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How to Deal with State Income Tax when Calculating EBITDA

As we all know, EBITDA is not defined under either accounting’s Generally Accepted Accounting Principles (GAAP) or International Financial Reporting Standards (IFRS).  What’s worse is that there is no other evenly mildly authoritative source that delves into the specifics of the definition beyond much more than a one-word description of each letter’s meaning.

Despite its murky definition, EBITDA remains the lengua franca between buyers and sellers when discussing valuation of privately held companies. Regardless of the true manner in which the seller sets the minimum price for which she will part with her business and whichever of the likely more academic methods the buyer has used to determine its maximum purchase price, the parties tend to lob multiples of EBITDA back and forth across the negotiating table.

While the exact meaning of each letter in the acronym is worthy of its own discussion, there is perhaps no more frustrating issue than how to deal with state income tax in the “T” portion of the term. The frustration arises because some parties refuse to acknowledge that what is so eminently clear - that state income taxes should be treated in an identical manner to the treatment of federal income taxes.

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The very purpose of using EBITDA in these discussions is to place the concerned enterprise in neutral position with regard to capital structure, accounting decisions, and tax environments.  This is why, and all parties do agree on this point, federal income taxes would always be added back to earnings when making this calculation. The proponents of not adding back state income tax are never able to explain why differing treatments would result in better serving the objective of using EBITDA.

State income taxes, like federal income taxes, are only due when a business is profitable.  A business’s profitability is effected by, among other things, its capital structure (because more debt means more interest and interest reduces income and is therefore a tax shield whereas dividends do not and are not) and its depreciation (because, again, depreciation reduces earnings and serves as a tax shield). These factors have the same effect on state income taxes as they do federal income taxes.  Thus, the amount of federal and state income tax a business pays in a given year will vary depending on the quantity and rate of loans outstanding that year and the method and amount of depreciation employed (i.e., the entity’s capital structure and accounting decisions).  The amount of state income tax paid in a given measurement period is no more or less a function of the business’s operations than is its federal tax paid over that same period.

Further, while also not defined under GAAP, “profit before tax” (PBT) is a term more commonly used by accountants than EBITDA, appearing on a fair number, if not the majority, of companies’ routine income statements.  As accountants will always take this measurement before including the expense of both federal and state income taxes, why should the same logic not apply to EBITDA?  EBITDA is, of course, simply PBT minus interest, depreciation and amortization charges.

Proponents of disparate treatment suggest that the state income tax is an unavoidable cost of doing business. But this argument fails for two reasons.  First of all, it is not unavoidable. As discussed above, high debt levels and aggressive depreciation can allow the minimization or avoidance of state income tax (just as they can for federal income tax).  But more significantly, it is not the job of EBITDA to take out only the “avoidable cost of doing business.” Eliminating 401k matching, reducing salaries, renegotiating a better lease, or relocating to smaller premises may also be ways to reduce the cost of doing business. Yet no one proposes adding benefits, salaries, and rent to EBITDA because they are wholly or partially “avoidable”.

Continuing with this logic, state income taxes are avoidable by changing domicile just as federal income taxes are avoidable by changing domicile.  Ask Tyco, Fruit of the Loom, Sara Lee, Seagate or any of the other 43 formerly US companies that the Congressional Research Service identified as redomiciled for this purpose in the decade leading up to the 2014 election.  Would the EBITDA of any of these companies not have included an addback for federal income tax because it was an “avoidable cost of doing business”?

Ah, state income tax, the poor runt of the litter in the world of finance. Too small to be taken seriously, too complicated to be understood, and too varied to warrant the time.  Five states have no such tax on corporate entities. Most of the other 45 do not impose it on entities making federal S-elections.  Those who do impose it do so in many different ways.  And the names are so confusing, often being called by another name that allows the state’s development board to claim they do not have a state corporate income tax. Capped at 6% or less in most states, it pales in comparison to the 35% federal rate. (Though Iowa hits double digits at 12%, it is the only state to do so and there exists no documented record of anyone ever buying a business in Iowa.) How unfortunate that this scrawny beast seems to raise its head so uncannily when a deal is on the line, in those final days when the parties are so close yet so far away on valuation and the closing hinges on the fate of this oft-misunderstood adjustment to earnings.

Author
Clinton Johnston 
Managing Director
Benchmark International

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Getting Down To Brass Tax

You’ve probably noticed by now that Benchmark International is growing. Geographic expansion is the most obvious outward sign of our growth. We didn’t reinvent the wheel of corporate strategy. Given the current economic climate, many other organizations are expanding geographically as well. They’re looking to capture a greater share of their existing markets, penetrate new markets, and attract new talent amongst many other things. These decisions, in terms of geographic expansion, are usually more calculated than many of us would or will ever realize.

While organizations are expanding geographically, many of these organizations are relocating their headquarters altogether. There are a few easily discernible and comprehensible considerations for expansion/relocation with many of them relating to taxation. We’ve witnessed the exodus from the Northeast to the South, really since the commercialization of air conditioning, but now we are seeing movement from all directions into the South. Quite frankly, the tax landscape is much friendlier in the South.

The multi-billion dollar leasing giant Hertz (NYSE: HTZ) announced in 2013 that they were relocating from Park Ridge, NJ to Estero, FL. They distinctly noted that the cost of doing business in New Jersey had become too much in comparison to other states such as Florida. In fact, the state of Florida and Lee County offered Hertz $84mm in tax credits. Florida’s corporate tax rate is noticeably more appealing at 5.5% compared to New Jersey’s 9%. Another selling point was Florida’s income tax rate of 0% in comparison to New Jersey’s bracketed income tax up to 8.97%. You might ask, why would income tax rates factor into Hertz or any company’s decision to expand or relocate? Well, Florida’s 0% income tax has been a noticeable driver behind its population growth. Consequently, the talent pool is expanding rapidly and the talent pool is undoubtedly a draw for a multi-billion dollar organization like Hertz. Between the glaring differences in tax rates, the county and state tax credits offered, and many other tax factors not discussed here (property tax for instance), it was an easy decision for Hertz to relocate.

Another case of corporate relocation to the South is that of CKE Restaurants. You’re probably familiar with their Frisco Thickburger making fast-food restaurants: Hardee’s and Carl’s Jr. They announced in 2016 that they were consolidating their St. Louis, MO and Carpinteria, CA corporate offices and moving them to Franklin, TN. Much like Hertz’s case, the tax implications were too great to ignore. California’s corporate tax rate is 8.84% in comparison to 6.5% for Tennessee. Tennessee’s income tax rate is 0% (with the exception of dividends) in comparison to California’s bracketed income tax up to a staggering 12.3%.

We could discuss at length several other advantages, especially relating to taxation, of expanding or relocating to the South, but these are just some of the most transparent ones. Barring a dramatic philosophical shift in tax philosophy in the South, it seems that we’ll continue to witness substantial business growth for big and small businesses alike.

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