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Tax avoidance as a rationale for merger and acquisition

Evidence of widespread tax avoidance has featured heavily in the news recently. Furthermore, recent developments also suggest that avoiding taxes has become an important motivation for merger and acquisition (M&A) activity. For example, Pfizer, the US pharmaceutical giant that producers Viagra, has for a while been looking to expand through M&A. Following a failed attempt to merge with the British pharmaceutical company AstraZeneca in 2014, it instead agreed late last year to merge with a company called Allergan. This was set to be the largest healthcare merger ever, worth over £100bn.

What is key about Allergan is that, whilst it is run from the USA, it is legally registered as being based in Ireland. It has been strongly argued that the key motivation for the merger was tax avoidance with Pfizer’s strategy described in this way:

They look for a likely partner based in a country with a lower corporate tax regime and suggest a merger. When the merger goes through, the company based in the US moves its HQ – but not the bulk of its operations – to the low-tax jurisdiction, where it books the bulk of its profits. At a stroke, the company’s tax bill is cut.

This practice is sometimes referred to as an inversion. It has been suggested that over the past five years around 40 completed mergers have been motivated by similar objectives.

However, policy makers, in particular in the USA, where corporation tax is high, have increasingly become aware of the practice. President Obama recently made clear that:

If corporations are paying less tax, only one of two things can happen. The US will have less to spend on schools, roads and public health, or taxes will have to be raised on the country’s middle class.

In 2014 some tightening of the tax rules took place, but with limited effect. Then, earlier this month President Obama implemented a series of new rules to attempt to prevent the practice. He stressed that these new rules would help to deter companies from taking advantage of:

one of the most insidious tax loopholes out there, fleeing the country just to get out of paying their taxes.

Almost immediately the Pfizer-Allegan merger was abandoned and Pfizer was required to pay a break-up fee of $150m to Allegran. The parties involved were far from happy and the chief executive of Allegran stated that:

For the rules to be changed after the game has been played is a bit un-American.

However, a spokesman for the White House responded that:

I think it is difficult to have a lot of patience for an American C.E.O. trying to execute a complicated financial transaction to avoid paying taxes in America, talking about what it means to be a good citizen of the United States.

As has been highlighted, the decision to immediately abandon the merger provides a clear indication that the business case and potential synergies arising from combining the two companies were far less important than the benefits from tax avoidance.

Where does the abandoned merger leave Pfizer? One option will be to consider alternative mergers. Perhaps reflecting this possibility, the share prices of foreign rivals such as AstraZeneca and GlaxoSmithKline increased following the announcement that the Allegran deal had been abandoned. However, an alternative under serious consideration appears to be the opposite strategy of shrinking Pfizer’s operations. It has been argued that this would allow the company to be become more focused.

It remains to be seen in which direction Pfizer will go. However, what this example clearly illustrates is the impact changes in regulatory policy can have on firms’ strategic decisions.

Articles
Collapse of $160bn Pfizer and Allergan merger shocks corporate US Financial Times, Barney Jopson, David Crow, James Fontanella-Khan and Arash Massoudi (6/4/16)
It’s off: the end of Pfizer’s $160 billion Allergan merger The Atlantic, Krishnadev Calamur (6/4/16)
Pfizer and Allergan terminate $160bn merger following US tax crack-down The Telegraph, Julia Bradshaw (6/4/16)

Questions

  1. Who do you think will be the big winners and losers from the merger being abandoned?
  2. Why do you think break-up fees are used in merger deals?
  3. What are the pros and cons for Pfizer of continuing to pursue M&As rather than downsizing?
  4. Are there any alternative strategies it might consider?
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