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
- Who do you think will be the big winners and losers from the merger being abandoned?
- Why do you think break-up fees are used in merger deals?
- What are the pros and cons for Pfizer of continuing to pursue M&As rather than downsizing?
- Are there any alternative strategies it might consider?
There have been a number of recent developments in communications markets that may significantly alter the competitive landscape. First, the UK Competition and Markets Authority (CMA) has provisionally cleared BT to takeover the EE mobile phone network. The deal will allow BT to re-establish itself as a mobile network provider, having previously owned O2 until it was sold in 2005. The CMA said that:
They operate largely in separate areas with BT strong in supplying fixed communications services (voice, broadband and pay TV), EE strong in supplying mobile communications services, and limited overlap between them in both categories of service.
BT will therefore be in a better position to compete with rivals such as Virgin Media who were early movers in offering. 
Second, O2 itself (currently owned by Telefónica) is the subject of a takeover bid from Hutchinson Whampoa who already owns the mobile network Three. Because the companies meet their turnover criteria, this deal is being investigated by the European Commission (EC) and the signs don’t look good. If it goes ahead, it would create the largest mobile operator in the UK and leave just three main players in the market. The EC is concerned that the merger would lead to higher prices, reduced innovation and lower investment in networks. Previously, considerable consolidation in telecommunications markets across Europe has been allowed. However, recent evidence, including the prevention of a similar deal in Denmark, suggests the EC is starting to take a tougher stance.
If we compare the two proposed takeovers, it is clear that the O2–Three merger raises more concerns for the mobile communications market because they are both already established network providers. 
However, it is increasingly questionable whether looking at this market in isolation is appropriate. As communication services become increasingly intertwined and quad-play competition becomes more prevalent, a wider perspective becomes more appropriate. Once this is taken, the BT–EE deal may raise different, but still important, concerns.
Finally, the UK’s communications regulator, OFCOM, is currently undertaking a review of the whole telecommunications market. It is evident that their review will recognise the increased connections between communications markets as they have made clear that they will:
examine converging media services – offered over different platforms, or as a ‘bundle’ by the same operator. For example, telecoms services are increasingly sold to consumers in the form of bundles, sometimes with broadcasting content; this can offer consumer benefits, but may also present risks to competition.
One particular concern appears to be BT’s internet broadband network, Openreach. This follows complaints from competitors such as BSkyB who pay to use BT’s network. Their concerns include long installation times for their customers and BT’s lack of investment in the network. One possibility being considered is breaking up BT with the forced sale of its broadband network.
It will be fascinating to see how these communications markets develop over time.
BT takeover of EE given provisional clearance by competition watchdog The Guardian, Jasper Jackson (28/10/15)
Ofcom casts doubt on O2/Three merger BBC News, Chris Johnston (08/10/15)
BT and Openreach broadband service could be split in Ofcom review The Guardian, John Plunkett (16/07/15)
Questions
- What are the key features of communications markets? Explain how these markets have developed over the last few decades.
- What are the pros and cons for consumers of being able to buy a quad-play bundle of services?
- How do you think firms that are currently focused on providing mobile phone services will need to change their strategies in the future?
- Why is BT in a powerful position as one of the only owners of a broadband network?
- Instead of forcing BT to sell its broadband network, what other solutions might there be?
After initial resistance, the brewer SAB Miller last week agreed to a merger with Anheuser-Busch InBev (AB InBev). The merging parties own over 400 brands between them. These include Budweiser, Stella Artois and Beck’s, which are owned by AB InBev, and Peroni and Grolsch by SAB Miller. Furthermore, they are currently the number one and two firms in the market respectively. If the merger goes ahead the new entity would control almost one third of global beer production.
This merger represents the continuation of AB InBev’s aggressive expansion plans through mergers and acquisitions as it follows its merger with Interbrew in 2004 and with InBev in 2008. It seems that one key attraction of a merger with SAB Miller is its dominant position in rapidly growing African markets.
A second motivation for the merger appears to be an attempt to counter the rise of small independent craft beer producers. For example, in the USA craft beer’s share of the market has grown from 5 to 11% since 2011. It has been suggested that the leading breweries combining forces represents one of several strategies being used to try to counter the threat of craft breweries. Additional strategies include creating their own craft products that are marketed as independant products and attempting to buy-up craft beer producers. For example, in 2011 AB InBev purchased the Goose Island brand.
Commenting on the planned merger between SAB Miller and AB InBev, a spokesman for the Campaign for Real Ale group expressed concern that:
independent beers may find it harder to get space in pubs and supermarkets because of the increased market presence of AB InBev.
Given the market positions of SAB Miller and AB InBev, it is likely that their merger will face considerable scrutiny by competition agencies in a number of jurisdictions. In fact it has been reported that plans have already been set in motion to sell SAB Miller’s interests in the USA to try to placate potential concerns from competition agencies in the USA and China.
Interestingly, SAB Miller has also protected itself by negotiating a clause that requires AB InBev to pay it $3bn if the deal falls through, for example on competition grounds. It remains to be seen what conditions competition authorities will require before the merger can go ahead and it is even possible they will try to completely block the deal.
Why beer drinkers lose in the SABMiller-AB InBev merger Fortune, John Colley (13/10/15)
Can craft beer survive AB InBev? The Budweiser maker’s acquisitions are unsettling the craft movement Bloomberg Business, Devin Leonard (25/06/15)
Questions
- How important do you think it is to consumers who a particular brand of beer is produced by?
- How serious a threat do you think independent craft beer producers are to the leading breweries?
- Outline some of the factors competition agencies will look at when they consider the merger between SAB Miller and AB InBev.
- Why might AB InBev have been willing to agree to pay a fee to SAB Miller in the event of the merger falling through?
A professor in the USA recently posed an interesting dilemma to students taking his psychology exam. At the end of the exam students were provided with a bonus question in order to gain extra credit. All they had to do was decided whether they would like two or six additional marks adding on to their final score. The twist was that if more than 10% of the class opted for an additional six marks then everyone would get nothing added on!
The professor had placed the students in a prisoner’s dilemma scenario. To see this consider an individual student weighing up which option to choose; if more than 90% of the class chose two additional marks, then this student is better off choosing six additional marks. Whereas if more than 90% of the class chose six additional marks, then this student is indifferent between the two options (the student will get no additional marks regardless of their choice). It follows that choosing six additional marks is a weakly dominant strategy.
In a similar fashion, in the classic prisoners setting keeping quiet is collectively better, however, each criminal has a strong individual incentive to confess. Likewise, in oligopoly markets the interdependence between firms results in a tension between cooperation and competition. Firms collectively benefit from keeping prices high, but an individual firm has an incentive to undercut its rivals and steal a large share of the market. A strong prediction when self-interested participants play the prisoner’s dilemma game just once and choose their strategies independently is therefore that the prisoners will confess to the crime and that firms will set low prices.
So did the US professor end up giving away many bonus marks? No, about 20% of the class opted for six additional marks and as a result all the students ended up with no extra marks. In fact, the professor claims to have been running the same experiment for the previous seven years and only once has he ended up giving away any bonus marks. On the one hand, this result is consistent with what is predicted in the prisoner’s dilemma game. However, running contrary to this is the fact that around 80% of the students opted for just two additional marks. It would certainly be interesting to see what would happen if in future years the professor relaxed the threshold above which all students get no extra marks.
UMD ‘tragedy of the commons’ tweet goes viral The Baltimore Sun, Quinn Kelley (09/07/15)
A professor tested the ‘Prisoner’s Dilemma’ on his students by bribing them with extra credit points Tech Insider, Will Haskell (17/07/15)
Questions
- Draw the payoff matrix for the student’s dilemma.
- What are some of the possible explanations for around 80% of the class choosing two extra marks?
- How do you think the outcome of the game might have changed if students were allowed to communicate with each other before making their choice on the number of additional marks to ask for?
- How do you think student choices would change if the threshold above which all students get no extra marks was varied?
Last week saw the launch of Apple’s new music streaming service. This will clearly provide serious competition for the existing music streaming providers such as Spotify and Tidal. One important difference is that whilst Spotify offers a free version to listeners funded by advertising revenue, all Apple Music users will be required to pay a monthly subscription charge. However, Apple will allow listeners a free three-month trial of its service.
Initially Apple intended not to pay artists royalties during this trial period. However, it soon reversed this plan when the pop-star Taylor Swift wrote a blog post criticising Apple for this and threatening to withhold her most recent album.
The negotiations between Apple and the record labels are also facing considerable scrutiny from the competition authorities on both sides of the Atlantic. They seem particularly concerned that Apple may have conspired with or pressured labels to withdraw their support for rival streaming services such as Spotify that offer free versions to consumers. Although not clear, it has been suggested that the European Commission’s initial probe into this may have been initiated by a complaint from a company offering such a free version of its service.
On the other hand, there has also been considerable criticism of free music services such as Spotify. One of the cofounders of the Beats music streaming service, which was subsequently acquired by Apple, has argued that the free business model does not properly value recorded music. Likewise, Taylor Swift removed her entire back catalogue from Spotify, and the leading record label, Universal, is applying pressure on Spotify to change its business model. It is currently unclear whether Apple has been directly responsible for Universal’s standpoint. What is clear is that Apple’s entry will shake-up this market and the identity and business model of the future market leader is at stake.
Streaming sets off a painful debate in the music industry Financial Times, Jonathan Ford (22/03/15)
Apple’s new music service will push paid subscriptions, with free samples re/code, Dawn Chmielewski and Peter Kafka (08/05/15)
Taylor Swift is fighting the wrong part of the music industry Financial Times, Jonathan Ford (05/07/15)
Here’s what happens to your $10 after you pay for a month of Apple music re/code, Peter Kafka (15/06/15)
Questions
- What are the key features of the music streaming service market?
- What are the pros and cons of Spotify’s business model?
- Why might the views on free streaming services differ between small and large artists and labels?
- How do you think the music streaming market might develop in the future?
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.
