Formulary apportionment is a method of allocating profit earned (or loss incurred) by a corporation or corporate group to a particular tax jurisdiction in which the corporation or group has a taxable presence. It is an alternative to separate entity accounting, under which a branch or subsidiary within the jurisdiction is accounted for as a separate entity, requiring prices for transactions with other parts of the corporation or group to be assigned according to the arm's length standard commonly used in transfer pricing. In contrast, formulary apportionment attributes the corporation's total worldwide profit (or loss) to each jurisdiction, based on factors such as the proportion of sales, assets or payroll in that jurisdiction. When applied to a corporate group, formulary apportionment requires combined reporting of the group's results. The parent and all of its subsidiaries are viewed as though they were a single entity (unitary combination), and the method is then also known as unitary taxation.
In domestic taxation
Formulary methods are used in both the United States and Canada to apportion income of corporations between the sub-national jurisdictions in which they operate. In many U.S. states formulary apportionment is also used to apportion the combined income of a related group of companies. Tax in each US state is thus assessed based on the unitary combination of all related entities. The related entities included in the unitary combination may be worldwide entities or only entities within the United States, depending on the state.
The use of formulary apportionment in the United States dates back to the late 19th century. At that time, there was no state or federal corporate income tax, but the states did assess property and capital stock taxes. With the growth of the transcontinental railroads, state taxation authorities faced companies which had not just immovable property (tracks) but also non-trivial movable property (rolling stock) operating across state lines. The property value of a company assessable to state tax was thus assessed by examining the proportion of value of railway lines within the state, and then taking that proportion of the company's total value (including the movable property) as the portion of value located within a certain state. When Wisconsin adopted a state income tax in 1911, it also used formulary apportionment (based on property, cost of manufacture, and sales), pointing to the impracticality of otherwise calculating separate accounts for companies operating in multiple states.
By the mid-20th century, the "Massachusetts Formula" had become a commonly used standard of formulary apportionment. The formula placed an equal weight on three factors: group sales, payroll, and property within each jurisdiction. Out of the forty-four states (plus one more jurisdiction, the District of Columbia) which imposed a corporate income tax in 1978, all but Iowa used the Massachusetts Formula. Iowa's formula ignored payroll and property, looking solely at sales; the constitutionality of this formula was challenged in the Moorman case in Iowa, and it was held invalid by a trial court under the Due Process Clause of the Fourteenth Amendment as well as the Commerce Clause of Article One; however, the Iowa Supreme Court reversed the trial court in 1978. This marked the beginning of a trend towards increasing weight on sales at the expense of the other two factors; by 2004, there were only twelve states still using an equally weighted formula.
In international taxation
Formulary apportionment is not used as a method of attributing profit between (rather than within) national tax jurisdictions. The adoption of formulary apportionment has been advocated at various times since the 1970s. The matter has been hotly debated by OECD member states beginning in the 1970s. In 2000 Joann Weiner and Charles E. McLure Jr. proposed the use of formulary apportionment within the European Union. In 2001, the EU issued a communication advocating the use of formulary apportionment. In 2007 Kimberley A. Clausing and Reuben Avi-Yonah suggested that the US Internal Revenue Service use formulary apportionment in the assessment of federal corporate income tax, believing it would lead to increased tax revenue in the face of a trend for multinational corporations to use transfer pricing to shift profits out of the US into low-tax countries. None of these suggestions has been adopted.
Several US states allow, but do not mandate, that a corporate group include foreign entities for the purpose of assessing factors used in formulary apportionment ("worldwide unitary combination"). California, for example, began to accept worldwide unitary combination in the 1940s. However, its attempt to require such combination led to strong protests from US trading partners. The UK-US double taxation treaty signed in 1975 included a provision to prohibit US states from "tak[ing] into account the income, deductions, receipts, or out-goings of a related enterprise" in the United Kingdom or any other country for the purpose of determining tax liability. However, the US Senate, whose consent was required to ratify the treaty, rejected this provision, and the treaty was amended by a protocol in 1979. The Supreme Court explicitly held worldwide unitary combination as constitutional in separate cases in 1983 and 1994 (Barclays Bank PLC v. Franchise Tax Board). In 1985 the United Kingdom passed retaliatory legislation which would have overridden the UK-US tax treaty and denied significant UK tax benefits to corporations headquartered in US states which applied worldwide unitary taxation. This and further pressure from foreign governments, the executive branch and multinational corporations led US states to adopt a "water's edge" limitation on unitary combination, allowing taxpayers to decide for themselves whether or not to include foreign entities in their combined reporting.
Critiques of formulary apportionment
Advocates claim that transfer pricing issues increase compliance costs, that formulary apportionment reduces those costs and that treating associated enterprises in a unitary fashion more closely reflects the underlying operating realities of multinational enterprises.
Critics argue that:
- Formulary apportionment leads to double taxation of the same profits unless there is agreement among all the jurisdictions on the formula to be used and the composition of the combined group.
- Tax could be avoided by manipulation of the components of the formula, for example the location of mobile assets.
- Compliance costs would be increased by the need to calculate each component of the formula in each jurisdiction.
- Compliance costs would be much higher unless all jurisdictions adopted a common method of calculating taxable profits. Otherwise a separate calculation of worldwide group profits would be required under each jurisdiction's tax accounting rules. This issue is significantly reduced within the United States and Canada because variations between each jurisdiction's tax accounting methods are relatively minor.
- Where members of the group account in different currencies, currency exchange rate movements could distort the results of the apportionment.
- Formulary apportionment does not reflect the economic profit or loss of each entity. For example, a profitable group which incurs a loss in a particular territory has taxable profit apportioned to that territory, and conversely a loss-making group which makes profits in a particular territory has no taxable profits in that territory.
- Clausing & Avi-Yonah 2007, p. 12
- Weiner 2005, p. 9
- McLure & Weiner 2000, pp. 254–255
- Weiner 2005, p. 11
- Mayer 2008, p. 72; see also Moorman Mfg. Co. v. Bair (437 US 267)
- OECD & 2010 para 1.16
- Weiner 2005, p. 10
- McLure & Weiner 2000, p. 247
- Clausing & Avi-Yonah 2007, p. 14
- US-UK Income Tax Convention (1975) Article 9(4)
- US-UK Income Tax Convention (1975) Protocol 3
- 114 S.Ct. 2268
- Income and Corporation Taxes Act 1988 Section 812
- Debate in UK Parliament, December 18, 1989
- OECD 2010, p. 8
- OECD 2010, pp. 8–10
- Clausing, Kimberley A.; Avi-Yonah, Reuben S. (June 2007), Reforming Corporate Taxation in a Global Economy: A Proposal to Adopt Formulary Apportionment, The Hamilton Project, Brookings Institution
- Mayer, Stefan, Formulary apportionment for the internal market, Doctoral Series No. 17, International Bureau of Fiscal Documentation, ISBN 978-90-8722-048-8
- McLure, Charles E., Jr.; Weiner, Joann M. (2000), "Deciding whether the European Union should adopt Formulary Apportionment of Company income", in Cnossen, Sijbren, Taxing capital income in the European Union: issues and options for reform, Oxford University Press, pp. 243–292
- Weiner, Joann Martens (March 2005), Formulary Apportionment and Group Taxation in the European Union: Insights from the United States and Canada, Working Papers No. 8, Taxation and Customs Union, European Commission, ISSN 1725-7557
- Review of Comparability and of Profit Methods: Revision of Chapters I-III of the Transfer Pricing Guidelines, Centre for Tax Policy and Administration, Organisation for Economic Co-operation and Development, July 2010
- Avi-Yonah, Reuven S.; Benshalom, Ilan (October 2010), Formulary Apportionment: Myths and Prospects - Promoting Better International Tax Policy and Utilizing the Misunderstood and Under-Theorized Formulary Alternative, Public Law Working Papers No. 221, University of Michigan
- Morse, Susan C. (2010), "Revisiting Global Formulary Apportionment", Virginia Tax Review 29: 593–644
- Petutschnig, Matthias (2010), Common consolidated corporate tax base: Effects of formulary apportionment on corporate group entities, Discussion Papers No. 38., SFB International Tax Coordination, WU Vienna University of Economics and Business