Five Ways GE Plays The Tax Game

article by: Allan Sloan & Jeff Gerth


General Electric's tax department is famous for inventing ways to pay Uncle Sam less. So it should come as no surprise that its CEO, Jeff Immelt, is in the crosshairs as the new chairman of the President's Council on Jobs and Competitiveness.

The job puts him in the limelight as Washington debates ways to make the tax system fairer, respond to competition from low tax countries and cut the federal deficit -- competing imperatives sure to confound reform efforts. If the debate does get serious, attention is likely to focus on whether to get rid of some of the special tax advantages that benefit GE and other multinational companies.

Still, GE is in a class by itself. Here are five ways the company pares its tax rate well below the top U.S. corporate rate of 35 percent -- sometimes into the single digits.

Strategy No. 1: The Tax Department as Profit Center

GE's tax department is well known for its size, skill and hiring of former government officials. About 20 years ago, GE's tax employees totaled a few hundred and were decentralized. Today, there are almost 1,000. The department's strong suit? Reducing the taxes GE reports for earnings purposes.

GE, like other publicly traded companies, publicly reports one set of tax numbers to calculate its earnings but uses a different set, which remain confidential, to calculate what it owes the tax collector. The lower the taxes GE reports, the higher its publicly reported profits. And the higher its profits, presumably, the higher its stock price goes.

That is the holy grail sought by GE and countless other companies. Thus the tax department can be like a profit center of its own -- perfectly legally, we might add.

For example, GE boosted its 2008 and 2009 reported profits by a total of about $1 billion just by changing its mind about how it treated some of its overseas earnings.

Here's why -- and how -- it works.

Many U.S. multinational corporations keep some profits abroad, none more than GE: Its total was $94 billion at the end of last year. As long as corporations tell their accountants they intend to indefinitely invest those profits outside the U.S., they don't have to make a provision for federal and state taxes on them. If the profits stay abroad, they remain untaxed.

GE, in 2008 and 2009, told its accountants that about $3 billion of overseas profits were going to be indefinitely invested abroad. Previously, the company had not made that investment decision, so it was required to set aside a bookkeeping provision of about $1 billion for U.S. taxes. That provision impacted publicly reported earnings when it was taken.

GE never actually paid the $1 billion in taxes. And it doesn't say when the previous accounting provision of $1 billion was taken. But, lo and behold, in 2008 and 2009, when the company sorely needed higher profits, there they were, thanks to a tax benefit! It didn't have to sell more jet engines, or turbines, or kitchen appliances.

A leading tax accounting professor uses the GE shift as a case study in the flexibility of the accounting rules. Ed Outslay, Deloitte/Michael Licata professor of accounting at Michigan State University's business school, says GE's move shows the "discretion" inherent in the accounting rule.

GE, in answers provided through a spokeswoman, told us that it fully disclosed the investment changes as well as the reason behind them. "We don't think," the company went on, that the rule "allows too much discretion."

But its top tax executive, John Samuels, said at a conference last year that the ability to defer taxes on overseas profits gives companies an incentive to shift them abroad.

It's "a heads-I-win, tails-I-break even situation," Samuels said.

Strategy No. 2: Hire the IRS

When it comes to interpreting the intricacies of tax accounting, few companies can match the depth of personnel GE hires for its tax department. What makes GE unusual, according to tax lawyers and accountants, is its practice of recruiting dozens of former tax officials from Washington's official tax world.

"An important rule to live by," a senior GE tax lawyer, Rick D'Avino, told a conference in 2007, "is to ensure that the tax team has as many former government tax experts as possible" to "help see both sides of an issue more effectively." D'Avino, a GE vice president, mentioned the IRS, Capitol Hill and Treasury as places to look when building a team and talked about how a former IRS lawyer working for GE helped the company build a "cooperative relationship" with the service.

The next year, GE hired the senior IRS official who was overseeing the service's transfer pricing program, under which large multinational companies like GE negotiate with the IRS about how to price products and services among subsidiaries. The subject is controversial because it can allow companies to shift profits to lower-tax countries.

Samuels, the head of GE's tax department, is a former Treasury tax official himself. No American corporate tax executive likes to publicly debate tax policy more than Samuels. He chairs a nonprofit international tax policy group in Washington. He teaches a course on taxes at Yale Law School. And he appears regularly at tax forums around the country.

His message has a few common themes. One is that the U.S. corporate tax rate is too high when compared to other developed nations. Another is that Washington's idea of taxing overseas business income for its resident companies smacks of arrogance and is out of step with tax systems in other countries.

These are arguments GE also makes on Capitol Hill -- through dozens of lobbyists who used to work on tax issues for the Treasury or Congress.

Strategy No. 3: Protect the Golden Egg

GE's most significant tax benefit has a name only an accountant could love.

The so-called "active finance exemption" allows the income from GE's overseas lending activities to remain untaxed in the United States. It is so important to GE that the company discloses in its financial reports the periodic need for this tax break to be renewed by Congress. The New York Times highlighted the exemption in a recent piece on GE's tax practices.

GE doesn't say what active financing is worth to the company, but it means hundreds of millions of dollars a year and possibly $1 billion or more in lower taxes and hence higher profits, according to tax experts.

GE's massive finance arm, GE Capital, operates around the world. It used to provide almost 50 percent of GE's profits, but it has lost tens of billions of dollars in recent years because of the financial crisis. Still, financing activities provide GE the flexibility to move profits around the globe. Earlier this year, GE's chief financial officer, Keith Sherin, told analysts that the company's "global organization" allowed it "to have very low taxed overseas earnings."

The exemption has a colorful history. It was curtailed in 1986, the last time Congress passed a major tax overhaul to curb corporate loopholes and lower rates. But it was reinstituted in a 1997 bill that was so controversial in Taxland that President Bill Clinton tried to kill it by exercising a line item veto, which allows him to strike individual parts from a bigger piece of legislation. Clinton said the exemption would create "tax-haven abuses."

A year later, the Supreme Court said the line item veto was unconstitutional. The exemption, slightly modified, became law again, but on a temporary basis. The exemption gets renewed every few years.

That short shelf life can lead to some desperate lobbying. Late in the afternoon of Sept. 15, 2008, the first business day after Lehman Brothers failed, and a day when the world's financial system seemed to be at the brink of the abyss, GE's Immelt was in the office of then-Treasury Secretary Hank Paulson.

By GE's account, "the reason for the meeting" was about getting Treasury's support for the soon-to-expire exemption. Paulson's 2010 book on the financial crisis mentions the meeting, though not the tax discussion. According to the book, Immelt startled Paulson by saying GE was having trouble renewing its massive short-term debts as they came due, something that could have sent GE's stakeholders, and the world's financial markets, into a deeper panic.

The active finance exemption was renewed a few weeks later by Congress in a massive financial rescue bill.

A few weeks after that, the government helped GE by letting it into programs run by the Federal Reserve and the Federal Deposit Insurance Corporation that supported its borrowings.

Strategy No. 4: Move Jobs Overseas, Get a Tax Break

Congress is famous for writing bills with fine print and pleasing titles. Take the American Jobs Creation Act of 2004. It actually led GE to shift some of its aviation leasing operations to Ireland in order to qualify for a tax deferral. The law's tax provisions also saved GE hundreds of millions of dollars in taxes annually, according to company filings.

To appreciate the aviation leasing provision, one might turn to an obscure 3,000-page handbook on leasing put out by the Practicing Law Institute. There you will find a chapter on foreign leasing, written by six current and former GE executives.

The authors, writing personally and not for GE, mention the "irony" of a U.S. jobs act requiring lessors to have "substantial" work done outside the United States to qualify for a deferral. The authors also explain how the 2004 acted loosened the active finance exemption (see above).

GE, which has one of the largest aviation leasing units in the world, said in written answers to our questions that fewer than 10 jobs were moved to Ireland from its unit in Connecticut as a result of the act. The company's Irish aviation subsidiary shows a doubling of jobs from 2004 to 2008, from about 100 to 200.

GE's answers say the increase is partly due to a change that required it to report workers previously not counted and more broadly "reflects the overall growth of the aviation market outside the U.S." This involved new jobs in Shannon and not a movement of jobs from Connecticut, according to the company's answers.

After the Jobs Creation Act took effect, Shannon, Ireland became the co-headquarters of the aviation leasing business, along with Stamford, Conn. According to Irish public records, GE also set up a new aviation funding corporation in Ireland with about $15 billion in assets -- and no employees.

The corporate tax rate in Ireland is 12.5 percent, though GE subsidiaries there often pay at a lower rate, according to company filings in Ireland. (Remember, the U.S. rate is, in theory, 35 percent.) The country has an extensive network of tax treaties, which is helpful to companies like GE when competing against global competitors.

Strategy No. 5: Play It Both Ways

These days, GE is happy to talk about how its effective U.S. corporate tax rate is going up. Immelt went so far as to tell shareholders, in his annual letter a few weeks ago, that the higher rate was one factor that will make GE "more valuable" going forward.

Hold that thought; more is below.

Last year, GE's tax rate, for earnings-reporting purposes, was 7.4 percent. The company says it will be higher this year, in part because of the $3 billion gain it recorded on the sale in January of a 51 percent stake in its NBC-Universal media operation to Comcast.

GE got $6.2 billion of cash, plus 49 percent of a partnership that owns NBCU's businesses and assets that Comcast contributed. GE says both its pre-tax gain (or profit before taxes), and tax expense (what it will owe in taxes), will be about $3 billion. It's not clear how big an actual check (if any) GE will have to cut to the IRS on its profit. GE declines to say.

One part of the deal most missed: A major tax benefit for GE.

GE will provide no numbers at all for what it stands to make from a sophisticated tax maneuver that we found disclosed in one sentence of its financial filings (and also in Comcast's). It says that GE and Comcast, which declined comment, will split tax savings that Comcast realizes from the deal's structure. It gives no indication of how big the savings are or how the split is allocated.

GE told us its savings depend on Comcast's tax situation and on how the deal works out, but wouldn't provide specifics. Some outside tax experts think the break could total as much as $3 billion, spread over 15 years, for the two companies.

As for Immelt's statement that higher tax rates are more valuable, GE made clear, in a statement to us, that there is a big difference between higher taxes and higher tax rate.

Its executives, including Immelt, have tried to explain that huge losses at GE's finance arm have driven down tax rates in recent years, so higher tax rates in the years ahead mean a healthier GE.

http://www.businessinsider.com/five-ways-ge-plays-the-tax-game-2011-4