Category Archives: Taxation

Wouldn’t Employees Prefer Permanent Tax Deductions to One-Time Holiday Bonuses?

This is the season for announcing year-end employee bonuses. And two days ago, in response to the bonus announcements of several large American corporations, President Donald Trump tweeted:

Our big and very popular Tax Cut and Reform Bill has taken on an unexpected new source of “love” – that is big companies and corporations showering their workers with bonuses. This is a phenomenon that nobody even thought of, and now it is the rage. Merry Christmas!

Indeed, a few firms have explicitly referenced the Trump Administration’s corporate tax reductions in their bonus announcements. Bank of America’s CEO Brian Moynihan, for instance, wrote to his employees:

I want to highlight the December 20 passage in the United States Congress of the most fundamental tax reform since 1986. When the legislation is signed into law by the President, these reforms will impact our company in different ways. For instance, we will see an immediate reduction in earnings as a result of a write-down of the value of our deferred tax asset. Beginning in 2018, we will see benefits from the tax reform, too, in the form of lower corporate tax rates.

In the spirit of shared success, we intend to pass some of those benefits along immediately. U.S. employees making up to $150,000 per year in total compensation – about 145,000 teammates – will receive a one-time bonus of $1,000 by year-end.

At first glance, this would appear to be a very generous gesture. But did you notice the appearance of the phrase “one-time” in Moynihan’s announcement?

It implies that employees should not expect such bonuses in the future. The reduction in the corporate tax rate, however, is a permanent one.

That raises an interesting public policy question. If President Trump and the Republican Party wanted to shower workers with “love,” shouldn’t they have redirected a portion of the corporate tax cuts to employee tax reductions?

In other words, if these bonuses were designed to serve as pass-throughs of the employers’ new tax benefits to their workers, shouldn’t the federal government have simply reduced the payroll taxes of those very workers?

That way, instead of merely enjoying a one-time bonus, employees could have joined their employers in enjoying permanent tax benefits.

Indeed, any rational employee would prefer a permanent tax reduction to a one-time holiday bonus. But for some reason, President Trump and the Republican Congress decided against sharing their “love” in this manner.

If Corporations Are People, Why Aren’t They Taxed Like People?

Have you been keeping track of the U.S. Republican Party’s proposal to transform the American system of income taxation as it wends its way through the legislative process? If you’re doing so, you may be wondering about the answer to a very simple question:

If the Republican Party truly believes that “corporations are people,” why is it willing to tax corporations at rates that fall so far below comparable personal (or individual) rates?

After all, if corporations are people, one may conclude that they should be taxed like people. Conversely, if they are not, then one may conclude that several recent Republican legislative positions are dissonant in nature.

To elaborate on this question, it may be helpful to review some historical background. And to do so, we may wish to begin with the birth of the American nation in 1776.

In June 1776, for instance, Virginia ratified its Declaration of Rights, a document that later evolved into its State Constitution. The declaration included an assertion that “… all men … have certain inherent rights … namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

The Declaration clearly drew upon John Locke’s earlier assertion, in his Two Treatises of Government, of an individual’s natural rights to life, liberty, and estate (or property). And at roughly the same time that the colony of Virginia was ratifying its Declaration of Rights, Virginian Thomas Jefferson was defining life, liberty, and the pursuit of happiness as unalienable rights in the American Declaration of Independence.

But did Locke, Jefferson, and their peers intend to imply that business organizations also possess these unalienable rights? Or were they strictly referring to rights that are held by individuals?

Their writings appear to be focused on individual rights. Nevertheless, the U.S. Republican Party now supports the libertarian position that corporations are associations of individuals. Thus, consistent with recent U.S. Supreme Court decisions, certain human rights that are held by individuals can be aggregated into rights that are held by associations of individuals, and thus by corporations.

That’s why, during the 2012 Presidential campaign, candidate Mitt Romney declared that “corporations are people” in regards to the legal rights of corporations. Despite subsequent public criticism of Romney’s declaration, he was accurately describing the Supreme Court’s position in various decisions (such as the Citizens United and Hobby Lobby cases) that confirmed the existence of corporate rights.

In a fiscal sense, President Ronald Reagan’s earlier Tax Reform Act of 1986 also established a rough equivalence between corporations and individuals by bringing the maximum corporate tax rate and the maximum personal rate into rough equality. Specifically, it reduced the nominal corporate rate to 34% and the nominal personal rate to 28%. However, due to the phase-out of personal exemptions, it “topped out” the effective personal rate at 33%.

So how can we summarize these established (or “establishment”) Republican positions? Although the Founding Fathers and their predecessors defined individual rights without explicit reference to corporate rights, U.S. Republican Party leaders from Ronald Reagan to Mitt Romney implicitly or explicitly declared that “corporations are people,” and concluded that business entities should enjoy many of these same rights.

But then what are we to make of the fact that President Donald Trump favors a reduction in the top corporate tax rate to 15.0%? While only supporting a slight reduction in the top individual rate to 35.0% from 39.6%?

That’s a bit inconsistent with the established Republican position, isn’t it? After all, if business corporations possess many of the natural rights of individuals, it is reasonable to believe that they should be taxed as individuals. Instead, the President favors an ostensibly dissonant policy of treating corporations like people on legal matters when it favors business entities to do so, while treating them differently than people on tax matters when it likewise favors the entities to do so.

On the one hand, there may be nothing illegal about such a position. But on the other hand, its natural dissonance may breed a sense of cynicism about a lack of equity in our system of government.

Note: With permission of the author, this essay has also been published by the Public Interest Section of the American Accounting Association.

Hedge Fund Fairness

Do you believe in the fundamental principles of tax fairness? If you do, then you’re in luck. Next year, the American system of income taxation is scheduled to take a significant step in that direction.

But oh, there are so many more steps yet to be taken!

This particular step, though, involves the issue of income and deductions. Under normal circumstances, when an employer pays compensation to an employee, the employer’s expenditure produces a tax deduction. And the employee’s income is subject to taxation.

Except in the world of hedge funds, where many managers function as both employers and employees. Apparently, according to Dow Jones:

For decades, the Internal Revenue Service allowed managers of offshore funds (as employees) to defer receipt of this compensation and both (as employers and employees to) avoid an immediate tax bill and grow the savings tax-free. The IRS generally permits businesses to allow executives to defer compensation because such deferrals lower the firms’ compensation costs, forcing them to pay higher taxes on profits. That offsets income taxes not immediately paid by employees.

That’s pretty dense stuff, isn’t it? In essence, though, the concept isn’t very complicated. The federal government has been allowing hedge fund managers who employ themselves to adopt a pair of tax positions simultaneously. Namely, they have been permitted to avoid paying income taxes on their compensation as employees, and to avoid taking tax deductions as employers.

In theory, the first action decreases government revenue and the second increases government revenue, thereby creating an “offset” effect. But in reality, this “offset” is often only a partial one that ultimately favors hedge fund managers. That’s because the managers can defer income tax payments indefinitely, while investing their compensation in income-producing activities.

So what step in the direction of fairness will be taken next year? Actually, that step was first taken nine years ago. In 2008, in the very heart of the financial crisis, the federal government required hedge fund managers to start paying income taxes in the year they earn their compensation.

But the government then delayed the implementation of that new requirement for ten full years. Thus, it’s finally about to take effect next year.

That will make the tax system more fair, won’t it? Indeed, it will. But many other hedge fund tax loopholes still exist, such as the infamous carried interest treatment of performance fees. That one allows managers to pay low tax rates on compensation, instead of the higher rates that would be incurred in virtually any other industry.

So where do we stand? By all means, we should feel free to celebrate the upcoming victory in the battle for tax fairness. Nevertheless, we should also keep in mind that we aren’t even close to winning the war.