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Senate mistake on tax bill was brilliant

Protesters shout their disapproval of the Republican tax

Protesters shout their disapproval of the Republican tax bill outside the Senate Budget Committee hearing room on Capitol Hill in Washington, Nov. 28, 2017. Credit: AP / J. Scott Applewhite

So it turns out, according to a Bloomberg News article posted on Tuesday, that Senate Republicans made a last-minute mistake in their tax bill, keeping a 20-percent corporate alternative minimum tax instead of doing away with it. The Chamber of Commerce characterized this as “a very unpleasant surprise,” while a tech lobbyist said it was likely the result of a “drafting error.”

I had a different reaction. What a brilliant idea!

As you may have heard, as part of the tax overhaul, both the House and Senate reduced the corporate tax rate significantly, from the current 35 percent to 20 percent. If the corporate alternative minimum tax were to be eliminated, the consequence would be that companies like Walmart, which operate primarily domestically, and which therefore don’t receive a lot of tax breaks, will pay somewhere close to 20 percent of their profits in taxes.

That’s a lot better than 35 percent, of course. But it’s not nearly as good a deal as multinationals like Apple and General Electric will get. That’s because companies that can move their intellectual property offshore and play other tax games can push their effective tax rates below 20 percent. In recent years, with the corporate rate at 35 percent, Walmart’s tax rate has been around 32 percent, while Apple lists its effective tax rate as being a little under 25 percent (though in 2016, Apple’s “cash paid for income tax,” according to its filings with the Securities and Exchange Commission, was only 17 percent).

But with a corporate minimum tax, especially one that includes profits generated abroad, Walmart and Apple would pay the same percentage of their income in taxes: 20 percent. For both companies, that would mean lower taxes than they were paying under the current 35 percent. But it would also mean that the tax benefits Apple gets from hiding profits in, say, Ireland, which imposes a 12.5 percent tax on corporations, would be eliminated. It would be fairer to both companies, though Apple might not see it that way.

Recall what happened in 1986, the last time Congress comprehensively reorganized the tax code. The Tax Reform Act of 1986 lowered the corporate rate from 46 percent to 34 percent. (It was raised to 35 percent in 1993.) Even so, the amount of taxes corporations paid actually increased, because the law also eliminated or reduced a raft of corporate tax breaks. Congress did so because it felt that additional corporate taxes were needed to offset the significant tax cuts the bill gave to individuals. (Those were the days!)

Since then, tech companies especially - but also pharmaceutical companies and other multinationals - have mastered the art of shifting profits abroad to take advantage of lower tax rates. And when it came to writing new tax laws this year, Congress made no effort to rein in this newer form of tax break, which deprives the government of tax that should rightfully be collected in the U.S.

What is so beautiful about a 20-percent corporate alternative minimum tax - one that taxes all of a company’s income - is that it effectively eliminates this international tax break without attempting the politically daunting task of actually passing a law to eliminate international tax breaks. Indeed, it would also eliminate the incentive to park profits abroad in the first place, which is something you would think President Donald Trump would approve of. (Though with Trump, one never knows.)

Critics of the corporate alternative minimum tax have two big complaints. First and most obviously, if the alternate minimum tax and the new corporate tax rate were both 20 percent, it would mean that “almost everyone who is a corporate taxpayer will also be an AMT taxpayer,” Bret Wells, a tax-law professor at the University of Houston, told Bloomberg News. From my point of view, however, this feature improves corporate income-tax policy because it means that all companies pay the same rate.

Secondly, new tax breaks that have been written into the Senate bill for, say, spending on new equipment, would be rendered meaningless. I’m OK with that too. Wouldn’t it be nice if companies made decisions about capital spending, hiring, intellectual property and so on, based purely on what’s best for the business rather than for a big tax break?

The only deduction I might allow is one to compensate companies for overseas taxes they would still have to pay. Then again, given that people in high-tax states (like me!) are about to be punished thanks to the elimination of deductions for state and local tax payments, my sympathy for corporations on this front is pretty limited.

Of course, I know how this is all going to play out. So do you. During the negotiations to align the House and Senate versions of the tax bill, Congress will correct the Senate’s mistake and eliminate the corporate alternative minimum tax. Tech companies and multinationals will applaud. Lobbyists will remain gainfully employed, as they keep a close eye on their favorite loopholes. And I admit, on the face of it, it is kind of crazy to have a situation where the corporate tax rate and the alternative minimum tax is the same.

But a guy can dream, can’t he?

Joe Nocera is a Bloomberg View columnist. He has written business columns for Esquire, GQ and The New York Times, and is the former editorial director of Fortune.