Tax avoidance #3: transfer pricing

When will they ever learn? Just when it looked like a politician had finally begun to get real over tax avoidance Ed Miliband goes and shoots himself in the foot again.

First he pledges that if elected PM he will tackle corporate tax avoidance without international agreement if necessary. So far, so good. But then he falls for the same misguided arguments as the rest of the political class by seeking to blame the existence of avoidance techniques on the companies that use them. Principal amongst these is the technique known as transfer pricing.

This is a technique used by multinationals where the prices for goods or services traded internally within the company but across international frontiers are set either artificially high or artificially low in order to move profits from one (high tax) country to another (low tax) country. As a problem it is not new. Economics texts have been highlighting the issue for over forty years (for proof see Chapter 19 of Economics of the Real World, by Peter Donaldson, published in 1973). The received wisdom is that all that is needed in order to counter this activity is some form of international agreement, greater corporate transparency, more resources for HMRC staff and a modicum of moral pressure. Robert Philpot of Progress tried to make some of these arguments again last week on the Huffington Post. Yet none of this is true.

As I have pointed out before, under capitalism companies are driven by the imperative to maximize profit, not some moral obligation to maximize government tax revenues. The moral choice is to do what is best for the shareholders, not what is best for the wider community. And anyway, why should Google or any other company be obliged to pay more than it needs to in tax when to do so could put it at a competitive disadvantage with respect to its rivals?

The arguments in favour of international agreements are equally flawed. Such agreements would require all countries to sign up to the same set of rules as those that didn't would gain a competitive advantage over those that did. Yet as long as countries compete against each other to attract multinational corporations to their territories, either in order to generate greater tax revenues at the expense of other nations, or to attract inward investment at the expense of other nations, then there will never be any hope of a binding international agreement. There will always be one country that refuses to be bound by the wishes of the majority in order to gain advantage. And given the size of multinational profits in comparison to national incomes, the power to undercut on tax will always favour the small nation (e.g. Luxembourg, Switzerland, Austria, Ireland) over the large nation. Countries like the USA and UK can therefore never hope to compete with these smaller countries by lowering their corporate tax rates. They need to look for a different approach. That means implementing tax laws that are not reliant on the actions or agreement of governments in competitor countries, but are instead based on objective measures of business activity within each country's own borders. One possible solution is the Common Consolidated Corporate Tax Base (CCCTB) proposed by the EU.

At the heart of the transfer pricing problem is the thorny issue of corporate profits and how they are calculated. Even at the best of times the quantification of a company's true annual profit is something of a black art, one that is complicated by one-off asset write-downs, debt interest, rolled over losses from previous financial years, and the deferral or front-loading of capital investment. Yet over time most of these factors cancel themselves out. However, on top of all that there is the problem of how those profits are spread across the different divisions of the company. Again, if all the divisions of the company are located within the same country it matters not a jot. The total profit of the company in that tax jurisdiction is the same however it is divided between subsidiaries, and so the tax paid is the same. Yet, as soon as the profit is spread across subsidiaries in different countries with different tax rates, problems abound.

This is where transfer pricing comes into its own. There are a number of variants of this type of scheme that essentially only differ in the form of the goods used as the vehicle for the price transfer mechanism. In its most classical manifestation the goods are typically manufactured components of a larger or more complex final product. However, increasingly transfer pricing schemes have begun using brand licences or other intellectual property as the good that is traded internally within the company (as used for example by Starbucks). As an illustration of how transfer pricing works it may help to consider the following hypothetical example.

Suppose a car maker has two production facilities. The main assembly plant is in the UK and is owned and run by subsidiary A. However, the engines are manufactured in country Z by the company's subsidiary B. Now suppose it costs £4000 to build the engine and another £4000 to construct the rest of the car, but the car sells for £10,000. The profit is therefore £2000 per car. If the car company builds 1,000,000 cars each year then its annual profit will be £2bn, but which in country should this profit be declared and taxed; the UK or country Z?

The answer is that it depends on the price that subsidiary B charges subsidiary A for its engines. For most goods bought by ordinary consumers or firms the price is set by the market and it is therefore beyond the capabilities of any single agent to dictate this price unilaterally. In transfer pricing schemes, however, the commodity or good at the centre of the scheme is only ever traded within the multinational company. There are no external customers and so there is no objective market price for the good. Whatever the multinational charges for the good it ends up paying to itself, so it can set its own price for its own reasons. That reason is usually tax.

In the above example the cost of producing the engine and the car body is the same (£4000 each), so one might naturally assume that the fair way for the profits to be divided between the two subsidiaries would be in the same 50:50 split. In which case subsidiary B would charge £5000 for each engine, thus allowing it to make a profit of £1000 per engine. Subsidiary A in the UK would then buy the engines for £5000 each, build the rest of the car at an additional cost of £4000, and then sell the cars to the public for £10,000 each. Thus the cost of manufacture for subsidiary A is £9000 per car and its profit is £1000 per car, the same as for subsidiary B. If the tax rates in the UK and country Z are the same, let's say 30%, then the multinational will pay £300m of tax in each country, or £600m in total.

But if the tax rate in country Z is lower than in the UK (say 25% instead of 30%), then the car maker will pay less tax in country Z (£250m) than the £300m it continues to pay in the UK. Its total tax bill at £550m is now less than the £600m it was originally. But it can reduce its tax bill even further by raising the price of its engines.

If subsidiary B charges £6000 for each engine, then subsidiary B will make £2000 profit per car. Yet the cost of production for subsidiary A then rises to £10,000 per car, £6000 for the engine and £4000 for the body, and so it makes zero profit. Now all the profits are taxed in country Z at 25%, and so the total tax bill falls to £500m.

Similarly, if the UK were to retaliate by lowering its tax rate to 20% (as advocated by Osborne and Cameron) then the car company would respond by changing the cost of its engines once more. Now subsidiary B might charge £4000 for each engine so that it makes no profit while subsidiary A earns £10000 for each car sold but now spends only £8000 on their manufacture (£4000 on assembly costs and another £4000 buying the engine from subsidiary B). As all the profits are now located in the UK they will be taxed at the UK rate and the total tax bill for the company is now £400m.

Thus by raising or lowering the cost of its engines (or any other internally manufactured component) the car maker can in effect choose which country it wishes to be taxed in. And in so doing it can also force countries to compete against each other by competitively reducing their tax rates in a self-defeating race to the bottom where the only winner is the multinational.

One reason why the scheme is so difficult for governments to challenge is that there is usually no other external customer for the good or service used in the transfer pricing, so the price is difficult for the tax authorities to challenge. In addition, multinationals can always find one country to base their headquarters in that will offer a lower tax rate than any other. Worse still, with complex lines of procurement it is doubtful whether even the company itself can accurately determine the true cost of many of its internally sourced components. Nevertheless, despite these difficulties it is clear that many multinationals actively operate aggressive policies of tax avoidance based on transfer pricing that are designed to minimize their corporate income tax bill. It is therefore time governments adopted an alternative approach to tackling the problem.

The Solution:
There is only one realistic solution to the problem of transfer pricing, and that is to tax companies on the basis of data that they cannot challenge or manipulate. As already noted, profits can have a distinctly ethereal quality at times, particularly when looked at on a country-by-country basis. However, a company's global profit (P) is much more tightly defined. So too for that matter are other global aggregate measures of a company's performance such as its global sales (S), its global wage bill (W), and the total value of its global capital assets (K).

It is also true that, while a multinational operating in the UK can disguise its UK profit via transfer pricing, it cannot disguise the level of its UK sales, wage bill or capital investment. Its UK sales are already recorded for VAT purposes, and its wage bill for calculating its national insurance liability. As for its UK capital, that is mainly in the form of property, which is also rather difficult to conceal.

It therefore follows that governments should take the initiative when it comes to determining the profit levels of subsidiaries operating in their territories. As neither the government nor the multinational really knows the true profit level of these subsidiaries, the government should in effect use the objective data outlined above to tell the multinational what its UK profits are, rather than relying on the multinational to tell the government what it thinks it is. And it turns out that a formula for just such a calculation already exists.

In an attempt to tackle the issue of transfer pricing the European Commission has proposed the Common Consolidated Corporate Tax Base (CCCTB). This utilizes data for the company's global sales (S), wages (W), capital (K) and profits (P), together with the equivalent terms S_i, W_i and K_i pertaining to any individual country i only. This allows the company's profits in country i to be estimated by taking a weighted average of the fraction of its global capital, sales and wages that are deployed in that country, and using that average to set an estimate for its profits in country i. In the absence of any more authoritative data, this estimate will de facto be assumed to be the true profit level P_i for the subsidiary operating in that country.

The coefficients are defined to be the same for all companies operating in country i, and are then set such that each is less than unity, and their sum is always equal to unity as follows.

In practice these coefficients are all likely to be set to be equal to each other as there is unlikely to be much overall variation in the proportion of wages, sales and investment capital for all multinationals within a given country i. In which case the profit in country i becomes

We have then a profit calculating mechanism that is impervious to transfer pricing. Companies cannot manipulate their profit in country i because they cannot manipulate the quantities used in Eq. (3) to calculate that profit. It is this type of approach that politicians and government tax advisers should be adopting, not the empty rhetoric of cynical political posturing.

The right way to regulate and rescue banks

When it comes to the question of how (or even if) we should rescue failing and insolvent banks, so far the choice on offer has been between two equally unpalatable brands of medicine. Either the State should do nothing (as the neo-liberal Right are forever demanding) and risk contagion spreading within the financial system as the collapse of one bank leads to the decreasing creditworthiness of others, or the State should act as ultimate guarantor for all deposits and thereby institutionalize moral hazard, effectively legitimizing every bad investment every bank or investor has ever made. As I pointed out in my last post, the central problem is a triangular paradox at the heart of the current bailout provisions. For an orderly restructuring of a bank to be achieved while protecting the wider banking system, the economy and the taxpayer, three key objectives need to be met.
(i) No taxpayer funds should be used in any bank rescue.
(ii) The bank's customers must still be able to access some deposits.
(iii) There must be no capital flight or run on the bank.

As I also pointed out previously, these three conditions are fundamentally incompatible with each other. Only two of the three can be achieved at any one time. If the bank remains open for business in order to service the day-to-day needs of its customers, and at the same time the taxpayer is to be relieved of any compensation obligation, the depositor will be forced to bear the cost of bank restructuring. The inevitable result will be capital flight as the depositors seek to avoid the impending financial penalties, and so the taxpayer will be forced to step in. If, however, the bank is closed for business to protect against capital flight, then the taxpayer will be protected but the wider economy will suffer as businesses and their customers run out of cash, many firms will be forced to close down, and the economy will start to slump.

There is though a second iniquity with the current system as I again outlined previously. This applies to customers who may have the misfortunate of receiving a once-in-a-lifetime large cash deposit (e.g. from a house sale or lottery win or business deal) that temporarily flows through their bank account at the very instant that the bank enters its state of crisis. So when the bank's restructuring or liquidation is complete these unfortunate souls will lose almost everything. Unlike conventional depositors, these customers have yet to make any investment decisions with regard to their new deposits. They are merely using their bank as a conduit through which to transfer the money to its final destination, a destination that may ultimately involve payment to a third party with no net gain for them (as for example during the process of moving house). So why should they be punished when they have not yet sought any high-risk reward? Clearly they should not. In which case, how can we then ensure that we protect these customers from suffering catastrophic and life-destroying financial penalties?

The answer to both this question and our initial capital flight problem is the same. Our initial paradox rests on the fact that we want bank accounts to operate in two distinctly different ways. On the one hand we want them to be fully accessible while at the same time we wish to prevent excessive withdrawals in a time of crisis. The solution, therefore, is to define two classes of account within each bank with each class having its own distinct rules with regard to its level of accessibility in return for differing levels of insurance protection. As a result one class will be applied to current accounts, with the other being for savings. This leads logically to the following 8-point plan, as this post will explain.

1) Set different compensation and access rules for current accounts and savings accounts. .
2) Current accounts to remain instant access.
3) Current account deposits to be fully insured by the Government.
4) Current accounts to be restricted to low interest rates.
5) The bank's own capital reserves (Tier 1 capital) to be set to cover at least 100% of all current account deposits.
6) Savings deposits to be used to cover bank losses when Tier 2 capital is exhausted.
7) Savings accounts to be time-locked in an emergency to prevent capital flight.
8) Bank restructuring to be by debt-for-equity swaps.

The key to the bank insolvency problem ultimately lies in the accessibility of the bank's different customer accounts. One type of account needs to be "instant access" so that normal banking functions can continue for most customers. But if the deposits in such an account are to be freely accessible, then they must be fully guaranteed by the State in order to guard against capital flight. As the generosity of this protection necessarily brings with it the risk of creating moral hazard, the guarantee must therefore be limited to only the most conservative of all investments. That means those carrying the lowest financial reward or yield. So a state-backed 100% deposit guarantee can only be applied to accounts with the lowest of interest rates, with the additional quid pro quo for the customer being that the guaranteed deposits remain available for instant withdrawal at all times.

However, while the taxpayer may act as guarantor in the above scenario, he must also be protected from having to fund the bailout. He may provide liquidity during the bailout process, but he expects to get all his money back (with interest) when it is complete. This means that the bailout must be self-financing. For this to be the case, the bank's own reserves of capital - its equity - must be greater than the liabilities that these reserves are required to cover, namely the current account deposits. In addition, the reserves it maintains would need to be of the same class as the deposits that they are designed to protect. That means that they would have to be in the form of cash, or government bonds that are highly liquid, easily convertible to cash and of secure value.

The next and complementary step is obviously to equate accounts with higher financial rewards with having a higher level of risk and therefore reduced level of state-backed guarantee. With no 100% guarantee over the security of their deposits these accounts will inevitable experience severe capital flight if they too are granted instant access. Therefore some form of time-lock must be imposed on such accounts such that no money can leave these accounts until the restructuring process is complete.

In the event of a bank suffering such increasing levels of bad debt that it begins to affect the very creditworthiness of the entire institution, then the following event sequence would play out. First the bank would freeze all high interest accounts while restructuring took place. This is a similar move to that imposed on the main Cypriot banks in March with the exception that in the Cypriot case the entire bank was closed for business, not just access to its savings accounts. The funding for any bailout would then come from deposits in these high interest accounts via a haircut. However, unlike the Cypriot case, the haircut would not be in the form of a simple forfeiture or confiscation, but should instead be a debt-for-equity exchange with depositors receiving new shares in the bank with the same market value as the total amount of funds that they stand to lose. The same deal should be granted to bondholders and the holders of any other form of the bank's debt. The only remaining question then concerns how the bank's new shares should be valued. Should it be determined by the price pertaining at the very instant that the bank's share were suspended prior to it ceasing to trade normally, or should it be set by the price pertaining at some earlier point in time when the bank's share price was still stable? Ultimately the answer will depend on a political decision as to which parties should be forced to forfeit the most: shareholders or creditors?

The advantages of this scheme are four-fold. Firstly it extends the haircut to other creditors of the bank like bondholders but on similar terms. Secondly, the large increase in shares results in a diluting of the share capital thereby extending the haircut to shareholders. As the value of deposits in the bank prior to its collapse will massively exceed its market capitalization, these measures will ensure that the shareholders suffer greater percentage losses than depositors as should be the case. The third advantage of this deal is that it ties in the depositors to the bank when the restructuring is complete. If depositors start a run on the bank once it reopens by removing their remaining savings, then they risk collapsing the bank and wiping out the value of the shares they received in lieu of their confiscated deposits. Finally, the new share issue ensures that once the bank reopens after its restructuring, not only will it be financially sound (as its liabilities will be much less than its assets), but it will be able to begin trading as normal immediately, as will trading in its shares.

With these measures in place the State would not in any likelihood actually have to bail out the bank. The State would merely stand as guarantor of last resort perhaps providing bridging loans or liquidity to enable the bank to smoothly implement the above process.

Finally, as the two types of account are clearly distinguished by their relative rewards (i.e. interest rates), with the risk associated with each account being dependent on that reward, it logically follows that the division line between the two account types should itself be set by the level of reward. As that reward is the interest rate in each case, so the division line must be based on an objective standard of this type, in other words a standard market interest rate (e.g. BoE base rate, or LIBOR, or base rate + x, etc.). Given the relative values of the Bank of England (BoE) base rate, current account interest rates and most savings rates at the current time, it is likely that under current market conditions the boundary line between our two classes of bank accounts would be set by the BoE base rate.

The mechanism outlined above therefore requires banks to hold two types or levels of capital. One must be highly liquid and sufficient to cover current account deposits. The second would be used to protect against bad loans. This is similar to the current system as introduced under the 1988 Basel I accords where Tier 2 capital was supposed to be used as a reserve of capital that banks could use to cover the cost of bad debts and defaults by customers, and Tier 1 capital was supposed to provide a capital reserve of last resort that would fund the winding up of any insolvent bank.

As we now know, Basel I rules were insufficient to prevent the collapse of banks and other financial institutions after 2007. The new Basel III rules are designed to strengthen financial regulation by forcing banks to hold more capital. Yet these new rules are fundamentally flawed for two reasons. First, they take no account of asset price inflation and how that undermines the solvency of banks by allowing them to increasingly leverage their balance sheets to an extent that only becomes critical when there is a massive crash in asset values. But secondly, there is nothing in Basel III that provides for safe defaults of banks, or that will protect economies from the moral hazard that comes from cleaning up the mess arising from bad banks that are too big to fail.

The structure outlined here might just help do the latter, although other measures are needed as well. These would include provisions for other bank liabilities such as redundancy payments for staff as the bank downsized and rules for the protection and sustainability of pensions. There would also need to be a new set of rules concerning the level of deposit protection afforded to high-risk savings accounts and the necessary capital reserves needed to fund such protection. Imposing haircuts on small savers will never be politically acceptable, but the level of any deposit guarantee will have to be determined by issues of affordability and risk.

Equally important, though, is the need for better preventative measures. These should include new rules that actively discourage and de-incentivize acquisitions and mergers, as well as limiting the activities of overseas subsidiaries. Too many banking failures in the UK over recent decades have had their origins in policies of aggressive expansion. The remainder are generally due to sudden corrections in overheated markets in speculative assets, mainly in the property sector. In the case of asset price inflation, what is needed, therefore, is a new set of rules governing the risk-weighting of assets in measures of Tier 1 and Tier 2 capital ratios that are self-limiting as house prices or share prices increase more rapidly than the rest of the economy. Only then will our banks begin to exhibit the financial strength and resilience that we desire.

Banking lessons from Cyprus

Why is it that six years on from the collapse of Northern Rock there is still no semblance of any workable administration procedure having been put in place to deal with distressed or collapsing banks? With the recent banking crisis in Cyprus still fresh in the memory it is apparently not only me who is asking this question. Yet there is still no political or economic consensus regarding how governments should rescue banks. Perhaps the reason is because most people have failed to appreciate the paradoxes that the current system creates. The solution to this problem is, I believe, to fundamentally change the structure of bank deposits, as well to limit the way banks capital ratios are set and the way banks are allowed to operate over national borders. 

After 2007 the two big issues were contagion and moral hazard. The Brown government acted swiftly to protect all bank deposits in first Northern Rock and then other UK banks and building societies such as HBOS and RBS because they were worried about contagion. They feared that the collapse of one big bank could bring down another, and then another, and ultimately the whole system. 

The Bush administration in the USA on the other hand allowed both Lehman Brothers and AIG to collapse because they were more concerned about moral hazard. They were also politically antipathetic to any form of state subsidy or intervention. 

Now we have the Cypriot banking crisis where depositors are facing a 'haircut' on deposits above the EU depositor protection limit of €100k. The problem that we are now seeing is that all three of these approaches have significant downsides. At the crux of the problem is a triangle of paradox and conflicting aims or interests that renders the conventional approach unworkable. 

Ideally what most economists and policymakers want to see is an orderly restructuring of a bank in crisis. That means that three key objectives must be met. 

(i) The losses of the bank should be met by the customers and owners of the bank, not the taxpayer. This is the necessary condition to eliminate moral hazard. 

(ii) The bank must be able to continue operating normally throughout its restructuring without adversely affecting the wider economy. In other words, businesses that use that bank need to have their normal cash-flow operations protected so that they aren't destabilized. 

(iii) The restructuring must be carried out in such a way that there is no capital flight or run on the bank. Otherwise the restructuring won't work. The money to pay for it will vanish. 

The problem is that these three conditions are mutually incompatible. It is currently possible to satisfy at best only two of these conditions simultaneously, but not all three. 

For example, it is currently the wish of the overwhelming majority of people and also of most politicians for the excessive risk-taking of the bankers to be borne by the bankers themselves and not by the taxpayer. If a bank fails it should be the shareholders and the senior management that should bear the cost. However the RBS and HBOS situations show that this will never be enough to cover the cost of most bank bailouts. Depositors will invariably have to take a haircut on some of their savings above the €100k limit. But the Cyprus situation shows how politically difficult this could be to enforce. 

Suppose though that the €100k deposit limit can be implemented so that the taxpayer is protected from the cost of the bailout. The depositors will then know that they are all expected to forfeit a fraction of their savings over €100k. Now suppose also that the banking authorities attempt to continue normal operations of the bank while it is being restructured. Such action is essential to ensure that the bank's business customers can pay their bills and thereby safeguard the normal operations of their own businesses. Without this provision businesses will fail due to cash-flow problems, and there will be a domino effect of redundancies and business bankruptcies that will ripple outwards from the stricken bank over time. 

The problem is, if the bank is allowed to operate normally while it is being restructured, and the depositors are forewarned of impending deposit forfeitures, then capital flight is inevitable. No rational depositor is going to leave all their savings in a bank in the full knowledge that most could be confiscated. Thus if conditions (i) and (ii) above are implemented successfully, condition (iii) will clearly fail. 

On the other hand, if capital flight is to be avoided so that condition (iii) is achieved, then only one of the other two possible actions can be implemented. Either the bank is closed for business while the restructuring takes place (as happened in Cyprus) and the deposit write-downs are performed, or the bank remains open but deposits and depositors are fully protected. The first of these options means that only conditions (ii) and (iii) are met, while the second means that only (i) and (iii) are, with the State inevitably having to pick up the final bill for the cost of the bailout instead of the depositors. 

Finally there is a fourth problem. In most discussions of depositor haircuts there is an implicit assumption amongst most neoclassical economists that all depositors are fully aware both of the risks inherent in their choice of bank, and of the limitations in extent of the deposit assurance scheme. While the latter is certainly true now, the former is not and will never be. The balance sheets of most banks are impenetrable to even the most expert of financial advisers. You only have to see how the credit crunch developed post-2007 to appreciate how the culture of rumour and counter-rumour within the financial markets highlighted the widespread ignorance that existed over the size and whereabouts of all the toxic debt. If the market players don't know where the problems are, how can the humble customer? 

And then there is the question of fairness. Implicit in the €100k deposit protection limit is an assumption that those who fall foul of it are only those guilty of chasing excessive returns. Yet what about the homeowner who sold his home for more than €100k on the very day his bank collapsed. Or the business that received payment for a major order on that same day. They too will lose almost everything, not because they sought to overplay their hand, but simply because they happened to have accounts with the wrong bank at the wrong time. Such instances may be rare, but such instances of large payments happen every day in every bank. The probability that such misfortune happens to you may be small, but the probability that it happens at all will be close to unity. So you know it will happen to somebody. Should the financial system play Russian roulette with people's lives in this way? Isn't that what the insurance and regulatory systems are supposed to prevent? 

These then are some of the problems, but there are others, not least in the disjointed and often illogical approach that the current system of regulation takes. These regulations are enshrined in the latest Basel accords, denoted as Basel III. As I will argue in later posts, Basel III is unlikely to correct all the major problems within the banking system. It won't tackle the paradox inherent in the three conditions (i)-(iii) above. Nor will it address problems associated with capital adequacy, reserves, or banks being too big to fail. What are needed are new rules that are fit for purpose. These rules need to resolve the triangular paradox I have outlined here so that insolvent banks can restructure in an orderly and fair manner. But we also need rules that reduce the likelihood of bank failure occurring in the first place. That means introducing new rules on capital requirements that will actively compensate for asset price bubbles, thereby removing some of the main sources of risk in the banking system. It also means having reserve requirements that recognize the systemic risk of large banks and which therefore financially penalize excessive size.