A rather stunning near–catastrophe almost occurred in the art world recently, and only dumb luck – namely, a casual off-hand remark with a savvy tax adviser – saved the art owner from a huge, self-inflicted tax bill from the Internal Revenue Service. A non-U.S. taxpayer (meaning a non-resident alien in tax parlance) had an extremely valuable painting being displayed in a U.S. museum or gallery and, for a variety of reasons, he wanted to transfer the painting to his spouse, who is also a non-resident alien. Let’s assume for the sake of argument that the painting was worth $50 million. Because the gift was from a non-resident alien to his non-citizen spouse, and the property was tangible property located or situated within the United States at the time of the transfer, this transfer would have been subject to tax the U.S. gift tax regime, at a tax rate of up to 40%. WHAAAAATTTTT???!!!
The Treasury no doubt felt that it could chalk one up in the win column early in April 2016 when, following its release of a veritable carpet bombing of new regulations designed to blow up inversion transactions, the primary target, Pfizer Inc., chose to wave the white flag and cancel—at least for the time being—its efforts to merge with Allergan PLC.
Governor Charlie Baker wants to give the Massachusetts corporate income tax a makeover of Lady Gaga-like proportions: Baker wants to extend the “single sales factor" apportionment regime, which currently applies only to manufacturers and mutual fund service corporations, so that it applies to all Massachusetts corporations. This would be a major boost to a variety of local companies, notably big retailers such as TJX and Staples.
Inversion transactions – transactions whereby a U.S. corporation merges into a foreign corporation and essentially expatriates from the United States to tax purposes – have become front-page news once again, as some of the most famous brand names in U.S. corporate history have left or are attempting to leave U.S. tax jurisdiction. The recently departed include Eaton Corporation, a Cleveland-based manufacturer that has made itself, through merger, a resident of Ireland. Others seemingly headed out the door include Medtronic, Inc. the Minneapolis-based medical device company, which is also planning to head off and become a resident of the Auld Sod. Other famous corporate expatriations in recent memory include Stanley Black & Decker, Seagate Technology, Fruit of the Loom, Ingersoll-Rand and Tyco International. Meanwhile, the list of companies that have seriously considered inverting includes such legendary brand names as Pfizer, the pharmaceutical giant, Walgreens, the iconic drugstore company, and Chiquita, the top banana in the banana business. In the case of Pfizer, its attempted buyout of Astra Zeneca PLC fizzled, nixing the effort to move Pfizer's corporate headquarters to the United Kingdom – at least not for the moment. But the UK continues to offer a holding company regime that is increasingly attractive to foreign multinationals, including a 20% corporate tax rate (reduced to a 10% rate if the corporation qualifies under the "innovation box" rules) and no tax on repatriation of foreign profits. Lots of people seem deeply offended that companies like Eaton and Medtronic, apparently solely for tax reasons, wants to leave the United States and relocate elsewhere. But the United States, with the highest corporate tax rates in the world, has no one to blame but itself. An increasing number of U.S. companies seem willing to be accused of "bad citizenship" in the United States if it saves them a bundle in taxes. In the case of Walgreens, the iconic American drug store proposed to reincorporate its headquarters in Switzerland, which according to news reports would have saved Walgreens $4 billion of taxes in the next 5 years. That would pay for a lot of Swiss chocolate.