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HBR: The Conversation We Should Be Having About Corporate Taxes

From Harvard Business Review, August 22, 2014

The corporate inversion — when a U.S. company takes on the legal identity of foreign subsidiary, usually in order to reduce its taxes — has become about as controversial as corporate finance topics get. President Obama has called such transactions “unpatriotic.” Others have defended them as a way for American companies to stay competitive in the face of a uniquely intrusive tax code.

Harvard Business School’s Mihir Desai and Bill George both fall mostly in the second camp, but with some surprising twists that came out when I spoke with them recently. Desai is a professor at Harvard Business School and Harvard Law School who has done a lot of research on corporate taxes, and wrote the July-August 2012 HBR article “A Better Way to Tax U.S. Businesses.” George is a professor at HBS and the former CEO of Medtronic, which has been involved in one of this year’s highest-profile inversion transactions, a merger with Ireland-based Covidien.

Part of our conversation was recorded for an HBR Ideacast, which you can listen to below. What follows that is an edited, much-condensed transcript of both the Ideacast and the progressively wonkier discussion that ensued after the podcast was done.

Why have inversions become a big deal lately?

Mihir Desai: There was a wave in the early 2000s, and we shut them down with anti-inversion legislation. Now, instead of just being able to do it by yourself, the rules are such that you really have to have a foreign partner and there has to be a merger. As a consequence we now see these relatively high-profile mergers which facilitate the departure of U.S. companies. We have some of our largest and most innovative companies doing this.

So Bill, is the problem here — if there is a problem here — our corporate tax code or our corporate executives?

Bill George: The problem is definitely with the tax code. We have a dysfunctional tax code in the United States. We have among the highest tax rates anywhere in the world, and what’s happened is companies are paying taxes on foreign earnings that they generate overseas but they’re not bringing them back to the United States because they don’t want to pay at the U.S. corporate tax rate of 35%. You’ve got some $2 trillion of cash trapped overseas, so companies are looking for ways to use that cash effectively. It’s driven many U.S. companies to buy foreign companies, but in many cases they’d much rather deploy that cash in the United States.

One very interesting proposal came from Robert Reich, a liberal Democratic economist who recommended that the U.S. go to the system that almost all other industrial nations have of just taxing people where they earn the money. Personally I think that would solve the problem.

Mihir, you wrote an article for HBR a couple years ago on how to fix the U.S. corporate tax code, and I think this was one of the things you wanted to have happen. What were some of the other key changes?

Mihir Desai: This is the manifestation of two big problems. One is a high rate, and the second is this worldwide system, both of which are highly distinctive relative to the rest of the world. One of the things that’s happened recently is that leading countries like the UK and Japan, which used to look more like us, with relatively high rates and a worldwide system, have left. So now we’re really all alone — and that’s why these transactions are happening more.

A meaningful reform would combine two things. One, a considerably lower rate — and I think you need to get below 25% or 20% for it to be meaningful. And the second, as Bill mentioned, is a switch to a territorial regime. I actually am optimistic that we can get there; there’s a fair amount of consensus about that. The tricky part is where does the money come from to fund all of that, and there I think people divide up. My proposal has two particular sources of revenue-raising: One is that we have now large numbers of pass-through entities, and we have more business income in non-C-corporate form than we do in C-corporate form.

Like what kind of entities?

Mihir Desai: Those would be partnerships, those would be REITs, those would be subchapter S corporations — LLCs — and they have mushroomed wildly in the last 25-30 years. As a result the only people who pay the corporate tax are these large public multinationals, and that doesn’t make any sense. A small tax on those pass-through entities can help a lot. The second source of revenue is trying to change the fact that corporations report large profits to the capital markets and relatively small profits to tax authorities. If we make it more the case that you have to base your taxes on profit reports to capital markets, that can raise a fair amount of revenue as well.

Bill George: One issue I fear is how much money is going to be lost by the U.S. Treasury. When I’m talking to corporate CEOs, CFOs, and board members, I don’t see the major multinationals planning to bring that cash back to the United States. I was with the CFO of Apple the other day, and they’ve got $140 billion of cash trapped overseas. They aren’t planning to do an inversion, but on the other hand after tax they’re earning less than 1% on that money, compared to over 30% when they invest it in new products and R&D and innovation.

Mihir Desai: The amazing thing about Apple is they just decided to give back a lot of that cash in the form of dividends and share repurchases, but to fund it they’re not bringing the cash home from Ireland, they’re borrowing close to $40, $50 billion. Tim Cook in his testimony to the Senate committee said should I borrow money at 1% or should I pay 35% on my repatriated profit? The answer obviously is borrow at one.

One percent vs. 35%, that’s a really big difference. But at some level is there a conflict here, if you’re a CEO of a company — and you were one, Bill — between your obligation to your shareholders and others within your organization to minimize taxes, but then also your obligations as a citizen to not minimize them all the way to zero. What is the dividing line here? Is there one that we can identify?

Bill George: I’ve just spent many hours talking to Omar Ishrak, the CEO of Medtronic, who is involved in a major inversion, a $43 billion deal to purchase Covidien. The key question I asked him was, “Why are you doing this?” If he’s doing it for tax inversion, he’s got trouble. But he was very clear he was doing it to expand the Medtronic mission of helping patients — the strategy is a perfect fit, and it allows them to invest more money in innovation, ironically, because they can now use the $14 billion they have in cash trapped overseas to invest in the U.S.

You’ve been critical of some of the other inversions, such as the Pfizer one which isn’t going to go through.

Bill George: I was quite critical of Pfizer because I thought they were doing it for the wrong reasons. In fact Ian Read, the CEO, in his testimony to the British parliament, said he was doing it basically for two reasons, one for tax saving through the inversion and on the second to do all the savings he could by cutting people and combining. So I saw that in a very different context.

Back to the Medtronic example. Medtronic gets no tax savings. It already has an 18% tax rate and that’s about what they’re going to pay with Covidien. So there’s really no savings to them at the present time, but it does free up cash.

Mihir Desai: Bill’s example is interesting for two reasons. One is that we’re in such a crazy place that doing something that seems like it’s going to remove activity from the U.S. actually helps the U.S., because of all this capital that’s trapped overseas.

At the same time I do think your question puts your finger on something deep, which is there’s a growing distrust of corporations. When people see corporations doing this, they question their patriotism, as in fact the administration has. Corporations have to be more sensitive to this issue than I think they’ve been.

Bill George: There has been a lot of ill will over that and I think companies are going to have to step up and show their commitment to invest in the United States. Because this is the greatest place anywhere in the world to invest in innovation and R&D. As well as investing in social programs through their own philanthropy — I think many companies are stepping those up as well.

There is this argument from at least a minority of economists that the corporate tax is an abomination anyway, that we should just be taxing the shareholders — as we do, although right now we give them a lower tax rate — and not corporations. Do either of you think there’s any merit to that argument?

Mihir Desai: Well, yeah, I think there’s a fair amount of merit. And I don’t even know if it’s a minority. The corporate tax is a hard tax to like. It’s a hard tax to like because it’s a second layer of taxation and it’s entity-level taxation. So it’s always going to be dominated by a tax on individuals, because you’re giving another margin for distortion and another margin for evasion.

The reason why we might still like one, albeit it a low-rate one, is because without it you can run into some problems with individuals shielding and hiding their own income. Justin Fox Inc. can all of a sudden become a vehicle, if it’s got a zero rate, for shielding a lot of income. So we need a rate, and it’s probably positive.

One thing that’s really striking is how consistently, in polling, Americans of both parties, of all age groups, agree that the one group in this country that needs to pay more taxes than they do now is corporations.

Mihir Desai: It’s a puzzle. We know that corporations don’t per se pay taxes. That tax is going to be borne by shareholders, workers, or customers. Those are the only people who can actually end up paying the tax. So while people like to think about corporate tax reform as a sop to big business, the reality is that what we know about the corporate tax is it’s most likely borne by workers.

When you say it’s borne by the worker, you mean it comes out as lower wages?

Mihir Desai: Exactly right. It’s either the shareholders, the workers, or it’s going to be customers. And those other folks are pretty mobile. The workers aren’t.

Bill George: Just to illustrate that with an example. I serve on the board of Exxon, the world’s the second-largest market cap company. It’s very profitable. I don’t think that’s a bad thing. Exxon pays 45% tax on a global basis. Of course it affects dividend policy, it affects wage policy, it affects everything.

The real issue in our tax code is we’ve got a huge number of loopholes and a lot of favors given to various industries, and if we were to go to territorial tax system I think there’s a golden opportunity to get rid of a lot of these loopholes.

When you talk about loopholes, the reason why Apple and Google, they’re the most famous ones, have these massive piles of money overseas is because it’s income that they’ve paid almost no taxes on to any country at all. One of the questions is if you went to a territorial system and you didn’t fix these Double Irish Dutch tax sandwiches or whatever it is that they use to move income around, aren’t you just opening the door for a huge amount of abuse?

Mihir Desai: Let’s take Apple as one concrete example because the facts are relatively public. There’s $140 to $160 billion of offshore cash, $100 billion of it is in Ireland. Almost all of that $100 billion represents not profits earned in the U.S. but profits earned in Germany and Japan or China or wherever and then potentially shifted to Ireland. Do we care if Apple shifted money from Germany to Ireland? Frankly it’s not clear to me why the U.S. taxpayer cares about that. The German taxpayer should care about that, and the German taxpayer should be worried about it, and they should go after Apple if they want to. But why are we in the business of defending the German taxpayer?

Bill George: The one area the IRS and the Treasury would have to be very analytical and consistent on is transfer pricing. If companies are going to move technology ownership outside the United States, then you pay a substantial tax on that. That should be enforced. If you make products in the U.S., some of the profits should be captured in the U.S.

Let me give you specific example. Back in 1996, Medtronic made an arrangement to put a major defibrillator factory in Switzerland. The technology was all created in the United States, so what Medtronic did was sell that technology from Medtronic U.S. to Medtronic Switzerland, and pay a very substantial tax on that in the United States. After that it was governed by the Swiss tax system in terms of the profits made where manufactured.

With these companies where everything is intellectual property, and there aren’t factories moving from one country to another — Google is the really clear example of that — the tax authorities of the world seem to be struggling with how to do this correctly.

Mihir Desai: Absolutely, and one of the interesting things that’s on the horizon is the OECD has something called the Base Erosion and Profit Shifting initiative. They’re trying to come together and get at this idea of how does intellectual property get transferred and how do we value it. That’s a non-trivial problem.

The question politically is do we really think we’re going to get to a place where we have a multilateral organization, like the WTO, in taxes. I think the answer to that is, highly unlikely. That’s just a bridge too far for most people.

Bill George: You’re now getting into a much broader and more complex issue. With global corporations, they have to insure that they can be competitive around the world, and still be responsible to the national governments they serve. And there’s no such thing as global laws in many, many cases, including tax law. So you get a great deal of dysfunctionality, and I think this is why we need international bodies to help us work our way through these issues and sort them out.

Star Tribune: Upset stockholders confront Medtronic executives

From Star Tribune, August 22, 2014

Medtronic Inc. chief executive Omar Ishrak heard an earful from stockholders who got their first chance Thursday to directly question the company’s planned purchase of an Irish company.

Medtronic’s $43 billion deal to buy Covidien Inc. has drawn enormous media and political scrutiny as one of a growing number of U.S. companies purchasing firms in countries with lower tax rates, then relocating their legal headquarters abroad to take advantage of those rates.

For Medtronic’s shareholders, there’s another issue to the deal: Its structure creates a surprise taxable event for them — one that could cost thousands of dollars depending on how many shares they own.

Their complaints enlivened the company’s annual shareholder meeting, an event that is usually a formal discussion of numbers and new medical gadgetry.

“This is the least shareholder-friendly proposal that I have ever seen,” said Lee Binger, 79, of Maple Grove, drawing hearty applause from the crowd of 500 during the meeting’s Q&A period.

As Ishrak listened, Binger said he would have to sell much of his Medtronic stock to pay a tax on his capital gains — the difference between what he originally paid for the shares and their value at the time the Covidien deal closes. The tax is triggered because the deal effectively dissolves Fridley-based Medtronic Inc. and its stock. Shareholders would sell their stock and, in exchange, get shares in a new company called Medtronic PLC. Since Medtronic stock has performed well in recent years, people who bought at low prices decades ago face much greater sticker shock than institutional investors which buy and sell more frequently.

On Thursday, Medtronic shares closed at $64.10, not far from their all-time high of $65.50.

In response, Ishrak laid out the rationale for the deal in many of the same terms he has used since it was announced in June. He said Medtronic will reap long-term benefits through the acquisition, including the potential for greater profit that would raise the value of the investors’ new shares.

“There is a pain here, which I understand, and I don’t deny,” he said.

The Covidien deal is expected to close by early next year, but it could happen before the end of this year. The Federal Trade Commission is investigating the sale, and the Treasury Department is expected to propose rules soon to discourage such deals, known as “corporate inversions.”

Uncertainty about which tax year the deal would close also irritated attendees at the meeting. Others were upset that Medtronic is planning to cover an estimated $65 million in special excise taxes that apply to board members and officers of the company. Still other critics said they may not live long enough to see enough of a gain in the value of the new Ireland-domiciled company to make up for the immediate capital gains tax hit.

The meeting, held at a Medtronic office in Mounds View, kicked off with a presentation on how Medtronic products extend lives. But the question-and-answer session dealt mainly with the tax issues surrounding the Covidien deal.

At one point, Ishrak was heckled when he announced he would take only one more question, even though many hands in the crowd were still raised. He eventually relented and called on another half-dozen speakers.

Retired attorney Donald Zibell, 77, of Shoreview was skeptical that the deal would benefit him. He estimated that the stock price of the new Medtronic would have to rise by $17 a share in order to make up for the tax he will have to pay.

Medtronic executives suggested that stockholders could reduce their tax burdens by donating part of their holdings to charities or family trusts, rather than selling them. Former chief executive Bill George said that’s what he intends to do to defray the estimated $1.5 million in taxes he will face.

George said the inversion would trigger taxes that he and all investors would have eventually faced anyway.

“The stock has doubled since Omar came on board three years ago,” he said, referring to Ishrak. “I think this is the launchpad for the company to go to the next level.”

At the meeting, Ishrak also confronted criticism that the deal would allow Medtronic to avoid U.S. taxes. After the transaction is concluded, he said, the company will still pay the same tax rates on dollars earned in the United States that it does today.

One of the key motives of the deal, he said, is to allow Medtronic to bring $14 billion in foreign-held cash back into the United States without paying this country’s 35 percent corporate tax rate. Avoiding those taxes would allow the company to invest $10 billion in U.S. facilities that it could otherwise not afford under a traditional acquisition, Ishrak said, repeating an oft-heard pledge about the deal.

Twin Cities: Medtronic stock owners criticize deal, fearing tax hit

From, August 22, 2014

Frustrated Medtronic shareholders on Thursday questioned a proposed acquisition that would relocate the Fridley-based company's executive office to Ireland and sock some of them with possibly hefty capital gains tax bills.

"This is the least shareholder-friendly proposal I have ever seen," Arthur Binger, 79, of Maple Grove said, drawing applause from a crowd gathered for Medtronic's annual shareholder meeting in Mounds View.

In June, Medtronic announced a $42.9 billion acquisition of Dublin-based Covidien that is set to close late this year or in early 2015. During a lively question-and-answer session Thursday, chief executive officer Omar Ishrak argued the deal would create a medical technology giant that's better positioned for global growth.

At one point, Ishrak seemed frustrated by the questions and told the crowd he would take only one more. When the comment elicited groans, Ishrak lightened the mood and got some laughs by saying: "OK, two more."

He went on to take six more questions and ended the meeting on a sympathetic note.

"There is pain here, which I understand and I don't deny," Ishrak said. "All I can say is that, on balance, for the long-term value of the company, this is the right thing."

The Covidien acquisition would create a holding company called Medtronic PLC. It would be based in Ireland, although the operational headquarters would remain in Fridley.

With the new structure, Medtronic says it would be able to invest more money in the United States without triggering taxes -- particularly funds that Covidien currently generates from its overseas operations.

With the deal, Medtronic says it would expand its local workforce by 1,000 jobs in five years and invest $10 billion in 10 years in the United States.

But some shareholders Thursday questioned why Medtronic couldn't have found a way to realize the strategic goals without creating a capital gains tax hit for shareholders.

Judy Mandile, 61, of Plymouth said shareholders who must sell stock to cover the taxes could lose 20 percent to 35 percent of their net worth, as well as their income. That's because some long-term shareholders count on dividends from their Medtronic shares.

Patricia Hartlaub, 71, of New Brighton argued that the chance for long-term gains in the stock price is tough for many long-term shareholders to appreciate considering their age. She's owned her shares for more than 30 years.

Such investors might not be around long enough to see the promised growth, but they would face a tax hit in the short-term that could force some to sell about a third of their shares.

"It's a problem," Hartlaub said.

In a line that drew chuckles from an audience that included many senior citizens, she said: "I think if you look out at the group of people here, as well as long-term stock holders -- long term for us is short."

The concerns of individual shareholders are unlikely to scuttle the Covidien deal, said Brooks West, an analyst with Piper Jaffray Co. in Minneapolis.

Institutional investors such as pension and mutual fund managers hold the vast majority of Medtronic shares, West said, and those investors are more concerned about what the Covidien deal means for Medtronic's long-term growth prospects than the short-term tax hit.

"Institutional ownership is at about 86 percent," he said. "I'm still believing that the deal is going to go through."

But long-term individual investors are a relatively loud group in the Twin Cities because Medtronic has been a pillar in the local business community for decades.

The company was founded in a garage in northeast Minneapolis some 65 years ago, and currently employs about 8,000 in Minnesota.

One shareholder spoke on behalf of her 96-year-old father and said her family had owned Medtronic shares for more than 50 years.

"We have been the venture capitalists for Medtronic," the woman said while questioning Ishrak. "When you look at all the facts, everyone here is going to have to sell shares. And it's going to be millions and millions of dollars."

The Covidien proposal has placed Medtronic in the middle of a national debate over tax policy. The company is one of several this year that has proposed a so-called "inversion" deal to move its headquarters abroad in response to high corporate taxes in the United States. In an inversion, a U.S. firm acquires a foreign company and incorporates overseas to take advantage of a lower tax rate.

While some shareholders on Thursday questioned the structure of the Covidien deal, others voiced sympathy with Medtronic's tax challenges.

Longtime investor Jim Wychor, for example, asked Ishrak what shareholders could do to help overturn a tax on medical device manufacturers that's part of the federal Affordable Care Act.

After the meeting, former Medtronic chief executive officer Bill George defended inversion deal, even though he has criticized similar moves by other companies.

Medtronic has about $14 billion in cash overseas. If the company brought that money back to the United States to make investments, about $4 billion would be lost to taxes, George said in an interview.

"I think this will free up a whole investment period over the next 10 years," he said. "Tax inversions that are done for tax reasons only ultimately will fail, but ... the tax rate of Medtronic is not going to change significantly after this deal is done. It's the freeing up of the cash that's very significant."

Ishrak also tried to differentiate Medtronic's motives from other companies that are trying to move their headquarters outside of the United States.

"We're not going to pay any less tax in the U.S. after the transaction than before," he said.

Medtronic officials argue that the merger will create a company that's one of the world's largest suppliers of medical devices and products used by hospitals and clinics. The size should drive more innovation, company officials say, and products that help control rising health care costs.

"Over time, the up-side potential for the stock and the company is tremendous," Ishrak said. "It's a transformative move."

A Postcard From Berlin

Returning to Berlin for the first time in several years, it is remarkable to see this great city progress as the cultural center of Germany. Penny and I had the privilege of staying at the magnificent Adlon Hotel as our hotel room looked out on Brandenburg Gate, the former dividing line between East and West Berlin. I still have vivid memories of standing under the gate on October 3, 1990 – the day of German reunification – when Maestro Leonard Bernstein conducted the Berlin Philharmonic playing Beethoven’s 9th Symphony with its glorious “Ode to Joy.”

Some thoughts on our impressions of Berlin circa 2014:

  • I wish I could have been here on Sunday, July 13 for the spectacular triumph of the German soccer team as 250,000 Germans watching on large screens on Unter Den Linden saw young Mario Götze’s brilliant goal in the 113th minute to bring the World Cup back to Germany.
  • Two days later 400,000 Germans gathered to greet their heroes as the team arrived home from Rio. Prior to landing at Berlin’s Tegel airport, their airplane did a flyover and wiggled its wings to salute the cheering masses. What a contrast with the 1930s ...
  • Speaking of the 1930s, German contrition and ownership of the terrors of the past are present everywhere, but no more apparent than at the stunning and horrifying Topography of Terror. This museum documents the shame of the past without pulling any punches. Just one block from Brandenburg Gate is the haunting Holocaust Memorial, with its images of large blocks protruding from the grounds (representing those who died in the Holocaust?). As horrifying as these monuments are, one has to credit the German people for owning the sins of their past. Where in the U.S. can one find an owning of our past of destroying Native American cultures (or attempting to do so) or bringing slaves to our shores in chains? Or in Russia of the 25 million people “eliminated” by Joseph Stalin?
  • These monuments constitute but a small fraction of the architectural wonders of Berlin, as many of the world’s greatest architects have come here with the freedom to showcase their greatest creations – not the least of which is amazing Sony center. Berlin today is a modern, beautiful city that all Germans can be proud to call their capitol.
  • I have long admired the German economic miracle which has occurred since the rapprochement in the past decade, thanks to the leadership of former Chancellor Gerhard Schröder. He brought together business, labor and government leaders to act in concert to build the German economy. The result of their efforts has been years of improved competitiveness, thanks to highly skilled workers, flat wages and benefits, low inflation, and net exports exceeding $200 billion – a sharp contrast to the U.S.
  • Now there are cracks appearing in the vaunted German resolve, as wages are rising again at 3-4%, well above Germany’s low inflation rate of 1%, and German industry finds itself far too dependent on Russian gas that costs three times the price paid by its U.S. counterparts. Meanwhile, a rift is emerging between complacent German politicians and German industrial CEOs forced to expand outside Germany in order to remain competitive. How will Germany resolve these differences? We left Berlin without any clear answers to this question, in spite of asking many leaders to respond to it. One hopes that Germany will continue to be  not only the leader of Europe, but a role model for all industrial nations, including the U.S.
  • Meanwhile, one of the weaknesses of the German economy – the lack of entrepreneurship and risk-taking – does not appear to be any closer to resolution than it was a decade ago. Time and again, we were told of the fear of failure that so many German leaders have and their unwillingness to embrace the kind of innovation so commonly seen in Silicon Valley due to the personal risks involved.

While Germany has its share of challenges, they pale by comparison with the political gridlock we face in the U.S. I have the clear sense that the diligence, commitment, and pragmatism of Germany’s business, government and labor leaders, and the strong sense of unity among them, will enable Germany to resolve the issues it faces, and continue to be a strong, competitive player on the world scene – and a role model for all developed economies.

The Boston Globe: More US firms chase mergers that yield overseas address

Good article from The Boston Globe on the renewed interest in "tax inversions," and my thoughts on why acquisitions must never be just about driving deals.


From The Boston Globe, by Robert Weisman, Tracy Jan, and Jack Newsham (July 13, 2014)

When Flemming Ornskov was named chief executive of Shire PLC last year, he moved his office from the drug maker’s Dublin headquarters to its Lexington campus so he could scout for biotechs to buy here.

Now Shire itself is a takeover target. It rebuffed a $46 billion bid from pharmaceutical giant AbbVie Inc. of Chicago late last month, but the suitor hasn’t given up. It’s not only after Shire’s drug portfolio, but also the company’s address in Ireland, where corporate taxes are lower.

The AbbVie move came less than a week after Medtronic Inc. agreed to pay $42.9 billion for Covidien PLC., a supplier of health care products that bases its corporate staff and US headquarters in Mansfield. But like Shire, Covidien calls Ireland home for tax purposes. 

“It’s becoming increasingly disadvantageous to be a US-based multinational,” said Eric Toder, codirector of the Tax Policy Center, a nonpartisan Washington, D.C., think tank. “So what’s the solution? You stop being a US-based multinational.”

And that’s what many American corporations are doing. Over the past decade, 40 of them have moved abroad to save money — hundreds of millions of dollars annually, in some cases — while keeping the bulk of their operations here. Covidien, for instance, has nearly 14,000 employees in the United States, including 1,800 in Mansfield, but only about 1,400 in Ireland. Shire, for its part, has about 1,500 workers in Massachusetts and just 100 in Ireland.

At a time when merger activity is rising, tax professionals are reporting a “renewed interest” in so-called tax inversions, under which US companies shift their corporate bases to Ireland or some other tax haven, said Daniel Berman, a principal at the Boston offices of accounting firm McGladney LLP and a former US Treasury official.

But there is also a backlash building in Congress and among some business leaders against businesses shopping for tax-light locales.

Two members of the Massachusetts delegation, Senator Elizabeth Warren and Representative Richard Neal, have signed onto Democrat-sponsored bills in the Senate and the House that would tighten rules for companies that reincorporate overseas to avoid paying US taxes.

“This is one more example of Washington working for those who can afford to have armies of lobbyists and lawyers,” Warren said. “Big corporations are using the tax inversion loophole to juice their profits and avoid paying billions of dollars, while working families are forced to foot the bill.”

The bills on Capitol Hill call for a two-year moratorium on tax inversions. Michigan Democrat Senator Carl Levin, the Senate bill’s primary sponsor, describes them as “tax avoidance, plain and simple.” The legislation would also prohibit companies from shifting their tax addresses overseas if management and significant business operations remain in the United States. Republicans, who have not signed on to the bills, say it makes more sense to instead cut US corporate tax rates.

Meanwhile, at a Harvard Business School gathering last month that included chief executives from about three dozen top US companies, former Medtronic chief executive Bill George, now a Harvard management professor, called on businesses to rethink tax inversions.

“You have to run your global company for all its stakeholders,” George said in an interview. “That means the customers, the employees, the shareholders, and the communities you reside in. You have to be a pragmatist. These tax inversions are driving some deals. If that’s the primary rationale, you’re asking for trouble.”

George criticized pharmaceutical giant Pfizer Inc., which opened a large research center in Cambridge this month, for citing a planned tax inversion as a major reason for its $119 billion offer in April to buy London-based drug maker AstraZeneca plc, an overture that was rejected. AstraZeneca also has a Massachusetts research lab in Waltham, so had the deal gone through, the combination could have resulted in consolidation and layoffs there.

“If you’re just cutting jobs to reduce costs, that’s a one-time thing,” George said. “An acquisition has got to be good for your employees. Otherwise, you kill their motivation.”

Another growing Massachusetts biotech, Waltham-based Alkermes, bought Ireland’s Elan Drug Technologies in 2011 and promptly shifted its own headquarters to Dublin. Chief executive Richard Pops said at the time the deal wasn’t done to lower taxes — Alkermes wasn’t profitable then — but he acknowledged there would be future tax benefits.

Ireland maintains a corporate tax rate of 12.5 percent compared with the United States’s 35 percent, one of the highest rates in the world. Because of that, US companies hold about $3.5 trillion in corporate cash in offshore accounts, according to George. The money comes from sales of their products in foreign countries.

To use that cash in the United States for building plants, buying equipment, or hiring workers, companies would have to pay the 35 percent rate as a “repatriation” tax. The former Medtronic chief has called for a one-time holiday on repatriating money held abroad, but he admits it would be a temporary solution.

“Our tax rates are out of line with the rest of the world, so companies are leaving,” George said. “It’s tragic.”

Many believe a long-time solution must revolve around reforming US corporate tax policy.

“The problem is caused by US taxes being higher than everybody else’s,” said Joseph B. Darby III, a partner at Boston law firm Sullivan & Worcester. If you’re a US company, you’re a “tax prisoner,” he said.

As for the Democratic bills in Congress, few think they stand much of a chance. “I don’t think people are paying much attention to legislative proposals,” Berman said. “Congress is not in much of a position to enact tax law these days.”

Ireland also is examining ways to discourage mergers that do not involve “real substance in terms of jobs and investment in the Irish economy,” Ralph Victory, spokesman for the Irish embassy in Washington, D.C., said in an e-mail.

Covidien, formerly known as Tyco HealthCare, set up shop in Ireland shortly after former parent Tyco International spun it off in 2007. But unlike their counterparts at Pfizer, Covidien and Medtronic executives downplayed the tax benefits, saying the merger was driven by “complementary” businesses.

Neal said he spoke with Covidien chief executive Jose Almeida recently and is convinced the takeover was not based solely on tax savings.

“Seeking a favorable tax treaty is a bit different than going to Bermuda and renting a post office box,” said Neal, who in 2004 sponsored legislation that was able to stop many inversions from occurring at the time. “There is a difference between tax avoidance and tax evasion. But . . . the imminent danger here is you now have up to 50 other companies considering the same inversion process.”

Bill & Penny George Receive Reach for the Peak Award

On Thursday, July 10, Penny and I were honored to receive the Reach for the Peak Award from Walking Mountains Science School in Vail. Here’s the video they produced for us.

Recommendations for Medtronic Shareholders

Sunday’s Minneapolis Star-Tribune contained a thoughtful article by Jennifer Bjorhus articulating concerns over capital gains taxes that Medtronic shareholders must pay when Medtronic completes its acquisition of Covidien.

As a long-time holder of Medtronic stock, here’s what I am planning to do and what I would suggest for other Medtronic individual shareholders:

  1. The easiest approach for Medtronic shareholders is to sell just enough stock to pay for the capital gains taxes, which will be 20% of the net gain to cover federal taxes. For Minnesota residents, there will be an estimated additional 8% tax depending on your income bracket. This must be done prior to the closing of Medtronic’s acquisition. Here’s my rationale: Medtronic stock is at an all-time high, so this is a good time to sell enough stock to cover your taxes. For example, if you bought your stock three years ago when Omar Ishrak became CEO, your gain is 65%. If you sell enough stock to cover the 28% tax, you still have a 45% gain in your stock value – not bad for a three-year investment – and no future capital gains taxes will be due on your 45% gain.
  2. If you can afford it, here’s an even better option that Penny and I plan to follow: give a significant portion of your stock away to your favorite charity or religious organization. Penny and I plan to give our Medtronic stock to the Penny George Institute Foundation (PGIF) at Allina Health, Plymouth Congregational Church, Georgia Tech (my alma mater for my 50th reunion), and the George Family Foundation. We plan to do this before the closing to avoid capital gains taxes. Then we will buy additional Medtronic stock in the open market as we believe Medtronic stock will be an excellent investment for many years to come.

For those of you who are interested in investing in health care and integrated medicine, here’s an additional opportunity to double your investment if you donate to the Penny George Institute Foundation: Penny and I will match any contributions of Medtronic stock to the Institute for the remainder of 2014. If you pursue this approach, you will receive a tax deduction for the full amount of your gift and avoid the capital gains tax, plus your gift will have double the value through our matching contribution.

For example, if you donate 100 shares of stock at the current market price of $64, you receive a tax deduction of $6,400 plus you avoid capital gains taxes, estimated at $720 if you bought three years ago. With our match, your gift will double in value to $12,800 for the Penny George Institute. (For more information, contact Stephen Bariteau at PGIF (

While none of us likes to be forced to pay taxes, the above approaches suggest there are ways to avoid any financial burden these capital gains taxes may impose, and potentially do a lot of good at the same time.

Thank you for considering these options.

StarTribune: Bill George: Tax inversion deals should make sense beyond just taxes

From StarTribune, June 28, 2014

With Medtronic’s $43 billion acquisition of Covidien, Pfizer’s failed $119 billion bid for AstraZeneca, and AbbVie’s pending $46 billion proposal for Shire, conflicting opinions abound about the merits and drawbacks of tax inversions. Some consider them unpatriotic. Others believe companies are bound by fiduciary responsibility to consider them.

My conclusion: Companies that do deals primarily driven by tax considerations are headed for trouble. This lets the tail wag the dog. The only justification for a merger or acquisition is to strengthen your company’s strategic position. That’s what motivated Medtronic CEO Omar Ishrak to pursue the Covidien acquisition: The companies fit together perfectly.

Here are five tests that boards of directors should satisfy before approving any deal:

Does the acquisition further your company’s mission? Your mission should provide purpose beyond financial returns that creates value for customers, employees, shareholders and other stakeholders. Most important, it should motivate employees to create innovations and deliver great service far more than financial incentives.

Does it advance your global strategy? If companies want to expand into higher growth markets, acquisitions can accelerate their growth. If its strategy is emerging market growth, acquisitions can provide greater presence. Sound acquisitions can also strengthen new-product pipelines.

Does it motivate your employees and the acquired company’s? Sustained value creation only occurs through dedicated employees working together to advance the company’s mission. The key is to engage employees of the newly acquired company to commit to their new owner. That’s what Medtronic did a decade ago with its acquisitions of Sofamor-Danek, AVE, and Mini-Med, as employment tripled. Acquisitions also create personal growth opportunities for current employees.

Will the acquisition lead to sustainable earnings growth? The acquisition should be accretive to earnings within two years, including realistic cost-saving synergies, without cutting back investments in future growth. Acquisitions like Valeant’s proposed hostile takeover of Allergan, which is based on cutting R&D spending from 17 percent of revenue to 3 percent, fail to produce sustainable earnings growth.

Pfizer erred in betting entirely on cost cuts to justify $240 billion it spent to acquire Warner-Lambert, Pharmacia-Upjohn and Wyeth. As a result, its shareholder value declined 32 percent in 14 years. In its failed bid to acquire AstraZeneca, the latter’s shareholders were extremely wary of Pfizer’s tactics.

Can the acquisition be funded without putting your balance sheet at risk? Successful acquisitions must generate future cash flow to repay the investment. These days borrowing money is cheap due to low interest rates, but companies shouldn’t get overleveraged in case of economic downturns, as they did in 2008-09.

What about taxes?

Taxes are the No. 1 question on everyone’s mind with Medtronic’s acquisition. After the company answered the first five questions affirmatively, it sought ways to finance it utilizing $14 billion in trapped cash. The tax inversion gave Medtronic access to these funds and also $7 billion in annual cash flow after the acquisition closes.

Do companies have an obligation to repatriate overseas earnings and pay the additional 35 percent in U.S. taxes? Not in the opinion of CEOs and CFOs. That’s why U.S.-based corporations are keeping foreign earnings abroad, leaving over $2 trillion in cash trapped overseas.

The U.S. already has the highest corporate tax rate in the world, which is a significant competitive disadvantage to U.S.-based global companies. To access overseas cash, even for domestic investments, there is a significant incentive for tax headquarters to migrate abroad. The ideal solution is for Congress to rewrite the corporate tax code. But given the stalemate that currently exists in Washington, a tax bill is highly unlikely before 2017.

In the near term, President Obama should declare a six- to 12-month “repatriation holiday,” enabling companies to bring cash home tax-free provided they present plans to reinvest the funds in capital expenditures, R&D, job creation and new ventures. I have recommended this approach since 2010. So far, nothing has happened. As a consequence, U.S. companies are finding alternative approaches such as tax inversions. Otherwise, they are in the unenviable position of being worth more to a foreign buyer than to their own shareholders.

Bottom line: Tax inversions should only be considered after the first five tests are answered satisfactorily.

StarTribune: Counterpoint: Medtronic's move will benefit all

From StarTribune, June 23, 2014


Medtronic’s move will benefit all

The headline in the Opinion Exchange section June 22 trumpeted: “It’s shareholders over stakeholders for Medtronic.”

Nothing could be further from the truth.

Commentator Stephen B. Young fails to comprehend that Medtronic’s acquisition of Covidien is being done precisely to benefit all of its stakeholders: customers, employees, shareholders and communities. Medtronic CEO Omar Ishrak justifies the Covidien acquisition because it extends Medtronic’s mission to 5 million more patients annually. Let’s examine the actual impact on stakeholders:

Customers: Since 1989, Medtronic has expanded from restoring 300,000 patients annually to 10 million today. With Covidien, 15 million patients will be restored annually. Combined R&D budgets of $2 billion per year will produce breakthrough therapies to help more patients. The combination gives Medtronic nearly $4 billion in emerging market revenues to make its therapies more affordable and this enables it to serve U.S. hospitals more efficiently.

Employees: The acquisition gives Medtronic 87,000 employees who enjoy good-paying jobs, health care and retirement, including 9,100 in Minnesota. Ishrak also committed to adding 1,000 more jobs locally, causing Gov. Mark Dayton to applaud the deal.

Shareholders: Since the announcement, shareholders have signaled their approval, bidding up Medtronic stock 5.2 percent. Since Ishrak became CEO in 2011, Medtronic stock is up 65 percent.

Communities: Medtronic has long been dedicated to building its communities, giving 2 percent of its income to philanthropic causes. Additional profits will expand its giving.

Much attention has been focused on Medtronic’s decision to relocate its legal domicile to Ireland. This shift won’t change its 18 percent tax rate, but gives Medtronic access to $14 billion in cash trapped overseas plus future cash flows of $7 billion annually. Medtronic already has paid local taxes on these earnings, so it isn’t avoiding taxes on them, and it continues paying U.S. taxes on all U.S.-generated revenues.

Medtronic has committed to reinvesting $10 billion of these funds in new ventures and technology acquisitions, because management believes the U.S. is the world’s best place to invest in medical technology and entrepreneurs pursuing innovative medical therapies.

The litmus test for me is: Would I have done this deal if I were still CEO of Medtronic? My answer is an emphatic “yes.” Credit Ishrak for having the courage to seize this golden opportunity to extend Medtronic’s mission and be a powerful voice in improving health care globally.

Bill George

The writer is professor of management practice at Harvard Business School, author of “True North” and former chairman and CEO of Medtronic.

Medtronic Deal Benefits All Its Stakeholders

The headline in the Op-Ed in Sunday's Minneapolis Star-Tribune blared, "It's shareholders over stakeholders for Medtronic." Nothing could be further from the truth. 

Medtronic's acquisition benefits all of its stakeholders: its customers, employees, shareholders, communities and society as a whole. I spoke at length with Medtronic CEO Omar Ishrak on Friday evening about these issues, as well as prior to the acquisition announcement. Omar is as committed to the Medtronic Mission as any CEO since founder Earl Bakken, myself included. For Omar, the Covidien acquisition expands the Medtronic Mission of contributing “to human welfare by the application of biomedical engineering to alleviate pain, restore health, and extend life” - to more patients. When Bakken penned the Mission in 1960, he intentionally covered all aspects of human health.

A Deal That Benefits All Stakeholders

Let's look at the impact on each group of Medtronic stakeholders:

Customers: When I joined Medtronic in 1989, the company was restoring 300,000 new patients every year to health. During the past 25 years that number has grown to more than 10 million patients per year. Now, with the Covidien acquisition, Medtronic will be able to restore more than 15 million patients annually. Patients will benefit enormously from therapies originally created by Covidien that treat cancer, gastro-intestinal, respiratory, peripheral vascular and neurovascular diseases. The combined company will have a Research & Development budget of more than $2 billion per year (5x the annual revenue of Medtronic when I first joined). This R&D capability will produce a wide range of new therapies that help patients in the years ahead.

To be clear, many of these therapies are innovations that create entirely new markets – restoring patients who otherwise had few alternatives. Adding Covidien's $1.6 billion revenues in emerging markets to Medtronic's $2.1 billion will enable the company to serve emerging markets at scale, making these therapies more affordable for all and expanding patient access to life-saving therapies.

Employees: When the acquisition is complete, Medtronic will employ 87,000 people with well-paying jobs and full health care and retirement benefits. Its home state of Minnesota will benefit from an additional 1,100 Covidien employees currently in Minnesota. All of these employees, regardless of origin, will be brought into the Medtronic Mission that offers them "a means to share in the company's success."

Moreover, the improved competitive position of the combined company will increase the long-term opportunities available for employees.

Shareholders: Since the announcement, Medtronic shareholders have enthusiastically embraced this deal, bidding up Medtronic stock $3.16 to $63.86, or 5.2%. That's in sharp contrast to most deals where shareholders sell the acquiring company's stock and buy stock in the acquired company. Six of the twelve security analysts recommending "hold" for Medtronic upgraded their recommendations to "buy." Of the 24 firms covering Medtronic, 18 now have "buy" recommendations, 6 "hold," and none "sell." Since Ishrak took over as CEO three years ago, the company's stock is up 65%. 

Cynics may say gains to shareholders don’t matter, but I respectfully disagree. Strong financial performance sustains a company’s ability to invest in the long-term.

Communities: Medtronic has long been dedicated to the Minneapolis community and all communities where it has large concentrations of employees, consistently giving more than 2% of its pre-tax income to philanthropic and community causes. In addition, Medtronic committed to add 1,000 new jobs in Minnesota as a result of the Covidien acquisition, bringing its Minnesota employment to 10,100. This caused Minnesota Governor Mark Dayton to say the deal is "good news for Minnesota."

The one community that will suffer is Boston, where Covidien headquarters will be closed, an inevitable consequence of acquisitions. However, Covidien's main business locations along with Medtronic's locations can anticipate continuing increases in employment through growth in their businesses. This projection is borne out by the three major acquisitions Medtronic did over a decade ago - Sofamor-Danek, Arterial Vascular Engineering, and Mini-Med - whose employment and R&D investments have tripled in Memphis TN, Warsaw IN, Santa Rosa CA, Galway, Ireland, and Northridge CA.

Society as a Whole: Throughout its 65-year history Medtronic has been dedicated to serving society by improving health for people with chronic disease through its innovative therapies. This acquisition will enable Medtronic to accelerate its new therapies through an expanded R&D budget, extend them to more people in emerging markets, and expand its commitment to make the health care system more efficient.

Addressing the Critics

There has been much focus—too much focus, I’d argue—on the tax structure of the deal, through which Medtronic will relocate its legal domicile to Ireland. In its latest fiscal year Medtronic paid $640 million in taxes, 18% of profits. By changing its domicile to Ireland, its tax rate will not change materially. Medtronic did not do the Covidien deal to reduce its tax rate: it will still pay full taxes on all income earned in the United States.

The change in domicile enables Medtronic to utilize the $14 billion in cash trapped overseas as well as invest the $7 billion in annual free cash flow it anticipates in the future. Medtronic had already paid tax on these earnings in the countries where revenues were generated so it is not avoiding taxes on them. Rather, it avoids a form of double taxation – paying the added 35% U.S. tax in addition to foreign taxes on the same revenues, an approach being followed by all other global corporations. Medtronic’s situation is quite common. U.S. companies—including Apple, Google, and others—have more than $2 trillion trapped overseas by the inability to repatriate their earnings without added taxes.

In an interesting twist, Medtronic has committed to reinvest $10 billion of these funds in the U.S. in new ventures, technology acquisitions, and venture capital - over and above its current strategic plans. Medtronic management believes that the U.S. is still the best place in the world to invest in medical technology and support entrepreneurs pursuing innovative medical therapies.

In contrast to the Star-Tribune column, the one group that could experience a burden from this deal are current Medtronic shareholders who will owe capital gains taxes when the acquisition is complete. Depending on the cost basis of their stock, this could be significant, as it is for my wife and me. We have devised a solution to this problem that other Medtronic stockholders may want to consider: give Medtronic stock away to philanthropic causes.

In our case we plan to give our Medtronic stock to the Penny George Institute for Health and Healing at Allina Health and to the George Family Foundation, which gives grants for integrative health, authentic leadership, and vital organizations in our community. To continue to invest in Medtronic's future, we plan to buy additional Medtronic shares as soon as the deal closes.

The Star-Tribune Op-Ed columnist has the logic exactly backward. Medtronic's acquisition of Covidien is being done precisely to benefit all its stakeholders and to further the Medtronic mission. For me the litmus test is this: If I were still CEO of Medtronic, would I have done this deal? The answer is an emphatic "Yes." Omar Ishrak has demonstrated great courage with this step, making Medtronic an even more powerful voice in improving health care globally.