Taxation-Transnational Commons^™

Regulating Offshore Finance, William J. Moon

Faculty Scholarship

From the Panama Papers to the Paradise Papers, massive document leaks in recent years have exposed trillions of dollars hidden in small offshore jurisdictions. Attracting foreign capital with low tax rates and environments of secrecy, a growing number of offshore jurisdictions have emerged as major financial havens hosting thousands of hedge funds, trusts, banks, and insurance companies.

While the prevailing account has examined offshore financial havens as “tax havens” that facilitate the evasion or avoidance of domestic tax, this Article uncovers how offshore jurisdictions enable corporations to evade domestic regulatory law. Specifically, recent U.S. Supreme Court cases restricting the geographic …

Understanding International Tax Avoidance And Tax Evasion Post-Tcja, 53 Uic J. Marshall L. Rev. 975 (2019), Jennifer Waclawik

UIC Law Review

No abstract provided.

Commission V. Belgium: Belgium's Tax Law Prevents Free Movement Of Capital, John Gramlich

The International Lawyer

No abstract provided.

Guidance Is Definitive, Reality Is Frequently Inaccurate: The Lingering Saga Of Rev. Rul. 91-32, Robert L. Daily

Georgia Law Review

Partnership and international taxation are two of the
most mind-numbing and inconsistent areas of the law.
Even more confusion occurs when the two intersect, such
as when a nonresident sells an interest in a U.S.
partnership. Many have wasted precious time and
abundant ink to come up with a solution. The IRS first
tried in Rev. Rul. 91-32, concluding that a nonresident
would be subject to tax if the partnership had assets
producing income generated from property in United
States. Although the guidance was appropriately
criticized for being statutorily inconsistent, this Note
argues that it nonetheless got to the right …

The Futility Of Walls: How Traveling Corporations Threaten State Sovereignty, Darren Rosenblum

Elisabeth Haub School of Law Faculty Publications

Inversions--mergers in which one firm merges with another abroad to avoid taxes in its home country--have spread as globalization has reduced many of the transactional costs associated with relocating. As firms acquire the power to choose the laws that govern them, they challenge the sovereignty of nation-states, who find their ability to tax and regulate firms depleted. States and firms compete in a game of cat and mouse to adapt to this new global reality. The subversion of state power by these firms reveals the futility of walls, both literal and regulatory. This Essay describes the phenomenon of these “traveling …

Can Gilti + Beat = Globe?, Mindy Herzfeld

UF Law Faculty Publications

The OECD is moving forward with consideration of a minimum tax as part of its solution to taxation of the digital economy. Part of a template for such a minimum tax may be the version enacted by the United States (US) in 2017 as an expansion of its Controlled Foreign Corporation (CFC) regime, known as Global Intangible Low Taxed Income (GILTI). But the OECD version will undoubtedly be different from the US iteration. It’s likely that it would also include some aspects of a minimum tax being proposed by other OECD members such as Germany and France, namely a tax …

Book Review: International Tax Policy: Between Competition And Cooperation, Yariv Brauner

UF Law Faculty Publications

The author reviews International Tax Policy: Between Competition and Cooperation. By Tsilly Dagan. Cambridge Tax Law Series, 2018.

International Tax Simplification In South Africa Through Managing Substantive Complexity And Improving Drafting Efficiency, Jinyan Li, Teresa Pidduck

Articles & Book Chapters

This chapter discusses the complexity of the South African international tax legislation in terms of both its substantive complexity and drafting complexity. Substantive complexity is established by examining the current legislation governing tax jurisdiction, the taxation of resident taxpayers and non-resident taxpayers as well as international tax incentive measures and anti-avoidance rules. Drafting complexity is established by comparing the South African Income Tax Act to the Canadian Income Tax Act in respect of the drafting of individual provisions and arrangement of provisions. The chapter recommends ways to simplify the South African international tax legislation by: (a) accepting substantive complexity that …

Superficial Proxies For Simplicity In Tax Law, Emily Cauble

University of Richmond Law Review

Simplification of tax law is complicated. Yet, political rhetoric surrounding tax simplification often focuses on simplistic, superficial indicators of complexity in tax law such as word counts, page counts, number of regulations, and similar quantitative metrics. This preoccupation with the volume of enacted law often results in law that is more complex in a real sense. Achieving real simplification—a reduction in costs faced by taxpayers at various stages in the tax planning, tax compliance, and tax enforcement process—often requires enacting more law, not less. In addition, conceptualizing simplicity in simplistic terms can leave the public vulnerable to policies advanced under …

Digital Taxation Lessons From Wayfair And The U.S. States’ Responses, Walter Hellerstein, Jeffrey Owens, Christina Dimitropoulou

Scholarly Works

This article provides a detailed and structured synthesis of the discussion that took place in the context of the "fireside chat" event held by the WU Global Tax Policy Center at the Institute of Austrian and International Tax Law on December 17, 2018, at which Hellerstein was the guest speaker. The event was one of the initiatives of the Digital Economy Tax Network, a multi-stakeholder forum, which organized a workshop on the VAT/goods and services tax and the digital economy December 17-18, 2018, in Vienna. In this article, the authors examine the lessons that the U.S. Supreme Court's Wayfair decision …

Symposium: The Future Of The New International Tax Regime, Rosanne Altshuler, Fadi Shaheen, Jeffrey Colon, Michael Graetz, Rebecca Kysar, Susan Morse, Daniel Shaviro, Richard Phillips, Daniel Rolfes, Daniel Rosenbloom, Stephen Shay, Steven Dean

Faculty Scholarship

The symposium was held at Fordham University School of Law on October 26, 2018. It has been edited to remove minor cadences of speech that appear awkward in writing and to provide sources and references to other explanatory materials in respect to certain statements made by the speakers.

The Digital Services Tax On The Verge Of Implementation, Wei Cui

All Faculty Publications

France enacted the digital services tax (DST) in 2019, and similar legislation is pending in the United Kingdom, Spain, Italy, and other countries. The DST can be viewed as a tax on location-specific rent (LSR), and it arguably solves genuinely new problems in international taxation. The author briefly reviews this justification of the DST and further examines the DST design in light of three criticisms. The first criticism is that certain features of the DST render it similar to distortionary import tariffs. The second is that the DST would not be borne by digital platforms but would only be shifted …

Reflections On The Cross-Border Tax Challenges Of The Digital Economy, Walter Hellerstein

Scholarly Works

In this article, Hellerstein discusses common problems confronting national and subnational jurisdictions in addressing the cross-border tax challenges of the digital economy. This article is based on the author's November 21 inaugural lecture as a visiting professor at the Vienna University of Economics and Business.

The Oecd Unified Approach: Nexus, Scope, And Coexisting With Dsts, Assaf Harpaz

Scholarly Works

This article comments on the OECD Secretariat Proposal for a “Unified Approach” under Pillar One, released October 9, 2019. The article focuses on the proposal’s scope, nexus, administration and compliance, proposed “Amount C” and compatibility with unilateral digital service taxes. The article suggests a nexus that does not consider size-limiting worldwide revenue thresholds and offers an alternative de minimis country-specific sale-based proposal. Comments on the OECD proposal were submitted by the author as part of the OECD’s public consultation process in November 2019.

When Data Comes Home: Next Steps In International Taxation’S Information Revolution, Shu-Yi Oei, Diane M. Ring

Faculty Scholarship

Over the last decade, there has been a revolution in cross-border tax information exchange and reporting. While this dramatic shift was the product of multiple forces and events, a fundamental reality is that politics, technology, and law intersected to drive the shift to the point where nation-states will now transmit and receive from each other significant ongoing flows of taxpayer information. States can now expect to accumulate large stashes of data on cross-border income, assets, and activities on a scale and level of comprehensiveness unmatched by previous information exchange regimes.

This article examines the pressing follow-up question of how this …

International Taxation In An Era Of Digital Disruption: Analyzing The Current Debate, Itai Grinberg

Georgetown Law Faculty Publications and Other Works

The “taxation of the digital economy” is currently at the top of the global international tax policymaking agenda. A core claim some European governments are advancing is that user data or user participation in the digital economy justifies a gross tax on digital receipts, new profit attribution criteria, or a special formulary apportionment factor in a future formulary regime targeted specifically at the “digital economy.” Just a couple years ago the OECD undertook an evaluation of whether the digital economy can (or should) be “ring-fenced” as part of the BEPS project, and concluded that it neither can be nor should …

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

All 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 OECD’s minimum …

Tax Treaty Abuse And The Principal Purpose Test: Part Ii, David G. Duff

All Faculty Publications

The Multilateral Convention to Implement Tax Treaty Measures to Prevent Base Erosion and Profit Shifting or Multilateral Instrument (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 …

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

All 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 over …

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 …

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

The Contemporary Tax Journal

No abstract provided.

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

The Contemporary Tax Journal

No abstract provided.

Tax Expenditure And The Treatment Of Tax Incentives For Investment, Agustin Redonda, Santiago Diaz De Sarralde, Mark Hallerberg, Lise Johnson, Ariel Melamud, Ricardo Rozemberg, Jakob Schwab, Christian Von Haldenwang

Columbia Center on Sustainable Investment Staff Publications

Governments use tax expenditures to boost investment, innovation and employment. However, these schemes are largely opaque, costly and often ineffective in reaching their stated goals. They also frequently trigger unwanted side effects. In order to improve the performance of these tools, the authors present three concrete policy proposals: First, governments should increase transparency on tax benefits. G20 members should take the lead on this with frequent and comprehensive tax expenditure reports. Second, G20 governments should improve the design of tax incentives with the aim of minimizing the generation of windfall profits and negative spillover effects within and across (in particular, …

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

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 tax, that additional administrative measures cannot be …

Designing A Robust Tax System For Nigeria: Lessons From An International Perspective, Olukemi Tawoju

LLM Theses

This thesis argues that Nigeria can adapt its tax system for better gain from investment and other taxation. It outlines the foundation for a good tax policy, and explores initiatives by the Organisation for Economic Co-operation and Development (OECD and the United Nations (UN) regarding harmful tax practices and tax incentives. Their recommendations and those of scholars, conclude that tax incentives are ineffective in attracting foreign direct investment, may result in taxpayer abuse, and erode the revenue base of capital importing countries like Nigeria. Utilizing internationally accepted features on effective tax incentive design, examining the operation of the Nigerian tax …

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 greatly benefit the …

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.

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.S. taxation on all gains …