Reputational Death and Corporate Taxes

On April 3, 2016, the so-called Panama Papers scandal broke thanks to the leak of more than 10 million files from Mossack Fonseca, the world’s fourth-largest offshore law firm. The records in question—which detailed the use of tax havens by more than 140 politicians globally, including about a dozen national leaders—shocked the world, highlighting what the United Kingdom’s Guardian newspaper called the “myriad ways in which the rich can exploit secretive offshore tax regimes.” The scandal also increased the scrutiny of corporate tax planning.

How companies reduce tax bills has long been in the public spotlight. But the Panama Papers increased the intensity of media attention. As a result, when reading any newspaper or business magazine today, there is a good chance you will find an article about the growing controversy that surrounds business tax strategies. It is no secret that multinational corporations (MNCs) routinely engage in tax planning to minimize or defer income tax, which enhances shareholder value. But while the vast majority of tax-planning transactions are legal, some consumers perceive such measures as unethical. Indeed, even when legitimate, effective tax planning is often deemed as unfairly cheating the system.

It is only natural to assume that this sort of negative public perception would be materially harmful to a company’s reputation and brand image. But is it? To answer this global question, we examined the impact of tax management on an MNC’s brand, looking at three companies—Apple, Starbucks, and Burger King—with controversial tax management strategies that did not experience long-term negative impacts to sales, revenue, or brand perception. However, in all three cases, the companies in question undertook immediate actions to minimize the risk and consider the implications of their taxation on their brand. And these actions suggest there is a strong and growing link between tax planning and protecting the corporate brand.

Brand Valuation

A corporation’s brand is one of its most valuable assets. It can represent the corporation’s residual value—the amount left over after the fair market value of tangible assets is deducted. We can consider brand value in independent monetary terms, but the true value of a brand depends on how the corporation can use it to generate profit. For example, a brand may be easily recognizable, but if the corporation is unable to leverage and market the brand to increase sales or raise the company’s value, the brand is not considered appropriable.

Of the many research firms that report on so-called brand value, Millward Brown took an approach that went beyond traditional finance methodologies. Millward Brown conducts in-depth interviews with consumers to understand the impact of the brand on pricing and volume by using three criteria: meaningful (emotional and rational affinity), different, and salient. The brand impact on the company’s earnings is then calculated using financial multiples.

Overview of Corporate Tax Planning

An MNC consists of a series of corporations that are generally wholly owned by a parent company or intermediary corporations. Multiple corporations are used for creditor protection, regulatory requirements, financing, and tax purposes. For example, a corporation expanding into a foreign jurisdiction may incorporate a wholly owned corporation in that country. Doing so limits access to the parent company’s assets by creditors of the foreign subsidiary. However, tax is payable on a corporation-by-corporation basis (or legal entity basis) according to that particular corporation’s income. Therefore, a determination of profit and loss between each legal entity of the MNC is required to assess the overall company’s assets.

Assessing income for each corporation can be difficult when corporations provide goods and services for other corporations within the group. Some income of one corporation can be an expense of another corporation. And because tax rates tend to differ among the various corporations, there is a net tax cost or benefit. Amounts may be moved among corporations through different arrangements, including management fees, licensing, and royalty arrangements, as well as through intercompany financing.

Tax Reductions through Transfer Pricing

Let’s look at a fictional example of transfer pricing. Assume that AlphaCo is an MNC that has two subsidiaries: AlphaUS and AlphaOffshore. AlphaUS sells US$100,000 of products to consumers in the United States and earns a gross profit of $30,000. AlphaUS also pays a royalty equal to 5% of gross sales to AlphaOffshore, which owns the brand name for the products that AlphaUS sells.

AlphaUS has an income tax rate of 35 per cent, while AlphaOffshore is resident in a country with an income tax rate of 3 per cent. Let’s assume, for our example, that payments of royalties between residents of the United States and the offshore jurisdiction do not attract any withholding tax.

By transferring a $5,000 royalty fee ($100,000 × 5 per cent) to AlphaOffshore, the MNC reduces its overall tax rate from 35 per cent to an effective rate of under 30 per cent. This is because AlphaUS pays 35 per cent tax on $25,000 while AlphaOffshore pays 5 per cent tax on the transferred $5,000, for a total tax amount of $8,900 (instead of $10,500).

Income Tax Deferrals

In the United States, all income that is returned to a U.S. corporation from foreign subsidiaries is subject to income tax at U.S. rates. A tax credit is available to avoid double taxation, subject to certain limitations, to the extent that income tax has been paid in a foreign jurisdiction. However, given the significant difference between U.S. statutory rates (35 per cent) and the rates of many other countries, there is a limited incentive to repatriate foreign earnings back to the United States due to the tax rate.

Building on our example of AlphaCo, $5,000 of cash generated from the royalty income would be held in a foreign jurisdiction. If it was to be returned to the United States, there would be an additional tax of $1,600, calculated as follows: $5,000 × 32 per cent (35 per cent U.S. tax rate minus 3 per cent offshore tax rate). The $1,600 is equal to the tax savings in the above example. As a result, for many companies, the tax savings are often a form of tax deferral, assuming that the funds would eventually be returned to the United States.

Corporations seek to defer this taxation by retaining the cash offshore and investing overseas. This may be in the form of market expansion, foreign acquisitions, or setting up research and development centres in foreign jurisdictions. However, this strategy is often not consistent with the company’s business objectives, such as availability of labour, market potential, or fit of an acquisition.

Public Response to Corporate Tax Planning

Over the past decade, there has been increased public pressure on perceived abuse by MNCs for their tax affairs. This has been shown through the leak of various corporate tax-planning documents (e.g., The Luxembourg Leaks) and offshore account details (e.g., the Panama Papers). Corporate tax affairs have even made headlines on mainstream media coverage of high-profile corporations, including a 2012 profile of Apple in the New York Times. Many consumers view any sort of tax planning as firms not paying their “fair share,” and see those corporations as not being responsible corporate citizens.

There has been significant political response on this subject around the world. The U.S. Congress has called corporate executives to testify on their use of tax structures. A U.K. House of Commons Committee investigated the use of tax structures by certain technology companies. This culminated in a coordinated multinational response to reduce the use of such structures through the Base Erosion & Profit Shifting (BEPS) initiative of the Organisation for Economic Co-operation and Development (OECD). BEPS seeks to establish a common framework around the globe for managing international tax affairs, including disclosure of information between countries. This initiative has been repeatedly endorsed by the G20 and served as a focal point of discussion in the 2013 G8 meeting.

We can therefore see competing interests for corporations. On one hand, corporate tax planning has a direct financial benefit for shareholders and can enhance profits. However, should the public view the planning as inappropriate, there can be damage to a company’s brand that may not be recoverable. Adding to the challenge is that tax plans are often developed years before they become publicly known. By that time, public perceptions may have changed dramatically.

Let’s look at the case of three specific American MNCs: Apple Inc. (Apple), Starbucks Coffee Company (Starbucks), and Burger King.

APPLE CASE

In 2013, an exhaustive investigation by the U.S. Senate’s Permanent Subcommittee on Investigations brought Apple’s tax avoidance to the spotlight. The results spurred negative media attention and created a customer relations nightmare for the company.

In the late 1980s, Apple set up Irish subsidiaries consisting of holding companies with no operations or employees. The companies claimed residency in a tax haven and earned royalty fees from the licensing of intellectual property. Profit was routed through these companies via other holding companies, taking advantage of preferential tax treaties to ensure that minimal taxes were incurred. Apple’s foreign sales, which accounted for 60 per cent of its profits, were largely routed to Ireland through these structures. The Congressional investigation did not allege that Apple’s tax practices were illegal. In fact, Apple found loopholes in the tax laws and took advantage of them.

Company Response: No legal action was immediately imposed on Apple. However, the public outcry forced Apple chief executive officer (CEO) Tim Cook to issue a response. Cook stated that Apple paid more taxes than any other Fortune 500 company. Apple’s tax bill for 2014 was over $8 billion. However, the public saw this as the amount of taxes that the company couldn’t avoid paying, rather than an indication of ethical business practices and patriotism. Apple had close to $145 billion in cash in its offshore subsidiary and paid a tax rate of approximately 2.2 per cent on foreign earnings. Reports estimated that Apple avoided at least $3.5 billion and $9 billion in U.S. taxes in 2011 and 2012 alone, respectively, and paid $2.5 billion and $6 billion in 2011 and 2012, giving Apple an unfair tax advantage.

Consumer Response: Like many other MNCs, Apple was exposed to consumer activists who used name-and-shame campaigns to hold them accountable to corporate social responsibility (CSR) standards. However, though consumers may challenge companies and actively voice their discontent, they are not likely to adapt their purchases if alternative options are limited or if it creates inconvenience in their day-to-day lives. Apple saw a minor temporary drop in its share price following the announcement, likely due to the expectation of a large tax bill or penalty imposed on the company. But no impact was registered in Apple’s sales of its brand products or market share as a result of the investigation. Apple continues to be one of the world’s most successful brands.

Regulatory Response: Following a crackdown by the European Commission, Ireland moved towards closing the “Double Irish” loophole. Ireland was criticized by governments across the globe for facilitating aggressive tax avoidance schemes by MNCs. The new rules would not impact existing companies employing the tax structure until 2020. During his final months in office, then U.S. President Barack Obama was looking for ways to modify U.S. tax policies to encourage cash repatriation of great amounts of money stockpiled offshore by U.S. corporations. As of 2015, Apple had approximately $180 billion in offshore accounts and the company expressed a desire to repatriate those funds. However, the tax policies within the United States are not conducive to balancing shareholders’ interests with tax regulatory requirements. To get the cash back into the United States, Apple would incur a corporate rate of 35 per cent, which is among the highest corporate tax rates in the world. Apple expressed a desire to work with U.S. lawmakers to amend U.S. tax laws so that MNCs can repatriate more cash.

Apple is looking to return more of its cash to its investors. The company has initiated plans to boost its capital return program by $70 billion and increase its share buyback by $50 billion. However, in the absence of revised legislation to allow Apple to return the cash to the United States to fund the capital return program, the company has financed this initiative through the issuance of debt. The debt, often located in the United States, provides a further reduction to U.S. taxes through a deduction for the interest expense. Apple continues to be a significant U.S. taxpayer, with approximately $10 billion in its last fiscal year end, according to a regulatory filing.

STARBUCKS CASE

The combination of consumer and political responses, along with prominent media coverage, can sometimes affect the reputation of corporations. Starbucks discovered this phenomenon when it was accused of avoiding tax payments in the Netherlands and in the United Kingdom. In the Netherlands, the company negotiated a lower tax rate with the government. In the United Kingdom, Starbucks operates over 800 stores and has paid less than 1 per cent in corporate taxes since its launch. In 2011, the company paid no taxes at all. Starbucks’s main competitor, Costa Coffee (Costa), paid 31 per cent of its profits in taxes.

Company Response: Starbucks volunteered to pay £10 million (approx. $16 million) more in taxes than it owed in 2013–14, hoping to appease consumers. The company indicated in parliamentary hearings that lower taxes were paid due to profits being realized in only year one of operations. Profitability was driven by legal tax-avoidance strategies, shifting profits through royalty payments and dividends to subsidiaries in Switzerland and the Netherlands. Starbucks’s message to consumers focused on legality—all laws (international and local) were followed, and all required taxes were paid. The U.K. payment was positioned as “relevant” versus “reputational,” and was communicated as “the right thing to do.” Starbucks indicated that a 2013 drop in sales was due to the closure of unprofitable stores, rather than the impact of negative attention to its tax-avoidance strategies.

Consumer Response: Consumers had some difficulty reconciling the lack of a message of profitability with Starbucks’s claims that the United Kingdom is the company’s “fastest growing market in Europe,” with gross profit up 13 per cent and operating margins up 22 per cent. Consumers did not question the legality of the tax strategies employed—they questioned the fairness of the resulting lower taxes paid, and linked it to unethical behaviour. A consumer boycott of Starbucks ensued in 2012, resulting in a first-time sales drop from £413 million (approx. $677 million) in 2012 to £399 million (approx. $654 million) in 2013. Interestingly, Costa’s sales saw a 7.1 per cent increase during the 13-week boycott period (to November 29). One local politician questioned how the United Kingdom could be the strongest market in Europe and yet result in losses each year.

Regulatory Response: In October 2015, the European Commission ruled that tax advantages afforded to Starbucks in the Netherlands were illegal and charged the company over €20 million (approx. $32 million) in fines. The spirit of this ruling was to create fairness between large corporations and smaller firms that do not have the resources to implement similar tax-avoidance strategies. The decision was appealed by the Netherlands in December 2015. The results of the appeal have not yet been made public.

Starbucks’s brand recognition in the United Kingdom was not affected. In 2013, the company enjoyed over 90 per cent brand awareness. However, the company’s brand reputation did suffer some negative impact. YouGov’s BrandIndex cited Starbucks’s reputation score as having fallen from +4.6 per cent before the tax allegations to –3.9 per cent afterwards.

Some argue that the coffee industry is an obvious target for the questioning of corporate taxes paid, given high visibility through retail locations for an industry that takes pride in contributing positively to communities through ethically sourced materials. Consumers did not question the legality of tax avoidance by Starbucks, but they did question Starbucks’s reputation, as indicated by the negative reputation score.

Taken a step further, tax avoidance contradicts Starbucks’s sustainability premise. President and CEO Howard Schultz stated that Starbucks “has had a policy from the very beginning to go beyond being just an ordinary coffee house to a meaningful company in returning good things back to society.” The company’s quick response to pay beyond what it owed in the United Kingdom was an indication that corporate sustainability is a critical lever of brand reputation, for which the company intends to manage risk. However, while the company’s CSR makes general mention of “being responsible,” there is no mention of contributions to communities via taxes paid.

BURGER KING CASE

On August 24, 2014, Burger King announced plans to acquire Tim Hortons for $12.5 billion and in the process move its headquarters to Canada. The financial and marketing industries immediately took notice. Why would a major American corporation decide to move its head office to a different country?

Company Response: Burger King’s management team, and its Brazil-based parent company, 3G Capital, communicated their decision to relocate headquarters to Canada based simply on growth opportunities. Scott Bonikowsky, a spokesman for Tim Hortons, stated that the deal was “moving forward as planned and is driven by long-term growth and not tax benefits.” Management later explained that thanks to Tim Hortons’s client base, the decision was justified. Canada represented the company’s largest market. However, Burger King would remain a standalone brand, with its head office still residing in Miami, Florida.

Consumer Response: Despite management’s explanation, those opposed to the decision saw the strategy as nothing but an inversion tactic, where a U.S. company buys a foreign company and assumes the tax nationality of the acquired firm to reduce overall taxes. According to the OECD, “the combined federal, provincial, and local corporate tax rate in Canada is 26.3%” in comparison to the combined U.S. corporate rate of 39.1%. As a result, claimed the advocacy group Americans for Tax Fairness (ATF), “Burger King could avoid $117 million in U.S. taxes by never having to pay corporate income tax on foreign profits it holds offshore.” ATF also suggested that the MNC could save over “$275 million from 2015 to 2018” based on forecasted earnings. With Burger King as a major fast food supplier to the U.S. Armed Forces, the irony was not lost on some critics. ATF published a scathing report on December 11, 2014, stating that “while U.S. military families support Burger King by buying its food, Burger King will no longer support service members by paying its fair share of taxes.” So how would Burger King’s decision to become a Canadian domiciled company affect its brand loyalty? Judging from the perspective of social media, the move did not cause Burger King corporate damage. By September 24, 2014, some of Burger King’s Twitter followers were voicing concerns about the merger and relocation plans. However, an increasing number of followers were expressing opinions and questions about “bacon or ice cream—or what on earth happened to Chicken Fries.” In less than four weeks after the announcements, consumers had already started to move on with their lives and focus their attention back to menu items.

Regulatory Response: High-profile political figures organized boycotts of and petitions against Burger King, including a U.S. senator who encouraged consumers to buy hamburgers elsewhere because of “Burger King’s decision to abandon the United States.” Following the example of Burger King, other MNCs seemed likely to pursue similar inversion strategies, which prompted Washington to consider passing a bill to limit or restrict the benefits of inversion. However, from a regulatory perspective, the proposed legislation had an exception clause based on the number of employees or assets outside of the United States, which would have had no effect on the Burger King transaction.

In an effort to manage brand risk, Burger King may decide to integrate Tim Hortons’s coffee blend into Burger King franchises. Co-branding with Tim Hortons may also leverage its brand loyalty to help the company compete with McDonald’s in the breakfast space by creating new menu innovations, marketed as “out of the bun thinking.” But has Burger King incurred damage to its reputation?

From a financial perspective, brand recognition and reputation does not show any signs of negative impact. On April 27, 2015, Restaurant Brands International Inc. (RBI), the new parent company of Burger King and Tim Hortons, issued a press release stating: “system-wide sales climbed 8.1% at Tim Hortons and 9.6% at Burger King . . . while same-store sales were up 5.3% and 4.6%, respectively, at the chains.” Coincidently, McDonald’s same-store sales fell by 2.6 per cent and overall sales dropped by 2.3 per cent during the same time period.

According to RBI’s Form 10-K Financial Statements for the fiscal year ended December 31, 2015, Burger King’s total number of restaurants increased from 17,781 in 2013 to 19,416 in 2015. Moreover, Burger King’s exclusive sales growth increased from 4.2 per cent in 2013, before the acquisition and relocation, to 10.3 per cent in 2015, after the acquisition and relocation. RBI’s stock price on the New York Stock Exchange even performed relatively better than the S&P 500 Index and the S&P Restaurant Index during the period of June 2012 to December 2015.

Burger King’s corporate responsibility is summarized as “looking beyond a strong bottom line to consider the impact of everything we do,” which seems to contradict the company’s actions in respect to the Tim Hortons merger. However, the company goes on to explain that “it’s about doing the right thing as a corporate citizen in today’s global marketplace, while successfully meeting business goals and objectives,” with no reference to contributing to communities through taxes. Regardless, YouGov’s BrandIndex for Burger King has continued to rise, from 11 per cent in November 2014 to 15 per cent in March 2016.

Key Implications of Tax Policy on Brand

Each of the three MNCs discussed above—Apple, Starbucks, and Burger King—has a different tax avoidance story to tell, and each illustrates a shift in consumer knowledge on corporate taxation policy. The premise of corporations maintaining policies that minimize tax exposure to maximize shareholder value is nothing new.

However, today’s ease of access to information, and the ability to express opinions by mobilizing comments through social media, does present a new consumer environment. Negative implications of corporate policies can be spread at lightning speed. The global financial crisis gave birth to widespread movements focused on corporate greed, with Occupy Wall Street setting the standard of unfair practices by corporations that go against the greater good of the population and the overall economy. Ostensibly, the narrative has shifted to a movement based on perceived unethical behaviour. Corporations are being judged on their efforts to be good corporate citizens in their home country, and strategic attempts to minimize taxation revenues should have a negative impact on their brand reputation.

Role of Global Consumer Perceptions

Consumer reaction differed among the three tax management strategies discussed above. Differing local cultures played a role in the varying consumer perceptions. Apple and Starbucks employed taxation policies that exploited legal rules in the European market to minimize taxation. Burger King leveraged Tim Hortons’s operations to relocate its headquarters and enjoy lower corporate tax rates, relative to the United States.

Apple was following a globalization trend for technology companies, including its competitors Google and Facebook, to set up operation headquarters in Ireland. The response from the industry to criticism about the industry’s methods has been consistent: taxation policies on income earned outside America make it prohibitive to bring profits back to the United States. They are not accused of tax evasion for the revenues they generate; they have simply chosen to run distinct global operations outside the United States.

Starbucks avoided paying taxes through a trade agreement that allowed the company to minimize the taxation of revenue generated in that particular market. However, a competitor to Starbucks’s product did not enjoy the same benefits, and therefore could claim to be a better corporate citizen. This was also during a time when governments were in austerity mode, when greater tax revenues could create social programs for the most vulnerable.

That distinction implies that how a company chooses to operate within a specific environment can have a negative impact on its brand. Apple’s case merely led to a short-term drop in stock price, whereas Starbucks faced considerable consumer protests and a boycott. Burger King’s experience was initially negative in the United States but soon evaporated from the social media realm in favour of concerns about menu items, rather than the company’s deliberate tax inversion.

Integration with Corporate Social Responsibility

Regardless, there is a trend in the corporate world to increase transparency. MNCs that are not adopting this model face increasing pressure to explain themselves. Companies that claim to be transparent and are later found to be deceptive in taxation policies may suffer some impact on their brand and overall corporate value. This premise has placed pressure on corporate governance mechanisms.

Increasingly, companies issue corporate sustainability reports. Some corporations have gone as far as to disclose their taxation policies and payments. For example, Canadian banks disclose the total amount they pay in taxes by local region, in the interest of improved clarity.

Overall, a company’s CSR is not only applicable to shareholders—it is transferable to all stakeholders. How responsibly a company acts in the regions in which it operates includes the duty to contribute fairly to fund programs and investments in society.

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