Home Accounting and Auditing How accounting giants craft favourable tax rules from inside government

How accounting giants craft favourable tax rules from inside government

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From NY Times: For six years, Audrey Ellis and Adam Feuerstein worked together at PwC, the giant accounting firm, helping the world’s biggest companies avoid taxes.

In mid-2018, one of Mr. Feuerstein’s clients, an influential association of real estate companies, was trying to persuade government officials that its members should qualify for a new federal tax break. Mr. Feuerstein knew just the person to turn to for help. Ms. Ellis had recently joined the Treasury Department, and she was drafting the rules for this very deduction.

That summer, Ms. Ellis met with Mr. Feuerstein and his client’s lobbyists. The next week, the Treasury granted their wish — a decision potentially worth billions of dollars to PwC’s clients.

About a year later, Ms. Ellis returned to PwC, where she was immediately promoted to partner. She and Mr. Feuerstein now work together advising large companies on how to exploit wrinkles in the tax regulations that Ms. Ellis helped write.

Ms. Ellis’s case — detailed in public records and by people with direct knowledge of her work at the Treasury and at PwC — is no outlier.

The largest U.S. accounting firms have perfected a remarkably effective behind-the-scenes system to promote their interests in Washington. Their tax lawyers take senior jobs at the Treasury Department, where they write policies that are frequently favorable to their former corporate clients, often with the expectation that they will soon return to their old employers. The firms welcome them back with loftier titles and higher pay, according to public records reviewed by The New York Times and interviews with current and former government and industry officials.

From their government posts, many of the industry veterans approved loopholes long exploited by their former firms, gave tax breaks to former clients and rolled back efforts to rein in tax shelters — with enormous impact.

After lobbying by PwC, a former PwC partner in the Trump Treasury Department helped write regulations that allowed large multinational companies to avoid tens of billions of dollars in taxes; he then returned to PwC. A senior executive at another major accounting firm, RSM, took a top job at Treasury, where his office expanded a tax break in ways sought by RSM; he then returned to the firm.

Even some former industry veterans said they viewed the rapid back-and-forth arrangements as a big part of the reason that tax policy had become so skewed in favor of the wealthy, at the expense of just about everyone else. President Biden and congressional Democrats are now seeking to overhaul parts of the tax code that overwhelmingly benefit the richest Americans.

“The accounting firms have a desire to get in favorable rules for their clients,” said Michael Hamersley, a former tax lawyer at EY and KPMG. “And the person in the government has a desire to grant their wish because they know they will be rewarded when they get out.”

The so-called revolving door, in which people cycle between the public and private sectors, is nothing new. But the ability of the world’s largest accounting firms to embed their top lawyers inside the government’s most important tax-policy jobs has largely escaped public scrutiny.

Audrey Ellis went from PwC to the Treasury Department. Two years later, she returned to her old firm, which promoted her to partner.
Audrey Ellis went from PwC to the Treasury Department. Two years later, she returned to her old firm, which promoted her to partner.Credit…Photo Illustration by The New York Times; PwC

In the last four presidential administrations, there were at least 35 instances ofround trips from big accounting firms through Treasury’s tax policy office, along with the Internal Revenue Service and the Congressional Joint Committee on Taxation, and back to the same firm, according to public records and interviews with government and industry officials.

In at least 16 of those cases, the officials were promoted to partner when they rejoined their old accounting firms. The firms often double the pay of employees upon their return from their government sojourns. Some partners end up earning more than $1 million a year.

Federal rules prohibit government officials from working on many matters in which they have financial interests, like having an unwritten agreement to return to their prior firm. The purpose of the rules is to avoid having officials beholden to private parties instead of working on behalf of the public, though it is hard to prove the existence of such financial entanglements.

“Lawyers who come from the private sector need to learn who their new client is, and it’s not their former clients. It’s the American public,” said Stephen Shay, a retired tax partner at Ropes & Gray who served in the Treasury during the Reagan and Obama administrations. “A certain percentage of people never make that switch. It’s really hard to make that switch when you know where you are going back in two years, and it’s to your old clients. The incentives are bad.”

Going from an accounting firm into the Treasury means taking a big pay cut. But lawyers know they are likely to be rewarded with significantly higher pay when they rejoin their old firm.

Eric Sloan, a former longtime tax lawyer at Deloitte, said he used to spell this out to young Deloitte lawyers to encourage them to do stints at the Treasury Department.

“Generally, lawyers stay in those positions for two to three years, after which they frequently return to the firms from which they came,” said Mr. Sloan, who is now co-chairman of the tax practice at the law firm Gibson, Dunn & Crutcher. The government experiences “allow them to command higher compensation upon their return to the private sector.”

Mr. Sloan and some other industry officials said they didn’t see anything wrong with this practice because the lawyers brought expertise to government.

Representatives of KPMG, EY, PwC, Deloitte and RSM declined to comment.

One early trendsetter was Mark A. Weinberger, a partner at EY and for many years a top tax lobbyist in Washington. During the Clinton administration, he championed a corporate tax break for research and development that critics said was often abused.

In 2001, President George W. Bush appointed him to run the Treasury’s small but powerful Office of Tax Policy, which writes the rules to enact federal tax laws.

From that perch, Mr. Weinberger quickly helped reverse a rule that made it harder to qualify for the R&D tax credit.

Mr. Weinberger rejoined EY in April 2002, 14 months after he had left.

“My experience in the private sector undoubtedly made me a better public servant, and my government experience enabled me to better understand and apply public policy in my private sector roles,” Mr. Weinberger said in a statement.

Few dispute that the Treasury Department and the I.R.S. must rely in part on lawyers from the private sector to understand the real-world effects of the tax code and how companies and wealthy individuals try to navigate around it.

“If you want to know where the bodies are buried, you’ve got to get some of those people,” said Chye-Ching Huang, the head of the Tax Law Center at New York University’s law school.

<div><span>Mark A. Weinberger was a partner at EY before joining the Treasury as assistant secretary for tax policy. He later returned to EY, eventually becoming chief executive.</span></div>
Mark A. Weinberger was a partner at EY before joining the Treasury as assistant secretary for tax policy. He later returned to EY, eventually becoming chief executive.Credit…Photo Illustration by The New York Times; Lucy Nicholson/Reuters

But Mr. Weinberger’s career path has become a defining trend for the Office of Tax Policy. His successors came almost entirely from major law and accounting firms, to which they quickly returned after leaving the government.

In 2002, a manager at PwC, George Manousos, joined the tax office. He played a key role writing a rule that allowed virtually any company to claim a tax credit intended for U.S. manufacturers, even if they weren’t manufacturing anything. (In one notorious example, The Huffington Post reported that restaurant companies were claiming to “manufacture” slices of cheesecake from whole cheesecakes.)Business & Economy

When Mr. Manousos returned to PwC a few years later, he was promoted to partner and became the firm’s national leader on the tax rules that he had written. He registered to lobby the government on that specific provision. The pattern continued in the Obama administration.

In 2013, Craig Gerson, a tax lawyer at PwC whose specialties included advising private equity firms on how to cut their taxes, joined the Office of Tax Policy as a so-called attorney-adviser. At the time, the Treasury was contemplating whether to crack down on a tax dodge used by private equity firms known as a “fee waiver.” The maneuver allowed executives to avoid taxes on much of their income.

Mr. Gerson oversaw the discussions inside the Treasury. In July 2015, the department issued proposed regulations that essentially created a road map for how to construct waivers without running afoul of the I.R.S.

About two months later — after two and a half years at the Treasury — Mr. Gerson rejoined PwC, where he resumed his practice advising private equity firms.

Mr. Manousos and Mr. Gerson referred questions to PwC, which declined to comment on behalf of its employees.

George Manousos, a manager at PwC, spent a few years at the Treasury Department before returning to PwC, which promoted him to partner.
George Manousos, a manager at PwC, spent a few years at the Treasury Department before returning to PwC, which promoted him to partner.Credit…Photo Illustration by The New York Times; PwC

Around 2010, Deloitte and PwC each devised a lucrative new tax shelter. It enabled multinational companies like Bristol Myers Squibb to avoid billions of dollars in federal income taxes by routing profits through offshore subsidiaries.

The I.R.S. argued that the transactions violated an anti-abuse provision of the federal tax laws. In the case of Bristol Myers, which PwC had advised on the design of its offshore arrangement, the I.R.S. sought more than $1 billion in back taxes.

In 2015, the Treasury Department issued a warning notice intended to shut down the shelters.

But companies’ tax advisers protested that the Treasury was going too far. In May 2016, the tax section of the American Bar Association wrote a 42-page letter pleading to Treasury officials that the government’s actions were “overly broad” and potentially “a trap for the unwary.” One of the men who wrote the letter was Ari Berk, a tax lawyer for Deloitte, among the leading designers of the tax shelters.

Two weeks after sending the letter, Mr. Berk left Deloitte’s Washington offices and moved a few blocks west to work for the Treasury. His assignment was to oversee the regulations he had just been pushing to water down.

In January 2017, Mr. Berk’s office issued new regulations that made it easier for companies to shift their profits offshore to avoid U.S. taxes. The most important change mirrored what Mr. Berk had sought in his letter eight months earlier.

That June, Mr. Berk returned to Deloitte. He had been gone barely a year and was immediately promoted to partner. He declined to comment.

In the waning days of the Obama administration, the Treasury Department was writing closely watched rules to crack down on so-called corporate inversions, in which American companies merged with firms in low-tax jurisdictions. The transactions allowed the companies to siphon their taxable profits out of the United States.

As they put the final touches on the rules, Treasury officials met with two top PwC officials: Chip Harter and Pamela Olson. The pair got what they wanted.

Pamela Olson, shown in 2003, served as assistant secretary for tax policy for barely a year before returning to Skadden Arps. She now works for PwC.
Pamela Olson, shown in 2003, served as assistant secretary for tax policy for barely a year before returning to Skadden Arps. She now works for PwC.Credit…Photo Illustration by The New York Times; Tom Williams/Getty Images

A year later, in 2017, Mr. Harter, a longtime international tax lawyer, returned to the Treasury’s grand headquarters next door to the White House. This time he was there for a job. The Trump administration’s Treasury secretary, Steven Mnuchin, had named him to oversee international tax issues. While he worked there, PwC covered part of the cost of his private health insurance, ethics filings show.

Three months after his appointment, the Republican-controlled Congress approved a sweeping tax cut package that included major changes to the rules governing international taxation.

While the new law substantially reduced multinational companies’ tax burdens, it also contained a pair of new taxes intended to raise hundreds of billions of dollars from companies that had avoided taxes by claiming profits were earned overseas.

Mr. Harter’s job suddenly became much more important. The tax legislation was hastily passed and sloppily written. It would be up to Mr. Harter to figure out how to put those new taxes into effect.

An intense lobbying campaign got underway. Companies wanted to water down the new taxes on offshore revenue and profits. One of the most active lobbyists was Mr. Harter’s former PwC colleague Ms. Olson, who had been the top tax official in the Bush administration’s Treasury Department.

On at least fouroccasions, Mr. Harter’s office granted requests that were made by Ms. Olson or by corporate trade groups for which she was a lobbyist. The changes includedletting multinational companies escape a new tax on overseas revenue, a move that drew widespread criticism and is likely to cost the federal government tens of billions of dollars over a decade.

Chip Harter rejoined PwC this year after serving as the Treasury’s top international tax official for most of the Trump administration. He had previously been with PwC for 18 years.
Chip Harter rejoined PwC this year after serving as the Treasury’s top international tax official for most of the Trump administration. He had previously been with PwC for 18 years.Credit…Photo Illustration by The New York Times; PwC

This year, Mr. Harter returned to PwC.

“I fully complied with Treasury Department conflicts rules by not meeting with PwC representatives” during a two-year “cooling off” period that restricts government officials from meeting with their former employers, Mr. Harter said. Although he was involved in the construction of the offshore tax break and met with corporate lobbyists, Mr. Harter said he did not recall meeting with Ms. Olson or other PwC officials on the topic.

Ms. Olson referred questions to PwC.

The 2017 tax overhaul included a provision that let some people take a 20 percent tax deduction on certain types of business income. But the law — known as Section 199A — largely excluded an undefined category of “brokerage services.” In 2018, lobbyists for several industries, including real estate and insurance, visited the Treasury to try to persuade officials that the broker prohibition should not apply to them.

On Aug. 1, records show, Ms. Ellis met with her former PwC colleague, Mr. Feuerstein, and three other lobbyists for his client, the National Association of Realtors. They wanted real estate brokers to qualify for the 20 percent deduction.

The meeting took place before the first draft of the proposed rules was even made public, which meant that, right off the bat, Ms. Ellis’s former PwC colleague and his client had an inside track.

When the Treasury published its first version of the proposed rules a week later, real estate brokers were eligible. The National Association of Realtors took credit for the victory on its website. (The final rules applied only to brokers of stocks and other securities.)

Ms. Ellis’s meeting with Mr. Feuerstein appeared to violate a federal ethics rule that restricts government officials from meeting with their former private sector colleagues, said Don Fox, the acting director of the Office of Government Ethics during the Obama administration and, before that, a lawyer in Republican and Democratic administrations.

Mr. Fox described the meeting as improper. “It certainly is going to call into question how that regulation was drafted,” he said. “There’s no way to undo the taint that is now going to be attached to that.”

Over the course of the year, Ms. Ellis met with lobbyists for the insurance, auto and banking industries. The Treasury let their brokers in on the tax break, too. Mr. Mnuchin, the Treasury secretary, approved the decision.

Ms. Ellis returned to PwC in the fall of 2019. She was immediately promoted to partner.

Her colleague drafting the regulations for 199A was Wendy Kribell, a senior lawyer at the I.R.S. This summer, she joined Ms. Ellis at PwC.

A PwC spokeswoman declined to comment on behalf of Ms. Ellis and Mr. Feuerstein. Ms. Kribell didn’t respond to requests for comment.

The top tax official in President Donald J. Trump’s Treasury Department was David J. Kautter. In addition to serving as assistant Treasury secretary for tax policy, he had a stint as acting I.R.S. commissioner.

Before joining the government, Mr. Kautter had a long history in the accounting industry. He spent 28 years at EY, rising to national tax director during the period when the firm marketed illegal tax shelters, leading to a $123 million settlement with the Justice Department. (Mr. Kautter has said he was not directly involved in creating shelters, though he has noted that “I wish I had done things differently.”)

David J. Kautter returned to RSM in August after serving as the assistant Treasury secretary for tax policy.
David J. Kautter returned to RSM in August after serving as the assistant Treasury secretary for tax policy.Credit…Photo Illustration by The New York Times; Susan Walsh/Associated Press

After a few years in academia, Mr. Kautter joined the country’s fifth-largest accounting firm, RSM.

Soon after he entered the government, Mr. Kautter’s former colleagues at RSM began asking for favorable changes to tax policy, and they got some of what they sought.

“Warmest congratulations to you and your colleagues on the successful enactment” of the 2017 tax cut, Don Susswein, a top official at RSM, wrote to Mr. Kautter in January 2018. Mr. Susswein urged Mr. Kautter to make it easier to qualify for the Section 199A deduction.

The Treasury obliged.

Nine months later, another letter arrived. This one, from a group of RSM officials, asked Mr. Kautter and a senior I.R.S. lawyer to help more financial companies qualify for the 199A tax break.

Mr. Kautter’s office made that change, too.

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