(See CTJ director's full explanation of Facebook's use of the stock option deduction here.)

Facebook, Inc.’s upcoming initial public stock offering (IPO) paperwork reveals that it plans to wipe out all of the company’s federal and state income tax obligations for 2012 and actually generate a half billion dollar tax refund. As part of the plan, Facebook co-founder and controlling stockholder, Mark Zuckerberg can expect a $2.8 billion after tax cash windfall.

According to Facebook’s SEC filing, the company has issued stock options to favored employees, including Zuckerberg, that will allow them to purchase 187 million Facebook shares for little or nothing in 2012. Options for 120 million shares (worth $4.8 billion) are owned by Zuckerberg. The company indicates that it expects all of the 187 million in stock options to be exercised in 2012.

The tax law says that if a corporation issues options for employees to buy the company’s stock in the future for its price when the option issued, then if the stock has gone up in value when employees exercise the options, the company gets to deduct the difference between what the employee bought it for and its market price.

When, as Facebook expects, the 187 million stock options are cashed in this year, Facebook will get $7.5 billion in tax deductions (which will reduce the company’s federal and state taxes by $3 billion). According to Facebook, these tax deductions should exceed the company’s U.S. taxable 2012 income and result in a net operating loss (NOL) that can then be carried back to the preceding two years to offset its past taxes, resulting in a refund of up to $500 million.

Senator Carl Levin, who has proposed to limit the stock option loophole, told the New York Times, “Facebook may not pay any corporate income taxes on its profits for a generation. When profitable corporations can use the stock option tax deduction to pay zero corporate income taxes for years on end, average taxpayers are forced to pick up the tax burden. It isn’t right, and we can’t afford it.”

To be sure, Zuckerberg will have to pay federal and state income taxes (at ordinary tax rates) when he exercises his $4.8 billion worth of stock options in 2012. That’s only fair, since that $4.8 billion obviously represents income to him. But even after paying taxes, he’ll still end up with $2.8 billion.

The problem isn’t Zuckerberg’s personal taxes but Facebook’s. Why should companies get a tax deduction for something that cost them nothing?  If an airline allows its workers to fly free or at a discounted price on flights that aren’t full (for vacations, etc.) airlines don’t get a tax deduction (beyond actual cost) for that, even though the workers get taxed on the benefit, because it costs the airline nothing.

In the case of stock options, there is also a zero cost to the employer. So it’s more reasonable to conclude that while employees should be taxed on stock option benefits (“all income from whatever source derived” as the tax code states), employers should only be able to deduct their cost of providing those benefits, which, in the case of Facebook and Zuckerberg, is zero.

The bottom line is that there’s something obviously wrong with a tax loophole that lets highly profitable companies like Facebook make more money after tax than before tax. What’s about to happen at Facebook is a perfect illustration of why non-cash “expenses” for stock options should not be tax deductible.

See page 12 of our Corporate Taxpayers and Corporate Tax Dodgers report for more about the 185 other companies we found exploiting the stock option loophole.

Photo of Facebook Logo via Dull Hunk and photo Mark Zuckerberg via KK+ Creative Commons Attribution License 2.0

According to the Congressional Budget Office (CBO) report released on Tuesday, the overall corporate tax rate (corporate receipts as a percentage of domestic economic profits) in 2011 dipped to 12.1 percent, an all-time low over the 40 years for which CBO has tracked this data, and less than half the historic average of 25.6 percent. As the Wall Street Journals notes, this is even as corporate profits are on the rise.

The CBO notes that the “unusually low levels” of corporate taxes were not only driven by the recession, but also by tax breaks, such as those allowing for special deductions for depreciation in the value of equipment. This reinforces the critical point that Citizens for Tax Justice has been making that although the US has one of the highest statutory corporate tax rates, a wide variety of tax breaks cause the US to actually have the second lowest effective corporate tax rate in the developed world.

Looking forward, the CBO projects that the corporate tax rate will rebound substantially over the next few years and return to near its average historic rate. Unfortunately, this projected rebound may not come to fruition as it assumes that lawmakers will actually allow the expiration of corporate tax breaks. Unfortunately, extension of unnecessary corporate tax breaks, such as the allowance of 100 percent bonus depreciation, is one of the few areas where the Republican leadership and the Obama Administration agree.

Although Congress should be more proactive in raising corporate taxes, the CBO report reveals yet another area where Congress could improve the situation by doing nothing — and allowing tax cuts to expire. Of course, that would require lawmakers to overcome the billions spent by corporations to protect these tax breaks. 

Grassroots groups throughout the country have used Citizens for Tax Justice’s report “Corporate Taxpayers & Tax Dodgers,” to pressure lawmakers to clean up the tax code. Here’s a sample of what some groups have done in California, Massachusetts, Minnesota, Texas, and Washington.

California: A coalition of activist groups, including SEIU, the Teamsters, Good Jobs LA, and Occupy LA,  rallied in Hollywood to protest FedEx’s less than one percent corporate tax rate over the last three years. Good Jobs LA explained that the $552 million in tax subsidies that FedEx received in 2010 alone could have been used to create over “1,000 jobs, contributed tens of millions for Medicaid and food stamp benefits, and added more than $11 million for education programs.”

Massachusetts: MassUniting and Occupy Boston rallied at the Boston headquarters of General Electric (GE), perhaps the most infamous tax dodger due to its astounding negative 45.3 percent tax rate. Many of the protestors carried signs reading “I Paid More in Taxes than General Electric.”

Minnesota: Minnesotans for a Fair Economy marked the beginning of the state’s legislative session by demonstrating against Wells Fargo, which received a shocking $17.9 billion in federal tax breaks wiping out its taxes for the last three years. The protestors emphasized that Minnesota legislators have continuously prioritized corporate tax breaks over critical investments in education.

Texas: The community group Good Jobs Great Houston took to the streets (and brought a pig along with them) to protest the “ Dirty Thirty,” a group of companies that spend hundreds of millions of dollars to lobby Congress, yet pay nothing taxes. The protest took place outside the headquarters of Centerpoint Energy, which earned its place in the “Dirty Thirty” for the $1 billion in tax breaks it received over the past three years.

Washington: The advocacy group Working Washington held a rally against Wells Fargo's corporate tax dodging at the bank’s Seattle corporate offices. To demonstrate their opposition to corporate tax breaks, the protesters brought along a giant check depicting the $17.9 billion in tax subsidies that Wells Fargo has received over the last few years.

Photos via Good Jobs LA and Good Jobs Great Houston

During his State of the Union address, President Obama said that "no American company should be able to avoid paying its fair share of taxes by moving jobs and profits overseas." We couldn't agree more. However, a CTJ report explains that his proposed solutions fail to raise revenue, retain and expand the loopholes that allow corporations to avoid taxes, and mark a further retreat from earlier, stronger proposals.

Read the report.

President Obama's jobs council has released a report full of recommendations, including somewhat misguided points on the federal corporate income tax. The report rightly points out that the corporate income tax is full of loopholes that should be closed, but fails to call for a reform that actually raises revenue to support under-funded public services and investments. The report also perpetuates some misunderstandings about the effects of the U.S. corporate income tax on our economy and on working people.

Read CTJ's response.

Photo of Council on Jobs and Competitiveness via NCSU Web Creative Commons Attribution License 2.0

A new report from President Obama’s jobs council reflects a major dispute between corporate and labor leaders over tax reform. According to Reuters, the report “notes disagreement among council members over whether to shift to a ‘territorial’ system that exempts most or all foreign income from corporate taxes when it is repatriated.”

The report is from the President’s Council on Jobs and Competitiveness, which includes labor and business leaders and is chaired by Jeffrey Immelt, CEO of the notorious tax dodger, General Electric.

A “territorial” tax system is a euphemism for exempting the offshore profits of U.S. corporations from our corporate income tax. The bottom line is that our current system already provides a tax break that encourages U.S. corporations to shift investments offshore, and a “territorial” system would expand that tax break.

The existing tax break is the rule that allows U.S. corporations to “defer” U.S. taxes on their offshore profits until those profits are brought to the U.S. (until they are “repatriated”). Often these profits remain offshore for years and the U.S. corporation may have no plans to repatriate them ever.

This “deferral” of U.S. taxes on offshore profits provides an incentive for U.S. corporations to shift operations and jobs to a lower tax country, or just use accounting gimmicks to make their U.S. profits appear to be “foreign” profits generated in offshore tax havens.

These incentives for corporations to shift jobs and profits offshore would only increase if their offshore profits were entirely exempt from U.S. taxes, as would be the case under a territorial tax system.

Labor leaders know this, and labor unions have joined other organizations in opposing a territorial system. In October, when there were rumors that the Congressional “Super Committee” might propose a corporate tax reform, the big unions joined a letter to the committee members urging them to reject any proposal for a territorial tax system.

Corporate leaders, on the other hand, have been calling for a territorial system because of the benefits it would provide for corporations trying to lower their tax bills. The likely “disagreement” cited in the White House report probably was between the labor leaders and corporate leaders on the President’s jobs council.

As we explain in this fact sheet, the real answer is not to adopt a territorial tax system but to end “deferral.” Here’s a report making the same case in much more detail.

Ending Tax Breaks for Companies Moving Jobs Offshore

President Obama hosted an “Insourcing American Jobs Forum” last week with business leaders who are bringing jobs back to the United States. During the event, the President announced he’d soon “put forward new tax proposals that reward companies that choose to bring jobs home and invest in America.  And we’re going to eliminate tax breaks for companies that are moving jobs overseas.”

As already explained, the most straightforward way to do this would be to end deferral.

Another possibility is that the President could push some of the modest, but still helpful, proposals made early in his administration to limit the worst abuses of deferral. (Here’s a CTJ report explaining these proposals.) Unfortunately, the President immediately started backing away from these and dropped the most significant of these reforms (a change to the arcane-sounding “check-the-box” rules) by the time he made his second budget proposal.

Real tax reform depends on the administration being far more willing to stand up to the corporate CEOs — including those who sit on his jobs council.

Photo of Council on Jobs and Competitiveness via The White House Creative Commons Attribution License 2.0

The release of the corporate tax avoidance study by CTJ and ITEP last week marked a turning point in the debate over the budget deficit and tax reform. Until now, members of Congress and the Obama administration could ignore the 67-73 percent of Americans who think that large corporations pay too little in taxes.

But now, with hundreds of news stories about our findings, there is no denying the public appetite for corporate tax reform that asks profitable companies to pay their fair share.

Among other things, our report, Corporate Taxpayers and Corporate Tax Dodgers, 2 008-2010 showed that thirty large, profitable companies paid nothing in federal taxes over the last three years, and that seventy-eight had tax rates below zero in at least one of the last three years. We showed that the financial industry is making off with the biggest share of all tax subsidies, that defense contractors pay some of the lowest rates and that these major American companies end up paying about half the official tax rate because of all the loopholes in the tax code.

Indifferent to public opinion and the facts, however, too many lawmakers are caving into corporate lobbyists’ demands to actually cut corporate taxes. President Barack Obama and members of Congress in both parties are considering “revenue-neutral” reform of the corporate income tax.  This would close corporate tax loopholes, but it would put the revenue back in corporations’ pockets by reducing the statutory tax rate.

CTJ has responded with a campaign to educate lawmakers about how they can raise revenue from corporations and reject so-called “reforms” that make it easier for corporations to shift investments offshore and avoid taxes. In May, we led 250 organizations in demanding “revenue-positive” corporate tax reform. Large labor unions, including AFL-CIO affiliates and the SEIU, joined public interest organizations in opposing a “territorial” tax system, a “repatriation” amnesty as well as any corporate tax reform that fails to raise significant revenue.

The CTJ-ITEP corporate tax study makes it increasingly difficult for politicians to say with a straight face that fiscal responsibility requires cuts in health care, education, nutrition, environmental protection and other public investments while they do nothing to raise more revenue from profitable corporations.

The following are the stories of some of the most shocking tax dodgers we identify in our report.

TAX DODGER: GENERAL ELECTRIC (GE)
The Corporation Led by Obama’s “Jobs and Competitiveness” Chairman


TAX DODGER: HONEYWELL
The Corporation Led by a Member of Obama’s “Fiscal Responsibility” Commission


TAX DODGER: VERIZON
The Corporation Battling the Communication Workers of America to Cut $1 Billion in Employee Benefits


TAX DODGER: WELLS FARGO
One of the Biggest Bailed Out Banks


TAX DODGER: DUKE ENERGY
The North Carolina Corporation Pushing Senator Hagan and Others to Support a Repatriation Amnesty


TAX DODGER: BOEING
A Major Defense Contractor Lobbying Against Military Spending Cuts

The Corporation Led by Obama’s “Jobs and Competitiveness” Chairman

In March, activists called on Jeffrey Immelt, CEO of GE, to step down from his position as chairman of President Obama’s Council on Jobs and Competitiveness following revelations that GE had a negative corporate income tax rate over the past several years.

The New York Times had just reported that the nearly 1,000-person tax department of GE managed to achieve a negative corporate income tax rate over a 5-year period, partly by lobbying Congress for more tax loopholes. The article included all sorts of details that were damaging for GE. For example, it explained how the director of GE’s tax department literally “dropped to his knees” in the House Ways and Means office as he begged for — and won — the extension of a tax cut for financing through offshore subsidiaries.

A couple months earlier, President Obama had appointed Immelt chairman of his Council on Jobs and Competitiveness, which is to give “advice to the President on continuing to strengthen the Nation's economy and ensure the competitiveness of the United States.” After the Times article was published, former U.S. Senator Russ Feingold launched a petition calling on Immelt to resign from his position as chairman of the council.

GE’s tax avoidance entered the spotlight again in July, when Immelt endorsed a proposed repatriation amnesty. This proposal would call off almost all U.S. taxes on profits that U.S. corporations are currently holding offshore. These profits are normally subject to the difference between the U.S. corporate income tax and whatever foreign corporate income taxes were already paid (if the U.S. tax is greater) when the profits are brought back to the U.S. A recent report from a Senate investigations committee headed by Carl Levin (D-MI) found that a lot of these profits are stashed away in offshore tax havens where the corporations are likely to be doing no real business.

The Corporation Led by a Member of Obama’s “Fiscal Responsibility” Commission

On November 17, the conservative Tax Foundation is presenting its “Distinguished Service Award” to Republican House Speaker John Boehner and Honeywell CEO David Cote, who was appointed by President Obama to serve on the National Commission on Fiscal Responsibility and Reform (often called the “Bowles-Simpson Commission”).

It’s unsurprising that Speaker Boehner’s obstruction of any deficit deal involving revenue has earned him an award from the (Anti-) Tax Foundation. The case of Cote is more interesting. As a member of the fiscal commission, he voted in favor of a broad plan that would rely on spending cuts to achieve two-thirds of its deficit reduction goal and revenue increases to achieve just one-third of that goal, a plan that was panned by CTJ and others. The deal also included “tax reform” that clearly would not raise taxes on corporations overall.

In April, Cote spoke at a public event about the budget deficit where he was asked twice about a press release issued by CTJ that morning explaining that Honeywell did not pay any corporate income taxes in 2009 or 2010 and paid very low taxes over the past several years despite its profits. Within a matter of hours, Honeywell sent a letter to CTJ essentially saying that the company correctly reported large profits to its shareholders for the last two years but used available tax loopholes to report losses to the IRS.

CTJ's director, Bob McIntyre, wrote a letter back to Honeywell that concludes:

“So I think we agree on the following: The reason why Honeywell, despite reporting substantial pretax U.S. profits to its shareholders, paid no federal income tax in 2009 or 2010 (or more precisely, paid less than zero) is that it took advantage of legal tax breaks to wipe out its federal income tax liability. We may disagree, however, about whether these tax breaks should exist.”

(See the CTJ press release and correspondence between Honeywell and CTJ.)

The Corporation Battling the Communication Workers of America to Cut $1 Billion in Employee Benefits

In August, 45,000 Verizon employees went on strike to protest the company’s push for employees to give back $1 billion in health, pension, and other contract concessions.

CTJ commented at the time that Verizon's stance is particularly galling given that Verizon is both highly profitable and already a model of poor corporate citizenship. Despite earning over $32.5 billion over the last 3 years, Verizon not only paid nothing in corporate income taxes, it actually received nearly $1 billion (the same amount as the concessions they are seeking) in tax benefits from the federal government during that time.

As Verizon’s tax avoidance again received media attention following the publication of CJT’s major report last week, the company responded that the president of the Communication Workers of America, which organized the strike against Verizon, sits on the board of CTJ.

We’re not entirely sure what this is supposed to prove. If having the CWA president on our board makes our analysis biased, then surely anything said by Verizon’s tax department or spokespersons is even more biased since they actually work for Verizon.

More importantly, Verizon never actually offers any profit or tax figures that conflict with those in the CTJ study. The company’s spokesperson complains that the study does not count “deferred” taxes. (These are taxes that a company may pay in the future but has not paid yet, rendering them irrelevant.) He also says that the company “fully complies with all tax laws and pays its fair share of taxes.” Of course, CTJ has said from the beginning that the tax avoidance techniques used by Verizon and other corporations are (as far as we know) legal, and that’s why we know the tax system needs to be reformed by Congress.

One of the Biggest Bailed Out Banks

Last week a federal court decided against Wells Fargo in an $80 million tax shelter case. In the challenged deal, which government attorneys called a “charade” and an attempted “raid on the federal Treasury,” Wells Fargo claimed a $420 million capital loss from the transfer of “underwater” leases to a subsidiary and a related sale of stock to Lehman Brothers. The transaction had no business purpose other than tax avoidance, the court said, and was a sham tax shelter purchased from the international accounting firm KMPG for $3 million.

Our corporate tax study found that the financial industry as a whole had an average effective federal income tax rate of 15.5 percent for the 2008-2010 period and Wells Fargo’s rate was -1.4 percent. Wells Fargo also topped the list of companies with the largest tax subsidies, receiving $17.9 billion in tax subsidies over that three-year period.

A significant factor in their low tax rate is the deduction of net operating losses (NOLs) that were bought in the Wachovia acquisition. Tax law normally limits the deductibility of acquired NOLs, in order to keep companies from acquiring other companies just to reduce their taxes, but the Bush Treasury Department gave Wells Fargo a one-time exception from those rules. Congress quickly passed a law to prohibit Treasury from granting those exceptions in the future, but the law does not apply retroactively, which means Wells Fargo continues to enjoy the tax savings from Wachovia’s NOLs.

The North Carolina Corporation Pushing Senator Hagan and Others to Support a Repatriation Amnesty

In June, the organization Third Way hosted an event in Washington at which a group of politicians, corporate leaders and others argued in favor of a tax amnesty for profits U.S. corporations hold offshore. (See the transcript of the event.) CTJ and other groups have long opposed a repatriation amnesty, noting that it provides the greatest benefits to those companies that simply shift their profits into tax havens.

Jim Rogers, the CEO and president of the North Carolina company Duke Energy, spoke in favor of a repatriation amnesty, as did North Carolina’s Democratic Senator, Kay Hagan.

Towards the end of the event, the audience members asked a series of questions that the panelists were unable to answer adequately. For example, a CTJ staffer commented to the panelists:

If I understand, I think what you’re saying is that the nonpartisan Congressional Research Service was wrong in issuing a study that said that the last time this was tried it did not create jobs, and that the nonpartisan Joint Committee on Taxation was wrong recently when it had its analysis saying that if we repeat this repatriation holiday, it will cost $79 billion over 10 years, partially because some of those profits would have been brought back anyway; partially because, ultimately, corporations will shift even more profits offshore, meaning even if your only goal is to get more of these profits into the U.S., even in that limited goal, you fail on that. So do I understand correctly that you think that the nonpartisan Congressional Research Service and the nonpartisan Joint Committee on Taxation are incorrect and Congress should ignore these analyses?

We were not entirely surprised that no one had a good response to this. What did surprise us, however, was that Duke Energy is already avoiding corporate income taxes, which we learned as we prepared our major corporate tax study.

Duke Energy had profits of $5.5 billion over the 2008-2010 period but received $216 million from the IRS over that period, for a three-year effective tax rate of negative 3.9 percent.

Despite its already remarkable tax subsidies, Duke Energy now wants to bring its offshore profits back to the U.S. and pay almost no U.S. taxes on them.

A Major Defense Contractor Lobbying Against Military Spending Cuts

In June, James Zrust, vice president of tax for the defense contractor Boeing, testified before the House Ways and Means Committee in favor of a steep reduction in the corporate income tax rate. One member of the committee, Congressman Pete Stark of California, cited a short report from CTJ explaining that Boeing's effective corporate tax rate was already negative.

Boeing made $9.7 billion in profits over the 2008-2010 period but received $178 million from the IRS over that period, for an effective corporate income tax rate of negative 1.8 percent. How much lower does Boeing think its effective tax rate should be? Interestingly, Boeing actually had negative effective tax rates in all three of those years.

Given Boeing’s recent $35 billion deal to build airborne tankers (that is, $35 billion paid by U.S. taxpayers) it’s reasonable for Americans to expect Boeing to pay taxes when it makes a profit.

Defense spending has increased 70 percent since 2001 and many usually hawkish pundits and analysts are now calling for defense cuts. Boeing, of course, is lobbying against any defense cuts and disputing the commonsense notion that cuts in defense should play some role in deficit reduction.

Labor unions, small business associations and good government groups have lined up to oppose proposals to exempt corporations' offshore profits from U.S. taxes on a permanent basis (by enacting a "territorial" tax system) or temporary basis (by enacting a "repatriation" amnesty). These organizations also oppose any overhaul of the corporate income tax that fails to raise significant revenue.

The organizations spell out their positions on corporate tax reform in a letter sent to members of the Joint Select Committee on Deficit Reduction (commonly called the "Super Committee") today.

Read the letter.

These positions put the organizations at odds with House Ways and Means Chairman Dave Camp, who today proposed a corporate tax overhaul that includes a territorial system and that would be "revenue-neutral."

The letter asks the Super Committee to do four things:


1. Reject any proposal to exempt U.S. corporations’ offshore profits from U.S. taxes permanently (by enacting a “territorial” tax system).

2. Reject any proposal to exempt U.S. corporations’ offshore profits from U.S. taxes temporarily (by enacting a “repatriation” amnesty).

3. Require any overhaul of the corporate income tax to raise significant revenue.

4. Require that the revenue-positive result be estimated using traditional revenue scoring procedures as opposed to controversial alternative procedures (often called “dynamic” scoring).

To learn more, see CTJ's fact sheet about raising revenue through corporate tax reform and CTJ's fact sheet about territorial/repatriation proposals.

Photo of Rep. Dave Camp via Michael Jolley Creative Commons Attribution License 2.0

New CTJ Fact Sheet Explains Why Congress Should Reject “Territorial” System

House Ways and Means Chairman Dave Camp is planning to release a “working draft” of a plan to adopt a “territorial” tax system, which is another way of saying a permanent tax exemption for corporations’ offshore profits.

On Tuesday, BNA’s Daily Tax Report (subscription required) informed us that

Lobbyists representing U.S. multinationals said they have not heard anything specific related to the timing of the proposal but they have heard that it will not be formal legislation, just a working draft. The idea behind this is that it would allow business interests to weigh in on a proposal before lawmakers turned it into actual legislation, multiple lobbyists said.

That’s about the closest thing we ever see to an admission that corporate lobbyists will decide what the Republican-controlled House tax-writing committee should enact.

Those lobbyists will be in an awfully good mood from the start because the “territorial” tax system that Chairman Camp is offering them will increase opportunities for their companies to lower their taxes by shifting jobs and profits offshore. To understand why, see CTJ’s new fact sheet on the international corporate tax rules.

Photo of Rep. Dave Camp via Michael Jolley Creative Commons Attribution License 2.0