Bain Capital Subpoenaed on Taxes

Bain Capital, the Venture Capital Firm that has become synonymous with Mitt Romney’s personal fortune, has been subpoenaed by NY Attorney General Eric Schneiderman for possible rampant tax evasion practices.

This blog has been critical over the years of the special tax treatment afforded to profits made from Capital Gains – profit made as an increase on investments - which is only taxed at rates of about 15%. Common wage labor is taxed at rates up to 38%. This creates a tax system that rewards stock and investment trading – which amasses wealth but creates no products or jobs - and punishes the actual creation of goods and services.

This is the legal tax code of course, but Bain is being investigating for making Management Fees charged to clients ‘appear’ to be investment income, rather than the fees they actually are.

Bain (and other firms) have a history of “waiving” the actual Management Fees they charge their clients; but in the place of these fees, they require the clients to place some of their investments in a fund for Bain, so that Bain receives the income from the investment; hence, the money Bain receives is taxed at 15% for capital gains rather than being taxed at 38% for the raw income from a fee.

I will remain a broken record on this issue, especially on Labor Day weekend: income from gambling with financial instruments must not be taxed less than the income earned by construction workers and firefighters and nurses and dressmakers who earn wages for providing the nation’s goods and services.

Whether Bain’s approach is legal or a tax-evading subterfuge will be settled in the court system.

Whether it is ethical and desirable as public policy, in light of how we tax honest labor, is much clearer.

Capital Gains Should be Taxed at Full Value: A Response to Dan Mitchell

Once a subject left to financiers and members of congress, the Capital Gains Tax has seen a much broader discussion this week. The combination of growing income disparity, Mitt Romney’s release of his income taxes two days ago, and President Obama’s call for more “tax fairness” in his State of the Union address last night has voters considering the societal implications of capital gains tax treatment as never before.

In brief, the Capital Gains Tax is a tax on income gained through the sale of capital assets, ie, income made by investing in a company, or by buying assets such as stocks and bonds at a low price and then selling them at a higher price. This type of income is taxed at a far lower rate than income earned through drawing a paycheck. Currently, if someone earns $100,000 from working at a job, that person falls into the 28% marginal tax bracket. However, if that person makes $100,000 by buying and selling stocks, they only pay a 15% on those earnings. The result has been that those who labor get taxed at one level, while those who sit back and “invest” by placing buy and sell orders with their online broker (and who produce *nothing* for the society) get taxed at far lower levels. This is the main reason why Mitt Romney, who made 20 million dollars last year, paid barely 15% of his total income in taxes, while average Americans making as little as 35,000 end up in the 25% marginal income tax bracket.

As Americans take a hard look at ending this preferential tax practice all together, corporate financiers have begun to circle the wagons to protect one of their most lucrative sources of income. On May 3, 2010, a video narrated by Dan Mitchell was uploaded onto YouTube titled, “Six Reasons Why the Capital Gains Tax Should be Abolished.” Mitchell is a former advisor to the Senate Finance Committee and currently a senior fellow at the Cato Institute, a libertarian think-tank. The video has been uploaded and embedded in right-wing and pro-corporate sites all over the web, including the National Review Online, Freedom & Prosperity.org, Kudlow’s Money & Politics Blog, Townhall.com, For Freedom’s Sake, the Lincoln vs. Cadillac website, and others. The original video can be found here.

In the video, Mitchell lists six reasons why the Capital Gains Tax should be abolished altogether.

This Economist takes the opposite position, and suggests that most capital gains should be taxed at the same rate as earned income. In support of our position, we will list refute Mitchell’s main proposition, which underlies all 6 of his arguments:

“The Capital Gains Tax results in less investment.”

This is the primary argument made by those who oppose the capital gains tax. They argue, with some validity, that the growth and expansion of business relies on investment; if potential investors are taxed for a successful investment, they will be more likely to place their capital somewhere where both risk and taxes are less, including in other nations.

I agree with part of this argument. The error, however, is his assumption that most capital gains actually come from ‘investment’ that assists an actual struggling or embryonic business. The vast majority of capital gains do NOT come from investing in a business; most capital gains come simply from stockholders buying and holding stock from other stockholders.

When someone with capital to invest purchases stock directly from a company issuing the stock, or uses its resources as “venture capital” in a private transaction to help grow a new company, there is direct investment. But when someone simply buys and sells equities on the stock market, not one penny is flowing to the business; rather, it is simply cash trading hands between shareholders. Such a purchase provides ZERO additional dollars to the business. Such “investors” generally do not participate in the corporations decision-making, governance, hiring, or expansion decisions. They use their wealth to purchase stock in an online transaction, follow it for a year, and ignore everything except how their ‘investment’ – which was purchased from another such ‘investor,’ not from the company – is doing. When the time is right, they access their account and hit the sell button…and make instant cash.

They produce nothing. They hire no one. They create nothing. They provide no expansion possibilities for businesses. And they are given preferential tax treatment for this.

The following table provides some indication of the number of these kinds of transactions for 10 random companies from different industry sectors (based on company quarterly filings and Yahoo! Finance compilations). The first figure represents the number of shares of stock issued by the company, over their lifetime, for which they received a payment, or investment, once. The second figure represents the number of shares traded between traders in ONE year, for which for the company received nothing, but which still qualifies as an ‘investment’ for capital gains purposes.

(Click to Embiggen):

In each case, the number of shares traded between traders in a single year far outweighs the amount of investment recorded by the company over that company’s lifetime.

The “problem” of a capital gains tax limiting investment can be fixed very easily: eliminate the ability of sales and purchases between traders to qualify as “capital gains,” while continuing it for actual direct investment. Such a change would incentivize direct investment in a company, make online gambling less lucrative, increase necessary tax revenues, and begin to end the system whereby honest laborers subsidize stock gambling.

Mitchell goes on to make the argument that the capital gains tax makes the United States less competitive in world markets. He argues that numerous nations have no capital gains tax whatsoever, and suggests that American companies and US investors would be likely to relocate or invest elsewhere because of this. Further investigation reveals that his video contains serious errors in this area. For instance, he lists the following nations:

Belgium, the Czech Republic, Mexico, and Portugal – He is simply wrong. Capital Gains are taxed at the Ordinary Tax Rate in Belgium and the Czech Republic. (There is in exception in the Czech Republic when between a parent company and a subsidiary). Mexico capital gains are taxed at 35%; Portugal taxes capital gains at 20%.

Hong Kong – while it is true that Hong Kong does not charge a capital gains tax, they *do* tax corporate executives on the full value of any stocks or stock options they receive as part of their compensation – at full value.

The Netherlands – He is correct in that the Dutch do not impose a capital gains tax based on the actual profit made on the sale of a capital asset; they actually do something far more onerous. They impose an Annual Wealth Tax on all assets, assuming that all assets will increase by 4% in value every year, whether they do or do not, and whether the asset is sold or not. It is, in effect, a presumed annual capital gains tax.

Switzerland – Corporations pay capital gains at the same rate as ordinary income; there are no capital gains taxes for individuals, *if* they are Swiss citizens, rendering Mitchell’s concern that US investors would flee to Switzerland moot.

Tax treatment that values gambling over the creation of goods and services, and that values “wealth making wealth” rather than compensating labor, is indeed class warfare…it is a declaration of war against laborers by the “investor class.” It is time to stop treating gambling as if it was investing, and to recover the wealth that has been steadily accumulating in the hands of the 1% because of our unequal treatment of income, as the following graph so vividly shows:

What the GOP doesn't get about Infrastructure and Taxes

In his last few speeches, President Obama has stressed the fact that many of his current proposals have, in the past, been supported – and even actively promoted – by both Democrats and Republicans. Today’s Republicans, though they may call on the name of Ronald Reagan as if his name was a magical incantation – would be horrified to know that Reagan, by his words and actions, would have agreed with President Obama more than he would have disagreed with him on these issues.

The upgrading and improvement of infrastructure – roads, bridges, ports, intermodal transfer facilities, and rail – was a cornerstone of the 1980 and 1984 Republican campaign platforms. After the economic ‘malaise’ of the 1970s, Buffalo Republican Quarterback-turned-Congressman Jack Kemp articulated a ‘new’ economic policy – one that emphasized government facilitation of business transactions (hence, “Supply” Side Policy," since it was aimed at the suppliers of goods and services rather than the consumers of said services). The theory was that by improving the nation’s infrastructure, businesses would be able to move goods and services in a more efficient, cost-effective manner, thus raising both profit margins and confidence in an economy that was sluggish at best. All one had to do was look at the effect of the Interstate Highway System, authorized under Republican Dwight D. Eisenhower, to see the effect on businesses which could now ship goods from Boston to New York in 4 hours rather than two days along the old U.S. Route 1. Fortunately for the Republicans, they garnered the support of many Democrats, who supported the idea not for its effect on business, but because, following traditional Keynesian spending theory, it would put shovels in labor’s hands and put them to work. Intermodal Transit facilities, HOV lanes and E-ZPass all became part of our vocabulary.

By the end of Reagan’s 8 years in office, grants to states for highway and infrastructure construction were 28% higher than when Reagan took office. Jack Kemp and Bronx Democrat Robert Garcia co-introduced federal legislation establishing protocols for Enterprise Zones to revive blighted neighborhoods, making millions of infrastructure project dollars available to states for projects, including parking facilities, rail facilities, and highway interchanges. Even when Reagan wanted to pull back on infrastructure spending, Republicans in the House and Senate turned against him and, with Democratic support, overrode their own President’s veto of the Surface Transportation and Uniform Relocation Assistance Act of 1987 (STURAA). This bipartisan policy continued through George H.W. Bush and Clinton, becoming a fixture of the American economic engine…and a piece of economic machinery supported by both political parties.

But somehow, today’s bunch of Republican extremists see this legacy only as “overspending." At a time when both natural disasters and deferred maintenance have destroyed or closed important transportation infrastructure, it is time for them to stop playing politics.

On Tax Policy, Obama has suggested a flattening of the overall tax brackets (part of the 1980, 1984, and 1988 Republican Party Platforms), as well as taxing investment income at the same rate as everyone else’s income. Currently, if you earn $100,000 from working at your job, you pay tax on the full $100,000. However, if you make $100,000 by buying and selling stocks, you only get taxed on 28% of your earnings – or $28,000. In one way, the Republicans are right – Tax policy *has* been used as class warfare: those who labor get taxed, those who sit back and place buy and sell orders with their online broker (and who produce *nothing* for the society) get taxed at far lower levels.

We have subsidized gambling by the wealthy on the backs of the laborer.

The biggest fallacy in the GOPs mock horror at Obama’s proposed tax changes is their assertion that these investments are good for business, and that taxing investment is bad for job creation. But there is nothing to show that those making money off of stock trading are creating jobs. Rather, they are hoarding the funds or simply continuing to trade ever-increasing amounts of wealth to amass more personal wealth.

In reality, most of what qualifies as 'investment’ and ‘capital' is neither. The vast majority of capital gains do NOT come from investing in a business, or from gains of capital provided to a company for expansion. MOST capital gains come simply from stockholders buying and holding stock from other stockholders. Such a purchase provides ZERO additional dollars to a business. It is simply another form of absentee landlord rent-seeking. Such “investors” generally do not participate in the corporations decision-making, governance, hiring, or expansion decisions. They use their wealth to purchase stock in a quick online transaction, follow it for a while (checking the price somewhere during the commercials on Dancing With The Stars), and ignore everything except how their ‘investment’ – which was purchased from another such ‘investor,’ not from the company – is doing. When the time is right, they access their account and hit the sell button…and make instant cash.

They produce nothing. They hire no one. They create nothing. They provide no expansion possibilities for businesses.

But they amass personal wealth. And yet, we treat them with kid gloves by taxing them less, at 28% the rate what we would tax someone who spends all day working and creating valuable goods and services in the economy.

Tax treatment that values gambling over the creation of goods and services, and that values 'wealth making wealth' rather than actual labor, is indeed class warfare, Mr. Boehner. It’s the class warfare that is destroying the middle class and rewarding a cadre of wall street elites that have you in their hip pocket.