Michael P. Devereux

1. The Future of Business TaxationErasmus UniversityJune 11, 2010THE TAX TREATMENT OF DEBT AND EQUITY Michael P. Devereux

2. Questions • Why do countries attempt to treat debt and equity differently? • Do they succeed? • Should we care? • Is the distinction sustainable? • What alternatives are there? Oxford University Centre for Business Taxation

3. Two Starting Points Comprehensive income tax: Tax individual on worldwide income and increase in wealth irrespective of form of income or wealth Consumption/expenditure tax Tax individual on current expenditure = income minus net saving irrespective of form of saving Oxford University Centre for Business Taxation

4. What is debt? Suppliers of debt have legal right to receive return whatever the financial position of the borrower If borrower is insolvent, suppliers of debt have a prior claim to income generated; equity receives any residual after debt repaid Return to debt fixed in advance (in the absence of bankruptcy); equity receives a variable return The suppliers of equity typically have control rights; suppliers of debt typically do not Oxford University Centre for Business Taxation

5. Hybrids Any financial instrument which has some, but not all, of these characteristics, e.g. Preference shares may pay fixed rate of return, but not entitle holder to payment if resources are insufficient Convertible debt: can be converted to equity – value depends on which party can choose to convert Covenants in debt contracts enable lenders to control some activities of the borrower Oxford University Centre for Business Taxation

6. So? Do any of these factors justify different tax treatment of debt and equity NO – at least not under the principles of Comprehensive Income Tax or Expenditure Tax So why do we observe different treatment? Oxford University Centre for Business Taxation

7. Why? One possible reason One rationale for corporation tax: a proxy for individual income tax on income derived from equity investment Necessary because some profit is retained in company, and difficult to tax at individual level But not necessary for “debt” instrument if return received as interest by individual So perhaps both taxed equally, but on different occasions? Oxford University Centre for Business Taxation

8. BUT return on debt may not be cash receipt eg. value of corporate bonds change with interest rate return on equity partly takes the form of cash payment, which could be taxed at individual level So dividends could get tax relief as well Oxford University Centre for Business Taxation

9. Why? Another possible reason Or arguably the same one … Interest payments on borrowing are a cost of doing business So companies (shareholders) should get relief like other costs Oxford University Centre for Business Taxation

10. BUT Why tax companies at all: a withholding tax on corporate income owned by shareholders Companies also collect and pay other withholding taxes, eg. Income tax on employees Social security tax on employees VAT on customers (arguably) Oxford University Centre for Business Taxation

11. BUT Why not require companies to collect withholding tax on interest paid to creditors? International issues: Why charge tax on foreign creditors? But why charge corporation tax on foreign shareholders? Is there any reason for treating them differently? Oxford University Centre for Business Taxation

12. An aside: Financial Regulation Financial Regulation should differentiate: but for a clear rationale: reducing financial instability through reduced probability of bank defaults This reflects right of creditor to demand payment, or put borrower into administration/bankruptcy Oxford University Centre for Business Taxation

13. So how does tax law differentiate? UK Courts define interest as “payment by time for the use of money” Broadly, if return is variable and linked to an underlying return, then it is not interest (though some exceptions) Also, cannot be “more than a reasonable commercial return for the use of the principal” (so need to define this!) Oxford University Centre for Business Taxation

14. So how does tax law differentiate? USA Courts evaluate usually 11 to 16 factors, to evaluate “intent”, with no fixed primacy for certain factors Factors include: names of instruments; fixed maturity date or not; fixed interest rate or not; source of repayments; adequacy of capitalisation; ability to obtain outside financing; extent of subordination; whether funds used to acquire capital assets Oxford University Centre for Business Taxation

15. Is there a logical fallacy? There may be some characteristic of debt which initially justified different treatment from equity But tax law now focuses on other aspects of debt, losing sight of initial rationale? Oxford University Centre for Business Taxation

16. Should we care? Welfare costs Too much debt: so greater probability of default But welfare costs of higher probability of default are hard to measure Very little research on welfare costs of grater default Commonly thought that interest relief was not a significant factor in financial crash Cost of capital could be higher or lower, depending on how equalisation achieved

17. International Issues Most countries now • exempt foreign source dividend income • tax foreign source interest income So countries can choose where to be taxed! • To be taxed abroad: finance foreign subsidiary through equity • To be taxed at home: finance foreign subsidiary through debt

18. International Issues In domestic context, can question whether to tax total return to investment, or economic rent (after deducting interest and equivalent relief for equity finance) In international context, problem is worse: Can give relief for interest payments on debt used to equity finance foreign activities that are not taxed at home i.e. a subsidy to outbound investment

19. International Issues Surely implies some restriction is necessary, even if difference remains: At a minimum limit relief to debt which does not exceed domestic capital stock Or some fraction of domestic capital stock Many countries introducing restrictions on interest relief through thin capitalisation rules Though not necessarily well targeted

20. Administration and compliance costs Are large Taxpayers can exploit international differences in definitions of debt Constant battle between taxpayers and authorities Closing of “loopholes” leads to refinements of instruments, and creation of new “loopholes”

21. Policy Questions Is distinction sustainable? No • At least not without a clear and internationally-consistent rationale • Important to have an agreed definition of debt (even if not theoretically justified)

22. Broad options: 1. Tax economic rent only Give relief for equity as well as debt Could be through ACE allowance Notional return on equity, defined appropriately, can be neutral in standard models or give relief for total capital located domestically, and avoid distinction entirely Narrower tax base Receive less revenue, or raise rate? Raising rate worsens income shifting incentives

23. Broad options: 2. Tax total return to investment Abolish interest relief Like CBIT (comprehensive business income tax) Would also need to consider taxation of interest receipts Domestic bank loans would be unaffected if interest received by banks not taxed Could limit this to interest received from borrowers who have not received relief

24. Broad options: 2. Tax total return to investment Generates problem of taxing financial intermediation, where profits arise from interest rate spread

25. Broad options: 3. Tax part of normal return, and economic rent Abolish interest relief Use proceeds to introduce a new relief based on opportunity cost of all capital relief would not cover whole of “normal” return but would treat debt and equity equally no need for change in tax rate

26. Simulation Analysis of reforms from De Mooij and Devereux (2010) General equilibrium model of 27 EU countries designed to study impact on economies and revenues of reforms to corporation taxes Models location decisions of companies, capital, profit Models choice of finance 3 options analysed, as above

27. Simulation Analysis: reform in a single country A revenue-neutral corporation tax reform: ACE would require significant rise in tax rate Significant problem of profit shifting CBIT could have significant reduction in tax rate Significant gain in profit shifting Both would reduce debt, and increase investment at home But welfare falls with ACE and rises with CBIT

28. Simulation Analysis: co-ordinated EU reform Now profits shifting effects less significant, since similar effects in all EU countries Again, less use of debt, with CBIT and ACE Investment rises with ACE, and falls with CBIT Overall, welfare rises with ACE, and is left unchanged under CBIT

29. Conclusions Debt–equity divide in taxation is hard to defend: it creates many of the problems of tax administration legal rules are generally confused, since there is no real principle of what characteristics are important It offers ample opportunity for profit shifting between countries It encourages more debt, and hence higher probability of default

30. Conclusions The best option for reform involves international coordination, and taxing only economic rent If the divide is to remain, then need to co-ordinate internationally on definition of what type of return receives relief