Companies face a taxpaying dilemma: Paying less means higher earnings and a higher value for shareholders, but overly aggressive tax minimization strategies can lead to fines, public scrutiny, and/or reputational damage. Research finds that companies that incorporate their tax-planning decisions into their overall enterprise risk management are better able to find that balance of risk and reward. To do this, boards should 1) Take responsibility for risk oversight; 2) Engage in risk-monitoring activities on a regular basis; and 3) Foster an appropriate risk mindset.
The five largest U.S. companies (Apple, Microsoft, Alphabet, Amazon, and Facebook) reported an average income tax liability of $7.3 billion in their 2019 annual reports. Yet those same companies have repeatedly faced criticism from politicians and activists for aggressively avoiding paying billions more.
Taxes are one of the largest expenses any company faces; paying less can mean higher earnings and, in turn, higher value for shareholders. So it is no surprise that companies seek to reduce the amount they pay.
Overly aggressive tax minimization, however, can lead to significant adverse outcomes, such as costly and unexpected IRS fines along with public scrutiny and reputational damage. Microsoft and Hewlett Packard have faced criticism from Congress for their tax avoidance policies, and the Senate Permanent Subcommittee on Investigations has labeled Apple a “U.S. tax dodger.” Six of the largest companies in Silicon Valley were recently identified by Fair Tax Mark as having avoided more than $100 billion in taxes over the past decade. Corporate executives are challenged with “threading the needle” between shareholder expectations to not pay more than their “fair share” of taxes and government and the general public’s expectations that they should pay at least their fair share. In sum, companies face a “not too hot, not too cold” Goldilocks problem. What are they to do?
Our research indicates that strong board of director involvement in a company’s risk oversight as a part of enterprise risk management (ERM) helps companies find that balance of risk and reward in terms of tax-planning decisions. Using the 2014 annual proxy disclosure statements for a sample of companies from the Russell 1,000, we measured companies’ level of board involvement in risk oversight and evaluated their association with previously researched measures of tax planning and avoidance strategies for the years 2014 through 2017. We found that companies where the board is most engaged in important risk-oversight activities pay lower taxes, on average, and face a lower risk of regulatory scrutiny or reputational damage, as evidenced by less-aggressive shifting of income abroad and 31.0% less-volatile income taxes relative to similar companies with lower levels of risk oversight.
ERM helps boards and executives develop holistic approaches to identifying and monitoring all kinds of risks that could potentially affect the achievement of strategic objectives. Its focus is not on indiscriminate risk minimization but on identifying and understanding the company’s portfolio of risks so that management and the board can make sound strategic decisions that balance various risks against the pursuit of growth. Highly engaged boards provide a culture and foundation that can maximize positive outcomes (such as lower tax payments) while minimizing potential negative outcomes (such as higher tax risk).
Our research indicates that boards can do three things to improve their involvement in companies’ ERM systems, resulting in better tax outcomes.
1. Take responsibility for risk oversight.
Boards that engage in and “own” the overall responsibility for monitoring the company’s ERM, rather than delegating that responsibility elsewhere within the organization or to a board subcommittee, establish a mindset that embraces risk oversight as a key aspect of overall board governance. This sends a signal to company leaders that risk management is to be taken seriously.
To start, the board should formally and publicly acknowledge its responsibility for risk oversight in its annual proxy statement. This public disclosure lets management and key stakeholders know that the board will keep a careful eye on the risk oversight process. Moreover, it commits the board to incorporating risk considerations into its decisions and its evaluations of the company’s strategic decisions, including those associated with tax avoidance policies.
2. Engage in risk-monitoring activities on a regular and systematic basis.
Regular engagement in holistic risk-monitoring activities helps the board consider how strategic decisions in one area of the business might trigger risks in other areas. These activities include routine board discussions about the top risks identified by the ERM system and evaluations of emerging risks that are not already on management’s radar. Best practice suggests that boards proactively review the company’s risk-management policies and procedures on at least an annual basis to ensure that processes are in place to identify and tackle key areas of risk exposure, including tax-related risks.
Although it’s important for many financial areas, this process is especially relevant to taxes, owing to the constant evolution and updating of tax laws. Regular monitoring of tax-related risks should help ensure that the board remains comfortable with the outcomes of the company’s ever-evolving tax-planning initiatives.
3. Foster an appropriate risk mindset.
Boards are critical to ensuring that company executives maintain a “tone at the top” that balances the goal of increasing company value against the need to ensure appropriate risk-taking. By fostering an appropriate risk mindset, the board plays a key role in establishing the company’s risk appetite and ensuring that management’s strategic planning decisions are made within the bounds of stakeholders’ appetite and tolerance for risk-taking. Because tax-planning initiatives present the company with both risks and rewards, boards must encourage management to evaluate any potential tax savings against any associated tax-related risks.
Building a strong ERM system is not a costless endeavor. It calls on managers and other leaders to engage in risk identification, assessment, and management efforts, all of which require both time and monetary investment. Although some boards and executive teams may wonder if the investment is worth it, our research provides evidence of a tangible benefit: better tax outcomes.