Destructive vs Constructive Tax Reform

Miguel A. Martínez, Jr. photo

It was the legendary Chief Justice of the United States, John Marshall, who wrote the now famous phrase, “[T]he power to tax involves the power to destroy…”  He would likely repeat those words if he could read through the Stop Tax Haven Abuse Act, introduced this week by U.S. Sen. Carl Levin, D-Mich.  This legislation, if enacted, would direct the destructive power of the tax code on the global competitiveness of U.S.-based companies and, worst of all, on the U.S. economy.

Everyone acknowledges that our current tax system, last reformed in 1986, is broken.  It is a complex obstacle to investment and job creation in the U.S.  Fortunately, the bipartisan chairmen of the tax-writing committees in the U.S. House and Senate stand prepared to take on the naysayers and move forward with constructive efforts to modernize the U.S. tax code.  They’ve met with small business owners, entrepreneurs, innovators, and hard-working Americans to talk about ways to align the tax code with the U.S. economy.  Senator Levin’s bill, unfortunately, would not bring our tax code up to date.  Rather, it threatens to set the American economy back decades.   

Don’t let the populist appeal of the Levin bill’s title fool you.  His bill takes direct aim at law-abiding U.S. companies that are trying to compete with foreign companies that have the benefit of updated, modern tax systems.  

Under the guise of getting at tax havens, Senator Levin seeks to punish the responsible decisions that companies make in order to legally reduce their tax payments.  The problem is the tax code itself, not those who employ it.  For example, Sen. Levin dismisses valid and critically important tax rules such as “check-the-box” and “CFC look-through” as gimmicks.  But tax directors at American multinational businesses will tell you that, within the framework of the United States’ worldwide approach to taxation, these rules  were constructed to give them a fighting chance of competing with their global competitors which are not taxed on the money they earn outside their home countries.

The Levin bill also levies new taxes on “excess returns” from foreign customers, which actually punishes companies for being profitable.  Many IP-based companies earn high rates of return on their products because while they invest billions in research and development, the marginal cost of producing products like software is minimal.  The Levin bill condemns this business model with a broad brush and singles out these innovative companies for punitive new taxes.  These new taxes would disproportionately impact U.S. companies, putting them at a competitive disadvantage in global markets.

Constructive tax reform is not about attacking U.S. companies, but empowering them to succeed in the global marketplace and invest the fruits of their success here in the U.S. tax reform should be about working together to bring the U.S. tax code into the 21st century.  It should be about reducing the cost and complexity of the tax code.  It should be about drafting a tax code that has the potential to create a more competitive environment for business in the U.S. and more opportunities for growth and investment throughout the U.S. economy.

We believe there are three keys to creating a tax code that will do just that:

  • Lower the rate.  In 1986, the U.S. had one of the world’s lowest corporate tax rates, but today it is the highest among its global competitors;
  • Adopt a competitive, market-based tax system.  Of the 31 OECD countries, 25 use a market-based tax system; and,
  • Establish permanent tax incentives to promote R&D.  A robust and improved R&D tax credit would boost U.S. gross domestic product by $66 billion every year and create at least 162,000 new jobs. 

As we move forward in the tax reform debate, ITI will continue to work with Members of Congress to level the playing field so our nation and its businesses can compete in today’s global marketplace.  There are many ways to approach tax reform, but surely we can all agree on what the goals of tax reform should be:  new investment in America, new jobs throughout America,  and new economic opportunity across America. 

Maybe we can refresh Chief Justice Marshall’s point.  ”The power to tax involves the power to create.  It should be constructive, not destructive.”  It’s a lesson we hope that Sen. Levin will learn. 

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