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Full-Text Articles in Law
Constructive Dialogue: Beps And The Tcja, Reuven S. Avi-Yonah
Constructive Dialogue: Beps And The Tcja, Reuven S. Avi-Yonah
Law & Economics Working Papers
US international tax law is commonly conceived as developed in the US and influencing the development of other countries' international tax law. This paper will argue that in the case of the TCJA, the US legislation was heavily influenced by the OECD BEPS project, and that the continuing OECD work in Pillars I and II is likely to have a similar influence on the future development of US international tax law.
Beps, Atap, And The New Tax Dialogue: "A Transatlantic Competition?", Reuven Avi-Yonah, Gianluca Mazzoni
Beps, Atap, And The New Tax Dialogue: "A Transatlantic Competition?", Reuven Avi-Yonah, Gianluca Mazzoni
Articles
Since its launch in 2013, the US actively participated in all aspects of the BEPS project. However, until recently, the general view was that following the conclusion of the BEPS negotiations and the change of Administration the US is stepping back from the BEPS process. While the EU was charging ahead with implementing BEPS through the Anti-Tax Avoidance Directive (ATAD), the US stated that it was already in compliance with all BEPS minimum standards and therefore other than Country-by-Country Reporting (CbCR) it had no further BEPS obligations. The US decided not to sign the Multilateral Instrument (MLI) to implement BEPS …
Back From The Dead: Reviving Transfer Pricing Enforcement, Reuven S. Avi-Yonah
Back From The Dead: Reviving Transfer Pricing Enforcement, Reuven S. Avi-Yonah
Articles
The OECD has recently come to recognize that the transfer pricing system does not work as intended. In its report on base erosion and profit shifting 2013 WTD 140-17: Other Administrative Documents, the OECD recognizes that BEPS results in revenue losses that affect all states, especially poorer ones; that systematic tax avoidance by the richest and most powerful companies in the world undermines the general legitimacy of taxation; that it gives MNEs significant competitive advantages over purely domestic firms, resulting in inefficient allocations of investment and major distortions to economic activity; and that it skews the decisions of the MNEs …
Waiting For Perseus: A Sur-Reply To Professors Graetz And Warren, Ruth Mason, Michael S. Knoll
Waiting For Perseus: A Sur-Reply To Professors Graetz And Warren, Ruth Mason, Michael S. Knoll
All Faculty Scholarship
This manuscript responds to Income Tax Discrimination: Still Stuck in a Labyrinth of Impossibility by Professors Michael Graetz and Alvin Warren (121 Yale L.J. 1118). In that article, Professors Graetz and Warren challenge many of the arguments we made in our own article entitled, “What is Tax Discrimination?” (121 Yale L.J. 1014). In our earlier article, we set out to accomplish two goals. First, we sought to identify the principle behind the doctrine of tax discrimination as that doctrine is applied by the U.S. Supreme Court and the Court of Justice of the European Union (ECJ) and to translate that …
Real-Time Collection Of The Value-Added Tax: Some Business And Legal Implications, Richard Thompson Ainsworth, Boryana Madzharova
Real-Time Collection Of The Value-Added Tax: Some Business And Legal Implications, Richard Thompson Ainsworth, Boryana Madzharova
Faculty Scholarship
Recent estimates of the level of VAT fraud in the EU are commensurate with the EU budget. With the Green paper on the future of VAT, the European Commission stressed the urgency and necessity of comprehensive VAT reforms. This paper analyses the business and legal implications of the recently proposed split-payment mechanism, which, if implemented, would move VAT’s method of collection to real-time. The discussion is positioned in the context of two increasingly visible trends in the EU – the general shift towards greater reliance on indirect taxation and the growing popularity of electronic payment instruments. The potential implementation of …
Rethinking Treaty Shopping: Lessons For The European Union, Reuven S. Avi-Yonah, C. H. Panayi
Rethinking Treaty Shopping: Lessons For The European Union, Reuven S. Avi-Yonah, C. H. Panayi
Book Chapters
Whilst treaty shopping is not a new phenomenon, it remains as controversial as ever. It would seem that the more countries try to deal with it, the wider the disagreements as to what is improper treaty shopping and what is legitimate tax planning. In this paper, we reassess the traditional quasi-definitions of treaty shopping in an attempt to delineate the contours of such practices. We examine the various theoretical arguments advanced to justify the campaign against treaty shopping. We also consider the current trends in treaty shopping and the anti-treaty shopping policies under the OECD Model and the US Model. …
A Coordinated Withholding Tax On Deductibility Payments, Reuven S. Avi-Yonah
A Coordinated Withholding Tax On Deductibility Payments, Reuven S. Avi-Yonah
Articles
Prof. Avi-Yonah proposes a 35 percent withholding tax on deductible payments made to a non-U.S. resident, in coordination with other OECD members. The tax is aimed at U.S. residents posing as foreign investors and would be refundable when the beneficial owner shows that the payments have been reported to tax authorities in the owner’s country of residence.
Commentary: More Open Issues Regarding The Consolidated Corporate Tax Base In The European Union, Reuven S. Avi-Yonah, Kimberly A. Clausing
Commentary: More Open Issues Regarding The Consolidated Corporate Tax Base In The European Union, Reuven S. Avi-Yonah, Kimberly A. Clausing
Articles
It is an honor to comment on the article by Jack Mintz and Joann Weiner.' Both of the authors have a deeply knowledgeable background in this area. The paper that Jack Mintz published (with Michael Smart) in 2004 on provincial taxation in Canada is one of the most careful and interesting papers in all of international taxation.2 And Joann Weiner has clearly been studying formulary apportionment for a very long time, from both U.S. and European perspectives.
Federalism And The Commerce Clause: A Comparative Perspective, Reuven S. Avi-Yonah
Federalism And The Commerce Clause: A Comparative Perspective, Reuven S. Avi-Yonah
Articles
The U.S. Supreme Court has on numerous occasions addressed the constitutionality of state taxes under the U.S. Constitution (most often under the Commerce Clause, but sometimes under the Equal Protection and Due Process Clauses). In general, the Supreme Court has granted wide leeway to the states to adopt any tax system they wish, only striking down the most egregious cases of discrimination against out-of-state residents. Thus, for example, the Court has generally refused to intervene against state tax competition to attract business into the state. It has twice upheld a method of calculating how much income of a multinational enterprise …
Comparative Fiscal Federalism: What Can The U.S. Supreme Court And The European Court Of Justice Learn From Each Other's Tax Jurisprudence?, Reuven S. Avi-Yonah
Comparative Fiscal Federalism: What Can The U.S. Supreme Court And The European Court Of Justice Learn From Each Other's Tax Jurisprudence?, Reuven S. Avi-Yonah
Articles
Last October, a group of distinguished tax experts from the European Union and the United States convened at the University of Michigan Law School for a conference on "Comparative Fiscal Federalism: Comparing the U.S. Supreme Court and European Court of Justice Tax Jurisprudence." The conference was sponsored by the Law School, the European Union Center, and Harvard Law School's Fund for Tax and Fiscal Research. Attendees from Europe included Michel Aujean, the principal tax official at the EU Commission, Servaas van Thie1, chief tax advisor to the EU Council, Michael Lang (Vienna) and Kees van Raad (Leiden), who run the …
International Income Allocation In The Twenty-First Century: The Case For Formulary Apportionment, Walter Hellerstein
International Income Allocation In The Twenty-First Century: The Case For Formulary Apportionment, Walter Hellerstein
Scholarly Works
From an international perspective, formulary apportionment has traditionally been viewed as little more than transfer pricing’s “poor relation” as a division-of-income methodology. It receives only grudging recognition as a method of attributing the profits to a permanent establishment under Article 7 of the OECD Model Tax Convention; it receives no mention at all in Article 9 as a method for distributing the profits of associated enterprises among the contracting states in which they conduct their activities; and it was assailed by the international business community and by the EU Member States as out of step with internationally excepted norms in …