Governments need money to fix the roads; to keep airports running; to keep bridges safe; to pay the armed forces; to maintain fire departments and police departments; to maintain a clean and secure water supply and to provide a social safety net for the old, infirm or less fortunate.
Why Pay Taxes? Is it a Moral Issue? Is it Something Else?
The common good, as described by Professor Esther Reed in her contribution to a 2014 document on Taxation and Morality, is humanity’s shared project of living together. It is less about the specifics and substance of what that common good is than an understanding that the common good is a communal endeavor and a recognition that people exist in relation to each other.
The tragedy of the commons is often cited in support of a capitalist model. The fact that everyone acting rationally in their own self-interest can destroy a shared resource should more properly be understood not as a reason to extol the pursuit of private property and self-interest without regard for the need of others, but rather as a reason to derive a better understanding of the common good.
Politics and the Common Good
Agreement on what the common good is quickly becomes a question of politics. There would be no requirement for taxation without government spending. In the Big Picture - a site referenced before in these articles - a team brought together by Steve Ballmer, former CEO of Microsoft, pulls together the financial picture of the USA and gives insights to federal, state and local finances.
Government spending is an expression of the things a society holds important as part of the common good. Government spending represents the accumulation of priorities established by both (in the case of the United States) political parties. It is something that citizens on both sides of the political divide have had a share in creating.
In the United States currently, expenditures exceed revenues collected and the government must borrow to fund the gap. Taxation is how revenues are collected. If the common good has a moral underpinning – there are both secular and religious arguments that say it does – then there is a moral basis for taxation and, necessarily, a moral argument that evading or avoiding tax is immoral.
Is Legality the Right Standard?
Arguments have been made that taxation is unconstitutional. Brushaber vs. Union Pacific Railroad squashed this argument. Evading tax – consciously ignoring the rules requiring a particular tax result – is both criminal and immoral. The grey area is tax avoidance. A common reaction to the publication of the Panama Papers and Paradise Papers is to ask what is wrong with engaging in legal planning to avoid taxes that would otherwise be payable?
Legality is not always an acceptable answer to questions of morality. Slavery and child labor were once legal. They were never morally acceptable. Asserting compliance with a complex web of rules governing taxation in jurisdictions that overlap and interlock in sometimes incoherent ways cannot be a sufficient answer in questions of corporate social responsibility (CSR). Milton Friedman’s quote:
“There is one and only one social responsibility of business–to use its resources and engage in activities designed to increase its profits so long as it stays within the rules of the game, which is to say, engages in open and free competition without deception or fraud”
It is relevant and often cited in discussions of what constitutes CSR. Friedman’s quotes can be a rich source of discussion, but the words can be parsed in different ways. Staying within the ‘rules of the game’ requires an understanding of the rules and, of course, what the game is.
If ‘the game’ is the business of producing profits for shareholders, that begs the question of what the profits are for. Those who argue that the common good is a lofty goal beyond the responsibility of corporate decision-making may have been overtaken by evolving norms of CSR.
Tim Cook, CEO of Apple wrote an Op-ed in the Wall Street Journal on November 3, 2013 where he urged passage of the Employment Nondiscrimination Act. He claimed that:
Apple’s antidiscrimination policy goes beyond the legal protections U.S. workers currently enjoy under federal law, most notably because we prohibit discrimination against Apple's gay, lesbian, bisexual and transgender employees. A bill now before the U.S. Senate would update those employment laws, at long last, to protect workers against discrimination based on sexual orientation and gender identity.”
While claiming to hold Apple to higher standard than that imposed by law in this area, Cook has a slightly different approach to taxation. His standard is that Apple pays every dollar of taxes owed under current law in the US and in the jurisdictions in which it operates. Perhaps - though the recent release of the Paradise Papers makes that unclear. Apple's effective tax rate, depending on how the calculation is done, is between 15-24%, far short of the 35% marginal rate of corporate tax. Holding the company to a higher standard in nondiscrimination than the standard of minimum legal compliance in tax law appear inconsistent.
Regardless of whether Cook is aware of the choices he is making in the area of taxation, moral choices are being made as a matter of CSR. The definition of what comprises the common good has entered the realm of corporate decision-making. It is a threshold once crossed that cannot be retraced.
Tax Reform in the United States
How does this relate to tax reform in the United States? The reasons why tax reform triggers such passionate widespread coverage is precisely because taxation is a moral issue. The burden is clear and, because the burden must be shared, the issue of how that burden is shared goes to matters of fairness.
If the reduction in the corporate tax rate to 20% is made permanent, but the reductions in personal taxation and the adjustment of bands of taxation sunset after ten years in order to comply with the parliamentary procedure of Reconciliation and the Byrd Rule, that seems unfair. If the forgiven tuition of post-graduate students becomes taxable but the carried interest loophole remains, that seems unfair.
The constraints for passage of tax reform are a product of the current hyper-partisan state of politics. Because no-one expects that both parties in the Senate will be able to work together for tax reform; and because Senate Republicans are – probably correctly – convinced that if they do not pass tax reform this year, they will suffer electorally in the 2018 elections, tax reform must be able to pass with a simple majority. Reconciliation first requires a budget resolution to have been passed. This has been done already and permits a 10-year deficit not exceeding $1.5trn. Providing a tax bill is not scored by the Joint Committee on Taxation to exceed this deficit, it may be passed with a simple majority. Whether this procedure has been complied with can be objected to as a procedural matter. The matter is ultimately decided by the Senate Parliamentarian.
The moral underpinnings of taxation are clear. Whether current tax reform proposals conform to a broadly held understanding of the common good is not clear. Frustratingly, it is not even apparent that this is the criterion for approving tax reform. That appears to have much more to do with the pragmatic calculations of electoral survival. Congress would seem to be engaged in its own version of the Tragedy of the Commons – the shared resource in this case being the United States economy.
Neil is the CEO of Sevara Capital Advisors. He is passionate about solving tax, accounting and regulatory problems for institutions that have invested billions of dollars of capital in multiple jurisdictions. His company provides solutions for banks, insurance companies and hedge funds to tackle their problems related to tax returns, financial statements, accounting and internal finance matters. Neil holds a master’s degree in Law from the University of Cambridge.