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?
In June 2014, the Gas and Electricity Markets Authority (which governs the energy regulator, Ofgem) referred Great Britain’s retail and wholesale gas and electricity markets to the Competition and Markets Authority (CMA). The market is dominated by the ‘big six‘ energy companies (British Gas, EDF, E.ON, npower, Scottish Power and SSE) and Ofgem suspected that this oligopoly was distorting competition and leading to higher prices.
The CMA presented its report on 10 March 2016. It confirmed its preliminary findings of July and December 2015 “that there are features of the markets for the supply of energy in Great Britain that result in an adverse effect on competition”. It concludes that “the average customer could save over £300 by switching to a cheaper deal” and that “customers could have been paying about £1.7 billion a year more than they would in a competitive market”.
It made various recommendations to address the problem. These include “requiring the largest suppliers to provide fuller information on their financial performance” and strengthening the role of Ofgem.
Also the CMA wants to encourage more people to switch to cheaper suppliers. At present, some 70% of the customers of the big six are on default standard variable tariffs, which are more expensive than other tariffs available. To address this problem, the CMA proposes the setting up of “an Ofgem-controlled database which will allow rival suppliers to contact domestic and microbusiness customers who have been stuck on their supplier’s default tariff for 3 years or more with better deals.”
Another area of concern for the CMA is the 4 million people (16% of customers) forced to have pre-payment meters. These tend to be customers with poor credit records, who also tend to be on low incomes. Such customers are paying more for their gas and electricity and yet have little opportunity to switch to cheaper alternatives. 
For these customers the CMA proposed imposing transitional price controls from no later than April 2017 until 2020. These would cut typical bills by some £80 to £90 per year. In the meantime, the CMA would seek to remove “restrictions on the ability of new suppliers to compete for prepayment customers and reduce barriers such as debt issues that make it difficult for such customers to switch”.
Despite trying to address the problem of lack of competition, consumer inertia and barriers to entry, the CMA has been criticised for not going further. It has also been criticised for the method it has chosen to help consumers switch to cheaper alternative suppliers and tariffs. The articles below look at these criticisms.
Podcast
Competition and Markets Authority Energy Report BBC You and Yours (10/3/16)
Articles
Millions could see cut in energy bills BBC News (10/3/16)
Shake-up of energy market could save customers millions, watchdog says The Telegraph, Jillian Ambrose (10/3/16)
UK watchdog divided over energy market reforms Financial Times, Kiran Stacey (10/3/16)
How the CMA energy inquiry affects you Which? (10/3/16)
UK watchdog accused of bowing to pressure from ‘big six’ energy suppliers The Guardian, Terry Macalister (10/3/16)
CMA documents
CMA sets out energy market changes CMA press release (10/3/16)
Energy Market Investigation: Summary of provisional remedies Competition and Markets Authority (10/3/16)
Questions
- Find out the market share of the ‘big six’ and whether this has changed over the past few years.
- What, if any, are the barriers to entry in the gas and electricity retail markets?
- Why are the big six able to charge customers some £300 per household more than would be the case if they were on the cheapest deal?
- What criticisms have been made of the CMA’s proposals?
- Discuss alternative proposals to those of the CMA for dealing with the problem of excessive prices of gas and electricity.
- Should Ofgem or another independent not-for-profit body be allowed to run its own price comparison and switching service? Would this be better than the CMA’s proposal for allowing competitors access to people’s energy usage after 3 years of being with the same company on its standard tariff and allowing them to contact these people?
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?
Oil prices will remain below $60 per barrel for the foreseeable future. At least this is what is being assumed by most oil producing companies. In the more distant future, prices may rise as investment in fracking, tar sands and new wells dries up. In meantime, however, marginal costs are sufficiently low as to make it economically viable to continue extracting oil from most sources at current prices.
The low prices are partly the result of increases in supply from large-scale investment in new sources of oil over the past few years and increased output by OPEC. They are also partly the result of falling demand from China.
But are low prices all bad news for the oil industry? It depends on the sector of the industry. Extraction and exploration may be having a hard time; but downstream, the refining, petrochemicals, distribution and retail sectors are benefiting from the lower costs of crude oil. For the big integrated oil companies, such as BP, the overall effect may not be as detrimental as the profits from oil production suggest.
Articles
BP – low oil price isn’t all bad new BBC News, Kamal Ahmed (27/10/15)
Want to See Who’s Happy About Low Oil Prices? Look at Refiners Bloomberg, Dan Murtaugh (31/10/15)
Low prices are crushing Canada’s oil sands industry. Shell’s the latest casualty. Vox, Brad Plumer (28/10/15)
Data
Brent spot crude oil prices US Energy Information Administration
BP Quarterly results and webcast BP
Questions
- Why have oil prices fallen?
- What is likely to happen to the supply of oil (a) over the next three years; (b) in the longer term?
- Draw a diagram with average and marginal costs and revenue to show why it may be profitable to continue producing oil in the short run at $50 per barrel. Why may it not be profitable to invest in new sources of supply if the price remains at current levels?
- Find out in what downstream sectors BP is involved and what has happened to its profits in these sectors.
- Draw a diagram with average and marginal costs and revenue to show why profits may be increasing from the wholesaling of petrol and diesel to filling stations.
- How is price elasticity of demand relevant to the profitablity of downstream sectors in the context of falling costs?
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?
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.
