Frank Aquila: American companies' profits are trapped overseas

  • Article by: FRANK AQUILA , Bloomberg News
  • Updated: October 13, 2010 - 7:10 PM

A high repatriation tax rate is the economic obstacle to bringing that money home.

Imagine if American companies could add more than $1 trillion to their domestic coffers in an instant without selling a subsidiary, issuing a single share or incurring a penny of debt.

While every company would no doubt use this cash differently, the windfall could fund a return of capital to shareholders through increased dividends and share buybacks. Or it could be used to repay debt, fund capital expenditures or make strategic acquisitions.

The important thing is that the cash would be put to work. So why hasn't this already happened?

The answer is clear: U.S. tax policies penalize the repatriation of so-called foreign-source income, essentially the profits earned by foreign subsidiaries of American corporations. This cash pile isn't being hoarded or held on the sidelines, as many pundits have suggested; rather, it is being kept offshore by our own tax structure.

Unlike most countries, the United States taxes the profits earned overseas by its corporations. The federal tax code defers the tax on nondomestic profits until the corporation brings those profits into the country. Since repatriating these profits means incurring a tax of as much as 35 percent, most overseas profits remain offshore.

Given the weak economy and the debate over the need for additional stimulus, bringing home hundreds of billions, possibly trillions, of dollars should be a priority. Not only would the cash go right where it is needed the most -- the private sector -- but it wouldn't add a single dollar to the federal budget deficit.

Most successful U.S. multinational companies face the dilemma: Keep the cash overseas or bring the profits home and pay the tax bill. This isn't a merely theoretical debate about tax policy. Last month Microsoft said it would sell as much as $6 billion in debt to fund dividend payments even though it has about $37 billion in cash and short-term investments on its books. The cost of borrowing is far lower than the repatriation tax.

Cisco Systems, whose CEO, John Chambers, is a vocal critic of U.S. tax policy, has an estimated $30 billion in cash outside the United States. Dell, Hewlett-Packard, IBM and Intel are other leading tech companies with significant cash overseas. Pharmaceutical giants Johnson & Johnson, Merck and Pfizer also have billions in unrepatriated foreign profits.

A tax holiday on returning overseas cash isn't without precedent. In 2004, the Homeland Investment Act reduced the tax rate on these profits to 5.25 percent, from 35 percent. U.S. corporations responded by shipping back an estimated $315 billion in 2004.

Critics of any reduction in taxes on repatriated overseas profits, even a temporary one, argue that to do so would reward companies for outsourcing U.S. jobs. Not surprisingly, labor unions and their allies are the leading opponents of a tax holiday.

President Obama, meanwhile, says that current tax provisions provide a loophole that "has actually given billions of dollars in tax breaks that encourage companies to create jobs and profits in other countries."

This rhetoric is fueled by a broad mischaracterization of the purpose and effect of international growth and investment by U.S. companies. Unions and their allies in Congress see all such moves as simply outsourcing American jobs.

While that may be the case in a small percentage of situations, the reality is different. Rather than weaken the economy, successful multinational companies have been engines of growth. As Harvard Business School professor Mihir Desai has noted, when U.S. businesses "expand abroad, they expand at home."

Companies that prosper internationally expand their research, development, management, human resources, information technology, marketing and financial teams, and most of those new jobs wind up right here in the United States.

In fairness, not all labor leaders oppose lower taxes on repatriation of overseas profits. Andy Stern, president emeritus of the Service Employees International Union, has proposed cutting the tax on repatriated overseas profits to 5.25 percent. There's a big string attached: The tax revenue raised would fund programs designed to create jobs in the United States.

Others who oppose a tax holiday point to a study by the National Bureau of Economic Research that showed a large percentage of the funds repatriated in 2004 were used for dividends and share buybacks.

This misses the point. Pumping new cash into the economy will have a positive impact. Even if companies simply return the capital to their shareholders, that is a positive outcome, since investors will either spend the cash or reinvest it. Robert J. Shapiro, undersecretary of commerce in the Clinton administration, says "the repatriation of overseas profits would certainly be in the economy's interest."

With an era of slow growth here and rapid expansion in China, India and Brazil, our tax policy needs to recognize that an increasing share of corporate profits will be earned outside the country. U.S. tax policy should create incentives for companies to seek growth and expansion, wherever and whenever those opportunities arise.

Frank Aquila is a partner at the law firm Sullivan & Cromwell. A version of this column appears on BusinessWeek.com.

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