If Shakespeare had written about contemporary corporate strategy rather than medieval dynastic politics, the phrase “How sharper than a serpent’s tooth it is to have a thankless subsidiary!” might have gone down in history.
The newly filed lawsuit by the company once known as Essar Steel Minnesota against its former parent company, Essar Global Fund, is the latest scene in a drama that began in 2007, when the India-based parent steel company bought an existing taconite operation at Nashwauk, Minn. In that boom era it soon announced plans for a grandiose new plant which, at one point, would have included the core of a modern steel mill.
Those plans collapsed along with the global commodities super-cycle. More recent scenes center on unpaid contractors, unmet loan payments and stiffed Minnesota taxpayers. The shakeout was messy. While the Minnesota operation, now known as Mesabi Metallics, is still nominally a subsidiary of the Mumbai-based parent, the lawsuit is part of an effort to completely sever the Minnesota business, including a partially completed $2 billion plant, from the parent.
That is the largest construction project in the state’s history, one that has significant real short-term effects on the economy of northeast Minnesota and potentially even more important long-term ones, given that it eventually could validate new technology for producing steel right at the mine, changing the structural economics of an enormous industry.
The economic concept relevant for us today, however, is at the core of the lawsuit just filed. It is the broader issue of “transfer pricing,” a necessary accounting task for all international corporations. The question may be similarly important if the new administration in Washington really is able to impose high tariffs as promised on imports of autos and other items manufactured in Mexico or Japan.
To start, the lawsuit alleges that the parent company charged its Minnesota subsidiary hundreds of millions of dollars for materials and business services that it did not, in fact, provide. This took money directly from the subsidiary and indirectly from local vendors and Minnesota taxpayers and then transferred the funds back to owners in India.
This specific case might constitute fraud, but in general, manipulating payments between different entities of the same underlying corporation to reduce taxes or camouflage the transfer of capital is a common business practice.
It goes back to the days when most international commerce was between companies rather than within them. Centuries ago, traders perfected the arts of “under-invoicing” and “over-invoicing.” Abuses of transfer pricing arose from these.
Consider a Brazilian coffee merchant in the 1950s who agreed to sell 500 tons of coffee to a U.S. buyer for $400 per ton. That could be paid for with a $200,000 check. But at that time, all international transactions had to be run through Brazil’s central bank. And the exporter might have reasons to desire minimizing the sums involved. So he might say, “Let me present an invoice to you for 500 tons at $300 per ton. You pay that $150,000 and I’ll deposit it at the Bank of Brazil. But we will also forward a ‘supplemental invoice’ for the extra $50,000. Please pay that into our account at a Miami bank.”
It would be no skin off the buyer’s back to accommodate this request. The exporter would have accomplished two goals, reducing his reportable income in Brazil and surreptitiously moving $50,000 out of the country. This was against the law. A sharp-eyed comparison of the official invoice to the actual grade of coffee embarked might catch it. But the risk was small and such “under-invoicing” was common whenever the Brazilian government controlled all international payments.
Or, a Brazilian industrial equipment manufacturer might buy 5,000 electric motors from a German vendor at $250 each. If it was an established sales relationship, and the German seller was experienced in dealing with developing-country customers, the Brazilian buyer could say, “We owe you $125,000. But could you do us the favor of invoicing us for the motors at $350 each? We will forward the $175,000 through the Bank of Brazil. A couple of months from now, we’ll notice that you made an error. Issue a ‘corrected’ invoice and send it, along with a $50,000 ‘refund,’ to our agent in Switzerland.” If the vendor cooperates, the Brazilian manufacturer has just increased their expenses for income tax filings by $50,000 and moved the same amount from Brazil into a Swiss bank via “over-invoicing.”
What was a well-known, if not necessarily common, practice between international traders was even easier to implement within a company that moves goods or services between different divisions of itself, as was the case with Essar.
My favorite used machinery yard in Minneapolis long had dozens of metal skids marked “Return to Ford engine plant, Taubate, Sao Paulo, Brazil.” Ford manufactured 4-cylinder aluminum-block engines in Brazil that were put into small vehicles its assembly plants around the world, including the former Ranger truck plant in St Paul. Ford’s Brazil subsidiary is legally a separate corporation, but entirely owned by the parent company in Michigan.
If Ford of Brazil sells 50,000 engines to the U.S. Ford Motor Co., a payment has to be made. But what payment? You can tabulate the value of aluminum and hours of labor and solenoids or v-belts precisely. But how many years do you amortize the plant over? How do you value foundry machinery and lathes — original purchase cost, used-equipment market value, replacement cost or what? This is particularly knotty if Brazil’s inflation rate is 70 percent a year and all book values are irrelevant.
If it is advantageous to move money from the United States to Brazil, the engines are worth $4,000 each. If you want to move money from Brazil to the U.S., you price them at $2,000. These both might be “transfer prices” that any competent cost accountant can justify to an IRS auditor. The key is to stay within a plausible range that usually is quite wide. You cannot price the engines at $20 each, nor at $10,000, but you still have great leeway.
The practice need not be limited to physical goods shipped. Nearly all of Ford of Brazil’s output is sold in that country. But most of the basic design work was long done in Michigan. No company would give a proprietary design to a completely separate company in another country. But what about transfers within the company? Charge high for such services and you move money north. Sell it on the cheap and it moves south. Ditto when company accountants travel from Michigan to Sao Paulo to go over the subsidiary’s books or when Brazilian quality control techs go to the Louisville. Ky., truck plant for training. Who pays whom how much?
Developing corporation-wide marketing efforts is a big part of the fast-food industry. Brand names, logos and other intellectual property are worth billions. So if McDonald’s has its European headquarters in Amsterdam or Dublin, it can charge its French and German subsidiaries large sums for using the label “Big Mac” or for the image of Ronald McDonald. Profits in those higher tax countries go down and those in lower-tax Ireland or the Netherlands go up.
These schemes can be complicated. Just do a computer search on “double Irish with a Dutch sandwich” for an example. But they are a big part of the “inversions” such as the one leading to the laughable legal fiction that Medtronic really is an Irish corporation.
Every international corporation has to determine transfer prices to keep its books. This necessary task can be used or abused. At some point abuse can become fraud, either against tax authorities or against the local partners or creditors of a subsidiary in another country. That is what Essar Minnesota alleges has taken place. A judge will eventually rule unless there is a negotiated settlement first.
So what about the Trump administration and import tariffs? Say Germany-based Audi’s Mexican subsidiary manufactures in that country but sells most of its cars to the corporation’s U.S. subsidiary which, in turn, sells them to authorized dealers and then to the public. When Audi’s Mexican entity sells to its U.S. entity, what value is entered on the customs declaration? The lower the sum declared, the fewer dollars on which any hypothetical 35 percent “border tax” much be paid. A lower price will reduce profits in Mexico, but increase them in our country.
Yes, there is not much room to play with on values of high-end autos. You cannot list an A6 at $5,000. But don’t assume that some play won’t occur. And yo-yoing exchange rates introduce much room for games. The higher border taxes are, the greater the incentive for manipulating the numbers that go on invoices and tariff declarations. And the greater the incentives for corruption.