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Wal-Mart pays itself rent, gets large tax breaks

Michael Roston
Published: Thursday February 1, 2007
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Wal-Mart, the nation's largest employer and the world's biggest retailer, is regularly paying itself rent and using the transaction to decrease the taxes it pays to state governments, according to a report in this morning's Wall Street Journal.

The article by Jesse Drucker shows that Wal-Mart has saved hundreds of millions of dollars in taxes in 25 states, and may not be the only company using the practice. Drucker shows that state governments are finally getting wise and working to close a complicated tax loophole that the federal government discontinued years ago.

Wal-Mart is using a tax loophole involving "real-estate investment trusts" to call "rent" it pays to itself a tax-deductible business expense, Drucker explains. A Wal-Mart subsidary will pay rent to a real-estate investment trust, which is owned by another Wal-Mart subsidiary. The trust hands the rent to the second subsidiary in the form of a dividend, which cannot be taxed. Additionally, Wal-Mart counts the initial rental payment as a business expense, which is deducted from taxes in the state where the store is located. In one four-year period, Wal-Mart avoided $350 million in taxes using this strategy, which was developed by the accounting firm Ernst & Young LLP.

The loophole is getting attention in state governments. Newly installed New York Governor Elliot Spitzer said he would close the loophole in the hopes of adding $83 million to New York's state budget, and North Carolina is suing Wal-Mart for back taxes. Smaller companies using the same loophole, like Autozone and Fleet Funding, are also receiving more scrutiny.

The full article can be accessed by subscribers at the Wall Street Journal website. An excerpt is provided below.

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Wal-Mart could deduct from its state-taxable income the rent paid by Wal-Mart Stores East to the REIT. The REIT paid the majority of its rental earnings to its 99% owner, Wal-Mart Property Co., in the form of dividends. That company's base in Delaware gave it another way to avoid liability for state taxes, since some states do require that dividends a REIT pays to its corporate owner be taxed, as the federal government does.

The Delaware subsidiary then paid the money back to Wal-Mart Stores East, the same subsidiary that made the payments to the REIT to begin with. Those payments to Wal-Mart Stores East weren't taxed either, because dividends paid to a corporation by a subsidiary normally aren't counted as taxable income for the parent company.

The result of the circuitous transaction: Wal-Mart could effectively turn rental payments to itself into state level tax-deductions in most of the states where the payments have been made. Under typical circumstances, rent paid to a third-party landlord also would reduce taxable income. But that would ordinarily be cash out the door, like most other tax-deductible expenses. Here, the majority of the tax-deductible rental payments came straight back to Wal-Mart.

The national tax savings have been significant. Over a four-year period, from 1998 to 2001, Wal-Mart and Sam's Club paid company-controlled REITs a total of $7.27 billion that eventually came back to Wal-Mart in states across the country, according to a North Carolina Department of Revenue auditor's report filed in court by Wal-Mart. Based on an average state corporate income tax rate of 6.5%, three accounting experts consulted by The Wall Street Journal estimated the REIT payments led to a state tax savings for Wal-Mart of roughly $350 million over just those four years. SEC filings show the company paid $2.18 billion in state taxes during that period. The loss of federal deductions that bigger state tax payments would have triggered brought the company's effective tax savings overall down to about $230 million. Wal-Mart declined to comment on the figures.