September: Make bank tax settlements public

2004 Columns

The news that Wisconsin banks are being audited for sheltering income from corporate taxes has made headlines around the state. It is an issue of great importance to taxpayers, policy makers, business leaders, and others. But now that some of the audited banks have begun settling up with the taxman, the details are hush-hush.

“Wisconsin settles secretly with four banks,” read one headline. “4 banks cut state tax deal,” said another. Obviously, there is a strong public interest in the story. The problem is, nobody except the banks and the auditors knows exactly what the story is. Beyond the fact that settlements have been reached, the key details-including who, how, and how much-are being kept quiet.

Under current state law, information about the tax settlements must be kept secret. Unless the tax settlement is heard in the Tax Appeals Commission or circuit court, the Department of Revenue is prohibited from disclosing this information, even though the amount of money involves tens of millions of tax dollars and possibly hundreds of millions of dollars.

The law that keeps this information secret aims to protect the confidentiality of our tax records and that is a worthy intent. However, as a member of the state Assembly, I believe the law goes too far when it provides a cloak of secrecy for major abuses of the tax system. When state officials blow the whistle on a pattern of tax shelter abuse by dozens and perhaps hundreds of corporations, it has broad public policy implications. People deserve to know what’s going on.

That is why I am drafting legislation requiring the Department of Revenue to disclose the amount of, and the reason for, any settlement of a corporate tax audit that increases the corporation’s tax liability by $100,000 or more. My proposal will continue to preserve the confidentiality of individuals, small businesses and corporations that meet their tax obligations while putting an end to the secrecy of tax audits and settlements for large corporations. This is not a matter of idle curiosity. The shift of Wisconsin’s tax burden from corporations onto working families has been documented by researchers and debated at the Capitol. How much of this shift has been caused by funneling corporate profits into subsidiaries in states like Nevada that have no corporate income tax?

The recent bank audits, and the terms on which they were settled, are highly relevant to this debate. They could shed considerable light on who has been doing what, why it wasn’t stopped before now, and how much it has been costing the rest of us.

Without such public disclosure, we are left to wonder: How much has the Department of Revenue decided the banks underpaid their taxes, and how much (or how little) on the dollar were they allowed to settle for? Was the tax shelter used legal, illegal, or does it fall into a gray area? Are the banks admitting they did anything wrong? If the state had a strong case, why is it settling instead of pursuing these cases for every dollar they’re worth?

And finally, a question that each of the banks must be asking: Are all of the audits being settled on the same terms, or are some banks getting a better deal than others?

The average person in Wisconsin faces a substantial tax burden. That burden is made larger when the average taxpayer has to fill the hole created by profitable corporations that avoid paying their fair share. A recent press investigation found that 10 of the state’s 13 most profitable banks had paid no state income taxes. If the banks aren’t paying their share, who is picking up the slack? The answer is the rest of us. That’s why we have the right to know.

Interestingly, the current open records law has already cleared up one aspect of this controversy. Some banks have complained that the effort to collect taxes from them was unfair because the banks had obtained a letter from the Department of Revenue approving the tax shelter scheme. Using our open records law, I was able to obtain that letter and found that it contradicted the bankers’ claim. The letter explicitly warned the banks that they would be audited to see if income was improperly shifted to the Nevada subsidiaries solely for the purpose of tax avoidance.

My proposal would help ensure that the press and public have access to information about corporate tax avoidance. Keeping taxpayers in the dark runs counter to our Wisconsin tradition of open government and serves no legitimate purpose.

Your Right to Know is a monthly column produced by the Wisconsin Freedom of Information Council, devoted to protecting public access to meetings and records. Spencer Black is a Democratic state representative from Madison.