Small Biz, the Fiscal Cliff, and the Big, Bad Bank

As the clock ticks down on the fiscal cliff, small business wonders why it pays effective tax rates higher than Apple, Google, or Microsoft. Meanwh...
David RosenbaumDecember 27, 2012

According to a February 2012 survey sponsored jointly by three small-business advocacy groups, the American Sustainable Business Council, Main Street Alliance, and Small Business Majority, the greatest point of agreement (90%) among the 500 small-business owners they polled (50% self-identifying as Republicans; 32% as Democrats, and 15% as independent) was that large corporations using loopholes to avoid taxes “that small businesses have to pay” cause their own businesses to suffer.

“Small business,” says David Levine, chief executive officer of the ASBC, believes that “the [tax] rules are rigged against them.”

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Big companies, Levine says, can register their intellectual property trademarks, patents, and other creative assets with offshore entities, charge large fees, take the cash, and send it to tax-favorable jurisdictions such as the Cayman Islands, Liechtenstein, and, of course, Switzerland, and “end up with no [taxable] profit in the U.S. and big [lightly taxed] profits offshore.”

Small businesses, obviously, don’t have the wherewithal to take advantage of this dodge. But more important than the annoyance of trying to compete on a playing field tilted in someone else’s favor, as Levine points out, is that the tax money the United States doesn’t collect obviously isn’t there to invest in the infrastructure that small businesses depend on. Nor is it available to the banks small businesses turn to when seeking credit. Nor does it flow through local economies to create the demand upon which small businesses either feed or starve.

“What’s most grating to small business,” adds Scott Klinger, director of tax policy for Business for Shared Prosperity, an ASBC partner, “is when these large corporations say, ‘We’re just following the law.’”

That assertion doesn’t just bother small business. Last September the U.S. Senate Permanent Subcommittee on Investigations held hearings on “Offshore Profit Shifting and the U.S. Tax Code.” The chairman of the committee, Sen. Carl Levin (D-Mich.), stated that, as America stands on “the edge of a fiscal cliff,” the various “schemes” citizens and corporations have used to avoid paying their fair share of taxes is “one significant cause of the budget deficit, and adds to the tax burden that ordinary Americans bear.”

According to Levin, in 2009, 2010, and 2011, Apple, using offshore subsidiaries, deferred taxes on more than $35.4 billion, Google deferred more than $24.2 billion using the same gimmick, and Microsoft deferred $21 billion, allowing it to cut its U.S. tax bill by $2.4 billion in 2011. And, says Levin, while U.S. multinationals lobby for tax holidays that will enable them to repatriate those assets without paying a penalty, they’re already leveraging loopholes in the tax code to do just that.

Those offshore profits can be loaned by the subsidiary to the parent company (that is, brought back into the United States) with no tax liability if the loan is repaid within 60 days (and in some cases, the term of repayment can be considerably longer). Levin cites Hewlett-Packard as an example of a company that funds its daily operations in the United States almost entirely through untaxed, short-term loans from subsidiaries in Belgium and the Cayman Islands.

It’s hard to argue that the game isn’t rigged; harder still when one takes a brief glance at UBS, one of the world’s largest financial institutions with more than $26 billion in 2011 revenue and nearly 65,000 employees worldwide. It is Switzerland’s biggest bank, and it was just fined $1.5 billion for its part in rigging the LIBOR and EURIBOR market interest rates.

Just since 2008, UBS has paid billions in fines and penalties for criminal violations of various kinds.

In 2008 UBS agreed to a Securities and Exchange Commission demand that it reimburse investors $22.7 billion for defrauding clients by knowingly selling them securities in a collapsing market.

In 2009 UBS paid the Internal Revenue Service $780 million to defer prosecution for helping U.S. citizens hide their assets. That same year, the bank paid a $200 million fine for using unlicensed brokers in the United States to sell UBS products to investors.

The bank admitted in 2011 that during a five-year period, it had conspired to rig bids in the municipal bond derivatives market, defrauding more than 100 municipalities and nonprofits. It paid $160 million in fines for that and, in the United Kingdom, it paid a $50 million fine for fraud related to “rogue” trader Kewku Adoboli.

And as 2012 comes to a close, UBS is facing another $1 billion suit filed by the National Credit Administration Board on behalf of Kansas for underwriting violations in collateralized mortgages. New York, Massachusetts, and Texas are all suing UBS for various amounts for securities fraud.

Of course, with $26 billion in annual revenue, the approximately $24 billion in fines UBS has paid since 2008 could be construed as a simple cost of doing business. That’s one way to look at it. There are, obviously, others. “The bank’s conduct [in the LIBOR scandal] was simply astonishing,” said U.S. assistant attorney general Lanny Breuer at a news conference last week.

But why would Breuer be astonished? Why would anyone? Look at the record at UBS. This is business as usual, isn’t it?

And, as the fiscal cliff deadline looms, it’s business as usual, too, for small business. Any chance of meaningfully reforming what Klinger calls America’s “two-tier tax system”  one for the powerful, one for everyone else  any chance of small business getting a square deal, or even a fair shake, appears less likely by the moment.