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07Mar17
Caterpillar Is Accused in Report to Federal Investigators of Tax Fraud
For years, federal investigators have been scrutinizing Caterpillar's overseas tax affairs with no resolution to the examinations of the complex maneuvers involving billions of dollars and one of the company's Swiss subsidiaries.
Now, a report commissioned by the government and reviewed by The New York Times accuses the heavy-equipment maker of carrying out tax and accounting fraud. It is extremely rare to accuse a big multinational company of tax fraud, which could result in high penalties.
"Caterpillar did not comply with either U.S. tax law or U.S. financial reporting rules," wrote Leslie A. Robinson, an accounting professor at the Tuck School of Business at Dartmouth College and the author of the report. "I believe that the company's noncompliance with these rules was deliberate and primarily with the intention of maintaining a higher share price. These actions were fraudulent rather than negligent."
No charges have been filed, and it is not clear whether investigators agree with the findings or intend to act on them. The report, which has not been made public or made available to Caterpillar, outlines a company strategy for bringing home billions of dollars from offshore affiliates while avoiding federal income taxes on those earnings.
Corrie Heck Scott, a Caterpillar spokeswoman, pointed out that the company had not been provided with a copy of the report and declined to comment further. The company, which makes heavy construction and mining equipment, has defended its tax strategies in previous years by calling the arrangements prudent and lawful among large United States companies.
Caterpillar's strategies for reducing the taxes it must pay in the United States have saved the company billions of dollars. Last week, federal agents raided three Caterpillar buildings near its headquarters in Peoria, Ill., as part of the investigation. Caterpillar said it was cooperating with law enforcement.
The company's tax practices have been a focus of government investigators since a 2014 Senate hearing found that the company cut its tax bill by $2.4 billion over 13 years, moving earnings out of the United States and into a Swiss subsidiary, despite internal company warnings that the strategy lacked a business purpose, other than tax avoidance.
Less than a year later, Caterpillar disclosed it received a subpoena from federal investigators seeking documents and information relating to the movement of cash among domestic and overseas subsidiaries, as well as other matters involving its foreign units, including the Swiss entity.
The company has since disclosed in securities filings that the Internal Revenue Service is seeking more than $2 billion in income taxes and penalties on profits earned by the Swiss unit. Caterpillar has said it is "vigorously contesting" the I.R.S.'s proposed increases.
Reached by telephone, Ms. Robinson declined to comment. Her report focused on one specific part of Caterpillar's offshore tax arrangement. It concluded that the company failed to pay taxes on billions of dollars brought home primarily from its Swiss unit and its affiliates, and thus failed to comply with United States tax law and financial reporting rules.
It is not clear which federal agency hired Ms. Robinson. In her report she wrote that she was asked to provide a written opinion of Caterpillar's financial reporting related to various tax accounting standards, "as pertaining to" the investigation of Caterpillar by the Federal Deposit Insurance Corporation Office of Inspector General.
"I was provided with all documents available to the case agents assigned to the investigation," Ms. Robinson wrote. She also wrote that she spent approximately 200 hours reviewing the evidence and performing calculations.
The investigation is being conducted by the United States attorney's office for the Central District of Illinois as well as the Inspector General of the F.D.I.C., which investigates criminal activities affecting financial institutions. Agents from that office, as well as from the I.R.S. and the Department of Commerce's office of export enforcement joined the raid on Caterpillar's offices last week.
A spokeswoman and a spokesman for the agencies confirmed last week's law enforcement activity and the agencies involved, but declined to comment further.
United States companies owe corporate income taxes at a rate of 35 percent on profits earned around the world. However, they are permitted to defer the taxes owed on the profits generated offshore until they bring those earnings back to the States, a process known as repatriation. Once they bring cash back, they generally owe federal income taxes, with a credit for any income taxes they have already paid overseas.
In the report, Ms. Robinson estimated that Caterpillar has brought back $7.9 billion into the States, structured as loans, over and beyond the income that had already been taxed overseas. She concluded that the company failed to report those loans for tax or accounting purposes, and she wrote that those profits should be subject to federal taxes.
In one example, she cited correspondence between the company and the Securities and Exchange Commission in which Caterpillar said it had $2.5 billion of income eligible to be brought to the United States tax-free. Ms. Robinson wrote that her research showed that the company did not have "anywhere near" that sum still available to be brought in tax-free.
Caterpillar failed to report those loans as taxable distributions of cash, thus avoiding the tax on earnings brought home from Switzerland, while "enjoying the use of those earnings to meet U.S. cash needs," she wrote.
Ms. Robinson's 85-page analysis is based on publicly available and internal financial data of the company, she wrote in the report, as well as bank data tracking wire transfers from Switzerland into the United States.
The report does not explain whether Caterpillar used the type of creative, and often legal, transactions that United States multinationals use to avoid tax on earnings brought home from offshore.
For instance, while companies typically owe tax on earnings brought home, there some exceptions. For instance, they do not owe tax on short-term loans made by their offshore subsidiaries to their domestic parent company. In her report, Ms. Robinson does not mention this legal exception, and it is unclear if Caterpillar used such transactions.
In 2012, the same Senate committee that examined Caterpillar's taxes found that Hewlett-Packard stitched together a series of such loans to bring home billions of dollars tax-free.
The 2014 Senate report on Caterpillar said the company worked with the accounting firm PricewaterhouseCoopers, to set up its Swiss tax-cutting strategy. PwC was also the company's auditor, which raised "significant conflict of interest concerns," according to Senate investigators.
The report by Ms. Robinson makes a passing reference to PwC but does not address what role, if any, it had in these transactions.
Caroline Nolan, a spokeswoman for PwC, said, "We don't comment on client matters or pending investigations."
Companies like Caterpillar, Google, Apple and Pfizer have accumulated at least $2.3 trillion offshore, much of it in subsidiaries located in tax havens like Bermuda, Luxembourg and the Cayman Islands. President Trump has said he supports a holiday of sorts that would permit companies to bring those profits back to the United States at a low rate.
[Source: By Jesse Drucker, The New York Times, 07Mar17]
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 | This document has been published on 17Mar17 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. |