United States of America Before the Federal Energy Regulatory Commission Prepared Direct Testimony Of Dr. Merle Erickson On Behalf of The Interstate Natural Gas Association of America March 8, 2017
I. WITNESS INTRODUCTION AND PURPOSE OF TESTIMONY Q. Please state your name and business address. A. My name is Merle M. Erickson, and my business address is 5807 S. Woodlawn Ave, Chicago, IL 60637. Q. By whom are you employed and what is the purpose of your testimony? A. I am a Professor of Accounting at the Booth School of Business at the University of Chicago and have been employed there, with varying titles, since 1996. I was retained by counsel for the Interstate Natural Gas Association of America ( INGAA ) to provide expert testimony about issues dealing with the taxation of various forms of business (e.g., C-Corporations, S-Corporations, Master Limited Partnerships ( MLP ), etc.), and other related topics. Q. Please briefly describe your education and prior employment. A. I received an undergraduate degree (B.S.) in accounting in 1987 from Rockhurst College; my M.B.A. in 1989 from Arizona State University; and my Ph.D. in 1996 from The University of Arizona. I joined the faculty at The University of Chicago in 1996 and have been there since then. I specialize in the areas of accounting and taxation and I have taught those subjects in The Booth School of Business at The University of Chicago since 1996. In addition to my university teaching responsibilities, I have taught financial accounting, financial statement analysis, valuation, managerial accounting, tax accounting and tax planning to corporations and to other groups through The University of Chicago Corporate and Executive Education program and independently. I have previously been a member of the editorial boards of The Accounting Review, the Journal of Accounting Research and the Journal of the American Taxation Association and was a co-editor of the Journal of Accounting Research from 2005 through 2011. I have been a frequent participant in various conferences and meetings at which I 1
have been called upon to speak on subjects relating to financial and tax accounting, and I have won several awards for my research. I am the author of two books 1 and a number of articles relating to various issues in accounting and tax. In my teaching and consulting activities, I focus on, among other things, complex tax and financial accounting issues associated with corporate control transactions, financing arrangements, and investment decisions. Among other clients, I have previously consulted with both the United States Department of Justice and the Internal Revenue Service ( IRS ). I am and have been a CPA for approximately 25 years. Q. Have you testified previously in proceedings before the Federal Energy Regulatory Commission ( FERC )? A. No. Q. For whom are you testifying? A. I am testifying on behalf of INGAA. II. PURPOSE OF DIRECT TESTIMONY Q. What is the purpose of your direct testimony in this proceeding? A. The purpose of my testimony is to discuss the taxation of different organizational forms at both the entity and investor level. 1 I am co-author of Taxes and Business Strategy (2 nd, 3 rd, 4 th and 5 th ed., published by Prentice Hall) and am the author/editor of Cases in Tax Strategy (1 st through 6 th ed., published by Pearson/Prentice Hall, and electronically). 2
Q. Please summarize your testimony. A. In my testimony I discuss three primary issues. First, I explain that the earnings of a C-Corporation are taxed twice, once at the entity level and once at the shareholder level when the corporation distributes a portion of its after-tax earnings via a dividend to its shareholders. Second, I discuss the taxation of passthrough entities. The earnings of such entities are not subject to income tax at the entity level, however, the owners of the entity are subject to income tax immediately. MLPs are often times taxed as a partnership, which is one type of pass-through entity. In order to be taxed as a partnership, an MLP has to meet certain tests specified in the Internal Revenue Code ( IRC ). Third, my testimony compares the tax obligations over time for a C-Corporation and its shareholders and an MLP and its unitholders. Based on a five-year investment horizon and assuming equivalent earnings before interest taxes depreciation and amortization (EBITDA) for both an MLP and a C-Corporation, the combined total taxes paid by the entity and investors in each organizational form are comparable when one appropriately considers the taxes due upon sale of units that an MLP investor must bear. Furthermore, the after-tax cash flows to the investors in the MLP and C-Corporation are similar, although MLP investors realize greater cash flows earlier in the investment time horizon. Q. Do you sponsor any exhibits in this case? A. Yes. Those exhibits appear within this testimony, and include Exhibit 1 and Table 1. 3
III. TAXATION OF DIFFERENT ORGANIZATIONAL FORMS Q. How are C-Corporations and their investors taxed at the federal level? A. C-Corporations are taxed on their taxable income, at a current top tax rate of 35%. If and when C-Corporations make distributions (i.e., pay dividends) to their owners (shareholders), there is a second level of tax on the dividend that is paid by the shareholder. The tax treatment of the distribution depends on the type of distribution, and the shareholder s tax rate. There is no tax at the shareholder level until there is a distribution (i.e., a dividend) or the shareholder sells his or her shares. The maximum federal tax rate applicable on dividend income for individual investors is currently 20%. The fact that C-Corporation earnings are subject to tax at the corporate and shareholder level is often times referred to as the double taxation of C-Corporations. Q. Please explain the term pass-through entity. A. The term pass-through entity is used to refer to entity types or organizational forms which are not generally subject to income tax at the entity level. Rather, the entity s earnings pass through the entity to its owners and are immediately taxable at the owner level, regardless of whether there is a cash distribution from the entity. 2 Pass-through entities are also sometimes referred to as conduit entities. Common pass-through entities include S-Corporations, partnerships, limited liability companies, Real Estate Investment Trusts, and Regulated Investment Companies. 2 With some pass-through entities, distributions of cash are required in order for the entity s earnings to avoid being taxed at the entity level. 4
Q. Please describe the essential characteristics of an MLP. A. An MLP is a limited partnership that is publicly traded. The instrument that is publicly traded is called a unit as opposed to a share of a corporation. Cash paid to a unitholder is referred to as a distribution, which is representative of the unitholder s share of the MLP s cash available for distribution. 3 Each unitholder is obligated to report its allocated share of earnings related to the MLP and is responsible for taxes associated with such earnings. Generally, an MLP distributes the bulk of its earnings to its unitholders but even if the unitholder does not receive any funds from the MLP through distributions, the unitholder is required to report its allocated share of earnings and is responsible for income tax associated with those earnings. Q. Are all MLPs not subject to income taxes at the entity level? A. No. In general, a publicly traded partnership is taxable as a corporation unless it meets certain tests to be treated as a pass-through entity pursuant to the IRC. These tests relate to the types of income generated by the partnership and the sources of that income. To qualify for pass-through treatment, at least 90% of an MLP s income must be qualified income under IRC Section 7704, such as income from natural resources and transportation of natural resources (e.g., pipelines). Q. How are MLPs and their investors taxed at the federal level? A. MLP owners are taxed on their proportionate share of the MLP s taxable income in the year in which the income is earned, regardless of whether earnings are distributed. Often times the MLP s tax deductions, such as depreciation, reduce the MLP investor s taxable income below cash distributions received. As a result, only the taxable income portion of the distribution to MLP unitholders is subject 3 As discussed at greater length later, in some cases distributions are in excess of the MLP s earnings. 5
to tax at the time of the distribution. For an individual investor, the tax rate on this income is his or her applicable marginal tax rate. The current maximum ordinary income tax rate for individual investors is 39.6%. The excess of the cash distribution that is not taxable reduces the unit holder s basis in the MLP unit. Ultimately, the reduction in basis defers but does not avoid taxation. When the MLP investor sells the partnership unit, that reduction in basis becomes subject to taxation, and is also taxable as ordinary income. 4 Therefore, MLP investors are taxed on current distributions from the MLP, and then again upon sale of the MLP unit. In a 2016 publication, Morgan Stanley discussed the reduction in basis associated with MLP distributions in excess of MLP taxable income, and the resulting tax effects upon sale of the MLP units. 5 4 It is my understanding that the reduction in basis that is recaptured and taxable at the date of sale is not part of the income tax allowance in an MLP s regulated cost of service. 5 Morgan Stanley, in Taxation of Master Limited Partnerships, explains the taxation of MLP units and the recapture of depreciation upon sale of the unit as follows: Disadvantages of MLPs Recapture Tax The depreciation deduction referred to above results in a reduced amount of taxable income to the unit owner. However, this deduction must be taken into account when the unit is sold. This is called depreciation recapture. An example serves to illustrate the tax effect of a future sale: Assume a taxpayer in the highest tax bracket purchases an MLP unit for $100, the fair market value on the date of purchase. The owner holds the unit for four years. Every year, the MLP makes a distribution to its unit holders of $10 per unit. Of this $10, $2 is allocated to income and the remaining $8 is allocated as return of capital. Thus, every year for four years, the unit holder pays ordinary income tax on $2 of income and pays nothing on the remaining $8. Since this is a passive investment, the taxpayer s ordinary income tax rate at the federal level is 39.6% plus 3.8% (representing the Affordable Care Act (ACA) tax on net investment income), for a total tax of 43.4%. The owner reduces basis every year by the $8 of return of capital. Thus, after four years, the owner s adjusted basis is $68 ($100 original basis - $32 of depreciation). Four years after the purchase, the owner sells the unit for $125. The effective long term capital gain rate at the federal level is 23.8% (20% long term capital gain tax plus 3.8% ACA tax). The difference between the owner s original basis ($100) and adjusted basis ($68) is taxed as ordinary income, resulting in a tax of $13.88 ($32 x 43.4%). The gain from original basis to the sales price is taxed as a long term capital gain, resulting in tax of $5.95 ($25 x 23.8%). Thus, the total tax due on the sale is $19.83. Recall that during the four year holding period, the owner received $32 that was tax deferred until this point. State taxes are not addressed in this example. Morgan Stanley, Taxation of Master Limited Partnerships, pp. 1-2 (2016); https://www.morganstanleyfa.com/public/projectfiles/598f7625-f3c1-48f4-bc7e-5802d979cd48.pdf 6
Q. For a given earnings level, what taxes are paid by a C-Corporation and an MLP over an assumed five-year investment horizon? A. In order to illustrate the taxation of MLPs and C-Corporations, I have developed a model, based on assumptions provided by INGAA, to compare the total tax expenses at the entity and investor level, as well as the after-tax cash flows to the investors of each entity type based on a five-year investment horizon, which I will refer to as a life-cycle analysis. 6 Q. Please describe the analysis in Table 1, including the remainder of the assumptions underlying this analysis. A. In Table 1 below, I assume that in year 1 an investor purchases the C-Corporation shares for $1,000 and also purchases the MLP units for $1,000. I also assume a starting tax and accounting basis in the assets of the pipeline of $1,000. As it has been explained to me, I understand that pipelines generally change their tariff recourse rates only on an infrequent basis, so I further assume that annual EBITDA is a constant $180 for each year during the five-year analysis period. In terms of tax rates, I assume a 35% corporate tax rate, a 20% dividend tax rate on corporate shareholders, a 20% capital gains tax and a tax rate for MLP ordinary income of 37.3%, which reflects an assumed equivalent 50% ownership of the MLP by C-Corporation and individual unitholders. I assume that tax depreciation is based on a 15-year life and Modified Accelerated Cost Recovery System ( MACRS ) depreciation. 6 Regarding comparison of organization forms and the taxation on those entity types, The Joint Committee on Taxation in Selected Issues Relating to Choice of Business Entity, at p. 54, (March 5, 2012), stated: Along with other factors, the choice of entity may be influenced by the tax burden on income earned in that form. A proper analysis of the tax burden includes the effect of taxation of income not only at the entity level, but also at the investor/owner level. (Emphasis added). 7
Taxable income is computed as EBITDA less annual tax depreciation as shown in Panel A of Table 1. For the C-Corporation, I assume a 65% dividend payout ratio, which is the payout ratio that was utilized by FERC in an example attached as Appendix B to its 2008 Policy Statement in Docket No. PL07-2-000 concerning the composition of proxy groups. I also assume that any undistributed cash earnings (computed as EBITDA less the corporate tax each period) increase the value of the C-Corporation s stock dollar for dollar. 7 Focusing on Panel B, which examines the returns to C-Corporation owners, for each year I first compute the corporate income tax as 35% of taxable income. For example, in year 1, the taxable income is $130 and corporate income tax for that year is $46. Total corporate income tax over the five-year horizon is $183. I assume that dividend payments are 65% of after-tax income (computed as EBITDA less corporate tax). Corporate shareholder dividend taxes are 20% of the dividend payment. Total dividend payments for the C-Corporation in Panel B over five years are $466, and total shareholder dividend taxes are $93. As a result, after investor level taxes, C-Corporation investors have $373 of cash after-tax from dividends ($466 of dividends less $93 of dividend taxes). In year 5, I assume that the C-Corporation shareholder sells the stock for the original cost ($1,000) plus retained earnings. I assume that the retained earnings increase the value of the stock dollar for dollar, and upon sale of the stock, that gain in value is taxed as a capital gain. 8 Under this scenario, the C-Corporation stock sells for $1,251, which results in a capital gain of $251. The tax on the capital gain is $50, reflecting a 20% tax on capital gains. After-tax cash from the sale of the stock is then $1,201 ($1,251 less $50). Adding the after-tax cash from dividends of $373 to the total after-tax cash upon sale of the C-Corporation shares 7 In reality, the price of the C-Corporation s stock could increase or decrease, and the change in price could be more than or less than the amount of retained earnings. 8 Retained earnings are computed for each year as EBITDA less corporate taxes minus dividends. So, for all five years combined, total EBITDA is $900 and corporate taxes are $183. Dividends are $466. Therefore, retained earnings are $900 - $183 - $466 = $251. 8
($1,201), investors in the C-Corporation have $1,574 after-tax and total taxes paid between the C-Corporation and its shareholders are $326. 9 9 I ignore the time value of money. 9
Assumed Facts: Table 1 - Comparison of Returns to, and Taxes Paid by, a C corporation and an MLP Over a Five Year Investment Horizon Total Depreciable Assets $1,000 Assumed Annual EBITDA $180 Corporate Tax Rate 35% Corporate Dividend Payout Ratio 65% Shareholder Dividend Tax Rate 20% Shareholder Capital Gains Rate 20% MLP Owner Tax Rate 37.3% Tax Depreciation Method 15 Years MACRS Year 1 Year 2 Year 3 Year 4 Year 5 Tax Depreciation 50 95 86 77 69 Panel A: EBITDA and Taxable Income Year 1 Year 2 Year 3 Year 4 Year 5 Taxable Income & EBITDA Assumed EBITDA $180 $180 $180 $180 $180 Less: Tax Depreciation 50 95 86 77 69 Taxable Income $130 $85 $95 $103 $111 Panel B: Returns to C Corporation Owners Year 1 Year 2 Year 3 Year 4 Year 5 Total Corporate Taxable Income $130 $85 $95 $103 $111 $523 Corporate Tax (46) (30) (33) (36) (39) (183) EBITDA 180 180 180 180 180 900 Less: Corporate Tax (46) (30) (33) (36) (39) (183) Corporate After-Tax Income $135 $150 $147 $144 $141 $717 Dividend Distribution $87 $98 $96 $94 $92 $466 Shareholder Dividend Tax (17) (20) (19) (19) (18) (93) Shareholder After-Tax Cash $70 $78 $76 $75 $73 $373 Sale Price of Stock in Year 5 $1,251 Stock Basis (Purchase Price of Stock) 1,000 $326 of Total Taxes Taxable Gain 251 Capital Gains Tax (50) After-Tax Cash from Sale 1,201 Total After-Tax Cash to Owner $1,574 Panel C: Returns to MLP Owners Year 1 Year 2 Year 3 Year 4 Year 5 Total Cash Distribution (EBITDA) $180 $180 $180 $180 $180 $900 Taxable Portion of Distribution 130 85 95 103 111 523 Return of Capital Portion of Distribution $50 $95 $86 $77 $69 $377 Cash Distribution $180 $180 $180 $180 $180 $900 Less: Tax on Distribution (48) (32) (35) (38) (41) (195) After-tax Cash Distribution $132 $148 $145 $142 $139 $705 Similar After-Tax Cash to Investors Sale Price of MLP Unit in Year 5 $1,000 Unit Tax Basis (Original Price less Returns of Capital) 623 Taxable Gain 377 Unit Holder Tax (141) After-Tax Cash from Sale 859 Total After-Tax Cash to Owner $1,564 $336 of Total Taxes 10
In Panel C, I estimate the taxes and cash flows to investors in an MLP using the same assumptions with respect to EBITDA and depreciation that I used for the C- Corporation in Panel B. In this case, I assume that the annual cash distribution to MLP investors is equal to EBITDA. MLPs do not pay tax at the entity level and as a result, can distribute EBITDA each year, rather than EBITDA less corporate income taxes like the C-Corporation. For example, in year 1, EBITDA is $180, while only $130 of that distribution is taxable income to the MLP unitholder. The $130 is computed as $180 of EBITDA less $50 of depreciation. When a unitholder receives a distribution that is in excess of the taxable income of the MLP, the unitholder reduces his or her tax basis in the units by that excess. Accordingly, in this case, the MLP unitholder receives $180 and reduces his or her basis in the units from $1,000 to $950 for the $50 of the distribution that was not taxable income. This $50 reduction of basis is referred to as a return of capital because it is cash that is effectively drawn from the investor s original $1,000 investment a return of his or her original capital investment. The $130 taxable portion of the distribution is taxable as ordinary income, and I assume in Table 1 that the applicable blended ordinary income tax rate is 37.3%. So, in year 1, the MLP investor must pay $48 of tax on the $130 of taxable income that passed through the partnership. As a result, the MLP investor s aftertax cash in year 1 is about $132 ($180 distribution less $48 of tax = $132 aftertax). Panel C of Table 1 includes this same computation for years 2 through 5. The total cash distributed to MLP investors over the five-year investment horizon is $900 and the total tax paid on taxable income is $195. As a result, the after-tax cash from the recurring MLP distributions to MLP investors is $705 ($900 of distributions less $195 of tax on those distributions). In year five, I assume that the MLP unitholders sell their units for original cost plus retained earnings, which is $1,000 because no earnings were retained. 10 MLP 10 For the MLP, its unit price could also increase or decrease, similar to changes in the value of the C- corporation stock. 11
unitholder tax basis in the units is $623. The $623 tax basis is computed as the original $1,000 basis less the amount of the annual distributions that were not taxed, i.e., the portion of the annual distributions that were a return of capital. The total return of capital for the five-year investment horizon was $377, so unitholders tax basis in the MLP units at the end of year 5 is $623 ($1,000 initial basis less $377 return of capital in distributions for years 1 through 5). When the MLP unitholders sell their units for $1,000, they recognize a gain of $377 ($1,000 sale price less $623 tax basis in units). The gain recognized on the sale of the MLP units is taxed as ordinary income and the tax on the $377 of income at a 37.3% ordinary income tax rate is $141. As noted previously, the return of capital portion of prior distributions is taxable at the date of sale of the units. The total after-tax cash to the investor in the MLP from the sale of the units therefore is $859 ($1,000 sale price less $141 of taxes on the sale). Adding the after-tax cash to MLP investors on annual distributions ($705) to the after-tax cash from the sale of the MLP units in year 5 ($859), the total after-tax cash to the MLP investors is $1,564 and the total taxes paid by the MLP owners (unitholders) is $336. 11 Based on the assumptions in Table 1, the total after-tax cash to investors in the C- Corporation is $1,574 while the total after-tax cash to investors in the MLP is $1,564, although MLP investors receive greater cash flows earlier in the investment horizon. Total taxes paid by the C-Corporation and its investors are $326, while total taxes paid by the MLP investors are $336. Therefore, in aggregate, total taxes paid under either an MLP or C-Corporation structure over a five-year investment horizon are similar. 12 11 I again ignore the time value of money. 12 The investor level taxes are different, however. For C-Corporation investors, they pay $93 of dividend taxes, and $50 of capital gains taxes, for a total of about $143. For the MLP investors, they pay $195 of taxes on annual distributions and $141 of taxes upon sale of their units, for a total investor level tax of $336. Therefore, in this analysis, MLP investors pay more than twice as much tax as investors in a C- Corporation pay ($336 versus $143). 12
Q. Is there a difference in the rights and obligations between an investor in a C- Corporation and an investor in an MLP? A. Yes. As highlighted above, the tax treatment of the MLP unitholder and the C- Corporation shareholder is different both at the first level of taxation (applicable unitholder tax on earnings vs. corporate tax on earnings) and at the second level of taxation (applicable unitholder tax on basis recapture vs. dividend tax on dividends). In addition, unitholders are responsible for taxes associated with all income of the MLP even if the MLP makes no distribution to its unitholders. In contrast, shareholders are responsible only for taxes associated with dividends that are disbursed by the C-Corporation. Finally, there are complexities of reporting income taxes by MLP unitholders that include requirements by some states to file non-resident state income tax returns in each state in which the MLP operates and challenges associated with revisions to previously reported income numbers in both the current and prior years in which the unitholder, as owner, is held responsible and required to report for tax purposes. Neither of these complexities, from a tax reporting perspective, of MLP unit ownership are a part of share ownership of a C-Corporation. Q. Is the tax treatment and tax rate(s) of MLPs and C-Corporations permanent? A. No. It is well known that tax rates on various types of income change over time. For example, the dividend tax rate decreased under President George W. Bush to 15%. The dividend tax rate for individual investors went back to 20% under President Obama. Similarly, the top ordinary income tax rate increased to 39.6% under President Clinton. President George W. Bush cut the top ordinary income rate to 35%, and under President Obama, the top ordinary income tax rate went back up to 39.6%. The Affordable Care Act also included a new 3.8% Medicare Surtax that is added to certain types of income. Finally, President Trump is proposing reductions in both corporate and individual tax rates. 13
Q. Is it disputed that an MLP s earnings are subject to income taxes? A. No. MLPs are subject to taxation at the unitholder level and taxes are paid on the earnings and income of MLP-owned pipelines just as they are on the earnings and income of pipelines owned by C-Corporations. Each tax year, C-Corporations file an income tax return (IRS Form 1120) and the C-Corporation is responsible for taxes on those earnings in the year earned and at rates up to 35%. Similarly, each year an MLP files a tax return (IRS Form 1065) but the MLP does not pay tax on its income. Rather, the unitholders (owners) of the MLP receive a Form K-1 from the partnership that indicates their share of the MLP s income and/or loss. The MLP s owners are then responsible for taxes on those earnings in the year earned and at rates up to 39.6%. The earnings of a C- Corporation and an MLP are subject to taxation immediately. In the case of a C- Corporation, the corporation is responsible for paying the tax, while in the case of an MLP, the owners of the MLP are responsible for paying the tax on the MLP s earnings, but in both cases, taxes are paid. Q. Arguments have been made that MLPs never generate taxable income for their unitholders and therefore taxes are never actually paid. Do you agree? A. No. The IRS provides aggregate level tax return data sorted in various ways. 13 For business income taxes, the IRS provides data for partnerships, and within partnership tax data, the IRS categorizes the tax return information by the industry in which the partnership operates. I provide a summary of some of the information provided by the IRS for partnerships in pipeline transportation. The IRS provides data separately for partnerships that report net income, and I tabulate that data for years 2010 through 2014 in Exhibit 1 below. 14 13 IRS website with various statistical data: https://www.irs.gov/uac/tax-stats. 14 The IRS also provides information on partnerships that generated taxable losses. I tabulate information only on partnerships with taxable income. 14
As indicated in Exhibit 1, partnerships in pipeline transportation reported aggregate net income of between approximately $6.5 billion and $14 billion per year during 2010 through 2014, and the average annual net income per partnership in pipeline transportation ranged from $6.6 million to about $55.5 million. Net income is taxable income recognized for that tax year. Exhibit 1 Summary of IRS Tax Data for Partnerships in Pipeline Transportation - 2010 through 2014 2010 2011 2012 2013 2014 Aggregate Net Income $6,479,022,000 $6,727,166,000 $9,732,131,000 $8,097,318,000 $14,381,570,000 Number of Partnerships 261 1,014 314 224 259 Average Partnership Net Income $24,823,839 $6,634,286 $30,994,048 $36,148,741 $55,527,297 Year Source: "SOI Tax Stats - Partnership Statistics by Sector or Industry," https://www.irs.gov/uac/soi-tax-stats-partnership-statistics-by-sector-or-industry. In sum, the data in Exhibit 1 indicates that many partnerships in the pipeline transportation sector reported taxable income that was passed through to owners, and the average net income (taxable income) that passed through to partners was substantial. IV. CONCLUSION Q. Based on your analysis, what do you conclude with regards to the taxation of MLPs versus C-Corporations? A. I conclude that MLPs incur taxable income that is passed through to their unitholders who, as owners, carry the income tax liability under the MLP structure. I further conclude that based on the example discussed in Table 1 above, the combined tax obligation of the entity and its investors under both MLP and C-Corporation structures is comparable. While MLP investors realize greater cash flow earlier in the investment period, the after-tax cash flow for investors under both an MLP and C-Corporation structure is similar. 15
Q. Does this conclude your testimony? A. Yes, it does. 16
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