American Dollars To Canadian Doughnuts

Tim Hortons (THI) has long been a regular stop whenever I visit Canada.

For one thing, I couldn’t avoid Tim Hortons outlets if I wanted to; they’re everywhere. I do genuinely like their doughnuts, however. The chain is the biggest coffee and doughnut seller in Canada and marked its 50th anniversary this spring.

Given Tim Hortons’ ubiquity and popularity, it is no surprise that American dollars are chasing Canadian doughnuts.

News broke over the weekend that Burger King Worldwide Inc. (BKW) is engaged in talks to buy Tim Hortons. Should the deal succeed, the combined businesses would together have about $22 billion in sales, making the new fast-food company the world’s third-largest.

Burger King wouldn’t only be securing a Canadian institution with habit-forming baked goods, though. It would also pick up a more favorable tax situation, courtesy of a move north of the border. In the proposed version of the merger, Burger King would create a new, Canadian-based parent company, housing both independently operating chains. This structure would give Burger King domicile in Canada and preserve Tim Hortons’ domicile there.

While unnamed sources briefed in the deal told The New York Times that taxes were not the primary motivation behind the talks, Burger King is obviously aware of the tax implications. Canada cut its national corporate tax rate to its current level of 15 percent several years ago. (Companies there must also pay provincial taxes, meaning Ontario-based corporations such as Tim Hortons currently pay 26.5 percent total.) Meanwhile, the U.S. insists not only on a 35 percent federal corporate tax rate, plus state taxes in most places, but also on taxing corporations on earnings worldwide. Burger King doesn’t currently hold much cash outside the country, the Times reported, but it may certainly have an eye on expansion in the future, both in Canada and elsewhere.

Although Burger King is an American company, it is controlled by a Brazilian investment firm, 3G Capital, which owns about 70 percent of the company’s shares. Why would Brazilians want to continue to pay U.S. tax on profits from burgers they sell in Buenos Aires or Hong Kong? There is no reason they would. Under the tax systems in place almost everywhere outside the United States, there is no reason they should, either.

As for Burger King’s American shareholders, like all corporate shareholders here, they are taxed twice: once on corporate profits and again when the corporation pays out dividends. This makes tax inversion – relocating a company’s headquarters to a lower-tax nation, as Burger King may – an attractive prospect, even for American shareholders. It’s worth noting, too, that those who criticize inversion most vehemently are almost always people whose income is only taxed once – and often, that income is a salary paid by taxpayers.

The current president has made no secret of his displeasure with the practice. Before, and especially since, I last wrote about American companies fleeing to less hostile tax climates, Obama and the Democrats have bleated about unpatriotic U.S. corporations, as if there were an inherent patriotic duty to have income earned abroad taxed back in the U.S at least once. In the wake of at least five large U.S. companies that have announced plans for inversions between mid-June and late July, Obama criticized a “herd mentality” at play in the decisions, calling the companies “corporate deserters who renounce their citizenship to shield profits.” This characterization imagines corporations are owned by nobody, or by Martians, who otherwise lack citizenship elsewhere on Earth.

The administration is said to be looking for a way to make inversions difficult or impossible in the future. Treasury Secretary Jacob Lew has acknowledged that his agency is seeking ways to hinder or stop inversions without the need for legislative support from Congress.

However, unlike government-regulated banks, which under pressure have forked over billions of dollars in penalties for real and imagined offenses, most private corporations have legal teams that are well used to challenging rulings from the Internal Revenue Service. We have an active and independent Tax Court in this country. The IRS is a frequent litigant and a not-infrequent loser, especially when it faces adversaries with technical knowledge and financial resources, such as are available to major corporations. If the administration wants to challenge inversions using, shall we say, novel interpretations of the tax law, it should not expect most of corporate America to roll over the way that the banks have.

Even if the government succeeds in making inversions impractical for U.S.-based companies, it is unlikely to be pleased with the result. Blocking inversions here will only turn American companies into takeover targets for foreign businesses. Acquirers will simply buy U.S. companies and relocate the headquarters, or their assets, once the deal is complete. In the process, even more American jobs will be lost.

When Canada lowered its corporate tax rate, critics warned that the move would be disastrous for Canadian federal government revenues. If the Burger King inversion is any indication, an attractive tax structure can more than make up for a lower rate by drawing new and existing businesses to establish headquarters in Canada.

The sensible thing is to recognize once again that neither Martians nor corporations pay taxes. Shareholders and customers – in other words, people – do. If those people have no connection to the U.S. other than a corporation’s legal domicile, they will find ways to sever their ties rather than fund a foreign government at exorbitant rates.

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About Larry M. Elkin 564 Articles

Affiliation: Palisades Hudson Financial Group

Larry M. Elkin, CPA, CFP®, has provided personal financial and tax counseling to a sophisticated client base since 1986. After six years with Arthur Andersen, where he was a senior manager for personal financial planning and family wealth planning, he founded his own firm in Hastings on Hudson, New York in 1992. That firm grew steadily and became the Palisades Hudson organization, which moved to Scarsdale, New York in 2002. The firm expanded to Fort Lauderdale, Florida, in 2005, and to Atlanta, Georgia, in 2008.

Larry received his B.A. in journalism from the University of Montana in 1978, and his M.B.A. in accounting from New York University in 1986. Larry was a reporter and editor for The Associated Press from 1978 to 1986. He covered government, business and legal affairs for the wire service, with assignments in Helena, Montana; Albany, New York; Washington, D.C.; and New York City’s federal courts in Brooklyn and Manhattan.

Larry established the organization’s investment advisory business, which now manages more than $800 million, in 1997. As president of Palisades Hudson, Larry maintains individual professional relationships with many of the firm’s clients, who reside in more than 25 states from Maine to California as well as in several foreign countries. He is the author of Financial Self-Defense for Unmarried Couples (Currency Doubleday, 1995), which was the first comprehensive financial planning guide for unmarried couples. He also is the editor and publisher of Sentinel, a quarterly newsletter on personal financial planning.

Larry has written many Sentinel articles, including several that anticipated future events. In “The Economic Case Against Tobacco Stocks” (February 1995), he forecast that litigation losses would eventually undermine cigarette manufacturers’ financial position. He concluded in “Is This the Beginning Of The End?” (May 1998) that there was a better-than-even chance that estate taxes would be repealed by 2010, three years before Congress enacted legislation to repeal the tax in 2010. In “IRS Takes A Shot At Split-Dollar Life” (June 1996), Larry predicted that the IRS would be able to treat split dollar arrangements as below-market loans, which came to pass with new rules issued by the Service in 2001 and 2002.

More recently, Larry has addressed the causes and consequences of the “Panic of 2008″ in his Sentinel articles. In “Have We Learned Our Lending Lesson At Last” (October 2007) and “Mortgage Lending Lessons Remain Unlearned” (October 2008), Larry questioned whether or not America has learned any lessons from the savings and loan crisis of the 1980s. In addition, he offered some practical changes that should have been made to amend the situation. In “Take Advantage Of The Panic Of 2008” (January 2009), Larry offered ways to capitalize on the wealth of opportunity that the panic presented.

Larry served as president of the Estate Planning Council of New York City, Inc., in 2005-2006. In 2009 the Council presented Larry with its first-ever Lifetime Achievement Award, citing his service to the organization and “his tireless efforts in promoting our industry by word and by personal example as a consummate estate planning professional.” He is regularly interviewed by national and regional publications, and has made nearly 100 radio and television appearances.

Visit: Palisades Hudson

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