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Economic Analysis in Merger Investigations – Break-out Session 3 – The role of economists in merger teams and qualitative evidence review – United States

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OECD Directorate for Financial and Enterprise Affairs
OECD Directorate for Financial and Enterprise Affairs

This presentation by the United States was prepared for the break-out Session 3, “The role of economists in merger teams and qualitative evidence review”, in the discussion “Economic Analysis in Merger Investigations” at the 19th OECD Global Forum on Competition on 9 December 2020. More papers and presentations on the topic can be found at http://oe.cd/eami. This presentation was uploaded with the author’s consent.

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OECD Global Forum on Competition December 9, 2020 United States v. H&R Block By Ronald Drennan Economist Advisor Antitrust Division, USDOJ The views expressed do not purport to reflect those of the U.S. Department of Justice, and nothing in this document may be cited in any enforcement proceeding against the Department of Justice.
H&R Block & TaxACT (Second Story) Case Timeline • 13 October 2010 -- Parties Agreed to Merge • DOJ opens investigation shortly afterwards • 23 May 2011 -- DOJ files suit to block merger • 7 September 2011 -- Trial Begins • 10 November 2011 -- Court files decision in favor of DOJ • Parties abandon merger -- no appeal
H&R Block & TaxACT What are the Products? • Digital Do-It-Yourself (DDIY)Tax Software • Helps individual tax payers prepare and file income tax returns • Typically with Q&A format • Used once per year (annual returns) • Assists with Federal & State Income Tax Returns • Alternatives • Use a professional accountant (“Assisted Preparation”) • Do it yourself without help of software (“Pencil & Paper”) • How sold? • Directly to consumers (downloaded version) • Through major retailers (on CD or DVD in a cardboard box on retail shelf)
Annual Income Tax filing in United States Personal Information Residence Family Size Disabilities Sources of Income Employment Dividends & Interest Business income Sale of Assets Expenditure on Key Items Education Healthcare Housing Federal Income Tax Return State Income Tax Return ?
Annual Income Tax filing in United States Personal Information Residence Family Size Disabilities Sources of Income Employment Dividends & Interest Business income Sale of Assets Expenditure on Key Items Education Healthcare Housing Federal Income Tax Return State Income Tax Return Pen & Paper
Annual Income Tax filing in United States Personal Information Residence Family Size Disabilities Sources of Income Employment Dividends & Interest Business income Sale of Assets Expenditure on Key Items Education Healthcare Housing Federal Income Tax Return State Income Tax Return Pen & Paper Assisted Preparation
Annual Income Tax filing in United States Personal Information Residence Family Size Disabilities Sources of Income Employment Dividends & Interest Business income Sale of Assets Expenditure on Key Items Education Healthcare Housing Federal Income Tax Return State Income Tax Return Pen & Paper Assisted Preparation DDIY Tax Software
Annual Income Tax filing in United States Personal Information Residence Family Size Disabilities Sources of Income Employment Dividends & Interest Business income Sale of Assets Expenditure on Key Items Education Healthcare Housing Federal Income Tax Return State Income Tax Return Pen & Paper Assisted Preparation DDIY Tax Software
Market Shares: DDIY Tax Preparation 62% 16% 13% 3% 3% 3% Share of Federal Tax Returns Filed Turbo Tax H&R Block TaxACT Tax Hawk Tax Slayer All Other H&R Block TaxACT Turbo Tax HHI Pre-Merger 4,291 Post-Merger 4,691 -------------------------- Increase 400 Source: Memorandum Opinion, U.S. v. H&R Block, filed 10 November, 2011
Primary Issues • Product Market Definition: DDIY (software) • Not Assisted Preparation (accountant) • Not Pen-and Paper (manual) ? • Competitive Effects • Unilateral • Coordinated • Non-merging rival TurboTax is market leader & primary rival • Would post-merger H&R Block compete more aggressively against TurboTax ? • Would TurboTax compete any less aggressively post-merger? • DOJ argued that TaxACT had very different incentives than TurboTax, H&R Block • Merger would substantially alter those incentives • Entry & Expansion
Rivalry Documents from Both Parties • Competition among “big 3” DDIY firms drives • Pricing decisions • Quality improvements • … Even though DDIY marketing efforts target ALL tax filers. • Relevance of separate business units • Migration to and from out-of-market products • Largely driven by life events & changes in tax complexity • Not seen as sensitive to a small change in DDIY price
Reveal Incentives: Free File Alliance • TaxACT had different incentives than H&R Block & TurboTax • “Race to Free” • Opportunity costs of sales at high prices • “Race to Free” • Free File Alliance • H&R Block & TurboTax successfully lobbied for limitations on the scope of the free offers through the FFA. • This action illustrates: • How pricing incentives of TaxACT differ from H&R Block & TurboTax • H&R Block & TurboTax are capable of acting in concert despite rivalry
Qualitative Evidence as a Bridge to Empirics • Inferring head-to-head competition from documents • H&R Block monitored TaxACT • TaxACT ran an advertising experiment • Embarked on radio & TV advertising in “treatment” markets • TaxACT compared its performance to “control” markets • DOJ asks, What happened to H&R Block growth in those markets? • Details about experiment can inform analysis of the event • How did TaxACT choose the treatment markets? • What is known about those markets?
Role of Economists • Establish facts & relationships today • How should the economist frame their analysis? How to model competition? • Economic inferences from ordinary course documents & testimony • Any past events that are informative? • Reactions to events • Any scenarios that provide an insight into tomorrow? • Bridge between qualitative evidence & quantitative analysis
Thank You QUESTIONS ?

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Economic Analysis in Merger Investigations – Break-out Session 3 – The role of economists in merger teams and qualitative evidence review – United States

  • 1. OECD Global Forum on Competition December 9, 2020 United States v. H&R Block By Ronald Drennan Economist Advisor Antitrust Division, USDOJ The views expressed do not purport to reflect those of the U.S. Department of Justice, and nothing in this document may be cited in any enforcement proceeding against the Department of Justice.
  • 2. H&R Block & TaxACT (Second Story) Case Timeline • 13 October 2010 -- Parties Agreed to Merge • DOJ opens investigation shortly afterwards • 23 May 2011 -- DOJ files suit to block merger • 7 September 2011 -- Trial Begins • 10 November 2011 -- Court files decision in favor of DOJ • Parties abandon merger -- no appeal
  • 3. H&R Block & TaxACT What are the Products? • Digital Do-It-Yourself (DDIY)Tax Software • Helps individual tax payers prepare and file income tax returns • Typically with Q&A format • Used once per year (annual returns) • Assists with Federal & State Income Tax Returns • Alternatives • Use a professional accountant (“Assisted Preparation”) • Do it yourself without help of software (“Pencil & Paper”) • How sold? • Directly to consumers (downloaded version) • Through major retailers (on CD or DVD in a cardboard box on retail shelf)
  • 4. Annual Income Tax filing in United States Personal Information Residence Family Size Disabilities Sources of Income Employment Dividends & Interest Business income Sale of Assets Expenditure on Key Items Education Healthcare Housing Federal Income Tax Return State Income Tax Return ?
  • 5. Annual Income Tax filing in United States Personal Information Residence Family Size Disabilities Sources of Income Employment Dividends & Interest Business income Sale of Assets Expenditure on Key Items Education Healthcare Housing Federal Income Tax Return State Income Tax Return Pen & Paper
  • 6. Annual Income Tax filing in United States Personal Information Residence Family Size Disabilities Sources of Income Employment Dividends & Interest Business income Sale of Assets Expenditure on Key Items Education Healthcare Housing Federal Income Tax Return State Income Tax Return Pen & Paper Assisted Preparation
  • 7. Annual Income Tax filing in United States Personal Information Residence Family Size Disabilities Sources of Income Employment Dividends & Interest Business income Sale of Assets Expenditure on Key Items Education Healthcare Housing Federal Income Tax Return State Income Tax Return Pen & Paper Assisted Preparation DDIY Tax Software
  • 8. Annual Income Tax filing in United States Personal Information Residence Family Size Disabilities Sources of Income Employment Dividends & Interest Business income Sale of Assets Expenditure on Key Items Education Healthcare Housing Federal Income Tax Return State Income Tax Return Pen & Paper Assisted Preparation DDIY Tax Software
  • 9. Market Shares: DDIY Tax Preparation 62% 16% 13% 3% 3% 3% Share of Federal Tax Returns Filed Turbo Tax H&R Block TaxACT Tax Hawk Tax Slayer All Other H&R Block TaxACT Turbo Tax HHI Pre-Merger 4,291 Post-Merger 4,691 -------------------------- Increase 400 Source: Memorandum Opinion, U.S. v. H&R Block, filed 10 November, 2011
  • 10. Primary Issues • Product Market Definition: DDIY (software) • Not Assisted Preparation (accountant) • Not Pen-and Paper (manual) ? • Competitive Effects • Unilateral • Coordinated • Non-merging rival TurboTax is market leader & primary rival • Would post-merger H&R Block compete more aggressively against TurboTax ? • Would TurboTax compete any less aggressively post-merger? • DOJ argued that TaxACT had very different incentives than TurboTax, H&R Block • Merger would substantially alter those incentives • Entry & Expansion
  • 11. Rivalry Documents from Both Parties • Competition among “big 3” DDIY firms drives • Pricing decisions • Quality improvements • … Even though DDIY marketing efforts target ALL tax filers. • Relevance of separate business units • Migration to and from out-of-market products • Largely driven by life events & changes in tax complexity • Not seen as sensitive to a small change in DDIY price
  • 12. Reveal Incentives: Free File Alliance • TaxACT had different incentives than H&R Block & TurboTax • “Race to Free” • Opportunity costs of sales at high prices • “Race to Free” • Free File Alliance • H&R Block & TurboTax successfully lobbied for limitations on the scope of the free offers through the FFA. • This action illustrates: • How pricing incentives of TaxACT differ from H&R Block & TurboTax • H&R Block & TurboTax are capable of acting in concert despite rivalry
  • 13. Qualitative Evidence as a Bridge to Empirics • Inferring head-to-head competition from documents • H&R Block monitored TaxACT • TaxACT ran an advertising experiment • Embarked on radio & TV advertising in “treatment” markets • TaxACT compared its performance to “control” markets • DOJ asks, What happened to H&R Block growth in those markets? • Details about experiment can inform analysis of the event • How did TaxACT choose the treatment markets? • What is known about those markets?
  • 14. Role of Economists • Establish facts & relationships today • How should the economist frame their analysis? How to model competition? • Economic inferences from ordinary course documents & testimony • Any past events that are informative? • Reactions to events • Any scenarios that provide an insight into tomorrow? • Bridge between qualitative evidence & quantitative analysis