It’s New Year’s resolution time. Lose ten pounds. Learn a new language. Pay more taxes. Well, this last one might be just for Google. This week the tech company announced that it was ending its longstanding “Double Irish, Dutch sandwich” tax avoidance scheme and repatriating its intellectual property licenses from Bermuda to the United States.
The Double Irish scheme is a decades-old tax avoidance strategy used by American companies to shield hundreds of billions of dollars in international earnings from taxation, either by the United States or other foreign countries. The structure involved an elaborate dance between a US company, a subsidiary in Bermuda (or a similar tax haven), two Irish shell companies, and a Dutch holding company. Google parked nearly $25 billion in Bermuda in 2018 alone.
Officials in both the United States and the European Union have long known about the Double Irish scheme and its variations but have only recently begun to take action. In 2014, the EU demanded that Ireland close the loophole. However, existing users were grandfathered in — Google, Apple, and others were given until the end of 2020 to wean themselves off of the giveaway.
Meanwhile, in the United States, Trump’s 2017 Tax Cuts and Jobs Act (TCJA) created a new global tax framework for US corporations that includes a new category of foreign income called Global Intangible Low-Tax Income (GILTI). GILTI refers to income derived from intangible assets such as intellectual property (patents, trademarks, and copyrights). According to the new framework, US companies and their subsidiaries now have to pay a 10.5 percent tax on their intangible foreign income.
The GILTI tax is combined with a number of tax giveaways to balance out the pain for corporations: elimination of taxes on repatriated dividends from foreign affiliates, a huge tax reduction on past (accrued) profits in foreign affiliates (essentially a tax holiday), and a big tax break on intangible product exports from the United States. Proponents of the TCJA argued that these carrot-and-stick provisions would discourage American companies from permanently repatriating profits to offshore tax havens.
Google’s recent move would seem to suggest that the policy is working. Consolidating its IP in the United States and presumably licensing it primarily from here is a significant shift. Does Google’s move signal a turnaround from the aggressive tax avoidance long practiced by the world’s richest corporations?
No. As far as Google is concerned, while it may have to pay a bit more than it was paying using its Double Irish scheme, the GILTI provisions (including its deductions and credits) still enable the tech company to enjoy a much lower effective tax rate on foreign profits.
The broader TCJA bill also does nothing to recoup the billions the company has avoided paying in taxes over the past two decades. Instead of cracking down on US companies’ rampant abuse of tax havens, Trump’s tax bill relies on the recycled trope that lowering corporate taxes or providing a tax holiday will incentivize companies to invest in jobs and production in the United States. As a Senate investigation into a 2004 federal tax holiday reveals, the giveaway did nothing to promote job growth in the United States.
Nor does the bill require greater disclosure of US companies’ tax policies, so we have no idea what the search engine company might be cooking up for its next tax avoidance scheme.
The same goes for other tech companies. Ed Kleinbard, a tax law professor at the University of Southern California, told the Financial Times that most companies who benefited from the Double Irish arrangement have already developed new, similarly lucrative, tax avoidance schemes.
Apple, who pioneered tax avoidance in Ireland beginning in the 1980s, moved a big chunk of its offshore cash holdings to the Channel Island of Jersey in 2017 and has developed an updated Irish tax avoidance strategy that “allows it to gain a tax write-off against almost all of its non-US sales profits.”
Microsoft, for its part, is taking advantage of another Irish iteration dubbed the “Single Malt” which allows the tech company to direct “profits to countries with which Ireland has a double taxation agreement but which do not have any corporation tax” such as Malta and the United Arab Emirates.
Of course, Google, Apple, Microsoft, Facebook, and all the rest insist that they do pay their fair share in taxes, by which they mean they pay whatever they are legally mandated to pay according to the global rules of tax and trade.
In a sense, these companies are not wrong. Companies’ number one priority is profitmaking, so it shouldn’t be up to them to determine what their fair share of taxes should be. It’s up to us to demand a straightforward and transparent tax policy that facilitates the sharing of our collectively generated wealth.