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Big Tax Breaks for Big Boxes

April 8, 2007 by staff

New York state program subsidizes chains, handicaps independent businesses

By Michelle Breidenbach and Mike McAndrew
First Published by the Syracuse Post Standard April 01, 2007

Jim Cronk runs the kind of hardware store that offers a good deal on rock salt because he bought it in bulk and divided it into empty kitty litter pails he picked up at a farmers market.

Cronk fuels a coal-burning stove in the Mallory Lumber & Steel showroom, where friends and customers discuss the news and exchange advice about the proper way to install a metal roof.

Cronk’s store in Hastings is halfway between the Lowe’s Home Center in Cicero and the one in Oswego. He just heard state taxpayers are giving the big-box retailer $3.6 million a year in Empire Zone tax breaks. The home improvement store will be reimbursed for its property taxes and will pay reduced state income taxes for at least 10 years.

“If they get free taxes, that’s just like free money,” Cronk said.

Cronk is not in the zone. Last year, he paid state income taxes, sales taxes and about $4,000 in local property taxes, he said.

He waved a colorful newspaper insert from Lowe’s and said he wished he had the extra money to advertise, to stock all the little gadgets people want and to employ a couple of people.

Raby’s Ace Home Center, family-owned in Oswego since 1916, is not in the Empire Zone program, either. That store suffered when Lowe’s moved in three miles away, Robert Raby said.

“It’s a little frustrating when you are, in a sense, subsidizing your own competition, ” Raby said. “We’re not anti-competition or anything like that. I guess we’re for fair competition.”

Until last month, New York state officials would not tell the public how much tax relief each of the 9,667 zone businesses expected. The Post-Standard won a lawsuit that forced the information into the light for the first time.

Around the fire at Mallory’s and elsewhere in the state, business owners who are not getting tax breaks are scanning the list of the ones who did.

In addition to Home Depot and Lowe’s, state taxpayers also subsidized Wal-Mart, Target, Price Chopper, Kinney Drugs and AutoZone stores. Those national chains alone drew an estimated $9 million in zone breaks in 2005.

The state’s taxpayers are underwriting a small number of fast-growing national chain stores that are headquartered out of state and already have the competitive advantage of bigness. The big-box deals highlight the inequity of the Empire Zone program: 2 percent of the state’s businesses are subsidized with the taxes paid by the rest of them.

Former Gov. George Pataki and state legislators intended the program as a tool to lure job-creating businesses into downtowns and impoverished neighborhoods. Clever lawyers and accountants quickly found ways to get themselves and their clients on the list — no matter that they were old companies, losing jobs or building in the suburbs.

Raby’s considered using an accounting gimmick to squeeze into the program. All the store had to do was change its name and the store would have qualified for tax breaks meant for a new company.

“But we’re an established business,” Raby said. “My understanding was that this was for new businesses. We didn’t want to do the name-change game. We didn’t feel that’s how the program was supposed to work.”

State Sen. Liz Krueger, D-Manhattan, called big-box stores “another bunch of minimum-wage, go-nowhere, no-benefit jobs” that undercut existing businesses.

“So the state of New York helped you put X number of people out of a job,” she said. “I don’t remember that ever being part of the discussion. I don’t remember anyone saying, ‘Let’s try to put Mom-and-Pop stores out of business.’ ”

Retailing giants cash in 
Krueger said it is difficult to argue for taxpayer help for Home Depot and Lowe’s.

The two largest home improvement retailers in the United States count their earnings in the billions. They are locked in fierce competition, and they open stores in New York with or without government help.

Home Depot has 2,147 stores worldwide, including 100 in New York. The company built two stores on Staten Island only six miles apart. Both won Empire Zone tax breaks.

Home Depot created 363 jobs at nine zone locations. Those stores paid workers an average of $9.63 an hour. Forty-one percent of the workers are part-timers, records show.

Lowe’s created 560 jobs at the seven stores where it gets Empire Zone credits. More than half are part-timers. The company paid an average of $10.98 per hour, records show.

At the same time, Lowe’s paid its chief executive officer $3.69 million, plus stock options. In January, Home Depot sent away its CEO with a $210 million severance package.

“We believe incentives create a win-win situation,” Lowe’s spokeswoman Karen Cobb said. “By bringing a Lowe’s store to the community, we are creating an average of 150-200 new jobs as well as generating tax revenue for the community.”

Home Depot had no comment.

All over the nation, local hardware stores are fighting government tax breaks for wealthy, out-of-state retailers. Maine and Minnesota are even thinking about imposing an extra tax on the big chains that either do not pay a living wage or have more than one-quarter of the employees working part time, according to the Institute for Local Self-Reliance, a national anti-sprawl group.

The group contends state government winds up paying Medicaid costs for uninsured workers and services associated with sprawling development. The group’s Web siteoffers studies showing that communities with big-box stores fare worse in terms of poverty rates, job loss and social and civic well-being.

The retail pie is only so big, experts say.

“Obviously, if you create a new store, you’re not creating new consumer spending,” said Stacy Mitchell, author of the book “Big-Box Swindle” and a senior researcher with the anti-sprawl group. “You can only do that if you grow the population or you increase people’s disposable income.

“My organization thinks that you should never give subsidies for retail development, except for maybe some low-income neighborhoods where you’ve got a distressed main street that’s so far gone that it’s hard to figure out how the market’s going to bring it back.

“For the most part, we don’t think you should give money to retail because you’re not generating any new economic activity. You’re just moving it around.”

Lowe’s in Oswego opened Dec. 8, 2004, with 170 employees.

Sixteen months later, an 84 Lumber store across the street closed. That company did not get Empire Zone money. Other small competitors met a similar fate. Cronk knows because he buys up their extra merchandise to sell at Mallory Lumber & Steel.

‘Our famous bureaucracy’ 
Cronk has read the laws that created the Empire Zone program. He has left telephone messages for his legislators – Sen. Jim Wright and Assemblyman David Townsend. He said they have not returned his calls.

If they did, he would tell them that he thinks bureaucracy is to blame for a system that allows a store on one side of the street to qualify for tax breaks while the store on the other side does not.

“It’s our famous bureaucracy. If you’re Jim Wright, you say, ‘This is one hell of a program. We’ve done a great job,’ ” Cronk said as he pulled on his sweatshirt collar to imitate Wright straightening his suit jacket. “But they didn’t take the next step and make sure the legislative intent is followed properly.”

The governor and the state Legislature created the program and then handed it off to a state agency to administer. That state agency relies on local economic development officials to select businesses for the program. At first, there were few rules about the kinds of businesses that could qualify.

“If you were in the zone and were creating a job, it was a straight certification. There wasn’t the scrutiny,” said Carol Bolam, deputy director of the state Empire Zone program.

Wright, a member of the Senate Economic Development Committee, said the state tried to make the program broad so local communities could bring in businesses that fit that area.

“In the absence of manufacturing, the big boxes have become the large employers the localities go after,” Wright said.

Local governments like retail stores because they generate local sales taxes. And it does not hurt the local tax base for the local officials to give businesses state money.

The program’s cost has grown from $30 million in 2000 to an estimated $558 million this year.

E.J. McMahon, a senior fellow at the fiscally conservative Manhattan Institute, said this is a classic example of local government officials being “very generous with other people’s money.”

“People all over the state are going to underwrite property taxes for a big-box store in Oswego,” McMahon said. He says the state should use the money to cut business taxes for everyone in New York .

The state does still consider retail stores for the program, but it encourages local zone coordinators not to focus on retail except in a depressed downtown.

“If you need to attract a retail business to a distressed area, then it’s much more acceptable than if it’s going to a natural market area in the suburbs and it doesn’t really need an incentive,” Bolam said.

Onondaga County allowed the Lowe’s store in fast-growing Cicero into the Empire Zone program in 2004, records show. Another Lowe’s in Camillus was approved in 2005.

Don Western, Onondaga County ‘s economic development director, said Lowe’s is in the program only because the county put three troubled old malls in the zone before they knew who the new tenants would be. If Lowe’s came to the county directly to ask for government help, Western said, it would likely not get it.

“I don’t understand why that kind of retail would be an acceptable use of the program in a county zone,” Western said.

The same is true in Watertown. Three years ago, Watertown added to its Empire Zone a new Home Depot just off an Interstate 81 exit. A year after Home Depot opened, Watertown ‘s Empire Zone board decided that it no longer wanted to add retailers to its zone unless they were downtown. But Home Depot will qualify for tax breaks for the next decade.

Pataki’s ‘global marketplace’ 
The city of Oswego is on an Empire Zone shopping spree that started with Wal-Mart. Its zone also includes Lowe’s, Price-Chopper, Kinney Drugs and others. Pataki announced in 2003 that the state had revised the boundaries of the zone in Oswego to bring in the Lowe’s store, Ruby Tuesday and Sunrise Nursing Home.

“By making these changes, more businesses will be able to create jobs and investment in New York and we can ensure that New Yorkers continue to have access to good jobs,” Pataki said in a news release. “In today’s global marketplace we are competing for each and every job.”

Retail fits the Lake Ontario tourism industry, said L. Michael Treadwell, executive director for Operation Oswego County , the county development office. He said the big-box boom along Route 104 has brought bank branches and other small retailers. The big boxes employ people, he said.

And now, customers are coming to shop at the Lowe’s in Oswego instead of the Lowe’s in Onondaga County, he said.

“If one went strictly by the argument that you don’t provide any assistance because there’s a competitive situation, then you wouldn’t provide any assistance to anybody, anywhere, at any time,” he said.

Treadwell said that Lowe’s gave Raby’s some competition, but he said they stood up to it and have survived.

“To the best of my knowledge, they’ve done very well since Lowe’s came to town,” Treadwell said.

But Lowe’s is getting free taxes and Raby’s is not.

Treadwell paused. “In my view, strictly in my view,” he said, “they should have put tighter restrictions on retail than they did. But they didn’t. The state didn’t do it.”

© 2007 Syracuse Post Standard

More Features on Corporate Tax Evasion and Subsidies

Filed Under: Corporate Welfare / Corporate Tax Issues, Walmart

Big-box Retailing Is Intrinsically Unsustainable

April 7, 2007 by staff

Wal-Mart’s environmental initiatives are positive, but can’t mitigate the corporation’s destructive impact

By Stacy Mitchell 
Published by Grist Magazine, March 28, 2007

With its recent flurry of green initiatives, Wal-Mart has won the embrace of several prominent environmental groups. “If they do even half what they say they want to do, it will make a huge difference for the planet,” said Ashok Gupta of the Natural Resources Defense Council. Environmental Defense, meanwhile, has deemed Wal-Mart’s actions momentous enough to warrant opening an office near the retailer’s headquarters in Bentonville, Ark. “If [we] can nudge Wal-Mart in the right direction on the environment, we can have a huge impact,” said the organization’s executive vice president, David Yarnold.

Wal-Mart’s eco-commitments are not without substance. The two most significant are a pledge to make its stores 20 percent more energy efficient by 2013, which will cut annual electricity use by 3.5 million megawatt-hours, and a plan to double the fuel economy of its trucks by 2015, which will save 60 million gallons of diesel fuel a year.

Acting with unusual transparency, Wal-Mart has even published a benchmark calculation of its carbon footprint. The company estimates that its U.S. operations were responsible for 15.3 million metric tons of CO2 emissions in 2005. About three-quarters of this pollution came from the electricity generated to power its stores.

This cannot be dismissed as greenwashing. It’s actually far more dangerous than that. Wal-Mart’s initiatives have just enough meat to have distracted much of the environmental movement, along with most journalists and many ordinary people, from the fundamental fact that, as a system of distributing goods to people, big-box retailing is as intrinsically unsustainable as clear-cut logging is as a method of harvesting trees.

Here’s the key issue. Wal-Mart’s carbon estimate omits a massive source of CO2 that is inherent to its operations and amounts to more than all of its other greenhouse-gas emissions combined: the CO2 produced by customers driving to its stores.

The dramatic growth of big-box retailers, including Wal-Mart, Target, and Home Depot, over the last 15 years has been mirrored by an equally dramatic rise in how many miles we travel running errands. Between 1990 and 2001 (the most recent year for which the U.S. Department of Transportation has data), the number of miles that the average American household drove each year for shopping grew by more than 40 percent.

It’s not that we are going to the store more often, but rather that each trip is an average of about two miles longer. The general trend toward suburbanization is only partly to blame: shopping-related driving grew three times as fast as driving for all other purposes. The culprit is big-box retail. These companies have displaced tens of thousands of neighborhood and downtown businesses and consolidated the necessities of life into massive stores that aggregate car-borne shoppers from large areas. During the 1990s, for example, about 5,000 independent hardware stores, dispersed across almost as many neighborhoods, were replaced by just 1,500 Home Depot and Lowe’s superstores, most erected on the outer fringes of our cities. The same trend is under way in virtually every retail sector. According to the market research firm Retail Forward, every time Wal-Mart converts one of its stores into a “Supercenter” with groceries, it leads to the closure of two existing grocery stores, leaving many residents with farther to drive for milk and bread.

Altogether, by 2001, Americans logged over 330 billion miles going to and from the store, generating more than 140 million metric tons of CO2. If we conservatively estimate that shopping-related driving over the last five years grew at only half the rate of the 1990s, that means Americans are now driving more than 365 billion miles each year and producing 154 million metric tons of CO2 in the process.

Since Wal-Mart accounts for 10 percent of U.S. retail sales, the company’s share of these emissions is at least 15.4 million metric tons — and likely higher, because Wal-Mart has led the way in auto-oriented store formats and locations. This amounts to more than all of its other domestic CO2 output combined.

Land-use consultant Kennedy Smith notes that another way to estimate these emissions is to start with the 100 million shoppers Wal-Mart says its stores attract each week, generously assume two shoppers per car, and then multiply by the average length of a shopping trip. This produces an almost identical result: over 15 million metric tons of CO2.

Shopping-related driving and the driving of cheap moving companies Las Vegas has, has been growing so fast that even a phenomenal improvement in the fuel economy of cars would soon be eclipsed by more miles on the road. Nor is CO2 the only environmental impact of all of this driving. Tens of thousands of acres of habitat have been paved for big-box parking lots, which, during rainstorms, deliver large doses of oil and other petrochemicals deposited by cars to nearby lakes and streams.

By embracing Wal-Mart, groups like NRDC and Environmental Defense are not only absolving the company of the consequences of its business model, but implying that this method of retailing goods can, with adjustments, be made sustainable.

Worst of all, they are helping Wal-Mart expand. In the Northeast and West Coast, where Supercenters are relatively few and environmental sentiment runs strong, a greener image is just what Wal-Mart needs to overcome widespread public opposition to new stores.

In January alone, Wal-Mart opened 70 U.S. stores. At current growth rates, by 2015 Wal-Mart will have enlarged its domestic footprint by 20,000 acres, turning CO2-absorbing fields and forests into stores and parking lots. Big-box stores make incredibly inefficient use of land. While 200,000 square feet of retail spread over several two-story downtown buildings with shared parking takes up about four acres, a single-story Superstore of this size, with its standard 1,000 parking spaces, consumes nearly 20 acres.

Wal-Mart’s new stores will use more electricity than its energy-efficiency measures will save. By making its existing outlets 20 percent more efficient, Wal-Mart says it will cut CO2 emissions by 2.5 million metric tons by 2013. But new stores built this year alone will consume enough electricity to add about 1 million metric tons of CO2 to the atmosphere.

It is not as though we need these stores. Between 1990 and 2005, the amount of store space per capita in this country doubled, while consumer spending grew at less than half that rate. The predictable result is that the U.S. is now home to thousands of dead malls and vacant-strip shopping centers. City planners are not the only ones alarmed. “The most over-retailed country in the world hardly needs more shopping outlets of any kind,” advised PricewaterhouseCoopers in a report to real-estate investors.

Yet Wal-Mart continues to build — consuming land, inducing more driving, and, perhaps most perilous of all, destroying what remains of small-scale, locally owned businesses. Tucked close to their customers in neighborhoods and downtowns, and sized to fit sidewalks rather than regional highway systems, it is these stores that are the true building blocks of a sustainable way of distributing goods. It is they, not Wal-Mart, that deserve the admiration and support of the environmental movement.

Stacy Mitchell is a senior researcher with the Institute for Local Self-Reliance and author of Big-Box Swindle: The True Cost of Mega-Retailers and the Fight for America’s Independent Businesses (reviewed here).

More articles by or referencing Stacy Mitchell.

© 2007 Stacy Mitchell

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Filed Under: Walmart

Wal-Mart: Always Low Taxes

February 16, 2007 by staff

States should close REIT tax loophole that allows corporations to dodge millions in taxes

By Jay Hancock 
First published by the Baltimore Sun, February 7, 2007

On May 21, 2003, Wal-Mart transferred ownership of its Ellicott City [Maryland] store to a Delaware-registered affiliate. No money changed hands, legal records show.

Why would the giant retailer go to the trouble of pushing paper in the Howard County courthouse simply to move property from one company to another under the same corporate umbrella?

Pull up a chair and hear the latest tale of tax loopholes, reduced state revenue and really smart lawyers.

As it wrestles with approaching deficits, Maryland may be losing millions in taxes because Wal-Mart and probably other companies have stashed deeds to local real estate in out-of-state affiliates.

By moving property ownership across state lines, Wal-Mart has created a tax-exempt “landlord” that can charge its stores “rent” and deduct the payments from Wal-Mart’s Maryland taxable income. Which reduces its Maryland tax.

It’s a legitimate tax shelter under existing law, says the Maryland comptroller’s office.

But in North Carolina, tax collectors deemed this kind of strategy improper and recovered $25 million in penalties, interest and tax that Wal-Mart had not initially paid over three years, legal documents show.

Wal-Mart, which says its practices comply with the law, is trying to get the money back in court.

In New York, Gov. Eliot Spitzer wants to close a similar loophole said to be costing the state $83 million a year, according to The Wall Street Journal, which reported on Wal-Mart’s “captive” rents last Thursday.

Wal-Mart, which has more than 50 Wal-Mart and Sam’s Club stores in Maryland and just disclosed plans to build three Wal-Mart “supercenters” near Baltimore, isn’t the only company doing this. As usual, however, its size ensures it gets the most attention.

Bank of America is in court with Massachusetts revenue officials over a similar arrangement, the Journal said, and AutoZone has been involved in captive-rent tax disputes in Kentucky and Louisiana.

The auto-parts chain has at least a dozen Maryland stores, and Bank of America has scores of branches.

I called both companies to ask whether they have transferred Maryland property or mortgages (another version of the loophole) to out-of-state tax shelters. Bank of America would not comment. AutoZone didn’t respond to detailed messages.

Wal-Mart’s Ellicott City property and numerous other Maryland Wal-Mart locations are owned by the same Delaware-registered business that collects deductible store rents in North Carolina and other states, property records show.

This company, Wal-Mart Real Estate Business Trust, is organized as a real estate investment trust, which is crucial to the tax savings. REITs are exempt from income tax if they plow most of their profits back to shareholders, which, in this case, is mainly Wal-Mart. (Such “captive REITs” differ from publicly traded real estate trusts, which are owned by numerous shareholders.)

As in North Carolina and other states, Wal-Mart deducts Maryland store rents paid to its Delaware REIT from Maryland taxable income, said company spokesman John Simley.

“We are comfortable with the structure,” he says, adding that there are good reasons beyond taxes to put property in a separate company – to avoid distracting store managers with real estate issues, for example. North Carolina, he says, is the only state that has disputed the setup.

This is similar to the “intangible property” loophole that Maryland closed a few years ago. In that instance, Maryland retailers were deducting “royalties” paid for trademarks owned by Delaware affiliates.

It’s impossible to say how much income-tax revenue Maryland might be losing to captive REITs at Wal-Mart or anywhere else.

Documents from the North Carolina case show that, in 1999 alone, Wal-Mart Real Estate Business Trust collected $2.2 billion in rents from across the country, though it doesn’t break them down by state.

Maryland Comptroller Peter Franchot’s office is prohibited from discussing Wal-Mart or other individual taxpayers, spokesman Joe Shapiro said.

Unlike in North Carolina, there’s nothing Maryland can do to recover taxes lost through captive REITs, he added. State auditors examined the issue a couple years ago “and determined that, within Maryland’s tax structure right now, that is a [legitimate] tax shelter,” Shapiro said.

That means it’s up to the General Assembly to change it.

A simple law will close the loophole. And, as luck would have it, there’s a model. See House Bill 1581 from the 2005 session, introduced by Del. Sheila E. Hixson, a Montgomery County Democrat who is chair of the House Ways and Means Committee.

The bill, which would close the captive-rent loophole, went nowhere two years ago. Hixson should revive it to boost state revenue and stop a practice — companies saving taxes by paying rent to themselves — that flunks the common-sense test.

© 2007 Baltimore Sun 

Related feature: Wal-Mart’s State Tax Evasion Ploy: Paying Rent to Itself (Wall St. Journal)

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Filed Under: Walmart

Wal-Mart’s State Tax Evasion Ploy: Paying Rent to Itself

February 8, 2007 by staff

By Jesse Drucker 
First published by The Wall St. Journal, February 1, 2007

As the world’s biggest retailer, Wal-Mart Stores Inc. pays billions of dollars a year in rent for its stores. Luckily for Wal-Mart, in about 25 states it has been paying most of that rent to itself — and then deducting that amount from its state taxes.

The strategy is complex, but the bottom line is simple: It has saved Wal-Mart from paying several hundred million dollars in taxes, according to court records and a person familiar with the matter. And Wal-Mart is far from alone.

IT’S A DEAL
The arrangement takes advantage of a tax loophole that the federal government plugged decades ago, but which many states have been slower to catch. Here’s how it works: One Wal-Mart subsidiary pays the rent to a real-estate investment trust, or REIT, which is entitled to a tax break if it pays its profits out in dividends. The REIT is 99%-owned by another Wal-Mart subsidiary, which receives the REIT’s dividends tax-free. And Wal-Mart gets to deduct the rent from state taxes as a business expense, even though the money has stayed within the company.

Partly thanks to sophisticated financial strategies like these, states’ tax collections from companies have been plummeting. On average, Wal-Mart has paid only about half of the statutory state tax rates for the past decade, according to Standard & Poor’s Compustat, which collects data from SEC filings. The so-called “captive REIT” strategy alone cut Wal-Mart’s state taxes by about 20% over one four-year period. Now several state regulators are trying to crack down on the strategy, used largely by retailers and banks, and some other states have changed their laws to try to end the practice. Yesterday, New York Gov. Eliot Spitzer included elimination of the loophole as part of his proposed budget, a fix he said would bring the state $83 million a year.

North Carolina tax authorities are challenging Wal-Mart, saying its REIT strategy was intended to “distort [the company’s] true net income,” according to its filings in the case in Superior Court in Raleigh, N.C. The state calls captive REITs a “high priority corporate tax sheltering issue” and in 2005 ordered Wal-Mart to pay $33 million for back taxes, interest and penalties stemming from the REIT. The company paid it and last year sued the state for a refund.

The structure Wal-Mart is using features some unusual elements. Because REITs must have at least 100 shareholders to gain tax benefits, roughly 100 Wal-Mart executives were enlisted to own a combined total of around 1% of the REIT’s shares, without any voting rights. H. Lee Scott Jr., now Wal-Mart’s CEO, was listed as the REIT’s “managing trustee” from 1996 to 2004.

A single Wal-Mart real-estate official, Tony Fuller, represented the company both as tenant and landlord in its lease with itself. Ernst & Young LLP, the accounting firm that sold the strategy to Wal-Mart, also is the company’s outside auditor. In its internal sales training materials, the accounting firm explicitly labeled the strategy as a method to reduce taxes — a red flag to tax authorities, who often demand that tax shelters have other business purposes.

Wal-Mart attorneys say in court filings that the strategy is perfectly legal and that North Carolina is exceeding its authority. A spokesman for the Bentonville, Ark., company, John Simley, said Wal-Mart “is comfortable with its current structure and is in compliance with federal and state tax laws.” He added that the REIT structure was adopted to “more effectively and efficiently manage the company’s real-estate portfolio, including the impact on the company’s overall state tax planning.”

Regulators in at least a half-dozen states are going after companies that have trimmed their taxes through similar arrangements, including Regions Financial Corp.’s AmSouth Bancorp. unit; AutoZone Inc. of Memphis, Tenn.; and two units of Bank of America Corp. In a Massachusetts case against Bank of America unit Fleet Funding Inc., authorities call Fleet’s REIT arrangement a “sham” in court filings. They note that Fleet increased the salaries of the roughly 100 employees whom it made REIT shareholders to compensate them for personal income taxes stemming from ownership. The Multistate Tax Commission, an association of state revenue authorities, says it has started examining the use of captive REITs to avoid taxes, alerting states to the issue and proposing legislative fixes to close the loophole.

States collected more than $44 billion last year in corporate income taxes, out of $607 billion in total state tax receipts, according to the Nelson A. Rockefeller Institute of Government, a nonpartisan think tank associated with the State University of New York. But the average effective corporate state and local tax rate has dropped from 6.7% during the 1980s to about 5% during the first half of this decade, according to a recent report by the Congressional Research Service. This is in part because of the proliferation of state and local tax breaks, as well as tax shelters, according to several academic and government studies.

Some corporate state tax planners say arrangements like these are merely smart business, and that the loopholes exploited by companies should be fixed by state legislatures rather than litigated by state lawyers. Critics of the shelters complain they let companies use public services provided by local governments — such as police and fire protection or new highways — without having to shoulder their fair share of the costs. Meanwhile, the portion of state taxes borne by individuals is steadily rising.

Congress created REITs in 1960 as a way to allow smaller investors to put money in a wide portfolio of commercial real estate, spreading their risk. Congress also gave them a tax benefit: REITs aren’t subject to corporate income tax on the profits they pay to shareholders as long as they pay out at least 90% of the profits. The shareholders still usually get federally taxed on the dividends, which still count as income for them.

After a boom in REITs in the early 1990s, big accounting firms including Ernst & Young and KPMG LLP figured out that on the state level, they could pair the tax break on REIT dividends with a separate tax rule that allows companies to receive dividends tax-free from their subsidiaries. With the REIT as a subsidiary itself, two rules aimed at avoiding double taxation could be combined to effectively avoid any taxation at all.

The strategy worked especially well if the REIT was owned by a company incorporated, and claiming to do all its business, in a state such as Delaware or Nevada that often wouldn’t tax the corporate income anyway. That created an extra hurdle for other states to challenge the practice if they caught onto it.

Ernst & Young early on targeted the banking industry as a possible beneficiary of the captive REIT strategy. Like retailers, banks have branches in many states and often are liable for lots of state-level corporate tax. Ernst & Young targeted at least 30 banks, some of them its audit clients. The SEC generally permits that dual role as long as the firm’s fee isn’t contingent on the tax savings.

According to documents from a 1995 internal Ernst & Young sales training meeting reviewed by The Wall Street Journal, the accounting firm suggested banks put some of their income-producing assets, such as a portfolio of mortgages, into a REIT subsidiary, then use the double-tax break to “shelter” the income from state taxes. The REIT would issue a tiny number of non-voting shares to bank “officers and directors” to meet the 100-shareholder rule that REIT law requires.

U.S. banks “pay millions of dollars each year in state and local taxes,” read the Ernst & Young presentation to its sales force. “The FSI State Tax Financial Product we have developed can significantly reduce or eliminate this heavy tax obligation…” One section of the Ernst & Young sales package featured hypothetical questions from clients about the REIT shelter, and the proposed answers. To pass legal muster, many corporate tax shelters purport to have additional business purposes behind merely saving taxes. Ernst & Young, however, was blunt about the reason for its proposed strategy:

“Q: What’s the business purpose?
“A: Reduction in state and local taxes.

“Q: What if the press gets wind of this and portrays us as a ‘tax cheat’?
“A: That’s a possibility….If you are concerned about possible negative publicity, you can counter it by reinvesting the savings in the community.”

An Ernst & Young spokesman declined to comment on its REIT work, saying the firm was “prohibited from commenting on client matters.” The spokesman said he could not verify the authenticity of the internal sales training documents based on quotes provided by the Journal. However, he said the “limited language communicated in the internal memo does not reflect the quality and nature of the advice we provide to our clients.”

State authorities have had mixed records so far in pursuing back taxes and penalties in captive-REIT cases. AutoZone, the big auto-parts chain, won the right to deduct the dividends from its taxes in Kentucky but lost a preliminary round in Louisiana . The Hawaii Department of Taxation won a case involving a REIT used by Central Pacific Financial Corp., a bank holding company. AmSouth is in litigation with Alabama over tax benefits from its REIT.

Fleet Funding’s REIT, on which the company was advised by KPMG, has led Massachusetts to seek more than $42 million in back taxes, interest and penalties. BankBoston Corp. is in similar litigation with Massachusetts . Both banks have been acquired by Bank of America, which declined to comment on the litigation.

Fleet’s attorneys have said in court papers that its REITs were legitimate, and the fact that they were partly motivated by tax considerations does not legally undermine their valid business purpose — to raise capital, they say. A KPMG spokeswoman declined to comment on the Fleet case, but said it had stopped any involvement with “prepackaged tax products” before a 2005 agreement it made with the U.S. Justice Department over improper tax strategies that also led to the indictment of 17 former KPMG officials.

It’s unknown how many disputes have been raised over the strategy used by Wal-Mart and others, because such tax disputes are generally not disclosed unless lawsuits are publicly filed or the company reveals them in SEC filings.

Wal-Mart adopted its captive-REIT structure just as it was unwinding a previous strategy to reduce taxes that states had begun to challenge. For the first half of the 1990s, the retailer used a so-called intangible holdings company structure also used by many other corporations. Wal-Mart transferred its trademarks to a subsidiary called WMR Inc. in Delaware, which does not tax many forms of corporate income. Then it paid the subsidiary for the use of the brands. That allowed Wal-Mart to deduct those payments from its local income taxes in some states, while WMR’s income wasn’t taxed by Delaware.

Several states won challenges to the strategy, used by various retailers. Wal-Mart settled a dispute over its use of WMR in Louisiana — the details of the settlement are sealed — and lost on the main points of a case in New Mexico. Wal-Mart merged with WMR in February of 1997 and its use as a state tax avoidance vehicle was apparently discontinued, according to New Mexico court records.

In the meantime, Wal-Mart set up a new vehicle to control its state tax bill: captive REITs. In the summer and fall of 1996, Delaware corporate records show, Wal-Mart created a new hierarchy of subsidiaries: a REIT called the Wal-Mart Real Estate Business Trust; a Delaware-based parent company for the REIT, called the Wal-Mart Property Co.; and Wal-Mart Stores East Inc., parent of the Delaware firm. Wal-Mart Property owned 99% of the REIT’s shares, and 100% of the voting shares, according to Wal-Mart court filings in North Carolina and West Virginia. The company also set up a similar arrangement for its Sam’s Club stores.

To meet the 100-shareholder threshold required for REITs, Wal-Mart distributed a minimal amount of nonvoting stock, to approximately 114 Wal-Mart employees, according to a person familiar with the arrangement. The dividend payouts were nominal. The structure involved Wal-Mart’s top executive tier. The shareholders were generally executive vice presidents and above. David Glass, then Wal-Mart’s president and CEO, was listed as president of Wal-Mart Stores East on the lease agreement, and Paul Carter, then a Wal-Mart executive vice president, was listed as the president of the REIT.

Wal-Mart began transferring to the REIT ownership of the properties — the land and buildings — for hundreds of its stores in 27 states, real-estate records show. Then Wal-Mart Stores East signed a 10-year lease agreement with its REIT that took effect on Jan. 31, 1997, agreeing to pay a fixed percentage of the stores'”gross sales” as rent, according to a copy of the arrangement filed in the North Carolina case. Mr. Fuller, the Wal-Mart real-estate official, is listed as the contact for both the tenant and the landlord. The original lease was due to be renewed this week.

Wal-Mart could deduct from its state-taxable income the rent paid by Wal-Mart Stores East to the REIT. The REIT paid the majority of its rental earnings to its 99% owner, Wal-Mart Property Co., in the form of dividends. That company’s base in Delaware gave it another way to avoid liability for state taxes, since some states do require that dividends a REIT pays to its corporate owner be taxed, as the federal government does.

The Delaware subsidiary then paid the money back to Wal-Mart Stores East, the same subsidiary that made the payments to the REIT to begin with. Those payments to Wal-Mart Stores East weren’t taxed either, because dividends paid to a corporation by a subsidiary normally aren’t counted as taxable income for the parent company.

The result of the circuitous transaction: Wal-Mart could effectively turn rental payments to itself into state level tax-deductions in most of the states where the payments have been made. Under typical circumstances, rent paid to a third-party landlord also would reduce taxable income. But that would ordinarily be cash out the door, like most other tax-deductible expenses. Here, the majority of the tax-deductible rental payments came straight back to Wal-Mart.

The national tax savings have been significant. Over a four-year period, from 1998 to 2001, Wal-Mart and Sam’s Club paid company-controlled REITs a total of $7.27 billion that eventually came back to Wal-Mart in states across the country, according to a North Carolina Department of Revenue auditor’s report filed in court by Wal-Mart. Based on an average state corporate income tax rate of 6.5%, three accounting experts consulted by The Wall Street Journal estimated the REIT payments led to a state tax savings for Wal-Mart of roughly $350 million over just those four years. SEC filings show the company paid $1.18 billion in state taxes during that period. The loss of federal deductions that bigger state tax payments would have triggered brought the company’s effective tax savings overall down to about $230 million. Wal-Mart declined to comment on the figures.

It is not clear how much Wal-Mart has paid to its own REITs in the most recent five years. The yearly rental payments — on which the tax savings are based — are pegged to the “gross sales” of the stores, according to the lease agreement.

Underscoring that the rental payments were cashless Wal-Mart accounting moves, an affidavit filed in North Carolina by the company’s former controller, James A. Walker Jr., states that the payments were made by simply debiting the account of one subsidiary and then crediting the account of the other. “Wal-Mart Stores, Inc. served, in effect, as a bank for” both sides, the affidavit stated.

In 2005, after an audit, the North Carolina Department of Revenue issued a notice to Wal-Mart challenging the REIT structure. The state is site of about 140 of the company’s roughly 3,900 U.S. stores, including Sam’s Clubs. Wal-Mart paid the $33 million the state sought, and in March 2006 sued for a refund.

The company argues that the state does not have the authority to essentially combine the results of the subsidiary that did business in North Carolina with those of the Delaware-based unit and the REIT. The Delaware-based subsidiary, the company says, did no business in North Carolina and therefore was not taxable there. The company says in court filings that the REIT was qualified under federal law, that all the deductions were properly taken and that its North Carolina tax returns reflect its “true income.”

© 2007 The Wall St. Journal

Related articles on corporate tax evasion:

  • Transnational Corporations Dodging Taxes Through “Transfer Pricing”
  • Corporate Tax Evasion via Offshore Subsidiaries
  • The Gap Between Statutory and Real Corporate Tax Rates
  • More Features on Corporate Welfare and Tax Avoidance 
  • See our huge collection of articles, studies, internal documents and more on Wal-Mart and big box stores.
  • Visit our Merchandise Page to see anti-Walmart stickers, buttons, and more.
  • Please help support this work – make a tax-deductible donation to ReclaimDemocracy.org today!

Filed Under: Walmart

Anti-Walmart and Pro-Walmart Groups and Websites

January 22, 2007 by staff

Anti-Big Box Chain and Pro-Local Business Groups

These groups pursue broader agendas than fighting Wal-Mart, but provide relevant material.

Institute for Local Self-Reliance “Big Box Toolkit”

This group offers dozens of models for rules encouraging community empowerment and decentralization, limiting big box stores, and more.

American Independent Business Alliance (AMIBA)

Helps communities organize proactively via local Independent Business Alliances that resist big box proliferation and help community-based businesses to thrive.

Sprawl-busters.com

The site of anti-big box organizer Al Norman has many useful resources.

Community & Environmental Defense Services

Produces the useful and free guide, “How to Win Land Development Issues.”

ReclaimDemocracy.org/walmart

Yes, that’s us. Since we see many people come directly to this links page, we want to make sure you don’t miss our huge collection of articles, studies and other resources.

National Anti-WalMart Websites and Blogs

Wal-Mart Subsidy Watch

This easily searchable database, compiled by Good Jobs First, allows users to find subsidies given to Wal-Mart and instances where the corporation fights local property tax assessments. Though not yet comprehensive, it’s a valuable tool.

TheWritingOnTheWal

A well-written blog with current news and mostly critical views on the corporation.

Making Change at Walmart (formerly Walmart Watch)

An extensive union-supported site

Our Walmart

Not anti-Walmart, but a coalition of employees seeking to improve their treatment

 

Community Organizations Fighting WalMart or Big Box Chain Development in the U.S. and Canada

WE NO LONGER ARE UPDATING THIS LIST. While we periodically remove dead links, many sites may not be current and groups may have disbanded. For a current list and map of dedicated pro-local/independent business advocacy groups — which are crucial to any long-term success — see AMIBA.

Arizona
Flagstaff: Friends of Flagstaff’s Future 

California 
Atascadero: Oppose Wal-Mart
Chico: Chico Cares
Hercules: Friends of Hercules
Humboldt County: Healthy Humboldt
Los Angeles: Los Angeles Alliance for a New Economy 
Marina: Citizens Against Walmart in Marina
Oakley: Save Oakley Now 
Rosemead: Save Our Community
Vallejo: Vallejoans for Responsible Growth
Ventura: Central Coast Alliance United for A Sustainable Economy (CAUSE)
Westlake Village: WLV United

Colorado
Frisco: Frisco Business Alliance (defeated Home Depot- report )
Longmont: Longmont Residents for Responsible Development

Conneticut
Canton: Canton Advocates for Responsible Expansion 
Stafford: Stafford First 
Simsbury: Simsbury Homeowners Advocating Responsible Development
Watertown: Concerned Citizens for the Preservation of Watertown

Florida
Miami-Coconut Grove: Coconut Grove’s Stakeholder Community
St. Petersburg and Orlando: WARN
Tarpon Springs: Friends of the Anclote River

Idaho
Moscow: Yes Moscow, No SuperWalmart

Illinois
Glen Carbon: Glen-Ed Citizens for Fair Growth

Kentucky
Newport: United Against Wal-Mart in Newport, KY

Maryland
Crofton: Crofton First

Michigan
Bedford: Bedford Watch

New Jersey 
Deptford: CCOdeptford.com 

New York 
Alden: Alden Residents for Responsible Growth 
Ballston Spa: Concerned Citizens for Smart Growth
Brunswick: Brunswick Smart Growth 
Geneseo: Association for the Preservation of Geneseo 
Liverpool: Liverpool First 
New York City: Wal-Mart Free NYC 
New York City: Neighborhood Retail Alliance 
Saranac Lake, North Elba: Sound Adirondack Growth Alliance, plus this blog.
Tompkins County: Tompkins County Living Wage Coalition 

North Carolina
Waxhaw: Alma Village HOA

Ohio
Cleveland: No Cleveland Wal-Mart

Oregon
Beaverton/Cedar Hills: Save Cedar Mill 
Bend: Our Community First 
Gresham: Gresham First
Portland: Save Madison South

Texas
Allandale: Responsible Growth For Northcross 
Austin: Responsible Growth for Norcross, ACRCLE
Highland Village: Highland Village Unite
Lake Highlands: No Big Box, No Way

Vermont
Statewide: Vermont Wal-Mart Watch
St. Albans: NW Citizens for Responsible Growth

Washington
North Snohomish: North Snohomish Community Matters

Wisconsin
Sturgeon Bay: Door County Residents for Fair Enterprise

CANADA
Gibsons, BC: Sunshine Coast Citizens Concerned with Responsible Development

Do you know of a group that should be added to this list or have contact information updated? Need a simple web page to host information on your group? Please Contact us

Pro-WalMart Websites

Wal-Mart Stores, Inc. corporate website

Keeps up-to-date information about store numbers, profits, and much more. Links to numerous other company websites can be found here.

Wal-Mart Space (inactive since 2007)

This blog’s editorial content is updated infrequently, but it contains up-to-date business and financial information in user-friendly format.

Consider purchasing a corporate logo flag (the American flag with corporate logos in place of stars), to show your objection to corporate personhood and raise awareness of the problem.

Filed Under: Walmart

Building Grassroots Democracy

January 2, 2007 by staff

Reports on selected local and state level initiatives

Published January 2, 2007

Preempting Corporate Subsidies

ReclaimDemocracy.org’s Kansas City Chapter will release a study later this month revealing that corporate subsidies are consistently going to the city’s most economically advantaged areas and bypassing those most in need of economic development. The chapter aims to use this documentation to overhaul the way subsidies are granted.

Update: Feb 10, 2007: The report may have helped spark additional scrutiny of TIF subsidies for the Wal-Mart Corporation in the KC area.

 Imagine Citizens Actually Choosing Our President!

Our method of indirectly electing U.S. presidents via the Electoral College repeatedly has helped put losers of the national popular vote into office — most recently George W. Bush in 2000. It also harms democracy indirectly by compelling presidential candidates to ignore the concerns of citizens in most states by focusing narrowly on the few “swing states” where citizens’ votes actually could influence who will serve as president.

If this sounds overstated, consider that more money was spent on ads in Florida in the final month of the 2004 campaign than in 46 other states combined.

More proposed constitutional amendments have addressed eliminating the Electoral College than any other issue, yet we’ve remained stuck with this archaic and anti-democratic process due to the unwillingness of less-populated states to give up their “bonus” of enjoying more electoral votes per capita than more populous states (whether they actually gain power from the current system is debatable).

But we’ve not given up hope. National Popular Vote shows an alternative path to democratizing presidential elections. It’s based on the realization that our Constitution already gives states the collective power to reform the Electoral College.

States already have exclusive power over how to choose their electors. Maine and Nebraska currently allocate electoral votes to the candidate who wins each congressional district, for example, while in the 19th century, many legislatures simply appointed electors without holding elections.

Today, 48 states give every electoral vote the popular vote winner in that state, but they could just as easily allocate them to the national vote winner. Of course, one state on its own is unlikely to make this choice, but if a group of states representing a majority of Americans and a majority of Electoral College votes did so, the popular vote winner would necessarily win the presidency.

A binding agreement called an “interstate compact” is proposed to commit the states to acting in unison once the critical mass of states signed on. Sponsors already are lined up to introduce National Popular Vote bills in AL, AZ, CA, CO, DE, GA, HI, IA, IL, KY, LA, MD, ME, MN, MO, MT, NC, ND, NH, NY, OH, OR, PA, RI, VA, VT, WA, WI, and WY and we expect bills to follow in every state.

Of course, this measure must be accompanied by many other structural reforms we advocate, but National Popular Vote offers a concrete plan to help make candidates for our one national elected office more responsive and accountable to every voter.

Visit NationalPopularVote.com for more information. Please contact us regarding advancing National Popular Vote via a ReclaimDemocracy.org chapter.

Educating for Change

Our Orange County, CA (south suburban Los Angeles) Chapter is rapidly spreading awareness of runaway corporate power at the local level. In addition to achieving consistently strong turnout for chapter-organized events, chapter president Steve Spanier began teaching a course on democracy and corporate power through the University of California-Irvine ‘s continuing education program this fall.

Turnout (55 students) and feedback was so strong that the school requested not only a repeat of the course in the spring, but the addition of a related course!

A wide variety of civic groups in the area have hosted presentations by the local chapter and interest continues to build.

Contact Steve at 949-654-7500 or SSpanier@our domain name to obtain a course outline or to ask about submitting a proposal to a school near you. Contact us to learn more about doing local education and organizing.

Protecting Drinking Water from Corporatization

From outright corporatization of drinking water systems to depleting groundwater supplies, the availability of safe and inexpensive drinking water in the U.S. is endangered by more than pollution.

Our friends at the Community Environmental Legal Defense Fund and the Alliance for Democracy are working with communities to stop corporate takeovers of water supplies through organizing local workshops and passing pro-active laws.

Recently, they helped citizens in Barnstead, NH bar corporations from taking water from within the town for to resell and, advancing a direct attack on “corporate personhood,” prohibited corporations from using U.S. or state constitutional provisions to interfere in community governance or deny people’s rights.

See celdf.org or fwwatch.org to learn more.

Democratizing Elections

As we noted in our November e-mail newsletter, Instant Runoff Voting measures won big in Oakland and Davis, CA; Minneapolis, MN ; and Pierce County, WA — by an average margin of 24%. IRV measures are now 8-0 at the ballot box since 2002. Congratulations to our friends at FairVote who have led the way in advancing IRV, and thanks to our members who have assisted several of these efforts. See FairVote.org for more on the benefits of IRV and how to advance it.

© 2006 ReclaimDemocracy.org 

Filed Under: Transforming Politics, Walmart

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