorrow, clear evidence emerges that the tax authorities' main weapons are proving ineffective.
In the UK, Companies House - the repository of data submitted to the UK registrar of companies - provides a window on subsidiaries of foreign-owned companies that is unrivalled in most other jurisdictions. Its accounting records provide a remarkable insight not only into multinationals' operations in the UK, but into the wider impact of globalisation on corporate taxation. An extensive review of the accounts of leading foreign-owned companies suggests that: in high-tax jurisdictions such as the UK, inward investment tends to lead, in aggregate, to an increase in debt and a reduction in equity on the balance sheets of the acquired companies. This reduces tax because the parent company extracts cash from its foreign subsidiary via tax-allowable interest; so-called "thin capitalisation" rules, designed to prevent foreign multi- nationals repatriating profits through high interest charges on intra-group borrowings, are proving ineffective; operating margins in foreign-owned UK subsidiaries are often markedly less than in the foreign group accounts, pointing to the likely prevalence of transfer pricing abuse; some foreign-dominated sectors of the UK economy, such as the motor industry and investment banking, are delivering minimal tax.
An indication of what the top 20 foreign non-oil companies measured by turnover are paying to the British tax authorities can be found in the accompanying table. While the figures are subject to numerous caveats, explained below, the broad picture is striking. Even allowing for the foreign component of a combined turnover of ￡96bn, these companies produce remarkably little profit and appear to generate very little tax revenue for the UK in a country where total corporation tax receipts in 2002-03 were ￡29.5bn. Eight of the 20 paid negligible sums or no tax at all.
In some cases there are legitimate business reasons. Competitive conditions in the motor industry have been tough. Some, such as IBM, have gone through big restructurings (where the cost of redundancies can be offset against tax in the UK). Others, including Orange, have tax losses left over from an earlier period. But there are also indications of profitability being depressed by transfer pricing and inter-group charges (see Thursday's article).
The FT's research shows that the shape of a foreign subsidiary's balance sheet is dictated by the twin influences of the home and the host countries' jurisdictions. For many companies, the tax-efficient solution is to finance operations with debt. In the table, some 14 of the 20 companies had net debt owing to other companies in their multinational group, which could suggest that they are placing debt in the UK to obtain the benefits of generous tax relief on the interest. Some 13 paid no dividends to their parent companies. This reflects the UK's position among the higher corporation tax countries in Europe, relative to jurisdictions such as Ireland, Benelux or Switzerland, which offer tax-friendly conditions to outside corporate investors.
The damage done, quite lawfully, to the corporate tax yield by these tax efficient capital structures can be seen most clearly at Wal-Mart Stores (UK). Asda Group, the retailer bought by Wal-Mart in 1999, declared pre-tax profits for 2002 of ￡608m. This shrinks at Asda's parent, Wal-Mart Stores (UK), to ￡209m because of the interest and amortisation of goodwill on the acquisition. The result is that the current tax charge (excluding deferred taxation rolled into the future) is ￡88m. This is less than the ￡105m current tax charge in Asda's accounts in 1998 before Wal-Mart made its approach, despite the increase in Asda's profits over the period from ￡405m to ￡608m.
This tax shrinkage is an inexorable consequence of growing foreign direct investment, which produces increased potential for companies to reap the benefits of international tax arbitrage.
For some companies it is more advantageous to finance their foreign subsidiaries' operations with equity in the foreign country. It is no coincidence that four of the companies in the table that are not in debt to the rest of their group are German. For German companies, dividends from foreign investment and gains from the sale of foreign subsidiaries are largely tax- exempt. So it pays for them to borrow at home, where the interest is tax allowable, to finance acquisitions in the UK. They then invest the borrowing proceeds in equity in the UK subsidiary. This is what Eon, the German energy company, did with its ￡5.2bn acquisition of Powergen, a British energy generator and supplier, in 2002. Its Eon UK subsidiary's equity share capital of ￡5.1bn more than outweighs Powergen's outstanding debts. d4 The tax authorities' big defence against excessive interest charges paid to group companies outside the national jurisdiction consists of "thin capitalisation" rules. If intra-group borrowings rise to the point where a subsidiary's profits stand to be artificially depressed, tax authorities demand an injection of fresh equity to bolster the capital base if future interest payments are to be allowed as a charge against taxable profits. Yet the evidence at Companies House suggests that some big fish are slipping through the net.
The most conspicuous of these is IGE USA Investments, a holding company for many UK activities of General Electric of the US. As well as industrial interests, this includes operations of GE's financial arm, GE Capital. IGE USA has an ostensibly weak balance sheet. The net asset value of ￡2.1bn is dwarfed by net amounts owing to the rest of the GE group of ￡4.4bn - not unusual for a conglomerate with a big financial subsidiary, since financial operations tend to involve substantial borrowings. The more important point concerns the revenue account. In 2002 IGE USA earned a pre-interest profit of ￡183m on turnover of ￡4.4bn. Yet this tips over into a loss of ￡57m after a charge for net interest that includes ￡246m payable to group companies. IGE then declares a modest after-tax profit thanks to a tax credit of ￡73m, while carrying forward an astonishingly large loss of ￡672m accumulated over the years.
For the subsidiary of one of the world's most competitive and profitable multinationals, feared by its competitors across Europe, this is a paradoxical outcome - but not entirely surprising given GE's reputation in the US for aggressive management of its tax charge. GE said it had agreed and met thin capitalisation parameters with the Inland Revenue, the UK's tax authority, for many years.
Another striking example is Nestlé Holdings (UK), not included in the table shown, which has a severely distressed balance sheet. There was a deficiency of assets against liabilities of ￡798m at end-2002 or ￡1,216m if the FRS17 reporting standard on pensions is taken into account. The net amount owed to the rest of the Nestlé group at that date was ￡1.6bn.
The big damage was done by a write-off of ￡1.2bn, relating chiefly to the decline in the value of the Rowntree confectionery business, acquired in 1988. Since this and the FRS17 pension deficit have only an indirect bearing on the interest charge, the write-off needs to be added back to the capital base before assessing the balance sheet for tax purposes. But that still leaves a net asset value of only ￡402m to support the debt mountain owed to the group. From the Inland Revenue's point of view, the sting lies in the way interest paid on loans from Nestlé group companies tips the profit before Nestlé interest of ￡41m into a pre-tax loss of ￡54m. Nestlé declined to comment.
A final example of the problem with thin capitalisation comes from Honda Motor Europe, which made combined losses of ￡201m in its last two financial periods, according to the records at Companies House. Honda's net asset value was just ￡37m, while net debt owing to other Honda group companies stood at ￡510m at March 31, 2003. No interest was payable on ￡328m of this group debt, which may reflect the impact of thin capitalisation rules. This could not be confirmed since Honda did not return calls. But interest payable to fellow subsidiaries of Honda of ￡15.3m still tipped the company into pre-tax losses of ￡5.9m.
All this poses a question as to whether the Inland Revenue's current approach, in which the determining factor is the amount of interest that a borrower would have to pay if it were unconnected to the lender and receiving no financial support from other group companies, is tough enough or applied with sufficient rigour. d4 In the financial sector, the state of a company's capital poses a lesser problem for tax authorities because financial watchdogs are rigorous in policing capital adequacy. Yet there are plenty of other factors that work to depress tax revenues, not least the remarkable ability of bankers to push tax liabilities into the future in the form of deferred taxation and create deferred tax assets.
A deferred tax asset is, in effect, a right to pay less tax in future. Such assets stem from timing differences that arise from the inclusion of items of income and expenditure in tax computations in different periods from those in which they appear in the financial accounts.
The simplest kind of deferred tax asset arises where a tax loss is carried forward because there is not enough profit against which to offset it. Those investment banks that performed badly after the bursting of the 1990s stock market bubble offer a case in point. Credit Suisse First Boston (UK) Investments, which recorded pre-tax losses of $192m in the year to end-2002, had no current UK tax charge and carried forward balance sheet tax losses of $281m.
In contrast, its fellow subsidiary in London, Credit Suisse First Boston International, which deals in over-the-counter derivative instruments, made pre-tax profits of $215m in the same year. Yet its current UK tax charge was only $25m. In 2003 the current charge was nil on profits of $275m. This mainly reflected timing differences and prior year adjustments, which are abnormally frequent and large in investment banking.
At the most profitable investment bank in London, Goldman Sachs Group Holdings (UK), these timing differences remarkably eliminate all the current UK tax charge. Its accounts to end-2002 show a tax credit of $7m on pre-tax profits of $665m. The credit arises because of timing differences that relate to the issue of restricted stock units to employees following Goldman's initial public offering on the New York Stock Exchange in 1999. Goldman carries forward a deferred tax asset of $306m relating exclusively to these employee awards.
The story is much the same at Morgan Stanley International, which shows a UK tax charge of just $31m on pre-tax profits of $501m in the year to end-November 2002. In the same year Morgan Stanley International shows a tax charge of $94m outstanding to other foreign authorities.
Only at Merrill Lynch Europe does the tax charge constitute a significant percentage of profit. It would not be surprising if executives at the New York parent were concerned that the UK tax charge was being less effectively managed than at Merrill's peers.
At end-2002 the deferred tax assets of these four investment banks amounted to more than $1.1bn, which ensures a continuing below-par contribution to the UK tax authorities. And the ability to generate timing differences in investment banking, particularly via derivatives trading which makes it easy to shunt revenues and costs between different accounting periods, suggests that the tax take from the most vibrant part of the City of London's international business will remain modest.
Investment bankers point out that they contribute large sums in personal taxes. Even so, it is an extraordinary commentary on the internationalisation of capital that the tax authorities should have been so dramatically sidelined by high finance and that foreign direct investment more generally should have contributed so little in taxes to the UK government.
Thursday: Part II of the investigation into corporate taxation.
跨国公司如何合法避税？（上）
当前，多数发达国家的政府预算正处于捉襟见肘的境地。这些国家的财税部门受到来自政府的压力，要求它们尽一切可能向企业界征收税款，还针对企业捐税收入遭到侵蚀的现象出台了各类遏制措施，其中包括欧洲委员会(European Commission)有关在若干欧盟国家统一税基的提议。
但《金融时报》在对企业避税进行的调查中发现，有证据表明，各国税务部门在与税收套利(tax arbitrage)行为的斗争中处境不妙，因为跨国公司为谋求集团整体利益的最大化，可把营业收入、成本、借贷和盈利分配到对其最有利的税务辖区内。
企业不断提高对股东价值的重视，也使税务部门面临的问题更加复杂化。由于税负对企业的损益表底线有着巨大影响，因此企业主管们(尤其是在英语国家)均觉有责任对税负进行“积极管理”。这就催生了各种日趋复杂和牵强的避税策略。
《金融时报》的研究显示，企业捐税收入遭到侵蚀的严重程度，超出人们的普遍认知。正如本文及明天将要发表的下一篇文章所揭示的那样，目前已有明确证据表明：税务部门手中的各种主要武器是无效的。
在英国，公司在登记时提交的各种数据构成了一个档案库，由英国公司登记局(Companies House)负责管理，这为公众了解外资企业的子公司提供了一个窗口，是多数其他国家所无法比拟的。这里保存的会计记录不仅能让人们深入了解跨国公司在英国开展的业务，还能看到全球化对企业税负带来的更广泛影响。对领先外资企业的帐目进行广泛研究后，可以发现这样几种情况：第一，在英国这样的高税收国家，外来投资在整体上倾向于增加被收购企业在资产负债表上的债务，而减少其股本。这种安排有利于减税，因为母公司可通过税收规则所允许的利息收取方式，从海外子公司回笼资金；第二，一条旨在防止海外跨国公司对集团内部债务收取高额利息，从而回流盈利的所谓“资本弱化”(thin capitalisation)规则，被证明是无效的；第三，外资企业在英国的子公司，其营运利润率往往显著低于海外集团帐目，显示出滥用“转移定价”(transfer pricing)手法的情况相当普遍；第四，英国经济中某些由外资主导的行业纳税极少，如汽车工业和投资银行业。
附表列出了以营业额计算，排名前20位的非石油行业外企向英国税务部门缴纳的税款。虽然这些数据有众多需要加以说明的地方(下文有具体解释)，但总体情况却十分惊人。即使这些企业在海外的总营业额达960亿英镑，盈利却惊人地少，而它们向英国当局缴纳的税款更是少之又少。2002至2003年度，英国的企业税收总额高达295亿英镑，而这20家外企中有8家缴纳的税款微不足道，甚至根本没有纳税。
其中某些情形是具有正当商业理由的。汽车工业的竞争形势相当严峻。还有一些企业，如IBM，刚完成大规模的重组(在英国，裁员成本可从应税款项中扣除)。而另一些公司则背负着前几年遗留下来的税务亏损(tax loss)，包括橙电信(Orange)。但有迹象显示，某些外企通过“转移定价”和“集团内收费”的手法，人为压底其盈利能力(参见周四文章)。
《金融时报》的研究显示，海外子公司资产负债表的形态，受到母公司所在国及子公司所在国税务管理的双重影响。对于许多公司来说，税务上最具效益的解决方案是负债经营。在附表的20家外企子公司中，有14家对跨国集团内部的其他公司欠有净负债，显示这些企业可能有意将债务安排在英国，以享受慷慨的债务利息减税待遇。有13家外企子公司不向其母公司派发任何股息。这种情况反映出，英国在欧洲国家中企业税相对较高。相比之下，爱尔兰、比利时、荷兰、卢森堡以及瑞士等欧洲国家向海外企业投资者提供优惠的税收待遇。
从沃尔玛超市(英国)公司的财务报表上可以清楚地看到，这种具有高度税务效益的资本结构对企业捐税收入造成了合法的损害。ASDA集团1999年被沃尔玛(Wal-Mart)收购，2002年宣布了6.08亿英镑的全年税前盈利。而该项盈利到了ASDA的母公司，即沃尔玛超市(英国)公司那里，因为扣除了利息费用和收购时安排的商誉摊销，就缩减为2.09亿英镑。其结果是，当年税费(不计留到未来的递延税项)只有8000万英镑，低于1998年度(沃尔玛提出收购要约之前)ASDA帐面上1.05亿英镑的当年税费，尽管在此期间，ASDA的盈利从4.05亿英镑增加到6.08亿英镑。
此类税收减少事件的发生，是外国直接投资增加的必然结果。外国直接投资使企业在国际税收套利上获得了更大的空间。
对某些公司来说，在外国通过股权融资方式为其海外子公司募集经营资金更为有利。附表中4家不欠集团内部其他公司债务的外企全部来自德国，这并非巧合。对德国公司来说，来自海外投资的股息，以及出售海外子公司所得的收益，基本上都是免税的。因此对它们来说，比较有利的做法是在本国借债(借款的利息能用来抵税)，用于在英国进行收购。然后，这些公司将借款以股本方式投资于英国子公司。2002年，德国能源公司Eon正是通过这种方式，以52亿英镑的价格收购了英国发电及供电企业Powergen。Eon英国子公司的权益资本达51亿英镑，远远超出Powergen的未偿债务。
针对外企向海外的集团成员公司支付过高利息费用的做法，税务部门主要的防范措施是“资本弱化”(thin capitalisation)规则。该规则规定，假如集团内部的借贷水平上升到一定程度，使子公司的盈利被人为压低，税务部门可以要求外资企业注入新鲜股本，以充实该子公司的资本基础，否则，未来的利息费用就不能从应税盈利中扣除。但英国公司登记局(Companies House)的证据显示，某些大型企业正在成为漏网之鱼。
其中最明显的例子就是IGE美国投资公司(IGE USA Investments)，这是美国通用电气公司(General Electric, GE)在英国为多项业务活动设立的控股公司。除了各产业内的业务之外，这些活动也包括了GE的金融分支GE Capital的业务。“IGE美国”的资产负债表在表面上相当虚弱：资产净值为21亿英镑，但对GE集团其他成员公司却有44亿英镑的净负债。当然，这种情况对于拥有庞大金融子公司的大型集团企业来说并不反常，因为金融业务常常涉及大笔负债。更重要的一点在于营收帐目。2002年，“IGE美国”的营业额达到44亿英镑，扣除利息前盈利达到1.83亿英镑。但在扣除净利息费用，包括向集团内部其他公司偿付的2.46亿英镑利息费用之后，上述盈利就变成了5700万英镑的亏损。在得到了7300万英镑的税收减免(tax credit)后，IGE最终宣布了数额有限的税后盈利，并把多年积累起来的6.72亿英镑亏损结转到未来财务年度，该数字实在令人惊讶。
GE是世界上最具竞争力和盈利能力最强的跨国公司之一，受到欧洲各地竞争对手的普遍敬畏，其子公司却出现了这样的经营结果。这虽然荒谬，却未必完全出乎意料，因为GE在美国就以“积极管理”税负出名。GE表示，多年来该公司一直与英国税务局(Inland Revenue)保持着共识，并符合“资本弱化”规则的各项要求
