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Tax Treaty Abuse And The Principal Purpose Test - Part I, David G. Duff Oct 2018

Tax Treaty Abuse And The Principal Purpose Test - Part I, David G. Duff

Faculty Publications

The Multilateral Convention to Implement Tax Treaty Measures to Prevent Base Erosion and Profit Shifting (MLI) has been described as “an historical turning point in the area of international taxation” which introduces a third layer of tax rules for the taxation of cross-border transactions in addition to domestic tax law and bilateral tax treaties. Of the many provisions of the MLI, the most important are the preamble text in Article 6(1) and the so-called principal purpose test (PPT) in Article 7(1), both of which have been adopted by all signatories to the MLI in order to satisfy the ...


Legislative Foundation Of The United States' New International Tax System, Joshua D. Harms Oct 2018

Legislative Foundation Of The United States' New International Tax System, Joshua D. Harms

Seattle University Law Review

This Note begins with commentary on the United States’ former worldwide system of taxation. This system taxed multinational corporations’ offshore profits at the applicable domestic income tax rate less credits for taxes paid to foreign governments. This tax regime provided for the deferral of income tax due on the profits of multinational corporations’ overseas operations until the time of repatriation. This Note considers the issues inherent in this system and analyzes the repatriation tax holiday under the American Jobs Creation Act of 2004. This holiday has been unanimously criticized by both sides of the political aisle and led to large ...


Residence-Based Formulary Apportionment: (In-)Feasibility And Implications, Wei Cui Oct 2018

Residence-Based Formulary Apportionment: (In-)Feasibility And Implications, Wei Cui

Faculty Publications

I examine one way of taxing international corporate income that has not previously been studied, “residence-based formulary apportionment” or RBFA. I first offer a new taxonomy of different ways of taxing corporate income by reference to individual shareholders, and distinguish what I call the “shareholder attribution” approach from integration, pass-through, and other approaches. I then argue that although traditional international legal norms had led international tax design to avoid taxing foreign corporations “unconnected” with the taxing jurisdiction (e.g. foreign corporations earning only foreign income), these legal norms have gone through substantial transformations in recent years. The exercise of jurisdiction ...


The Meaning Of Capital In The Twenty-First Century, Edward J. Mccaffery Sep 2018

The Meaning Of Capital In The Twenty-First Century, Edward J. Mccaffery

Edward J McCaffery

America is on a path towards a level of both wealth and income inequality unparalleled in recorded history. Thomas Piketty’s Capital in the Twenty-First Century summarizes and conveys the work of Piketty and many co-authors, over many decades, looking at the structure of income and wealth inequality across many nations and centuries. This review essay builds on Piketty’s ambitions as well as his data, in order to put forth a better solution: one that accepts and even embraces the facts of unequal ownership of capital, but changes the social meaning of those facts to avoid the social harms ...


Taxing Wealth Seriously, Edward J. Mccaffery Sep 2018

Taxing Wealth Seriously, Edward J. Mccaffery

Edward J McCaffery

The social and political problems of wealth inequality in America are severe and getting worse. A surprise is that the U.S. tax system, as is, is a significant cause of these problems, not a cure for them. The tax-law doctrines that allow those who already have financial wealth to live, luxuriously and tax-free, or to pass on their wealth tax-free to heirs, are simple. The applicable legal doctrines have been in place for nearly a century under the income tax, the primary social tool for addressing matters of economic inequality. The analytic pathways to reform are easy to see ...


Holding U.S. Corporations Accountable: Toward A Convergence Of U.S. International Tax Policy And International Human Rights, Jacqueline Laínez Flanagan Sep 2018

Holding U.S. Corporations Accountable: Toward A Convergence Of U.S. International Tax Policy And International Human Rights, Jacqueline Laínez Flanagan

Pepperdine Law Review

International human rights litigation underscores the inverse relationship between corporate power and corporate accountability, with recent Supreme Court decisions demonstrating increased judicial protections of corporate rights and decreased corporate accountability. This article explores these recent decisions through a tax justice framework and argues that the convergence of international human rights law and U.S. international tax policy affords alternate methods to hold corporations accountable for violations of international law norms. This article specifically proposes higher scrutiny of foreign tax credits and an anti-deferral regime targeting the international activity of U.S. corporations that use subsidiaries to shelter income and decrease ...


The International Provisions Of The Tcja: Six Results After Six Months, Reuven S. Avi-Yonah Aug 2018

The International Provisions Of The Tcja: Six Results After Six Months, Reuven S. Avi-Yonah

Law & Economics Working Papers

Over six months have passed since the enactment of the TCJA, so it is now possible to reach some preliminary conclusions on its impact. The main ones are:

1. The transition tax plus anticipated GILTI tax minus territoriality have resulted in higher GAAP effective tax rates for 2017. In some cases they approach 35% for large multinationals with a lot of offshore income. For the first six months of 2018, however, overall corporate tax revenues are sharply down because of the 21% rate plus expensing. This is the exact reverse of the situation before TCJA in which MNEs showed very ...


The Contemporary Tax Journal Volume 7, No. 2 – Summer 2018 Aug 2018

The Contemporary Tax Journal Volume 7, No. 2 – Summer 2018

The Contemporary Tax Journal

No abstract provided.


Front Matter (Letter From The Editor, Masthead, Etc.) Aug 2018

Front Matter (Letter From The Editor, Masthead, Etc.)

The Contemporary Tax Journal

No abstract provided.


Summaries For The 33rd Annual Tei-Sjsu High Tech Tax Institute, Silin Chen, June Hostetter, Sahdia Saiara, Jessica Wong, Cherry Zheng Aug 2018

Summaries For The 33rd Annual Tei-Sjsu High Tech Tax Institute, Silin Chen, June Hostetter, Sahdia Saiara, Jessica Wong, Cherry Zheng

The Contemporary Tax Journal

No abstract provided.


The Contemporary Tax Journal's Interview With Mr. Eric Ryan, Sara (Yaqin) Sun Aug 2018

The Contemporary Tax Journal's Interview With Mr. Eric Ryan, Sara (Yaqin) Sun

The Contemporary Tax Journal

No abstract provided.


Making Sense Of The European Union's Vat Tax System: Does The European Court Of Justice's Jurisprudence Support Harmonization?, Jarrod Tudor Jul 2018

Making Sense Of The European Union's Vat Tax System: Does The European Court Of Justice's Jurisprudence Support Harmonization?, Jarrod Tudor

The Global Business Law Review

The Sixth Council Directive 77/388/EEC was adopted by the European Union (EU) as a means toward harmonization of the value-added tax (VAT) system. The Framers of Directive 77/388/EEC believed that a disjointed VAT tax system that existed previously was harmful to the common market’s guarantee of free movement of goods and services that are subject to the VAT tax. The jurisprudence of the European Court of Justice (ECJ) on the subject of the Sixth Council Directive 77/388/EEC reflects four dominant patterns, including the limitation of member-states to dictate the parameters of the VAT ...


No, You Really Don't Have To Pay: Protecting Tax Havens, Max Matthew Wallace Ii May 2018

No, You Really Don't Have To Pay: Protecting Tax Havens, Max Matthew Wallace Ii

Georgia Journal of International & Comparative Law

No abstract provided.


A Global Treaty Override? The New Oecd Multilateral Tax Instrument And Its Limits, Reuven S. Avi-Yonah, Haiyan Xu May 2018

A Global Treaty Override? The New Oecd Multilateral Tax Instrument And Its Limits, Reuven S. Avi-Yonah, Haiyan Xu

Michigan Journal of International Law

This article will proceed as follows. Section 2 summarizes the main provisions of the MLI. Section 3 discusses the purpose of tax treaties in the twenty-first century, because it can be argued that they are less necessary under conditions of tax competition. Section 4 raises the question whether tax treaties can be improved short of a full-fledged multilateral tax treaty by inserting a most favored nation (MFN) provision similar to those found in bilateral investment treaties. Such an MFN provision operates over time to create a de facto multilateral treaty without the negotiation of one. Section 5 concludes this article.


Directed Tax Holidays: Economic Stimulus Or Corporate Dream?, Dakota Newton Apr 2018

Directed Tax Holidays: Economic Stimulus Or Corporate Dream?, Dakota Newton

William & Mary Business Law Review

U.S. corporations currently have more than $2.4 trillion stashed in the accounts of their overseas subsidiaries—a sum that costs the domestic economy billions of dollars every year. A directed tax holiday is one potential method of inducing repatriation of those funds and stimulating the domestic economy. Although a previous tax holiday failed to meet expectations, current proposals from the public and private sectors suggest that a directed tax holiday could fund much-needed infrastructure investment. A review and economic analysis of these proposals shows that a directed tax holiday that channels revenue into expanding and updating infrastructure will ...


Tax Havens As Producers Of Corporate Law, William J. Moon Apr 2018

Tax Havens As Producers Of Corporate Law, William J. Moon

Michigan Law Review

A review of Christopher M. Bruner, Re-Imagining Offshore Finance: Market-Dominant Small Jurisdictions in a Globalizing Financial World.


Leak-Driven Law, Shu-Yi Oei, Diane M. Ring Apr 2018

Leak-Driven Law, Shu-Yi Oei, Diane M. Ring

Boston College Law School Faculty Papers

Over the past decade, a number of well-publicized data leaks have revealed the secret offshore holdings of high-net-worth individuals and multinational taxpayers, leading to a sea change in cross-border tax enforcement. Spurred by leaked data, tax authorities have prosecuted offshore tax cheats, attempted to recoup lost revenues, enacted new laws, and signed international agreements that promote “sunshine” and exchange of financial information between countries.

The conventional wisdom is that data leaks enable tax authorities to detect and punish offshore tax evasion more effectively, and that leaks are therefore socially and economically beneficial. This Article argues, however, that the conventional wisdom ...


A New Deal For Europe? The Commerce Clause As The Solution To Tax Discrimination And Double Taxation In The European Union, Charles Edward Andrew Lincoln Iv Mar 2018

A New Deal For Europe? The Commerce Clause As The Solution To Tax Discrimination And Double Taxation In The European Union, Charles Edward Andrew Lincoln Iv

The Journal of Business, Entrepreneurship & the Law

No abstract provided.


U.S. Tax Treatment Of Australian Superannuation, John A. Castro Mar 2018

U.S. Tax Treatment Of Australian Superannuation, John A. Castro

Nevada Law Journal Forum

The Organization for Economic Cooperation and Development (OECD) estimates than more than 100,000 Australian citizens are living and working in the U.S. Those Australian nationals almost certainly have some sort of Superannuation Fund, which is a state-mandated occupational pension scheme in Australia. The problem is that nearly every accounting firm in the U.S. is treating Australian Superannuation as a taxable foreign grantor trust. This presents a serious issue since the funds within Superannuation Funds are completely inaccessible until retirement, disability, or death. For an Australian national living in the U.S., this would result in immediate U ...


Tax Compliance In A Decentralizing Economy, Manoj Viswanathan Feb 2018

Tax Compliance In A Decentralizing Economy, Manoj Viswanathan

Georgia State University Law Review

Tax compliance in the United States has long relied on information from centralized intermediaries—the financial institutions,employers, and brokers that help ensure income is reported and taxes are paid. Yet while the IRS remains tied to these centralized entities,consumers and businesses are not. New technologies, such as sharing economy platforms (companies such as Airbnb, Uber, and Instacart)and the blockchain (the platform on which various cryptocurrencies are based) are providing new, decentralized options for exchanging goods and services.

Without legislative and agency intervention, these technologies pose a critical threat to the reporting system underlying domestic and international tax ...


Transparency And Disclosure, Diane Ring Feb 2018

Transparency And Disclosure, Diane Ring

Diane M. Ring

Without a stable and adequate tax base, countries lose the financial capacity to provide the infrastructure, social services and development opportunities important to their citizens. In response, the G20 and the Organisation for Economic Co-operation and Development (OECD) organized the project on Base Erosion and Profit Shifting (BEPS). Much of the project has been focused on substantive law — the rules and practices that can allow the tax base of a country to be eroded and profits to be shifted out of the country. But the project recognizes that improved substantive tax rules alone are not sufficient to guarantee the tax ...


The Contemporary Tax Journal Volume 7, No. 1 - Winter 2018 Feb 2018

The Contemporary Tax Journal Volume 7, No. 1 - Winter 2018

The Contemporary Tax Journal

No abstract provided.


Latent Semantic Analysis: A Big Data Opportunity For Tax Research, Paul D. Hutchison Ph.D., C. Elizabeth Plummer Ph.D., Cpa, Benjamin George Ph.D. Feb 2018

Latent Semantic Analysis: A Big Data Opportunity For Tax Research, Paul D. Hutchison Ph.D., C. Elizabeth Plummer Ph.D., Cpa, Benjamin George Ph.D.

The Contemporary Tax Journal

No abstract provided.


The Contemporary Tax Journal's Interview With Mr. Jim Fuller, Ophelia Ding Feb 2018

The Contemporary Tax Journal's Interview With Mr. Jim Fuller, Ophelia Ding

The Contemporary Tax Journal

No abstract provided.


Analysis Of H.R.2551 - 115th Congress (2017-2018) - Student Loan Debt Relief Act, Soon-Young Apple, Debanjana Banerjee, Nilesh Lad, Anna Li Feb 2018

Analysis Of H.R.2551 - 115th Congress (2017-2018) - Student Loan Debt Relief Act, Soon-Young Apple, Debanjana Banerjee, Nilesh Lad, Anna Li

The Contemporary Tax Journal

No abstract provided.


Analysis Of H.R.2802 - 115th Congress (2017-2018) First-Time Homebuyer Savings Account Act Of 2017, Shimiao Gong, Xiaotong Stella Li, Ling Wei, Pingrong Xue Feb 2018

Analysis Of H.R.2802 - 115th Congress (2017-2018) First-Time Homebuyer Savings Account Act Of 2017, Shimiao Gong, Xiaotong Stella Li, Ling Wei, Pingrong Xue

The Contemporary Tax Journal

No abstract provided.


Analysis Of S.1352 - 115th Congress (2017-2018) Apprenticeship And Jobs Training Act Of 2017, Veena Hemachandran, Katrina Jodrey, George (Peixuan) Liu, Leigh Ann Moore Feb 2018

Analysis Of S.1352 - 115th Congress (2017-2018) Apprenticeship And Jobs Training Act Of 2017, Veena Hemachandran, Katrina Jodrey, George (Peixuan) Liu, Leigh Ann Moore

The Contemporary Tax Journal

No abstract provided.


Cracking Shells: The Panama Papers & Looking To The European Union's Anti-Money Laundering Directive As A Framework For Implementing A Multilateral Agreement To Combat The Harmful Effects Of Shell Companies, Nicholas Vail Jan 2018

Cracking Shells: The Panama Papers & Looking To The European Union's Anti-Money Laundering Directive As A Framework For Implementing A Multilateral Agreement To Combat The Harmful Effects Of Shell Companies, Nicholas Vail

Texas A&M Law Review

In early 2016, the International Consortium of Investigative Journalists released a report detailing thousands of leaked documents demonstrating how a Panamanian law firm had, for years, helped wealthy clients conceal their financial activities through the use of offshore shell companies. The Panama Papers, as the leaked documents came to be known, directed renewed attention at the use of shell companies. Shell companies are used by the world’s wealthy and powerful to lower their taxes, but are also used by tax evaders, criminal organizations, and terrorists. While much of the renewed attention has been directed at offshore tax havens such ...


The Dragon And The Eagle: Reforming China’S Securities Ipo Laws In The U.S. Model, Pros And Cons, Stuart R. Cohn, Miao Yinzhi Jan 2018

The Dragon And The Eagle: Reforming China’S Securities Ipo Laws In The U.S. Model, Pros And Cons, Stuart R. Cohn, Miao Yinzhi

Washington University Global Studies Law Review

China is about to undergo a major reform of its securities offering and listing processes. Since the inception of China’s securities market in the early 1990s, the government has exercised tight control to determine which companies will be allowed to engage in initial public offerings and become listed on a national exchange. The system has led to both corruption and favoritism and has blocked numerable companies from access to capital markets. With the ascension in 2013 of Xi Jinping and Li Keqiang as the heads of the Chinese Communist Party and Premier, the government adopted reform of the market ...


The Offshore Tax Enforcement Dragnet, Shu-Yi Oei Jan 2018

The Offshore Tax Enforcement Dragnet, Shu-Yi Oei

Boston College Law School Faculty Papers

Taxpayers who hide assets abroad to evade taxes present a serious enforcement challenge for the United States. In response, the United States has developed a family of initiatives that punish and rehabilitate non-compliant taxpayers, raise revenues, and require widespread reporting of offshore financial information by financial institutions and taxpayers. Yet, while these initiatives help catch willful tax cheats, they have also adversely affected immigrants, Americans living abroad, and “accidental Americans.”

This Article critiques the United States’ offshore tax enforcement initiatives, such as the Foreign Account Tax Compliant Act and the Internal Revenue Service’s offshore voluntary disclosure programs. It argues ...