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Articles 1 - 14 of 14
Full-Text Articles in Law
Mandatory Third Party Compliance Examinations For Investment Advisers: An Sec Waterloo?, Mercer Bullard
Mandatory Third Party Compliance Examinations For Investment Advisers: An Sec Waterloo?, Mercer Bullard
Brooklyn Journal of Corporate, Financial & Commercial Law
The Securities and Exchange Commission (SEC or Commission) appears to be on the verge of requiring investment advisers to undergo third party examinations. One justification for the rulemaking is that the Commission lacks sufficient resources to examine advisers frequently enough. Another is to create indirectly a self-regulatory organization (SRO) for investments advisers. Both may leave a rulemaking particularly vulnerable to challenge as arbitrary and capricious under the Administrative Procedures Act. This Article considers three novel grounds on which a rulemaking may be successfully challenged. Congress has repeatedly rejected SEC requests to provide additional funding for examinations or to create an …
Interpreting Tax Treaties, Rebecca M. Kysar
Tax Treaties And The Taxation Of Services In The Absence Of Physical Presence, Michael S. Kirsch
Tax Treaties And The Taxation Of Services In The Absence Of Physical Presence, Michael S. Kirsch
Brooklyn Journal of International Law
The increasing ability to deliver personal services electronically raises significant cross-border tax issues. In particular, given that the service provider need not be physically present in the would-be source country, significant questions arise as to the continued viability of tax treaty rules that focus on the service provider’s physical location. In response to these developments, proposed changes to the United Nations Model tax treaty have been approved that would allow source country taxation of technical services, even in the absence of the service provider’s physical presence. This article raises concerns about the broad scope of the proposed changes and recommends …
Location Savings And Segmented Factor Input Markets: In Search Of A Tax Treaty Solution, Mitchell A. Kane
Location Savings And Segmented Factor Input Markets: In Search Of A Tax Treaty Solution, Mitchell A. Kane
Brooklyn Journal of International Law
This article analyzes the proper bounds of source-based taxation of profits generated when firms outsource factor inputs, such as labor, to achieve cost savings. The article advances arguments grounded in efficiency, treaty text, and international distribution to justify greater source-based taxation than has historically been the case. To implement such expanded taxation, the article proposes a modification to transfer-pricing rules in instances where factor inputs are acquired from affiliates and a modification to the tax treaty rules regarding permanent establishments where factor inputs are acquired from unrelated parties. Finally, the article deals with a range of complications, particularly relating to …
Putting The Commerce Back In The Dormant Commerce Clause: State Taxes, State Subsidies, And Commerce Neutrality, Ryan Lirette, Alan D. Viard
Putting The Commerce Back In The Dormant Commerce Clause: State Taxes, State Subsidies, And Commerce Neutrality, Ryan Lirette, Alan D. Viard
Journal of Law and Policy
The unpredictability of the Supreme Court’s dormant Commerce Clause (“DCC”) jurisprudence continues to draw trenchant criticism from commentators and the Justices themselves, as the Court remains unable to explain which state taxes and subsidies impede interstate commerce. We show that these problems can be resolved by a Commerce Neutrality framework requiring that state taxes and subsidies provide a combined treatment of inbound and outbound transactions at least as favorable as their treatment of intrastate transactions. This simple test has an economic foundation because taxes and subsidies that violate it create incentives to engage in intrastate rather than interstate transactions. The …
The Phase-Out And Sunset Of Travel Restrictions In The International Health Regulations, Sarah R. Goldfarb
The Phase-Out And Sunset Of Travel Restrictions In The International Health Regulations, Sarah R. Goldfarb
Brooklyn Journal of International Law
Whether and to what extent travel restriction should be implemented during international infectious disease epidemics became a controversial issue, most recently, during the 2014 Ebola outbreak. The primary authority on the manner in which to respond to such epidemics is the International Health Regulations (IHR). The IHR is a treaty, established by the World Health Organization (WHO), which governs and coordinates international responses to international infectious disease epidemics. Despite the WHO's strong advisement to the contrary, many countries who were signatories to the IHR implemented travel bans and other types of travel restrictions to prevent the transmission of the disease …
Treaties In The Aftermath Of Beps, Yariv Brauner
Treaties In The Aftermath Of Beps, Yariv Brauner
Brooklyn Journal of International Law
The article argues that, despite the fanfare around it, the outcome of the BEPS project is unlikely to be dramatic, at least in the short term. Beyond a period of increased legal uncertainty and aggressive enforcement by some countries, it expects little substantive change in tax treaties. The challenges to the dominance of the OECD and the richest countries would likely be assuaged with marginal concessions, most or all of which not be affecting tax treaties. Yet, the article sees a silver lining in the non-substantive, structural, and instrumental outcomes of the BEPS project. It argues that even if unintended, …
Kill-Switches In The U.S. Model Tax Treaty, Allison Christians, Alexander Ezenagu
Kill-Switches In The U.S. Model Tax Treaty, Allison Christians, Alexander Ezenagu
Brooklyn Journal of International Law
The new U.S. Model income tax treaty contains an unusual addition: mechanisms for the parties to unilaterally override the negotiated treaty rates in specified circumstances. Previewed last year in proposed form—a first for the Treasury—these new mechanisms work as kill-switches, partially terminating the treaty as to one or both treaty partners. The idea is to forestall a more problematic outcome, such as an enduring breach of one of the parties’ expectations, or the opposite, a complete termination of all the treaty terms in the face of such a breach. Yet embedding a kill-switch in a treaty creates distinct legal, procedural, …
Tax Treaties As A Network Product, Tsilly Dagan
Tax Treaties As A Network Product, Tsilly Dagan
Brooklyn Journal of International Law
The copiousness of tax treaties is often presented as proof, not only of their success but also of their desirability. In focusing on alleviating double taxation by allocating tax revenues, however, the treaties project is a missed opportunity. This article explains that an international tax standard is a network product and uses network theory to explore the potential advantages and drawbacks of the tax treaty network in entrenching such a standard. Networks facilitate stability and self-enforcement. By joining (and remaining in) a network, users benefit from the compatibility with other users; this, in turn, incentivizes new users to join and …
Unilateral Responses To Tax Treaty Abuse: A Functional Approach, Omri Marian
Unilateral Responses To Tax Treaty Abuse: A Functional Approach, Omri Marian
Brooklyn Journal of International Law
In recent years, there has been a dramatic increase in the attention given to abusive tax schemes that take advantage of bilateral tax treaties. The ensuing discourse tends to view potential responses to treaty abuses as a hierarchical set of options, gradually escalating, in which treaty termination is a last resort option. This article argues that the hierarchical view of unilateral responses to treaty abuse is misguided. Unilateral responses to treaty-based abuse are not hierarchically ordered. Rather, the approach to treaty abuse is (and should be) functional, adopting specific types of unilateral responses based on the type of treaty abuse …
When International Tax Agreements Fail At Home: A U.S. Example, Diane Ring
When International Tax Agreements Fail At Home: A U.S. Example, Diane Ring
Brooklyn Journal of International Law
Over the past two and a half years, the international tax community has focused on the Base Erosion and Profit Shifting Project (BEPS project) undertaken by the Organisation for Economic Co-operation and Development (OECD) at the behest of the G20. According to the OECD, the resulting 2015 agreement involved the direct participation of more than sixty countries. An additional fifty-nine countries indirectly participated through regional dialogues. Furthermore, numerous international organizations are credited with participating in discussions and contributing to the resulting product. But, effective implementation of the BEPS agreement requires domestic action of various types—the domestic side of international agreement …
“Thinking Outside The (Tax) Treaty” Revisited, Adam H. Rosenzweig
“Thinking Outside The (Tax) Treaty” Revisited, Adam H. Rosenzweig
Brooklyn Journal of International Law
The rise and development of “Base Erosion and Profit Shifting” project by the Organization for Economic Cooperation and Development (BEPS) provides an ideal opportunity to revisit the fundamental principles underlying the international tax regime and the bilateral tax treaty regime in particular. This is true because BEPS represents both an attempt to create a new, truly multinational consensus on international tax matters and a clear move away from the bilateral tax treaty as the primary form of international coordination. From this perspective, BEPS provides the perfect opportunity to revisit the role of a proposed dispute resolution mechanism for nontreaty member …
How Reform-Friendly Are U.S. Tax Treaties?, Fadi Shaheen
How Reform-Friendly Are U.S. Tax Treaties?, Fadi Shaheen
Brooklyn Journal of International Law
This article addresses the treaty compatibility aspect of proposals for reforming the U.S. international tax system. Finding that a reform proposal is treaty compatible obviates the need for renegotiating or overriding existing U.S. treaties to implement the proposal if enacted. After establishing that a U.S. move to an exemption system would be treaty compatible despite the literal reading of Article 23 of the U.S. Model income tax treaty as requiring a credit system, the article argues that any system that is or can be expressed as an outright fixed or floating combination of exemption and credit is treaty compatible regardless …
The Two Faces Of The Single Tax Principle, Daniel Shaviro
The Two Faces Of The Single Tax Principle, Daniel Shaviro
Brooklyn Journal of International Law
Some argue that a “single tax principle,” said to underlie tax treaties, requires that cross-border income should generally be taxed once, rather than twice or not at all. Even if one accepts this principle, it is important to recognize the difference between “upside” departures, which occur when the same dollar of income is taxed more than once, and “downside” departures, which occur when it is not taxed at all. This article argues that a focus on barring upside departures from the single tax principle can be quite misguided. While over-taxing cross-border activity, relative to that occurring in one country, may …