[Senate Hearing 113-584]
[From the U.S. Government Publishing Office]





                                                        S. Hrg. 113-584

                          THE U.S. TAX CODE: 
                    LOVE IT, LEAVE IT, OR REFORM IT
=======================================================================

                                HEARING

                               before the

                          COMMITTEE ON FINANCE
                          
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             JULY 22, 2014

                               __________

                                     
 
            Printed for the use of the Committee on Finance


                                    ______

                       U.S. GOVERNMENT PUBLISHING OFFICE 

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                          COMMITTEE ON FINANCE

                      RON WYDEN, Oregon, Chairman

JOHN D. ROCKEFELLER IV, West         ORRIN G. HATCH, Utah
Virginia                             CHUCK GRASSLEY, Iowa
CHARLES E. SCHUMER, New York         MIKE CRAPO, Idaho
DEBBIE STABENOW, Michigan            PAT ROBERTS, Kansas
MARIA CANTWELL, Washington           MICHAEL B. ENZI, Wyoming
BILL NELSON, Florida                 JOHN CORNYN, Texas
ROBERT MENENDEZ, New Jersey          JOHN THUNE, South Dakota
THOMAS R. CARPER, Delaware           RICHARD BURR, North Carolina
BENJAMIN L. CARDIN, Maryland         JOHNNY ISAKSON, Georgia
SHERROD BROWN, Ohio                  ROB PORTMAN, Ohio
MICHAEL F. BENNET, Colorado          PATRICK J. TOOMEY, Pennsylvania
ROBERT P. CASEY, Jr., Pennsylvania
MARK R. WARNER, Virginia

                    Joshua Sheinkman, Staff Director

               Chris Campbell, Republican Staff Director

                                  (ii)
                                  
                                  
                            C O N T E N T S

                              ----------                              

                           OPENING STATEMENTS

                                                                   Page
Wyden, Hon. Ron, a U.S. Senator from Oregon, chairman, Committee 
  on Finance.....................................................     1
Hatch, Hon. Orrin G., a U.S. Senator from Utah...................     3

                               WITNESSES

Stack, Robert B., Deputy Assistant Secretary for International 
  Tax Affairs, Department of the Treasury, Washington, DC........     5
Saint-Amans, Pascal, director, Centre for Tax Policy and 
  Administration, Organisation for Economic Co-operation and 
  Development, Paris, France.....................................     7
Desai, Mihir A., Ph.D., Mizuho Financial Group professor of 
  finance, and professor of law, Harvard University, Cambridge, 
  MA.............................................................     9
Merrill, Peter R., Ph.D., director, National Economics and 
  Statistics Group, PricewaterhouseCoopers, Washington, DC.......    11
Robinson, Leslie, Ph.D., associate professor of business 
  administration, Tuck School of Business, Dartmouth College, 
  Hanover, NH....................................................    13
Sloan, Allan, senior editor at large, Fortune magazine, New York, 
  NY.............................................................    14

               ALPHABETICAL LISTING AND APPENDIX MATERIAL

Desai, Mihir A., Ph.D.:
    Testimony....................................................     9
    Prepared statement...........................................    37
Hatch, Hon. Orrin G.:
    Opening statement............................................     3
    Prepared statement...........................................    40
Levin, Hon. Carl:
    Prepared statement...........................................    43
Merrill, Peter R., Ph.D.:
    Testimony....................................................    11
    Prepared statement...........................................    46
Robinson, Leslie, Ph.D.:
    Testimony....................................................    13
    Prepared statement...........................................    63
Saint-Amans, Pascal:
    Testimony....................................................     7
    Prepared statement...........................................    74
Sloan, Allan:
    Testimony....................................................    14
    Prepared statement with attachment...........................    81
Stack, Robert B.:
    Testimony....................................................     5
    Prepared statement...........................................    96
Thune, Hon. John:
    Prepared statement...........................................   101
Wyden, Hon. Ron:
    Opening statement............................................     1
    Prepared statement...........................................   102

                             Communications

American Citizens Abroad (ACA)...................................   105
The Babcock and Wilcox Company (B&W).............................   109
National Association of Manufacturers............................   111
National Retail Federation (NRF).................................   114
Public Citizen...................................................   115
Reforming America's Taxes Equitably (RATE) Coalition.............   121
Silicon Valley Tax Directors Group...............................   125
Steelcase Inc....................................................   131

 
                          THE U.S. TAX CODE:
                          
                    LOVE IT, LEAVE IT, OR REFORM IT

                              ----------                              


                         TUESDAY, JULY 22, 2014

                                       U.S. Senate,
                                      Committee on Finance,
                                                    Washington, DC.
    The hearing was convened, pursuant to notice, at 9:50 a.m., 
in room SD-215, Dirksen Senate Office Building, Hon. Ron Wyden 
(chairman of the committee) presiding.
    Present: Senators Schumer, Stabenow, Menendez, Cardin, 
Brown, Hatch, Grassley, Enzi, Thune, Burr, Portman, and Toomey.
    Also present: Democratic Staff: Michael Evans, General 
Counsel; Todd Metcalf, Chief Tax Counsel; Jocelyn Moore, Deputy 
Staff Director; and Joshua Sheinkman, Staff Director. 
Republican Staff: Chris Campbell, Staff Director; Tony 
Coughlan, Tax Counsel; Chris Hanna, Senior Advisor for Tax 
Reform; Jim Lyons, Tax Counsel; Shawn Novak, Senior Accountant 
and Tax Advisor; Mark Prater, Deputy Staff Director and Chief 
Tax Counsel; and Jeff Wrase, Chief Economist.

   OPENING STATEMENT OF HON. RON WYDEN, A U.S. SENATOR FROM 
             OREGON, CHAIRMAN, COMMITTEE ON FINANCE

    The Chairman. The Finance Committee will come to order.
    The U.S. tax code is infected with the chronic diseases of 
loopholes and inefficiency. These infections are hobbling 
America's drive to create more good-wage, red, white, and blue 
jobs here at home. They are a significant drag on our economy 
and are harming U.S. competitiveness. The latest outbreak of 
this contagion is the growing wave of corporate inversions, 
where American companies move their headquarters out of the 
United States in pursuit of lower tax rates.
    The inversion virus now seems to be multiplying every few 
days. Medtronic, Mylan, Mallinckrodt, and many more deals have 
either occurred recently or are currently in the works. 
Medtronic's proposed $42-billion merger with Covidien was 
record-breaking when it was announced in June. But the ink in 
the record book had barely dried when AbbVie announced its 
intention on Friday to acquire Shire for almost $55 billion.
    According to the July 15th edition of Marketplace, and I am 
going to quote here, ``What's going on now is a feeding frenzy. 
. . . Every investment banker now has a slide deck that they're 
taking to any possible company and saying, `You have to do a 
corporate inversion now because, if you don't, your competitors 
will.' ''
    The Congress has been aware of the inversion virus for a 
long time. In fact, it passed legislation purporting to solve 
the problem a decade ago. But the underlying sickness continues 
to gnaw away at our economy with increasing intensity.
    The American tax code is an anticompetitive mess. 
Accountants, lawyers, and fast-buck artists looking for tax 
shelters feed off it. This mess is driving American investment 
dollars overseas, and, according to the Joint Committee on 
Taxation,* it is costing American taxpayers billions.
---------------------------------------------------------------------------
    * For more information, see also, ``Present Law and Background 
Related to Proposals to Reform the Taxation of Income of Multinational 
Enterprises,'' Joint Committee on Taxation staff report, July 21, 2014 
(JCX-90-14), https://www.jct.gov/publications.html?func=startdown&
id=4656K.
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    On a bipartisan basis, the Finance Committee must respond 
now. First, let us work together, colleagues, to immediately 
cool down the inversion fever. The inversion loophole needs to 
be plugged now. Second, let us use the space created by these 
immediate steps to apply the indisputable, ultimate cure: 
comprehensive tax reform.
    Now, I have 9 long years of sweat equity in the cause of 
tax reform. With former Senator Gregg and current Senators 
Begich and Coats, we have produced what still is the Senate's 
only bipartisan Federal income tax overhaul in almost 30 years. 
Now, I would be the first to say that Senators here have 
differing views about how to go about enacting tax reform. Let 
us, however, recognize that what really counts is that the 
Finance Committee is not back here once again discussing 
inversions a decade from now.
    Comprehensive tax reform has to happen soon. The outbreak 
of inversions shows that, without curing the disease once and 
for all, the illness is going to keep plaguing the American 
economy. It is going to get tougher to create those good-wage, 
red, white, and blue American jobs. Our tax base is going to 
keep eroding. Cash piles trapped overseas will grow. Investment 
will be driven elsewhere.
    Now, the Finance Committee invited a number of CEOs from 
the inverting companies to join our discussion today. None 
accepted our invitation. I hope that these executives will soon 
change their minds and be willing to answer questions that 
Finance Committee members have about this issue.
    The fact is, without immediate comprehensive tax reform, an 
antidote to the inversion virus is needed now to protect the 
American economy. This wave of inversions may be good for 
shareholders and investment bankers and private equity firms, 
yet the barrage is bad for America. America's free enterprise 
system is at its best when there is a level playing field, and 
inversions bestow tax favors on some parties that further 
distort the free market.
    Absent tax reform being enacted immediately, colleagues, 
what happens if the inversion virus leads to 20 more inversions 
over this summer? Many inversions to this point have happened 
in the medical field, but the Wall Street Journal just reported 
that there is evidence of inversions spreading to manufacturing 
and retail.
    How many more infections can America's economic body 
endure? Global markets are expanding. Stockpiles of cash 
sitting overseas grow at record levels. Foreign competitors get 
more aggressive in chomping at the bit to get a deal on the 
backs of the American taxpayer. The time for action is now. Our 
committee needs to move on a bipartisan basis to close the 
loopholes that are fueling the growth of the inversion virus. 
Then the Finance Committee needs to cure the disease once and 
for all with comprehensive tax reform.
    I just want all colleagues to know that I am going to be 
working with each of you on a bipartisan basis to accomplish 
both of these tasks.
    [The prepared statement of Chairman Wyden appears in the 
appendix.]
    The Chairman. Let me recognize my colleague and friend, 
Senator Hatch.

           OPENING STATEMENT OF HON. ORRIN G. HATCH, 
                    A U.S. SENATOR FROM UTAH

    Senator Hatch. Thank you, Mr. Chairman.
    I appreciate you holding today's hearing. I think we can 
all agree that addressing the shortcomings of our international 
tax system is a critical step on the road toward comprehensive 
tax reform. And, as we consider reforms to our tax code, our 
primary goals should be to make the U.S. a better place to do 
business and to allow American companies to more effectively 
compete with their foreign counterparts in the world 
marketplace.
    Sadly, when it comes to our international tax system, much 
of the attention gets placed elsewhere. For example, in 2013 
the OECD launched its Base Erosion and Profit-Shifting, or 
BEPS, project. While we appreciate the OECD's efforts at 
bringing tax authorities together to discuss and work through 
issues, many of us have expressed concern that the BEPS project 
could be used by other countries as a way to increase taxes on 
American taxpayers.
    The issues under negotiation with the BEPS project are 
complex and can have far-reaching and negative consequences. 
And, while I think we should be willing to work through these 
issues until an international consensus is reached, we should 
not be rushed into accepting a bad deal just for the sake of 
reaching an agreement.
    I think we are right to expect that the Treasury Department 
will aggressively represent American employers and their 
workers in the BEPS negotiations, while responsibly consulting 
with Congress as the discussions proceed. Hopefully, in the 
end, the focus of these discussions will return to base erosion 
principals instead of ways foreign countries can raid the 
American Treasury or American businesses.
    Of course, while the BEPS negotiations are important, the 
most high-profile international tax issue today happens to be 
corporate inversions. It seems that almost every day we are 
hearing about a U.S. multinational opting to invert to a 
foreign jurisdiction. As I have said publicly on multiple 
occasions, I am greatly concerned about these corporate 
inversions. Ultimately, the best way to solve this problem will 
be to reform our corporate and international tax system in a 
manner that will make our multinationals competitive against 
their foreign counterparts. That will mean, among other things, 
a significant reduction in the corporate tax rate and major 
changes to make our international tax system more competitive.
    Over the past few months, we have seen a handful of 
legislative proposals to address the issue of inversions. Most 
of them are punitive and retroactive. Rather than incentivizing 
American companies to remain in the U.S., these bills would 
build walls around U.S. corporations in order to keep them from 
inverting. I think that is not only stupid, I think it is going 
to result in consequences that nobody wants.
    This approach, in my view, completely misses the mark. 
While it may put a stop to traditional inversions, it could 
actually lead to more reverse acquisition inversions, as our 
U.S. multinationals would under this approach become more 
attractive acquisition targets for foreign corporations. 
Whether it is traditional corporate acquisition inversion or a 
reverse acquisition inversion, the result is the same: 
continued stripping of the U.S. tax base.
    In fact, the approach in the proposed anti-inversion 
legislation is so misguided it reminds me of an old joke. A 
drunk is looking for something under a street light. A police 
officer walks up to him and asks what is he looking for. The 
drunk says, ``My keys.'' The police officer helps the drunk 
look for a few minutes without success and finally asks, ``Did 
you lose your keys here?'' The drunk says, ``No, I lost them 
across the street.'' The officer responds, ``Then why are you 
looking for them on this side of the street?'' The drunk 
replies, ``Because the light is better over here.''
    Once again, the ultimate answer to this problem--and the 
only way to completely address the issue of inversions--is to 
reform our tax code. However, as I have also said publicly, 
there may be steps that Congress can take to at least partially 
address this issue in the interim. And, while I do not support 
the anti-inversion bills we have seen thus far, I personally am 
open to considering alternative approaches, although I do have 
a few stipulations as to what proposals I will consider.
    For example, whatever approach we take, it should not be 
retroactive or punitive, and it should be revenue-neutral. Our 
approach should move us toward or at last not away from a 
territorial tax system and should not enhance the bias to 
foreign acquisitions. Most importantly, it should not impede 
our overall progress toward comprehensive tax reform. Toward 
that end, it should not be inconsistent with our House 
colleagues' approach.
    I think there is a growing chorus out there among some of 
my friends on the other side of the aisle to use corporate 
inversions as a political wedge issue in this election year. In 
fact, I was recently the recipient of a very politically toned 
letter from Treasury Secretary Lew on this issue. I hope that 
is not the direction we take. If we actually want to accomplish 
something on this issue, we are going to have to work together.
    As you can see, Mr. Chairman, we have a lot to discuss 
today.
    I want to thank you for holding this important hearing, and 
I look forward to hearing from this very distinguished panel.
    The Chairman. Thank you very much, Senator Hatch.
    [The prepared statement of Senator Hatch appears in the 
appendix.]
    The Chairman. Let me just reiterate that I am very much 
interested in working with you and our colleagues on both sides 
of the aisle to address both of these issues: the immediate 
challenge we are facing with this growing inversion virus and 
then, of course, the ultimate cure, which is comprehensive tax 
reform. So I look forward to working with you and our 
colleagues.
    We now have six witnesses. Our first witness is Mr. Robert 
Stack, who is the Deputy Assistant Secretary for International 
Tax Affairs at the Treasury Department.
    Our next witness will be Mr. Pascal Saint-Amans, director 
of the Centre for Tax Policy and Administration at the 
Organisation for Economic Co-operation and Development.
    Our third witness will be Dr. Mihir A. Desai, who is 
professor of finance at Harvard Business School and a professor 
of law at Harvard.
    Our fourth witness will be Dr. Peter Merrill, who is the 
director of the National Economics and Statistics Group at 
PricewaterhouseCoopers.
    Our fifth witness will be Dr. Leslie Robinson, who is an 
associate professor of business administration at the Tuck 
School of Business at Dartmouth.
    Our final witness will be Mr. Allan Sloan, who is the 
senior editor at large for Fortune magazine.
    Our thanks to all of you for coming. It is our custom that 
your prepared statements will be made a part of the hearing 
record in their entirety, and, if you could use your 5 minutes 
to summarize, that would be very helpful.
    I know Senators have many questions. We are going to have 
some votes at 10:45. So this is going to be a bit of a juggling 
act, and we will try to handle this as well as the chaotic 
Senate schedule allows.
    So, Mr. Stack, welcome.

 STATEMENT OF ROBERT B. STACK, DEPUTY ASSISTANT SECRETARY FOR 
    INTERNATIONAL TAX AFFAIRS, DEPARTMENT OF THE TREASURY, 
                         WASHINGTON, DC

    Mr. Stack. Thank you, Chairman Wyden, Ranking Member Hatch, 
and distinguished members of the committee. I appreciate the 
opportunity to appear today to discuss these important 
international tax issues to which your committee has already 
devoted substantial effort.
    I would like to begin by describing the work we are doing 
in the G-20/OECD Base Erosion and Profit-Shifting, or BEPS, 
project and then link that discussion to a consideration of the 
need for international tax reform, as well as measures outlined 
in the administration's fiscal year 2015 budget proposals to 
address U.S. base stripping, including through so-called 
inversion transactions.
    In June 2012, at the G-20 Summit in Las Cabos, Mexico, the 
leaders of the world's largest economies identified as a 
significant concern the ability of multinational companies to 
reduce their tax bills in high-tax countries by shifting income 
into low- and no-tax jurisdictions. The result was the G-20/
OECD BEPS project and the BEPS action plan endorsed by G-20 
leaders last September in Saint Petersburg.
    The BEPS action plan outlines 15 specific areas where 
governments need to work to change the tax rules that encourage 
companies to shift their income at the expense of the global 
tax base and our own tax base. The BEPS project is expected to 
release its first set of recommendations this fall and is set 
to conclude its work with final recommendations at the end of 
2015.
    The United States has a great deal at stake in the BEPS 
project and a strong interest in its success. Our active 
participation is crucial to protecting our own tax base from 
stripping by multinational companies. Because the United States 
provides a foreign tax credit to U.S. companies for taxes they 
pay overseas, the United States also has a strong interest in 
rules that enjoy a broad international consensus. In addition, 
as home of some of the world's most successful and vibrant 
multinationals, we have a stake in ensuring that companies and 
countries play by tax rules that are clear and administrable 
and that companies can avoid unrelieved double taxation, as 
well as time-consuming, expensive tax disputes. Failure in the 
BEPS project could well result in countries taking unilateral, 
inconsistent actions, thereby increasing double taxation, the 
cost to the Treasury, and the number and expense of tax 
disputes.
    I am happy to report that the OECD BEPS project has had a 
promising beginning, and there are areas where commendable work 
is being done to resolve gaps in existing international rules. 
I have outlined those areas in my written submission. As the 
work moves into 2015, there is more that can be achieved and, 
also, several areas where we must guard against bad outcomes. 
And echoing Senator Hatch, those bad outcomes would include 
international norms that increase tax disputes because they are 
vague and easily manipulated by tax authorities, or 
international norms that could erode the U.S. tax base or 
increase double taxation.
    The United States needs to remain deeply engaged in moving 
the BEPS project to a successful conclusion between now and the 
end of 2015. While the international discussions over BEPS are 
ongoing, it is worth acknowledging steps the United States 
could take today to reform our own tax system to improve 
competitiveness, secure our tax base, and reduce incentives for 
profit-shifting by U.S. firms.
    As the President has proposed, we should reform our 
business tax system by reducing the rate, broadening the base, 
and imposing a minimum tax on foreign earnings. But such reform 
would only be a start, because, even with lower U.S. rates, 
U.S. multinationals would continue to aggressively seek ways to 
lower their tax bills by shifting income out of the United 
States.
    So what tools do we have at our disposal? The 
administration's fiscal year 2015 budget contains a series of 
common-sense proposals to protect our U.S. tax base which can 
be enacted as part of reform or in the context of our current 
system. They are outlined in some detail in our budget and in 
my written testimony, but let me highlight just two here.
    One proposal would strengthen our interest-stripping rules 
and level the playing field by limiting the ability of U.S. 
subsidiaries of a foreign multinational to deduct a 
disproportionate amount of the group's global interest expense 
to the United States. It is especially disconcerting to observe 
that among the foreign multinationals that can most 
aggressively take advantage of the deficiencies in our 
interest-stripping rules are so-called inverted companies--that 
is, 
foreign-parented companies that were previously U.S.-parented.
    A second proposal in our budget would deal with inversions. 
As underscored by Secretary Lew's July 15th letter to Congress, 
I want to emphasize the serious need for the United States to 
directly address the potential loss of Federal tax revenue from 
corporate inversion transactions and the need to enact our 
budget proposal or a similar one aimed at curbing them.
    Once companies invert, there is a permanent loss to the 
U.S. income tax base, since it is safe to assume these 
companies are not coming back to the United States. These 
inversion transactions are on the increase and, indeed, we are 
aware of many more inversions in the works right now. Letting 
our corporate tax base erode through inversions will worsen our 
fiscal challenges over the coming years and will reward 
countries that practice race-to-the-bottom tax competition in 
an effort to lure away our large U.S. multinationals.
    As the Secretary indicated in his June 15 letter, Congress 
should pass anti-inversion legislation immediately with an 
effective date of May 2014.
    Thank you for the opportunity to speak to you today. I look 
forward to answering your questions.
    The Chairman. Thank you very much, Mr. Stack. That is very 
helpful.
    [The prepared statement of Mr. Stack appears in the 
appendix.]
    The Chairman. Our next witness will be Mr. Pascal Saint-
Amans. We welcome you.

   STATEMENT OF PASCAL SAINT-AMANS, DIRECTOR, CENTRE FOR TAX 
    POLICY AND ADMINISTRATION, ORGANISATION FOR ECONOMIC CO-
            OPERATION AND DEVELOPMENT, PARIS, FRANCE

    Mr. Saint-Amans. Thank you, Mr. Chairman. Chairman Wyden, 
Ranking Member Hatch, distinguished members of the committee, 
thank you for the opportunity to testify today here.
    The OECD was founded in the aftermath of World War II under 
the leadership of the United States. It is a country-driven 
organization with 34 countries, the U.S. being the largest 
member and playing a key role, and it works by consensus. It 
does a lot of work on tax, and in the tax area we do consult 
extensively.
    On the project related to Base Erosion and Profit-Shifting, 
we have consulted civil society, businesses, all stakeholders. 
In this project, we have issued a number of discussion drafts. 
More than 3,500 pages of comments have been received and have 
been taken into account. We have conducted five public 
consultations, as well as webcasts which have been looked at by 
more than 10,000 viewers.
    In the area of tax, the OECD facilitates cooperation in tax 
administration between its member countries to eliminate double 
taxation. As you know, taxation is at the core of countries' 
sovereignty, and each country is free to set up its corporate 
tax system the way it chooses, but, as a result, there are 
risks of double taxation which are not conducive to cross-
border investment.
    Since the 1920s, a common set of standards has been agreed 
to, and the OECD has abated this work since the 1950s. In 
particular, we have come up with a model tax convention and 
transfer-pricing guidelines. These rules have worked well, but 
they have also not kept pace with the economic changes and 
globalization. As a result, they have been good at eliminating 
double taxation, but they have also facilitated unintended 
double non-taxation. This is an issue for most governments 
across the world for many reasons.
    Low taxation in itself is not a problem. On the contrary, 
the OECD favors low corporate tax, low rates, and broad bases. 
But this is an issue because, as long as countries decide to 
have a corporate income tax, the corporate income tax needs to 
be paid by all taxpayers. And there is a need now to, one, make 
sure that the rules make sense. The current rules are no longer 
adapted to globalization, and there is the gain through 
artificial settings.
    There is a divorce now between the location of the activity 
and the location of the profits, which can be booked in a 
jurisdiction where absolutely nothing is happening. As a 
result, the sovereign right of countries is undermined. This is 
a global issue; this is not an issue targeted to U.S. 
companies. U.S. companies only account for less than a quarter 
of the Fortune Global 500 companies. So it is a global issue 
concerning U.S. and non-U.S. companies.
    Second, there is a need to level the playing field. An 
uneven playing field between companies is not conducive to the 
right location of capital. Companies operating at the domestic 
level are at a competitive disadvantage because they cannot use 
the loopholes in the international tax framework.
    Three, there is a need to reduce uncertainty. Uncertainty 
is bad for companies, it is bad for the investment climate, and 
there is increased uncertainty because these rules do not make 
a lot of sense.
    A number of tax administrations are trying to dispute the 
position of companies that are legal. The tax administrations 
are frustrated, and a number of countries are walking away from 
the consensus, from the common interpretation of the rules, and 
that results in uncoordinated unilateral measures to protect 
their tax base, but that increases uncertainty. Therefore, we 
need to address these serious risks for businesses.
    The response from governments has taken place in the 
context of the G-20, which has been called on to address the 
issue of Base Erosion and Profit-Shifting. We have brought all 
the G-20 and the OECD countries onto an equal footing to find 
ways to address this issue of the tax framework by consensus in 
2 years' time so that principles can be agreed upon quickly to 
reduce the risk of uncertainty. We need a principled approach 
and a cost-effective approach to limit the compliance burden 
for companies and to reduce controversy.
    This is not a revenue-grabbing exercise and should not be a 

revenue-grabbing exercise, but a useful consensual exercise for 
the common principles to be more accepted by ensuring 
consistency in the cross-border environment, increasing 
substance requirements, and promoting transparency. The 
objectives are to secure the consensus and, therefore, reduce 
uncertainty and improve the way we can solve disputes.
    We have come up with an action plan of 15 measures which 
are described in my written testimony. Some of them are about 
neutralizing hybrid mismatches, reducing the abuse of tax 
treaties, or improving transfer-pricing rules.
    As a conclusion, I would say that the issue of Base Erosion 
and Profit-Shifting is widely shared across countries, and, 
here in the U.S. in particular, we are aware that you are 
planning to address the U.S. tax system, and we hope that the 
work we are doing at the international level, with your support 
and the engagement of the U.S. Treasury, can be useful to 
promote growth and jobs here in the U.S. by fixing some of the 
issues of the U.S. tax system. The work of the OECD in that 
context, we hope, is particularly timely, and we hope that it 
will inform your debate.
    We, of course, are fully available to respond to your 
questions and further assist you.
    The Chairman. Thank you, Mr. Saint-Amans.
    [The prepared statement of Mr. Saint-Amans appears in the 
appendix.]
    The Chairman. Let us now go to Dr. Desai. Welcome.

  STATEMENT OF MIHIR A. DESAI, Ph.D., MIZUHO FINANCIAL GROUP 
PROFESSOR OF FINANCE, AND PROFESSOR OF LAW, HARVARD UNIVERSITY, 
                         CAMBRIDGE, MA

    Dr. Desai. Thank you. Chairman Wyden, Ranking Member Hatch, 
and members of the committee, it is a pleasure to appear before 
you today to discuss international tax reform. I am a professor 
of finance at Harvard Business School and a professor of law at 
Harvard Law School.
    Recent merger transactions highlight long-simmering 
problems in the U.S. corporate tax code, particularly with 
respect to its international provisions. My comments attempt to 
outline briefly the origins of these transactions, the range of 
alternative solutions, guidelines for evaluating alternative 
reforms, and some reforms that should be avoided.
    The last 12 months have witnessed a remarkable wave of 
merger transactions that facilitate the expatriation of U.S. 
corporations. Such transactions reflect the effects of policies 
and of the changing structure of multinational firms. From a 
policy perspective, the transactions highlight the increasing 
costs of employing a worldwide tax regime, when most other 
large capital-exporting countries no longer maintain such 
regimes, and a corporate tax rate that stands well above rates 
employed by other OECD countries. From a firm point of view, 
the transactions highlight the increased mobility of activity 
in today's economy, the growing de-centering of firms whereby 
headquarter locations have been split up and reallocated around 
the world, and the growing importance of non-U.S. markets for 
U.S. firms. Rather than questioning the loyalties of 
executives, it is critical to understand these underlying 
structural and secular forces.
    While these transactions naturally attract growing 
attention, inversions are merely the most visible manifestation 
of these developments. In addition to inversions, these forces 
are giving rise to incorporation decisions by entrepreneurs 
that anticipate the burdens of being a U.S. corporation, merger 
patterns that reflect the penalties of being domiciled in the 
United States and the importance of offshore cash for U.S. 
corporations, investment patterns by U.S. and foreign companies 
and profit-shifting activities that are not value-creating, and 
the consequent negative impact of all of these distortions on 
the U.S. labor force.
    While it is tempting to limit attention to the more 
sensational effects and characterize them as tax-avoiding 
paper-shuffling, this would effectively be missing the forest 
for the trees. Reforms should be focused exclusively on 
advancing U.S. welfare, with particular attention on reforms 
that will improve American wages. These goals are mistakenly 
thought to be achieved by limiting the foreign activities of 
U.S. firms, as foreign activities can be viewed as diverting 
economic activity away from the U.S.
    In fact, the evidence suggests the opposite. As firms 
expand globally, they also expand domestically. Indeed, 
American welfare can be advanced by ensuring that investments 
in the U.S. and abroad are owned by the most productive owner 
and that American firms flourish abroad, a goal advanced by the 
territorial regime that has now been adopted by most comparable 
countries.
    While the developments described above have crystallized 
the case for international tax reform, with an increasing 
attention on switching to a territorial regime, there is still 
tremendous variation in proposals for territorial regimes. Some 
proposals, including those with an alternative minimum tax on 
foreign profits, are tantamount to a back-door worldwide regime 
with even more complexity than today's system.
    Revenue consideration should figure largely in tax reform 
today, but should be accorded secondary status in this setting 
given the very limited revenue provided by current 
international tax rules and the remarkable complexity and 
distortions required to secure any such revenue. Additionally, 
it is not clear that policies should prioritize revenue 
considerations in other countries.
    More broadly, the corporate tax is ripe for reform. In 
addition to international reforms and a rate reduction, reform 
should address the two other major developments in the 
corporate tax arena: the growing prominence of non-C corporate 
business income and the disjunction between profits reported to 
capital markets and to tax authorities.
    A useful blueprint for reform would include moving to a 
territorial regime, unencumbered by excessive complexity; 
considerably lower rates in the range of 18 percent to 20 
percent; better alignment of book and tax reporting of 
corporate profits; and by some taxation of non-C corporation 
business income. This combination of reforms has the potential 
of addressing significant changes in the global economy in a 
revenue-neutral way that will advance U.S. welfare. More 
fundamental reforms, including those that replace the corporate 
tax with a consumption tax are preferred, if feasible.
    Legislation that is narrowly focused on preventing 
inversions or specific transactions runs the risk of being 
counterproductive. These transactions are nested in a broader 
set of corporate decisions leading to several unintended 
consequences.
    For example, rules that increase the required size of a 
foreign target to ensure the tax benefits of an inversion can 
deter these transactions, but can also lead to more substantive 
transactions. More substantive transactions are likely to 
involve the loss of U.S. activity as American firms will be 
paired with larger foreign acquirers that demand the relocation 
of more activity abroad, including headquarters functions. 
Similarly, specific regulations targeted at inverting firms may 
also lead to foreign firms leading some transactions to avoid 
those regulations.
    While it is tempting to address specific transactions in 
advance or in lieu of broader reform, it is useful to recall 
that the last wave of anti-inversion legislation likely spurred 
these more significant recent transactions and reduced the 
prospect of reform in these intervening years.
    Members of the committee, I admire your foresight in 
addressing these issues. These highly visible manifestations of 
the structural problems in the corporate tax provide a 
significant opportunity for genuine reform.
    I would be delighted to answer any questions.
    The Chairman. Thank you very much, Professor.
    [The prepared statement of Dr. Desai appears in the 
appendix.]
    The Chairman. We now welcome Dr. Peter Merrill and look 
forward to your comments.

   STATEMENT OF PETER R. MERRILL, Ph.D., DIRECTOR, NATIONAL 
    ECONOMICS AND STATISTICS GROUP, PRICEWATERHOUSECOOPERS, 
                         WASHINGTON, DC

    Dr. Merrill. Chairman Wyden, Ranking Member Hatch, members 
of the committee, thank you for the opportunity to testify 
today.
    My name is Peter Merrill. I am a principal with 
PricewaterhouseCoopers. I hold a Ph.D. in economics. The focus 
of my practice is economic effects of tax policy. I am 
appearing today on my own behalf. The views I express are my 
own.
    I have been asked to compare how the U.S. rules for tax on 
international income compare with the rules of other countries. 
In my testimony, I will focus on two features of the U.S. 
corporate tax system that fall far outside international norms: 
the high corporate rate and the worldwide system of taxation. 
These features of the U.S. tax system make it more difficult 
for U.S. companies to compete in global markets.
    U.S. multinationals face ever-growing competition from 
abroad. Over the last 15 years, the number of U.S. companies in 
the Forbes Global Top 500 list has dropped by a third from 200 
to 135. Loss of global market share by U.S. companies is due to 
a variety of factors. The out-of-step U.S. tax system is seen 
by many as a hindrance rather than a help.
    The top U.S. corporate statutory rate, including State tax, 
is 39.1 percent. This is the highest rate among major 
economies, more than 14 points above the average for the other 
OECD countries, and almost 10 points higher than the average 
for the other G-7 countries.
    After the Tax Reform Act of 1986, the U.S. had a relatively 
low corporate tax rate. However, since then, the other OECD 
countries have reduced their rates by a collective average of 
19 points, while the U.S. Federal corporate tax rate was 
increased in 1993 to 35 percent, where it has remained since. 
And, while it is widely recognized that our statutory corporate 
tax rate is high, studies show our effective tax rate also is 
high by international standards.
    In addition, the U.S. has a worldwide system under which 
foreign income earned by foreign subsidiaries of U.S. companies 
is subject to U.S. tax when received by the U.S. parent. Unlike 
the United States, all other G-7 countries and 28 of the other 
33 OECD countries have adopted territorial tax systems.
    As a result of these trends, U.S. multinationals 
increasingly face foreign competitors that are taxed under 
territorial systems. Within the OECD, 93 percent of the foreign 
competitors on the Global Top 500 list were based in countries 
that use territorial tax structures. The significance of this 
is that foreign competitors of U.S. multinationals can invest 
their foreign profits at home without an added home country 
tax.
    Turning to recent reforms, in 2009, three OECD countries 
adopted territorial tax systems: the U.K., Japan, and New 
Zealand. The U.K. adoption of a territorial system was the 
first step in a multiyear reform package which also included 
lowering the corporate income tax rate from 28 percent to 21, 
with a further reduction to 20 percent scheduled next year.
    The British government articulated the rationale for these 
reforms as follows, quote: ``The government wants to send out 
the signal loud and clear that Britain is open for business. In 
recent years, too many businesses have left the U.K. amid 
concerns about tax competitiveness. It's time to reverse this 
trend. That is why the government is prioritizing corporate tax 
reform.''
    Japan's adoption of a 95-percent dividend exemption system 
had been advocated by the Ministry of Economy, Trade, and 
Industry to encourage a repatriation of foreign earnings. In 
addition, since 2012, Japan's combined corporate tax rate has 
been cut 5 points to 35.6 percent, and Prime Minister Abe's 
cabinet has recently approved a phased reduction to below 30 
percent.
    Also in 2009, New Zealand switched back to a territorial 
tax system after a 21-year period in which it had operated 
under a worldwide system without deferral, thereby bringing New 
Zealand's tax system back in alignment with international 
norms.
    In closing, the combination of our high corporate rate and 
worldwide system creates an incentive for U.S. multinationals 
to reinvest foreign earnings outside the United States. 
According to a recent study co-authored by Laura D'Andrea 
Tyson, former chair of President Clinton's Council of Economic 
Advisers, switching to a territorial system, even without 
reducing the U.S. tax rate, would, on an ongoing basis, 
increase annual repatriations by over $100 billion a year and 
create 150,000 new jobs per year.
    Reforming the U.S. system to align with international norms 
would enhance the ability of U.S. companies to compete abroad 
and create jobs at home.
    Thank you, and I would be happy to answer questions.
    The Chairman. Dr. Merrill, thank you very much.
    [The prepared statement of Dr. Merrill appears in the 
appendix.]
    The Chairman. Dr. Robinson?

  STATEMENT OF LESLIE ROBINSON, Ph.D., ASSOCIATE PROFESSOR OF 
  BUSINESS ADMINISTRATION, TUCK SCHOOL OF BUSINESS, DARTMOUTH 
                      COLLEGE, HANOVER, NH

    Dr. Robinson. Chairman Wyden, Ranking Member Hatch, and 
distinguished members of the committee, it is an honor to 
appear today to testify on the important topic of international 
corporate taxation.
    I am an associate professor at the Tuck School of Business 
at Dartmouth College. I teach financial accounting and 
taxation, and my research centers on multinational 
corporations.
    It is clear that reform is needed. The international system 
is one of the most technically complex areas of the U.S. tax 
code, but raises little revenue. My testimony summarizes, in my 
view, what the academic literatures in economics, finance, and 
accounting collectively offer in terms of evaluating the range 
of alternative solutions.
    The top U.S. Federal corporate income tax rate is 35 
percent. This is the highest rate of all OECD countries and far 
exceeds the 23.5-percent average.
    Proponents of adopting a territorial system in the U.S. 
often cite competitiveness issues. A common assertion is that 
U.S. firms are at a competitive disadvantage because they face 
larger tax burdens operating under a worldwide system than 
their competitors operating under territorial systems. 
Generally speaking, this is because U.S. firms face a high home 
country tax on foreign profits, whereas their competitors face 
no home country tax on foreign profits.
    Yet, no country operates either a pure worldwide or a pure 
territorial system. When loopholes exist that facilitate the 
indefinite deferral of the home country tax on foreign profits 
under a worldwide system, the pendulum swings back to a pure 
territorial system. Likewise, as eligibility for the foreign 
dividend exemption under a territorial system is appropriately 
restricted, the pendulum swings back to a pure worldwide 
system. This means it is possible for a well-designed 
territorial system to be at least as, if not more, burdensome 
than the poorly designed U.S. worldwide system that we have 
today.
    Evidence suggests that U.S. firms are adept at indefinite 
deferral. One study finds that financially unconstrained U.S. 
firms shift as much income as firms operating under territorial 
systems. Also, there is no evidence that the global tax burden 
of a firm depends on how foreign profits are taxed in the home 
country of its parent.
    There is some evidence that certain location decisions 
differentially impact firms' global tax burdens depending on 
the home country. For example, a firm resident in home country 
X realizes a larger reduction in its global tax burden by 
operating in source country A than a firm resident in home 
country Y, also operating in source country A, whereas the 
opposite may be true for these two firms when operating in 
source country B. This suggests that the burden of an 
international tax system depends significantly on anti-abuse 
provisions that selectively narrow or broaden the tax base with 
respect to certain types of income earned in specific locations 
rather than whether the tax system is worldwide versus 
territorial.
    Similarly, other research shows that decisions about 
headquarter relocations, tax haven operations, and ownership 
structures depend on the existence and strength of anti-abuse 
legislation. Maintaining our current worldwide system with 
deferral, or introducing a territorial system, leaves the need 
for anti-abuse provisions that are difficult to administer and 
enforce.
    Another consideration is eliminating implicit costs. 
Avoiding repatriation, which triggers the home country tax on 
foreign profits under our current system, prompts firms to 
allocate economic resources in an inefficient manner. Examples 
include making value-decreasing foreign acquisitions or the 
inability to respond to domestic investment opportunities. 
Maintaining a worldwide system but eliminating deferral would 
greatly reduce these costs. Adopting a territorial system may 
not.
    Firms operating under territorial systems face implicit 
costs when attempting to circumvent anti-abuse legislation, 
which serves as a backstop that otherwise imposes a home 
country tax on foreign profits that have not been subject to a 
robust tax system abroad. To my knowledge, there is no estimate 
of these costs, but my expectation is that they would be 
greater than under a worldwide system without deferral.
    My overall assessment is that our international tax system 
can be adequately reformed. We need not entirely abandon our 
current system in favor of a fundamentally different system. 
Limiting deferral and lowering the statutory rate would 
generally reduce incentives to shift income, eliminate the 
implicit costs of avoiding repatriation, and reduce complexity 
and uncertainty for firms.
    Thank you, and I would be happy to answer any questions.
    The Chairman. Dr. Robinson, thank you.
    [The prepared statement of Dr. Robinson appears in the 
appendix.]
    The Chairman. Our final witness is Mr. Allan Sloan.

   STATEMENT OF ALLAN SLOAN, SENIOR EDITOR AT LARGE, FORTUNE 
                     MAGAZINE, NEW YORK, NY

    Mr. Sloan. Chairman Wyden, Ranking Member Hatch, members of 
the committee, I am flattered to be here, and I am honored and 
especially pleased to be hitting cleanup, which is my normal 
role in journalism.
    Before I proceed, I have to say that I am speaking for 
myself alone. I am not speaking for Fortune magazine, my 
employer. I am not speaking for Fortune's owner, Time, Inc. I 
am not speaking for the Washington Post, which has run my 
material for more than 20 years.
    I, like Senator Hatch, am appalled to see that inversions 
are becoming a partisan wedge issue. I do not like this. Now, 
at Fortune several weeks ago, we put an American flag on the 
cover. We called inversion positively un-American, but we were 
not being partisan. We were being Americans.
    Fortune is divided between Republicans and Democrats. We 
are acting collectively, not in the social sense, but in the 
societal sense. This is not a Republican problem. It is not a 
Democratic problem. It is a problem for everybody. It is for 
all of us. And, if you do not stop inversions now with some 
sort of band-aid, by the time you get around to doing it, there 
will be tens of billions of dollars of taxes that will have 
been lost and will never be recovered.
    Now, I have been writing about inversions and researching 
them for months, and I have heard the argument that, well, 
inversions are a symptom; you cannot deal with them unless you 
deal with the whole problem, and, if you deal with the whole 
problem, you deal with inversions.
    Well, I happen to have a daughter who is an emergency room 
doctor, and, when someone shows up at the ER bleeding, the 
first thing they do is they put on a tourniquet, they stabilize 
the patient, and then they try to deal with the underlying 
problem. They do not say, ``Well, gee, we have to deal with the 
underlying problem first.''
    You have an emergency here. It may not seem that way, but 
you have the beginning of, I think, a massive flood of 
inversions unless you stop this. Now, I know very little about 
tax, I know very little about law, but I do know something 
about Wall Street and manias. And I look at this, this 
inversion thing, and it reminds me of the dot-com bubble, where 
people did things that were just crazy, but everyone was doing 
them. And all these people with degrees and a lot of money and 
fancy suits were whispering in your ear, ``Well, you have to do 
this,'' so people did it, and it was just a disaster.
    I have written about Wall Street for large parts of my 
career, and they gave us the Internet bubble, they gave us 
toxic sub-prime securities, and now they are giving us 
inversions. It is a product. It is the latest thing that is 
good for Wall Street.
    There is this whole rationale that surrounds it, but I do 
not think it is good for society. It just does not work. And I 
do not pretend to understand anything about the international 
tax system, except that I do not understand it. I am a simple 
person; I am a recovering English major; I am not a legal 
person. I mean, if I were you--which will probably never 
happen, because you have to be nice to people, and I do not do 
that well--I would adopt one of the Levin bills. And Sandy 
Levin will probably be angry with me, but I would adopt the 
Carl Levin version, the one that has an expiration in it, 
because, if you can just stop these things for a while, you can 
buy time to fix the system. If you sit around and say, ``Well, 
in a few years we will do this, it will all be fine,'' by then, 
the patient will have lost so much blood, it is going to be 
very, very hard to do anything remotely revenue-neutral in a 
tax reform.
    The other complaint, again, I have heard endlessly is, oh, 
it is so unfair to make this May 8th, which is the date in the 
Levin transaction, which also, I believe, happens to be the 
date that Senator Wyden published his op-ed in the Wall Street 
Journal, which messed me up because he wrote what I was going 
to write. So I was furious, but I came here anyway. [Laughter.]
    So the May 8th deadline was known. If you look at the 
contracts of some of these deals, there are provisions in there 
in case the anti-inversion stuff changes. So it is not as if 
this is unprecedented or unfair. I mean, everybody knows this. 
You changed the rules retroactively in 2004, and, as best I 
could tell, there were no earthquakes or brimstone or fire from 
the sky.
    So, please, if you can act like Americans, which I know you 
can, instead of squabbling, and you get the Senate to go along 
and deal with the House, we can put on the tourniquet, we can 
stop the patient from bleeding out, then we can fix the system, 
and that is what I hope you will do.
    Thank you for your time. I am happy to answer any 
questions.
    The Chairman. Mr. Sloan, thank you.
    [The prepared statement of Mr. Sloan appears in the 
appendix.]
    The Chairman. Colleagues, we will stick to 5 minute rounds, 
and we will get as many members in as we can.
    I am going to ask one question of all of you. I am going to 
start with you, Mr. Stack.
    I have been about as big a flag-waver for comprehensive tax 
reform as anybody around here, and I am going to continue to 
keep pushing for bipartisan tax reform as aggressively as 
possible. The reality is, nobody believes that you can get 
comprehensive tax reform passed this year. And, with the 
investment bankers in that inversion feeding frenzy, there may 
be 25 more inversions during that time.
    So I am just going to go down the row here this morning and 
ask each of you: will that be a bad thing for America?
    Mr. Stack?
    Mr. Stack. Yes, Senator. That is a bad thing for America. 
That money is not just a one-time hit. That is a hit we take 
the year a company inverts, and it is a cost we incur 
throughout the 10 years of a budget window.
    In addition, I just want to add, companies not only reduce 
their U.S. tax bill on day 1 when they invert, but they also 
adopt techniques to keep stripping out of the U.S. for each of 
the next 10 years as well. So we get hit with a double-whammy. 
It has a long-term effect. It is permanent. And so the cost of 
waiting, I think, is very high.
    The Chairman. Mr. Saint-Amans?
    Mr. Saint-Amans. I also think it is bad. It is a symptom 
of, indeed, a disease. Either you trap cash growth, which 
compels these companies to reinvest in the U.S.--and I think 
that is one of the challenges of the U.S. tax code today--or 
the result is inversions, meaning that you lose the control of 
these companies which invert in another country, and that is a 
loss for the U.S.
    So overall it is bad, and it is a symptom of an issue in 
the tax code.
    The Chairman. Dr. Desai?
    Dr. Desai. I think in the short run, it will feel good to 
do something. I think in the long run, it is not clear whether 
it will help the country, and I think the reason for that is it 
will have all these unintended consequences.
    I think there are a lot of medical analogies that are being 
thrown around today, which I think are helpful. Rather than a 
tourniquet, we might have a bleeding patient, and these things 
might just anesthetize the patient.
    The Chairman. So I think I am going to take that as a 
``no.''
    Dr. Merrill?
    Dr. Merrill. On this one, I very much agree with the 
comments of Pascal, which is that these transactions are a 
symptom of a very broken system.
    Certainly I can understand the desire to put on the 
tourniquet, but, if you leave it on too long without resolving 
the underlying problem, you get gangrene. So I can understand 
the desire to do something in the short term, but there is the 
risk of unintended consequences. So fixing the system is 
ultimately the only real answer to stop the problem.
    The Chairman. So you are in the middle of all this. We will 
put you down in that way.
    My concern about that position, for both of you, is that 
tax reform is moving slowly, but inversions are moving rapidly. 
And that is a prescription for chaos, and that is why I want to 
see us address both of the issues in a bipartisan way.
    Dr. Robinson?
    Dr. Robinson. I do not have any data on this, but I do 
remember reading about inversions, companies leaving other 
countries, such as the U.K., and then, when the tax system is 
reformed, they have come back again. So I do not have any data 
on that, but my sense is that these companies may not be lost 
forever.
    I also think, as far as I understand inversion 
transactions, it only affects the tax on the future income. It 
does not impact the tax on the accumulated earnings. So, in 
that respect, I do not think we run the risk of waiting to 
solve the real problem and sort of letting the markets play out 
as they do.
    The Chairman. You think it would be a bad thing.
    Mr. Sloan?
    Mr. Sloan. I think letting 25 companies invert and then 
fixing the tax code is a recipe for disaster. I know a little 
bit about how inversion works, and Mr. Stack is absolutely 
right that the problem is not so much what happens to foreign 
profits, but that it becomes much, much easier to move money, 
to earnings-strip out of the United States, and you have to 
stop this.
    And, at some point when we are not on the clock, I will 
bandy medical analogies with my colleagues, but this is not the 
time. So I will just let that go, and we will deal with that 
later.
    The Chairman. Let me see if I can get one other question 
in, and I will make this for you, Dr. Desai, given what you 
said.
    Let us take Walgreen's. Walgreen's is an American icon. It 
is located in the heart of our country, and they are talking 
about inverting right now.
    Should Americans be concerned about the prospect that, if 
Walgreen's inverts, they will strip profits out of the United 
States and put them into tax havens? Is that something 
Americans ought to be concerned about?
    Dr. Desai. Without question, absolutely. There is no 
question about that. The secondary question is, what we do 
about it, but absolutely we should be concerned about that.
    The Chairman. Very good.
    Senator Hatch?
    Senator Hatch. Thank you, Mr. Chairman.
    This question is for Dr. Robinson and Dr. Merrill.
    Dr. Robinson, in your written testimony, you write that, 
quote, ``There is no evidence to support the assertion that 
U.S. multinational corporations are at a competitive 
disadvantage because they face larger corporate tax burdens 
than their competitors under a worldwide rather than 
territorial tax system.'' You then cite three studies in 
support of your statement, including one study that finds that 
U.S. multinationals have effective tax rates that are 4 percent 
lower than multinationals based in the European Union. But are 
there not studies that show that U.S. multinationals are 
subject to higher effective tax rates than foreign-based 
multinationals? That seems to indicate that the U.S.--well, let 
me put it this way.
    Let me give you an example. Dr. Merrill cites numerous 
studies showing that in his written testimony. The 
Congressional Research Service released a report earlier this 
year studying effective tax rates. In one part of the report, 
CRS notes that the effective corporate tax rate in the United 
States is 27.1 percent as compared to the rest of the OECD 
countries that have an unweighted average of 23.3 percent.
    Now, that seems to indicate that the U.S. corporate 
effective tax rate is almost 4 percentage points higher, not 
lower, than the other OECD countries, at least by one measure. 
Now, would you please comment on this?
    I would also like Dr. Merrill to comment on the effective 
tax rates faced by U.S. multinationals as compared to foreign-
based multinationals.
    Dr. Robinson. Right. So the studies that I quote in my 
written testimony measure accounting effective tax rates from 
firms' financial statements. So I am not sure what Dr. Merrill 
is going to follow up with in terms of his study. It may be a 
difference in how tax rates are measured.
    But in the accounting literature, there have been a number 
of studies, published and unpublished, that have searched 
extensively for differences in the accounting effective tax 
rates of firms resident in worldwide versus territorial 
countries that also looked at, as I mentioned, the effect on 
these effective tax rates of specific location decisions. And 
there is not, at least to my knowledge, in the accounting 
literature, as measured by an accounting effective tax rate, 
any evidence to suggest that U.S. firms have higher rates.
    Senator Hatch. Dr. Merrill?
    Dr. Merrill. In my written statement, there is a comparison 
of six different studies that compare effective tax rates of 
U.S. and foreign companies. None of the studies is specifically 
focused on the foreign income of multinational companies, and 
perhaps this is what Dr. Robinson's comment is referring to.
    The studies I refer to look at U.S. versus foreign 
companies, including accounting data. One of the studies was 
published by the Business Roundtable. It compares the financial 
statement accounting tax rate of companies in 58 different 
countries. The U.S. had a higher than average book effective 
tax rate than the other multinationals in that study.
    The World Bank does a study. We help them with that. It 
compares taxes in 183 countries, looking at purely domestic 
companies. And there are several other studies that I have 
cited that had a focus primarily on domestic investment. And so 
there are a range of studies.
    I must say that, looking at a broad range of studies, 
almost every study I have seen has shown that, when you do an 
international comparison of the U.S. effective tax rates versus 
foreign, whether it is from financial statements, whether it is 
done through marginal or average effective tax rates, 
accounting studies, the U.S. consistently comes up above 
average.
    So I put that in my testimony, because it is commonly 
thought that effective tax rates of U.S. companies are low, but 
by international standards, according to all the studies I have 
seen, except for actually the ones in Leslie's testimony, the 
U.S. comes up in the top quartile.
    Senator Hatch. Thank you.
    Do I have time to ask one more?
    The Chairman. Yes, of course.
    Senator Hatch. This question is for Dr. Desai. It seems 
that a discussion of international tax reform can at times 
result in a debate of capital export neutrality versus capital 
import neutrality.
    Such a discussion usually is not helpful, in my opinion, 
and typically ends up going nowhere. But you have developed an 
interesting new theory of international taxation--capital 
ownership neutrality--the idea being that a tax system should 
not distort the ownership of assets. And, in fact, capital 
ownership neutrality seems to fit in nicely with the 
acquisition inversions that we are seeing today in which a U.S. 
corporation acquires a smaller foreign corporation and inverts 
as part of the acquisition.
    Now, my question is this. If a U.S. corporation wants to 
acquire a foreign corporation, it seems that the U.S. 
corporation is at a disadvantage if it is competing against a 
foreign corporation based in a country with a territorial-type 
tax system. As we know, most developed countries have adopted 
territorial types of tax systems. In fact, 28 of the 34 OECD 
countries have territorial-type tax systems.
    Is it accurate that the U.S. corporation is at a 
disadvantage?
    The Chairman. Doctor, if you could, please give us a brief 
answer, because I want to recognize Senator Grassley.
    Dr. Desai. Absolutely. So, yes. Along with Jim Hines, I 
developed capital ownership neutrality, and the central idea is 
what you said, which is, what matters is not where the dollars 
go, but who owns what. And, in the context that we are talking 
about, it is clear these inversions are manifestations of the 
fact that U.S. firms are not good owners because of tax 
provisions of assets around the world, and it is better to be 
domiciled somewhere else.
    So I think it is a clear manifestation of the patterns that 
give rise to why territoriality makes sense.
    The Chairman. Thank you very much.
    Senator Grassley?
    Senator Grassley. Mr. Chairman, here is what I would like 
to do with my time, my 5 minutes. I would like to ask Mr. Stack 
a question to begin with, let him think about it for 4\1/2\ 
minutes, and I want to read a statement and then stop so he can 
answer my question. [Laughter.]
    The Chairman. Colleagues, at this point, we have had a vote 
called, and I think it is the consensus of the members that we 
will have to break, since there are three. So we will get as 
far as we possibly can.
    Senator Grassley?
    Senator Grassley. Mr. Stack, this is the question I would 
like to have you think about. Treasury recently informed me 
that it has finally begun work on a report mandated by the 
American Job Creation Act to study the 2004 anti-inversion 
provisions. When does the Treasury Department expect to finish 
its study of the 2004 inversions legislation? And before 
enacting such important legislation, should not Treasury at 
least complete the report mandated to study the issue?
    Like most of my colleagues here today, I have deep concerns 
about the practice of companies moving overseas for the primary 
purpose of avoiding U.S. taxes. Average Americans and companies 
that remain in America are rightfully outraged when companies 
leave the United States, leaving the rest of us to foot the 
bill. That is why, in the early 2000s, I led an effort to 
prevent companies from simply setting up a filing cabinet and a 
mailbox overseas to escape millions of dollars of Federal 
taxes.
    In 2004, when I was chairman, I was successful in enacting 
for the first time reforms that established rules governing 
inversions. Under these reforms, an inverted company continues 
to be treated as a domestic company until there is a 
significant change in ownership or substantive business 
activities are located in the foreign country. A second feature 
of these reforms prevents an inverted company from skipping 
town without first paying taxes on untaxed earnings.
    Prior to these changes, all the company had to do was move 
its tax home out of the United States and file papers with a 
tax haven. There were no rules or standards for determining 
whether a transaction had substance or was purely a tax 
avoidance scheme. A number of companies took advantage of the 
lack of rules and standards to move to the Cayman Islands or 
Bermuda, as examples. These inversions were purely on paper, 
with no substantive change of current operation.
    The 2004 provisions have successfully curtailed abuses 
targeted by the legislation. As the nonpartisan Congressional 
Research Service has said, these reforms, quote, ``effectively 
ended shifts to tax havens where no real business activity took 
place.''
    Now, this is not to say that inversions no longer take 
place. The 2004 reforms were never intended to establish a 
Berlin Wall that forever trapped companies in the United States 
regardless of business needs. These reforms were targeted at 
and put an end to egregious abuses epitomized by Ugland House, 
which serves as mailbox headquarters for thousands of 
corporations. The inversions currently in the news mainly 
involve a large U.S. multinational merging with a significant, 
though smaller, foreign company, usually European. These are 
not the traditional tax haven countries with little or no 
corporate tax, but major U.S. trading partners with competitive 
tax systems and rates.
    There is little question that lowering one's tax bill 
continues to be a factor in companies deciding to invert. 
However, unlike transactions in the early 2000s, these are 
substantive transactions that come with both risks and benefits 
for companies involved. As a result, factors other than taxes 
likely play a role in deciding to invert.
    I do not condone that behavior. One area that should be 
studied further is the role that tax rules that allow inverted 
companies to strip income out of the U.S. play in a company's 
decision to invert.
    I am going to stop and ask Mr. Stack to answer my question 
on the study that we asked for.
    Mr. Stack. Sure. Senator, as we mentioned in our letter to 
you of last week, now that we have gotten great guidance out in 
various areas of inversions, we are working on the study.
    I apologize. I cannot give a specific time frame for 
completing it, but I would say that, given the pace of 
inversions which has picked up recently, we would not think 
there would be a need to await the study to bring back our full 
attention to this issue which is happening before our eyes.
    Senator Grassley. Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Grassley.
    Senator Brown?
    Senator Brown. Thank you, Mr. Chairman.
    I want to talk for a moment--and this is a question for 
you, Mr. Stack--about earnings stripping.
    Companies are using inter-company debt to lever up their 
U.S. subsidiary and deduct interest of up to 50 percent of free 
tax earnings, as you know, shifting profits to the lower-tax 
country. The second element of this tax arbitrage is shifting 
intellectual property and the attributed profits to tax havens.
    My question is, what do we do right now to create a kind of 
temporary tripwire that will allow legitimate mergers, but 
prevent those arbitrage-driven inversions?
    Mr. Stack. Thank you, Senator. One of the reasons we 
singled out these kind of anti-stripping proposals in our 
budget was because, even without reform, these things are going 
on now, and they are going on particularly in cases where we 
have inversions.
    So, whether it be interest stripping, making it harder to 
take intangibles out of the United States, or changing the 
treatment of instruments that you can take a deduction on here 
and have a no-income inclusion somewhere else, we think these 
are all urgent needs that would protect our base even before we 
do tax reform and will also protect our base while the 
inversion wave is happening, and they are very important.
    Senator Brown. Mr. Chairman, I want to ask a question of 
Mr. Sloan. I also want to make one comment.
    The more we read about this--and I appreciate that the 
chairman has brought this out, I think, more effectively than 
anybody in the Senate. People in this country increasingly 
think the system is rigged. People in this country increasingly 
see large companies find ways of avoiding taxes. People 
struggle to pay their own taxes. People see these large 
companies having benefitted from a manufacturing tax credit, an 
R&D tax credit infrastructure in our country, using legal 
means--nobody is arguing, most of us are not arguing they are 
not using legal means--to find a way to avoid taxes.
    I think this committee needs to take this charge very 
seriously that the public increasingly is losing confidence in 
this tax system, causing others perhaps to cheat, and 
increasingly is losing confidence in this whole legislative 
body's ability to do anything. And, if we cannot narrowly 
follow Mr. Stack's advice and Senator Wyden's ideas and do 
something narrowly now about inversions, we clearly have not 
lived up to our public charge.
    Let me ask a question of Mr. Sloan.
    We are seeing increasingly more and more stories, partly 
from Senator Levin's work on his subcommittee, that hedge funds 
and investment banks are big drivers of these deals, which 
indicates a potentially short-term focus on stock prices and 
fees. The rewards to Wall Street are plentiful, as Mr. Sloan 
said. Premiums are offered to shareholders of foreign companies 
so the inverting companies may avoid U.S. taxes.
    If you would, answer these couple of questions, if you 
would, Mr. Sloan. What role, in your mind, do equity funds, 
private equity funds, investment banks, hedge funds, play in 
encouraging companies to avoid taxes by completing an 
inversion? Is there any counterweight to this pressure that 
companies receive from short-term-focused investors?
    Mr. Sloan. All of these players are in business to make 
money. They are in a competitive business. They want to show a 
higher rate of return than other people so they can continue to 
attract more money and get more fees. And, as long as something 
is not illegal, they will do it.
    If you talk with them socially, they are not bad people. 
They are human beings, even like Senators or journalists. They 
are regular people, but they have these forces that drive them. 
And I think there are perfectly fine corporate CEOs who, if you 
people will just protect them and get rid of the inversion 
temptation, will be very happy not to invert.
    But everyone now feels pressure, and everyone is scared, 
and it is becoming a mania such that, by the time it fades 
away, it will be too late.
    Senator Brown. Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Brown.
    Senator Schumer is next. And I am going to try, even after 
the first vote, to run over and vote, because we have 
colleagues who feel very strongly about this.
    Senator Schumer?
    Senator Schumer. Thank you, Mr. Chairman. I want to thank 
you and Ranking Member Hatch for holding this hearing today.
    It is absolutely critical we quickly develop and process a 
proposal to combat this growing trend by some U.S. corporations 
to leave our borders for tax-avoidance purposes. There has been 
a significant uptick in the number of inversions over the past 
10 years. Forty-seven U.S. corporations have reincorporated 
overseas through these inversions during that period. Now there 
are more than a dozen prospective deals.
    Many of my colleagues, particularly on the other side of 
the aisle, argue we should not be looking at this issue in a 
vacuum right now. They say we should instead be focused on 
corporate tax reform. I would ask those arguing that we wait 
for tax reform, just how soon do you think that is going to be 
possible? Chairman Camp tried tax reform on the Republican 
side. Even Speaker Boehner did not give it much credence.
    So, if we wait for tax reform, we are going to have lots 
more inversions, and it is going to take far too long, if we 
ever get to tax reform at all. Saying that we should wait for 
tax reform to deal with inversions is a green light to allow 
many more inversions to occur. For some who make that argument, 
frankly, it is an excuse to keep this loophole in place for the 
foreseeable future.
    The tax reductions achieved through inversions, as you 
know, happen in a couple of different ways, Mr. Chairman. 
First, by moving their domicile offshore, these companies are 
no longer subject to U.S. taxes on any of their international 
operations, and this has been appealing to types of businesses 
that operate in a global supply chain, like pharmaceutical 
companies.
    But today we are seeing an uptick in more traditional 
brick-and-mortar companies--Walgreen's, for instance--doing the 
same thing. Why is that? Well, it is the second piece of the 
inverter's tax-
avoidance equation. Not only can these companies avoid paying 
taxes on their international operations when they invert and 
reincorporate abroad, they can also avoid paying U.S. taxes on 
their businesses that remain in the United States. One way they 
do this is through a mechanism in the tax code called the 
interest expense deduction.
    It is a 5-step process. They set up a U.S. subsidiary to 
operate their U.S. business. When that subsidiary owes U.S. 
taxes, they transfer the corporate funds between the foreign 
parent and the subsidiary and call it a loan to the subsidiary. 
That loan triggers a U.S. tax deduction, the interest expense 
deduction for the subsidiary, which then largely offsets their 
U.S. tax liability. The loan is repaid through the profits of 
the U.S.-taxed subsidiary to the foreign parent, and U.S. taxes 
have been avoided. As a result, they pay little or no tax on 
their U.S. profits as well.
    Now, we have attempted to limit this type of behavior in 
the past. We put a cap on the debt-to-equity ratio of the U.S. 
subsidiary, but the current law still provides a very lucrative 
tax benefit for inter-company benefit. In fact, Mr. Sloan, your 
magazine or your website did an op-ed on this, talking about 
the risks and rewards of inversions, which mentions the 
interest expense deduction.
    So, as we work together to put forward a proposal to combat 
this growing challenge, we have to look at it from every angle. 
Now, I support the proposal that Senator Levin and the 
administration have been working on, which calls for an 
immediate 2-year moratorium and increasing the number of 
foreign shareholders to implement inversion from 20 to 50, 
making it more difficult for it to happen. I do have concerns 
with the management and control part of the Levin proposal, 
because we want to keep jobs here at home, and the management 
and control proposal may encourage jobs to grow abroad.
    But Levin's proposal is not enough. We have to go further. 
We should also include a proposal that further limits or 
disallows the interest expense deduction to deal with the U.S. 
profits that they are also trying to avoid. Doing so will be a 
deterrent for those considering an inversion, as they will no 
longer see that opportunity to avoid U.S. taxation, and it will 
deal with the retroactive problem because you eliminate it 
prospectively, but any company that did an inversion 6 months 
ago, 1 year ago, 5 years ago, will still lose this deduction.
    So it is a prospective policy action to counter past and 
future inversion activity. It would ensure we do not leave 
those inverters who are at the front of the line, the ones who 
started the trend, with a competitive advantage.
    So, Mr. Stack, my only question is--because my time is 
running out, and I know my dear colleague is waiting--does the 
administration agree that we should consider measures to 
further limit or disallow the current interest expense 
deduction for inverters in any legislative package we pursue to 
combat inversions this year?
    Mr. Stack. Yes, Senator. We fully agree, and we think you 
have shone a light on a very dangerous part of the inversion 
craze, which is the ability, the day after the inversion 
transaction, to continue to strip the U.S. tax base. We have a 
budget proposal to that effect, but we think you are pointing 
to a very critical aspect of the inversion problem.
    Senator Schumer. Thank you. I just want to say to companies 
doing inversions, if you want to operate here, you want access 
to this market, you want access to the workforce, access to the 
economy, understand this here today. To continue to have that 
access, you are going to have to pay your fair share of U.S. 
taxes. Things are changing.
    The Chairman. Thank you, Senator Schumer.
    The time for the vote has expired. We are going to go with 
Senator Stabenow. Senator Toomey is next. I am going to try to 
come back just as quickly as I can. Thanks.
    Senator Stabenow?
    Senator Stabenow [presiding]. Thank you. I wanted very much 
to be here, even though we are going to have to go running out. 
Thank you to each of you.
    First, I want to say to my colleagues, we have a place to 
start tomorrow, which is the Bring Jobs Home Act. I am very 
pleased to be working with Senator Walsh on that. It takes a 
simple first step on what needs to be a series of steps and 
will simply say, if you want to move your plant, if you want to 
move the company overseas, we are not paying for the move; we 
are not going to allow you to write off your costs of moving 
out of this country. And, if you want to come back, we will be 
happy to let you write that off and give you an additional 20-
percent tax credit. But if you leave, you are on your own.
    Now, we know that is not enough, because we have a lot of 
folks who only leave on paper. And so they are not really 
picking up the plant and leaving. But I will say, Mr. Sloan, I 
could not agree with you more. This is not a partisan issue. 
This is an American issue. I think the American public is going 
to be watching very closely to see which companies that need 
consumers are doing this, and I think these companies 
underestimate the reaction of consumers and other businesses in 
going forward.
    I do think if we can move forward and overcome a 
filibuster, get on the Bring Jobs Home Act, we could add Carl 
Levin's bill. And I am with you, even though I serve with both 
my dear colleagues, Sandy and Carl in Michigan, I think Carl's 
approach of a 2-year effort to get us to tax reform is the 
right way to go, and we could add that certainly to the Bring 
Jobs Home Act, and I believe that we need to do that and we 
need to get started on this.
    I also think it is important--Dr. Merrill, you are right, I 
mean, certainly, all of you, saying we need tax reform, we need 
to do that, we know we need to do that. We know we are in a 
global economy. We have to address this. But we also do know 
that I do not know of any sector paying 35 percent, our 
corporate rate.
    The reality is, we have a lot of incentives for companies 
to invert. We want incentives that relate to manufacturing or 
R&D or other things. But when I look at the list, from medical 
devices at 18.8 percent or financial services at 16.5 percent 
or petroleum production at 11.3 percent or down to public-
private equity which is paying a 0.8-percent rate, there is a 
large disparity and a number of issues that we need to address.
    Here is what I want a comment on, and we have two issues: 
corporate tax reform and the global economy. How do we address 
these and incentivize making things and growing things in 
America and innovating in America?
    And then we have folks who just plain do not want to pay 
their fair share yet benefit from America. So you have folks 
doing inversions who do not want to breathe Beijing's air. They 
want to breathe American air. They do not want the water of 
third world countries. They want to be able to drink the water. 
They do not want the rule of law of a lot of countries. I know 
in Haiti, talking to our businesses, you pull up a cargo ship, 
you cannot get the product off the ship without paying a whole 
bunch of bribes.
    So they want our rule of law; they want our innovation, 
education, and infrastructure; they want to breathe the air and 
drink the water; they just do not want to contribute. That does 
not sound like the normal American values to me. What it does 
is create a race to the bottom where we are not going to have 
customers, and then we are really not going to have businesses 
as we go forward from here.
    So this is of deep concern to all of us.
    I guess, Mr. Stack, I would just simply ask you, when we 
look at competitiveness internationally, from your perspective, 
certainly the rate is important, but we know even going to 28 
percent, that means eliminating R&D tax credit section 199 for 
small businesses, it means eliminating accelerated 
depreciation, which is so critical in a State like mine with 
manufacturing.
    There has to be more to it than just tax grade in terms of 
investing in America, and I would ask you, if we are going to 
stay competitive internationally, make things and grow things 
here, what are some of the other priorities of tax reform 
besides just lowering the rate?
    Mr. Stack. Thank you, Senator. First, on the rates, I would 
also add the point that a lot of the discussion about rates 
kind of ignores the fact that there will always be countries 
with lower rates than ours where people may want to seek to go 
and there is this tax competition going on.
    In terms of other things we could be doing, the first thing 
I would want to point out--and this also relates back to 
rates--is our effective rates, as you were pointing out, vary 
widely. So we do not really have a level playing field across 
our industries. Number two, we do not really have a level 
playing field with countries that can take IP and put it 
offshore or have a broad enough market offshore to take 
advantage of some of these international provisions.
    So, in addition to lowering the rates, we think it is very 
important to broaden the base for these taxes so that we can 
create some equality, eliminate the winners and losers, so that 
everybody has the advantage of this lower effective rate as we 
go forward. And, as you also point out, maintaining incentives 
for research and development so that we remain the premier 
country in terms of this type of activity is also a critical 
concern.
    Senator Stabenow. Thank you.
    I believe, at this moment, I have to get over to vote or I 
am going to miss the vote.
    Thank you very much. Are we in recess?
    We are in recess subject to the call of the chair. Thank 
you very much.
    [Whereupon, at 11:11 a.m., the hearing was recessed, 
reconvening at 11:46 a.m.]
    The Chairman. I very much appreciate Senator Portman's 
patience. He and I have talked often about tax reform, and I 
look forward to working closely with him on these issues.
    Senator Portman?
    Senator Portman. Thank you, Mr. Chairman. I have had some 
long conversations with you, and I appreciate your championing 
tax reform, and I liked your first response to the inversion 
proposals.
    We have a little difference of opinion on tactics here, 
because I do think this is an opportunity for us to encourage 
solving the problem rather than dealing with the symptom, and 
we have heard a lot of testimony today about what will happen 
if we just go after this particular issue, and I know there is 
some difference of opinion among the panelists about that.
    I do not think there is any difference of opinion, I hope, 
among the panelists about the fundamental problem. Mr. Stack 
and I just spoke. I have spent a lot of time talking to 
administration officials about this issue too.
    The bottom line is that it is not advantageous to be an 
American company. It makes more sense to be a foreign entity, 
to be able to take advantage of a tax system where the great 
majority of our competitors--93 percent of our foreign 
competitors, as Peter Merrill told us today--have a territorial 
system, have a lower rate. And it is a deadly combination to 
have this high rate and to have a worldwide system.
    I just do not think what we are talking about in terms of a 
short-term fix is going to help. In fact, there is some good 
testimony about how it could even hurt because, if you just 
deal with inversions, you have some unintended, perhaps, but 
negative consequences--demanding the location of even more jobs 
overseas is what Dr. Desai talked about.
    My big concern is foreign acquisitions. Recently we sat 
down with a lot of U.S. companies to talk about this issue. In 
fact, I have been doing this for the last few years, as some of 
you know, and have worked on this in the Super Committee, and 
we are just hearing over and over again the fact that already 
foreign acquisitions are on the rise, even without this rule.
    So, yes, we can put this rule in place, and then we could 
limit the deductibility of interest, as one of my colleagues 
said, and we can make it even harder to be an American company. 
What will happen is, we will have more and more foreign 
companies owning U.S. assets. Some of those will be takeovers.
    Recently, a biopharmaceutical company came to see me, this 
was last week. They were from the Boston area. And I asked them 
about the acquisitions in the Boston area of bio-pharma 
companies. Twenty-eight companies have been acquired in the 
last several years, 17 of those 28 were acquired by foreign 
entities. So you sort of put the hole in the dam here, and then 
you are going to have a flood over here, and you are going to 
have an even worse result--even more pressure on jobs leaving 
this country.
    So we talk a lot about revenue and income stripping and 
earnings stripping, and I agree we need to have a tax code that 
captures income in the most efficient way, but this is about 
jobs. So my question, I guess, to Mr. Stack is, what is going 
to happen if we continue to make it harder to be an American 
company? Are we not going to see more, not just acquisitions, 
but acquisitions of American assets?
    These companies also tell me that, because foreign 
companies have higher after-tax profits, it is more profitable 
for them. They can pay a premium for our assets, in other words 
for subsidiaries being sold, and you will see more of that. You 
will see American companies shrinking and not being taken over 
by foreign entities.
    What is your answer to that?
    Mr. Stack. Senator, I think with the tax code, as we look 
out in terms of leveling this playing field, it is important 
for us to take, as an opening step, that we will never be able 
to offer, let us say, rates as low as countries that are trying 
very hard through tax competition to lure companies overseas. 
So there will often be some kind of a tax differential between 
the United States and other countries that might, on the 
margins, fuel some of that acquisition activity.
    We have a lot of great things in this country, though, that 
keep companies here and keep them competitive and keep them 
doing very well. So I do agree then--and all the plans on tax 
reform seek to lower the rate, and there is universal consensus 
that our rate is too high and we should be bringing it down. 
And when we bring it down, we will come closer to leveling the 
playing field with those foreign acquirers.
    Senator Portman. So I think this is not just an important 
problem, I think it is an urgent problem, and I think you all 
have sounded the alarm here. Again, we have differences on the 
witness panel and on our panel as to how to address it, but it 
seems to me, when you look at the history of our country, the 
only time you see major tax reform is when the administration 
takes the lead. Treasury has to be engaged and involved. I am a 
former OMB director. OMB has to be involved in the numbers.
    What is Treasury doing? Tell me what concrete steps are 
being taken to address this, as was said today, emergency 
situation? Is it just to plug the hole in the dam here, or are 
you actually looking at, as the President has talked about over 
the last couple of years, actually solving the underlying 
problem, making American companies more competitive?
    Mr. Stack. Senator, the President's framework in 2012 
really was kind of a far-reaching move forward to think 
differently about our international tax rules, and that is to 
say that it was going to be able to bring down the rates, 
broaden the base to deal with some of the differential 
effective rates I mentioned earlier, but also, through the 
foreign minimum tax, try to cut out some of the game-playing 
that goes on by stripping into very low tax jurisdictions. We 
think that that kind of set the tone for some of the work that 
was done both in the Finance Committee and by Chairman Camp, 
and we think that there is a very robust set of proposals on 
the table right now.
    In addition, for many of the things we are talking about 
today in terms of base stripping, we put several detailed 
proposals in our budget to get at this opportunity, once a 
company inverts, to strip out of the U.S. tax base, which, as 
everyone knows, provides a lot of juice for these transactions 
since they can do better at reducing U.S. taxes once they are 
offshore than they could before.
    So we think we have shown leadership in our framework. We 
think we have shown leadership in putting concrete proposals in 
our budget, and I know the President and Secretary stand ready 
to work with Congress on both sides of the aisle to push 
through international tax reform.
    Senator Portman. I would love to see a proposal, and I 
would love to see that push. I do not know, maybe my colleagues 
see more of it than I do. Again, I have had some great 
conversations with individuals at the Treasury and in the 
administration, including at the White House, but I just do not 
see the push.
    I hope we will use this unfortunate situation where we have 
examples every week of another major inversion, another one 
this past week--and it happened to be a pharmaceutical 
company--to actually get us to the point where we are solving 
the underlying problem.
    If we make it worse by making it even less advantageous to 
be a U.S. company, I really worry we will look back 5 years 
from now and see a hollowed-out American corporate base and 
wonder what happened. What happened is, we abdicated our 
responsibility here in doing the thing that everybody on this 
panel, I think, agrees we have to do, which is reform our code 
to make it competitive.
    I know my time is up, Mr. Chairman. I appreciate the 
testimony today. I hope it results in some very specific action 
by the administration and by the Congress.
    The Chairman. Thank you, Senator Portman. I look forward to 
working with you on these matters in a bipartisan way.
    I would say to our guests, I have some additional 
questions. Senator Hatch is on a very tight timeline, and so I 
would like Senator Hatch to go first.
    Senator Hatch. That is very gracious of you, Mr. Chairman, 
and I appreciate it. It is a pleasure to work with you.
    This question is for Dr. Merrill. As you know, both Japan 
and the United Kingdom adopted territorial types of tax systems 
in 2009, switching from a worldwide tax system with deferral. 
These are two countries with large economies. Japan is the 
third-largest economy in the world and the United Kingdom is 
the sixth-largest economy in the world.
    Can you tell me why Japan and the United Kingdom switched 
from a worldwide with deferral system like the current United 
States tax system to a territorial system, and, after 5 years 
of experience with a territorial tax system, what have been the 
results for both Japan and the United Kingdom?
    Dr. Merrill. Yes. Thank you for the question. The United 
Kingdom was experiencing a phenomenon not unlike what we are 
experiencing now. They saw a number of large multinational 
companies, some quite significant, that had actually moved 
their legal headquarters out of the U.K., primarily to Ireland. 
And that was of great concern to the government, so they 
decided that it would be appropriate to adopt a more 
competitive tax system along the lines of the quote in my oral 
statement so that their tax system would be more welcoming to 
multinational business.
    One of the factors for the U.K. is they have many companies 
there that earn only a small part of their total income, 
worldwide income, in the U.K., and yet the U.K. had a tax 
system like ours that was taxing the worldwide income of 
companies that only earned a small amount of income in the U.K. 
So, in order to become a more attractive location for 
multinational companies, they went to the territorial-type tax 
system, 100-percent exemption of foreign dividends, and they 
made a number of other changes, as I indicated, lowering their 
tax rate. They have also adopted a 10-
percent refundable research credit. They also adopted a 10-
percent, phased-in 10-percent tax rate on income from patents, 
and they also modified their C rule.
    So they have done a whole package of things mainly to make 
it more attractive for multinational companies to be 
headquartered in the U.K., and they have been successful. As 
Dr. Robinson mentioned, some of the companies that left the 
U.K. actually have moved their headquarters back to the U.K. in 
response.
    Japan is a different situation. Obviously, the Japanese 
economy has not been attracting the kind of growth that they 
have been looking for, and they saw Japanese multinationals, 
like the U.S., facing a very high corporate tax rate, a 
worldwide system, and money was not being repatriated to Japan. 
The Ministry of Economy, Trade, and Industry wanted to see that 
money come back for additional investment in Japan, and that is 
why they made the change.
    Senator Hatch. Thank you.
    Mr. Saint-Amans, glad to have you here. This is a question 
for you. I appreciated what you wrote in your testimony, that, 
quote, ``The work of the OECD is done by consensus. That is, 
measures cannot be adopted without the consensus of all member 
countries.''
    Now, presumably, consensus of all member countries means 
that all member countries will consent to the work the OECD is 
doing or else the OECD will not do that work or will not issue 
such a report. Am I right on that?
    Mr. Saint-Amans. Yes, Senator. A consensus means that a 
report or soft rule, which is what we develop, is agreed when 
no country around the table objects to it.
    Senator Hatch. And in making sure you have the consensus of 
the United States, please keep in mind our system of separation 
of powers. Lawmaking capabilities primarily are vested with the 
Congress. In obtaining the consent of the United States, it is 
necessary to get the consent of the U.S. Congress. So we do 
appreciate you being here for this Senate hearing.
    Will you please assure me that you understand that to 
obtain the consent of the United States for the OECD's work, 
including for the BEPS project, that Congress must be kept 
informed of the work, and, of course, that has to be working in 
conjunction with the U.S. Treasury as well?
    Mr. Saint-Amans. Senator, I do think that not only the 
Secretary, of course, but all the OECD member countries are 
fully aware of this. We are more than happy to engage with the 
staff on the Hill for the Senate, but without impeding on what 
Treasury is doing.
    And I would like to add that most of the measures which are 
completed in the project, fighting base erosion and profit-
shifting, are soft rules. These are a common interpretation of 
standards, and so they do not require translation by 
parliament, but information from all stakeholders and, in 
particular, the Congress, is taken seriously by the OECD 
secretariat--and I will not speak on behalf of it, but I think 
also by Treasury.
    Senator Hatch. Mr. Stack, let me just ask you the same 
question. Please reassure me that the U.S. Treasury Department 
will keep Congress informed, but not get ahead of the Congress 
in the decision-making process and in negotiations with the 
OECD regarding BEPS.
    Mr. Stack. Yes, Senator. We fully intend to do that. I have 
already been up to the Hill twice to meet with bipartisan 
staffs, both houses, and I look forward to continuing that 
throughout the process.
    Senator Hatch. We appreciate your work in that regard. 
Thank you for doing that.
    I want to thank all of you for being here. I have to leave 
because of other commitments, but this has been extremely 
interesting, and I am going to read the transcript so I will 
know exactly what you all say. I am going to hold you to it 
too.
    Thank you, Mr. Chairman.
    The Chairman. He will, be on notice.
    We are moving toward the end of the hearing. Senator 
Portman may have additional questions. But let me give you my 
sense of where we are.
    I certainly am not interested in building any walls. I want 
to close a loophole, and then I want to drain the swamp. I want 
to fix this dysfunctional mess of a tax code so we have 
incentives for creating red, white, and blue jobs, creating 
jobs here in our country.
    I know we are going to be calling on you all often in the 
days ahead. I just have a couple of other questions about 
issues that are pending.
    Senator Thune, you are next. If I could just finish these 
two questions, then we will go right to you.
    The first deals with the implications of inversions on 
health care costs in America and the implications for the 
American consumer.
    I was struck by comments made in the Wall Street Journal 
recently by the CEO of Abbott, who said that he was concerned 
about the higher prices that American consumers would have to 
pay if proposed inversions like his company's did not go 
through. And I am still trying to figure out how these savings 
are going to be passed on to consumers and, of course, to 
taxpayers who put up so much of the money that funds the 
Medicare program.
    I will ask all three of our professors: Dr. Desai, Dr. 
Merrill, and Dr. Robinson. Explain to me how somehow these 
costs, particularly medical costs, because so many of the 
inversions thus far are medical, explain to me how or even if--
because you have done some scholarship on this, Dr. Desai--this 
is going to benefit the American consumer and the Medicare 
program in particular.
    Let us start with you, Dr. Desai.
    Dr. Desai. I think the broad way to think about this 
problem is to understand that this question relates to the 
broader question of the incidence of the corporate tax, who 
pays the corporate tax, and there are really three sets of 
folks who can pay.
    So the first is customers, which is what you are referring 
to via the health care system; the second is workers; and then, 
the third is capital or shareholders. So whenever there is a 
tax-saving move like an inversion, we can expect those benefits 
to accrue to one of those three sets of people. Either workers 
are going to get high wages, shareholders are going to get high 
returns, or customers will get lower prices.
    I think most of the consensus in the scholarship is that 
when taxes change, they do not typically get transmitted to 
product prices, because----
    The Chairman. They do not typically get translated to 
product prices, which would be the prices that Americans pay 
for health care.
    Dr. Desai. In this example, exactly right.
    The Chairman. Very good. Thank you.
    Dr. Desai. They typically get transmitted more likely to 
wages and, to some degree, to shareholders.
    The Chairman. Very good. Let me then--because Senator Thune 
has just come back--bring you into this question, Dr. Merrill 
and Dr. Robinson, and that is the impact of reform on the 
deferral issue. Of course, one of the goals around which there 
is bipartisan support for corporate tax reform is to simplify 
the system. I think we all understand that the international 
tax is inherently complicated.
    My question is, wouldn't repealing deferral go a long way 
toward corporate tax simplification by eliminating the 
complicated system that exists today of tracking unused foreign 
tax credits and the related earnings and profits? In effect, 
income would be subject either to immediate taxation or exempt, 
and the current foreign tax credits would be utilized against 
current taxable income.
    So answer the question, if you might. Would deferral 
eliminate a very complicated feature of the tax system, and 
would doing that as part of bipartisan comprehensive tax reform 
make the system more simple and understandable?
    Dr. Robinson?
    Dr. Robinson. I do think, as I put in my written testimony, 
that the implicit cost of the U.S. tax system is higher than 
the explicit cost, and what I mean by that is that the cost 
associated with actually avoiding repatriation or maintaining 
deferral for long periods of time is what I believe makes our 
tax system uncompetitive.
    I do think that eliminating deferral so long as the rate, 
of course, was lowered sufficiently would be what I would be in 
favor of, and the reason that I say that is because the 
alternative approach, of course, is to implement some sort of 
territorial system. But I think those types of systems, if you 
design them appropriately, would have to recognize instances 
where earnings were not subject to robust tax systems abroad, 
and then you have to introduce all sorts of exceptions and 
exclusions and base-broadening provisions. And, by the time you 
introduce those, you are sort of right back where you started.
    So I am largely in favor of ending deferral and lowering 
the rate if it means a simplification.
    The Chairman. Dr. Merrill, unless you want to add anything, 
I will recognize Senator Thune. Is there anything you wanted to 
add?
    Dr. Merrill. Why don't we take Senator Thune's question?
    The Chairman. Very good. Senator Thune?
    Senator Thune. Thank you, Mr. Chairman. I want to thank you 
and Senator Hatch for holding this important hearing, and thank 
you all for making time to share your expertise with us.
    I suspect there are significant differences of opinion 
about how to improve the U.S. tax code, differences of opinion 
among members here in the Finance Committee and probably in the 
Senate and the Congress, but I think that all of us agree that 
we want American companies to be competitive. We want for them 
to be able to compete and win in the global marketplace, and I 
think, unfortunately, we ask them to do it with one hand tied 
behind their back, because we actually make the rules that they 
play by. And, when you make bad rules, you get bad outcomes. 
And there are economic signals right now that are driving a lot 
of the decision-making that our businesses are following.
    So I think some of this inflammatory rhetoric and accusing 
them of not being economic patriots is really not helpful, and 
I would hope that we could focus on not just the symptoms, but 
actually the cause for these problems, and that is, we have an 
outdated, dysfunctional tax code, with the highest rate in the 
developed world. And we are also one of only a few countries in 
the world that continues to use a worldwide system, that has 
not moved to a territorial system. I should not say in the 
world, but certainly one of the few countries in the OECD.
    So I just think that we need to focus on the problem here, 
and the problem is the high rate. There was a time back in 1986 
when the tax code was last reformed where our corporate tax 
rate was 5 points lower than the average. Now, it is about 14 
points higher than the OECD average. This is what you are going 
to get when you have these kinds of rules. So we need to change 
the rules. We need to reform the tax code.
    So I guess it seems, to me at least, that the system is 
basically the worst of all worlds, because we are asking our 
businesses to compete in the foreign marketplace, and not only 
do we have the highest corporate income tax rate among OECD 
nations, we are also, as I said, one of the few nations that 
has a worldwide system of taxing income.
    So, Dr. Merrill, I guess I would ask you, could you 
elaborate a little bit on your testimony in terms of what this 
means for a U.S.-based company competing in foreign markets 
against companies that are based in nations with more modern 
and favorable tax systems?
    Dr. Merrill. Yes. Thank you. What we are seeing is a world 
where a U.S. company that operates abroad is now generally 
competing with foreign competitors in the same market, but 
facing a very different home country tax system. They all face 
the same rules in the country where they are operating.
    The difference is, they face different home country 
taxation. So, if the U.S. company earns income abroad and 
wishes to invest it back home in the United States, bricks and 
mortar, it wants to use the money to give back to its 
shareholders, it wants to use the money to pay higher wages to 
its workers, it faces a U.S. tax on that repatriated earnings 
that would not be the case if it was a 
foreign-headquartered company under a territorial-type system.
    So we see this manifesting itself in U.S. companies stuck 
in a way, building up cash abroad that they would like, in many 
cases, to return to the U.S. to invest here, to use for a 
variety of purposes. But, if they do, they would face the 
highest tax rate in the world in bringing it back.
    So that is a very important driver of why a U.S. company is 
not a particularly attractive candidate when they go out to buy 
a foreign company. If you are a shareholder in a foreign 
company and a U.S. company says, ``Gee, I would like to buy 
you,'' you realize that that means that if you are acquired, 
any foreign profits that will be distributed to you have to go 
through the U.S. corporate income tax system. If you are 
purchased by a foreign acquirer, that is not the case. So it 
makes it harder for U.S. companies to make foreign 
acquisitions. It makes it harder for them to even invest back 
at home.
    Senator Thune. And there seems to be a misperception about 
this--the way that some of this has been covered at least in 
the press articles. It is implied that U.S. companies are 
somehow changing the taxation of their U.S. income through 
these deals.
    Is it not the case that income earned in the United States 
remains subject to U.S. tax regardless of the corporate 
structure?
    Dr. Merrill. A U.S. company that moves its legal 
headquarters abroad is still subject to U.S. income tax on its 
U.S. operations and is still subject to tax if it brings back 
the foreign earnings that it has previously earned in its 
foreign affiliates.
    Senator Thune. This is a question--one more, Mr. Chairman?
    The Chairman. Of course.
    Senator Thune. There is the suggestion in the 
administration's proposal that we attempt to stop corporate 
inversions. But there is a concern that some of the steps that 
are being taken, that are designed to stop them, actually could 
cause more harm than the inversions themselves.
    In particular, there is a concern that this management 
control test that is being advanced by the White House and some 
here in the Senate could have the effect of encouraging 
mergers, whereby management control would be outside of the 
United States.
    What is your view on that issue?
    Dr. Merrill. Congress has a long history of trying to 
address inversion transactions, and each time it has produced 
unintended effects. Congress tried in 1984, the IRS tried about 
10 years later in 1994, and, of course, Congress in 2004 
adopted legislation, each time trying to deal with the 
transaction of the day. What happened is companies found 
different ways to achieve what the economic incentives are 
driving them to do, which is to have the assets owned in a tax 
jurisdiction that is more favorable.
    So the concern would be that another stopgap measure could 
lead to the kinds of transactions that are not desirable from a 
U.S. standpoint, a true foreign acquisition of a U.S. company 
where the headquarters jobs are abroad and the U.S. 
headquarters shrinks.
    Senator Thune. Mr. Chairman, I thank you. I appreciate the 
answers to these questions, and I would ask if I could get my 
statement, my entire statement, which I did not use all of, 
included in the record and, again, point out that we have a 
problem here. The problem is our tax code.
    The Chairman. Without objection, it is so ordered.
    [The prepared statement of Senator Thune appears in the 
appendix on p. 101.]
    The Chairman. Senator Thune, you may not have been here 
when I made this point. I am fully committed to working with 
you and colleagues on the other side of the aisle for the 
ultimate cure, which is fixing this dysfunctional mess of a tax 
system.
    The question is, what are we going to do about the damage 
that is being done right now?
    Senator Portman, do you have any other questions you would 
like to ask?
    Senator Portman. Thank you, Mr. Chairman. Why don't you go 
ahead, and then I will?
    The Chairman. I have no other questions.
    Senator Portman. Can I just do a quick, quick round with 
the team here?
    The Chairman. Of course.
    Senator Portman. First of all, I quote you all the time, 
because Chairman Wyden makes the point that the tax code is 100 
years old and it looks like it. So I appreciate your attitude 
about wanting to pursue reform. I am concerned that by taking 
this detour, it is going to make it harder, not easier, and, 
again, there may be the unintended consequences we talked 
about, including accelerating this acquisition of U.S. 
companies by foreign entities.
    By the way, the Joint Committee on Taxation, which is our 
official nonpartisan scorekeeper, has said, with regard to the 
President's proposals that were in his budget last year--Mr. 
Stack went through those in his testimony, and they are mostly 
international tax revenue raisers to deal with some of these 
issues--they said, and I quote, ``Many of these proposals may 
make corporate structures with a domestic parent relatively 
less attractive than corporate structures with a foreign 
parent, and these proposals are likely to raise U.S. tax 
liabilities for the domestic parent structure more than the 
foreign parent structure.''
    That seems pretty clear--and that is not Republicans or 
Democrats; these are our nonpartisan arbiters as to what we 
ought to be doing in terms of good tax policy.
    I guess one question that I would love to hear about from 
this distinguished panel is--Dr. Robinson talked a little about 
access to capital, and the most efficient flow of capital, 
obviously, is a big disadvantage to U.S. companies now. So 
forget the rate, even forget kind of the general notion of 
territorial versus worldwide. The fact is these U.S. companies 
are not as nimble. They cannot move assets around where they 
need them, and I think that has to be addressed.
    Here is my question. Sometimes when I debate my colleagues 
on this issue, they say, well, just because a company is 
foreign does not mean they do not have U.S. jobs, which is 
true. Anheuser-Busch still has U.S. jobs. They sell a lot of 
beer in America. Their market share is in good shape.
    Maybe, Peter, if you could address this or Dr. Desai or Dr. 
Robinson, whoever has looked into this. But can you tell us a 
little about what happens when one of our--Peter talked about 
Fortune 500 companies over the last 15 years, where you have 
seen a one-third reduction in U.S. companies.
    What happens? What is the impact on jobs when you see U.S. 
companies being acquired by a foreign company?
    Dr. Merrill. I have not actually studied that issue. It 
could go either way. If the foreign company is a better-managed 
company, has better management and brings in new technology, it 
could increase jobs. On the other hand, it could go the other 
way, but I do not know what the actual experience has been.
    Senator Portman. Dr. Desai?
    Dr. Desai. I think you are right to put this in the context 
of the broader market for corporate control, which is I think 
really the issue with foreign acquisitions. And I think the 
issue of foreign acquisitions is, particularly with respect to 
high value-added headquarter jobs, those may well get relocated 
when it becomes foreign-owned.
    That is something that we have seen at least anecdotally, 
and we also know that headquarter jobs are really important. 
They give rise to lots of economic spillovers more generally. 
So for that reason, I think you are right to be suspect of the 
potential harm of these foreign acquisitions, which is they can 
lead to high value-added jobs going abroad and, in particular, 
headquarter jobs.
    Senator Portman. Dr. Robinson, have you done any research 
on this?
    Dr. Robinson. I was going to say I do not have anything 
concrete to add. I have not done any research in this area.
    Senator Portman. Let me just insert something that I find 
pretty obvious. When a company chooses to domicile somewhere 
else, and particularly when the headquarters moves, which often 
happens, as Dr. Desai says, there is an intangible impact.
    So the companies in our great cities in America are major 
benefactors. Companies in my home State of Ohio are involved in 
every single nonprofit in one way or another and often provide 
a lot of executives to help to lead these nonprofits and 
charities and, obviously, make huge contributions, and I would 
love to see some research on that, because I do think this is 
sort of the intangible impact of companies pulling out of the 
U.S. that has not been given adequate focus and research.
    So, if any of you all have any thoughts on that, I would 
love to see if we could look into that. So certainly, on the 
jobs front, we would like more information, but also on this 
sort of intangible benefit.
    What happens? Why does it matter? I think it matters. I 
think my colleagues do. That is why Senator Wyden and others 
are working hard on this. But I think we need better 
information to be able to explain this more in terms of the 
impacts, the negative impacts, to our constituents.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Portman.
    At this point, I would ask unanimous consent that a 
statement by Senator Levin be included in the hearing record.
    Without objection, the statement will be included.
    [The prepared statement of Senator Levin appears in the 
appendix on p. 43.]
    The Chairman. Let me leave you all with one thought that we 
really have not, I think, gotten into much this morning.
    It seems to me that it would be one thing if there were 
just a few of these inversions. In other words, if there were a 
few of them, we would work, as we have talked about this 
morning, on comprehensive, bipartisan tax reform, we would fix 
it, and then we would not be back here again in another decade.
    Part of what has influenced my judgments is that that is 
not going to happen. And I spoke a couple of hours ago about 
reports from the financial press about this feeding frenzy. 
That is what is actually going on out there. It is not a few of 
these inversions that you could put to bed with comprehensive 
tax reform. But according to the financial press, it is a 
feeding frenzy, where you have the investment bankers going out 
to all the possible companies with their slide decks and 
saying, ``You had better do this quickly.'' And the reality is 
that tax reform is moving slowly and the inversions are moving 
very rapidly, and, as I indicated before, I think that is a 
prescription for real chaos.
    So, as you could hear from the Senators here today--there 
was not a lot of shouting and a lot of screaming and finger-
pointing--there is a lot of good will here. And my hope is 
that, with your good counsel--it has been a very good hearing, 
with very thoughtful testimony--you can help us address both of 
these tasks: to close the inversion loophole and then move on 
to the great challenge in front of this committee, and that is 
the real cure, which is comprehensive, bipartisan tax reform.
    With that, the Finance Committee is adjourned.
    
    [Whereupon, at 12:21 p.m., the hearing was concluded.]
    
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