Shareholders Increasingly at Risk from Lack of Disclosure of Corporate Tax Practices
Investors are at an increasing risk due to the lack of information disclosed by companies about their tax practices, according to this September 2016 report published by the Financial Accountability and Corporate Transparency Coalition (FACT Coalition). Titled “A Taxing Problem for Investors: Shareholders Increasingly at Risk from Lack of Disclosure of Corporate Tax Practices,” the report finds that multinational companies have become increasingly reliant on offshore tax avoidance practices to boost short-term earnings in recent years, yet disclosure requirements haven’t kept pace with this changing world. As governments around the globe struggle with growing budget deficits, tax authorities are increasingly cracking down on aggressive tax avoidance practices, which can have a significant impact on shareholder value.
In June 2015, the U.S. Treasury Department finalized a rule requiring large companies to disclose to the Internal Revenue Service their profits, revenues, and tax payments on a country-by-country basis. Tax authorities in many other countries are implementing similar measures—known as country-by-country reporting—after the G-20 group of leading economies endorsed the practice as the international norm.
The U.S. Securities and Exchange Commission (SEC) launched its “Disclosure Effectiveness Initiative” in December 2013. As part of that process, the agency published a “Concept Release” in April 2016 seeking feedback on what companies should be required to disclose to investors. Several of the 340 questions-posed deal with tax matters. Several prominent investor groups weighed-in, submitting comments calling for a country-by-country reporting requirement, including the SEC’s Investor Advisory Committee. The report notes that the Commission could easily require that companies provide country-by-country reports to the SEC as a result of their Disclosure Effectiveness Initiative, and—in addition to a number of other recommendations—it calls on them to do so.
For markets to function properly, it is critically important for investors and the public to be armed with sufficient information to meaningfully assess the business operations, management, and risks of U.S. public companies. As multinational corporations have increasingly relied upon complex, international tax strategies to improve their bottom lines, the SEC’s disclosure framework has not kept pace.
To better inform investors, the SEC should revise its international tax disclosure framework to specifically require multinational corporations to disclose, on an annual, country-by-country basis:
- profit or loss before taxes;
- income tax accrued for the current year;
- revenues from unrelated parties, related parties, and in total;
- income tax paid (on a cash basis);
- effective tax rate;
- stated capital;
- accumulated earnings;
- number of employees; and
- tangible assets other than cash or cash equivalents.
In addition to country-by-country reporting, investors would have much greater ability to understand international taxes if the SEC further specified in modest rules changes or, if appropriate, guidance that U.S. corporate issuers should:
- provide their U.S. and foreign effective tax rates and explain any effective tax rate that is significantly lower than the statutory rate in the countries in which they do business;
- use the company’s weighted average statutory rate based on geographic revenue mix instead of home country statutory rate in the tax rate reconciliation schedule;
- explain any large or increasing Unrecognized Tax Benefit balance;
- disclose for all non-de minimis intracompany debt transactions, the countries where the debt is held, the amount of the debt, and the average interest rate “paid” by the relevant subsidiary on that debt;
- disclose and explain any material tax incentives or benefits provided by a foreign jurisdiction, including the estimated tax savings, any conditions attached to the incentive or benefit, and the likelihood that the incentive or benefit may be lost; and
- disclose of any legal proceedings by foreign governments related to taxes paid to any such government, regardless of whether such matter is material to the financial position of the corporation.1
More information on the recommendations can be found in Section IV on page 15 of the full report.
- We note that item 103 directs companies to disclose “any material legal proceedings.” Importantly, the SEC has recognized that materiality in this context may is broader than just what may be “material” to the financials of the company. For example, the SEC directs companies to disclose government actions involving environmental laws that the company “reasonably” believes may result in penalties of $100,000 or more. C.F.R. 229.103, Instructions to Item 103, para. 5.
New Report: Investors at Risk by Lack of Corporate Tax Disclosures
September 12, 2016
The FACT Coalition is using the hashtag #ATaxingProblem for this report on social media.
The FACT Coalition would like to thank the Ford Foundation and Open Society Foundations for supporting this report.
The FACT Coalition would also like to thank Clark Gascoigne (Deputy Executive Director), Jacob Wills (Communications and Operations Associate), Waiyan Tse (Advocacy Intern), and Yaroslav Pustarnakov (Advocacy Intern), for their contributions to the report.
Cover Image Sources: 1) KieferPix/Shutterstock and 2) thanosquest/Shutterstock
Cover Design: Clark Gascoigne and Jacob Wills