Taxation-Transnational Commons^™

Taxpayers’ Lack Of Standing In International Tax Dispute Resolutions: An Analysis Based On The Hybrid Norms Of International Taxation, Limor Riza

Pace Law Review

This paper examines whether a taxpayer should have “standing” in international dispute resolutions. To answer this question the primary task is to identify the nature of international taxation. In other words, this paper discusses how to classify the field of international taxation. Is it part of public international law, private international law (i.e., conflict of laws), national (domestic) law, or is it a hybrid field that requires specific attention? Making this distinction is vital for resolving disputes when a taxpayer is taxed twice for cross-border transactions in cases where the double tax convention is unclear and both contracting states claim …

The North American Free Trade Agreement (Nafta): Good For Jobs, For The Environment, And For America, Thomas J. Schoenbaum

Georgia Journal of International & Comparative Law

No abstract provided.

The Stored Communications Act And Digital Assets, David Horton

Vanderbilt Law Review

This Article explores the impact of federal law on a state fiduciary's management of digital assets. It focuses on the lessons from the Stored Communications Act ("SCA'), initially enacted in 1986 as one part of the Electronic Communications Privacy Act. Although Congress designed the SCA to respond to concerns that Internet privacy posed new dilemmas with respect to application of the Fourth Amendment's privacy protections, the drafters did not explicitly consider how the SCA might affect property management and distribution. The resulting uncertainty affects anyone with an email account. While existing trusts and estates laws could legitimately be interpreted to …

Modernizing The Revenue Rule: The Enforcement Of Foreign Tax Judgments, Barbara A. Silver

Georgia Journal of International & Comparative Law

No abstract provided.

Gatt/Wto Rules For Border Tax Adjustment And The Proposed European Directive Introducing A Tax On Carbon Dioxide Emissions And Energy, Christian Pitschas

Georgia Journal of International & Comparative Law

No abstract provided.

Organizations, Reorganizations, Amalgamations, Divisions And Dissolutions: Cross-Border Assets, Double Taxation And Potential Relief Under The U.S.-Canada Tax Treaty, Catherine A. Brown, Christine Manolakas

Georgia Journal of International & Comparative Law

No abstract provided.

Reflections On The 'New Wave' Inversions And Notice 2014-52, Reuven S. Avi-Yonah

Articles

On September 22 the Treasury Department issued Notice 2014-52, 2014-42 IRB 1. The notice was intended to fulfill President Obama’s pledge to use executive actions to the extent possible to block the new wave of corporate inversions. To what extent can the notice succeed? This article argues that while the notice is a useful first step, it is unlikely to stem the tide of inversion transactions. To do that, legislative action is needed in the short term. In the longer term, the only solution to inversions is coordination with other OECD countries in the context of the base erosion and …

Foul Play: Tennessee's Unequal Application Of Its Jock Tax Against Professional Athletes, Kirk Berger

Cardozo Public Law, Policy & Ethics Journal

The Framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus escape political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be …

Charitable Giving, Tax Expenditures, And Direct Spending In The United States And The European Union, Lilian Faulhaber

Faculty Scholarship

This Article compares the ways in which the United States and the European Union limit the ability of state-level entities to subsidize their own residents, whether through direct subsidies or through tax expenditures. It uses four recent charitable giving cases decided by the European Court of Justice (ECJ) to illustrate the ECJ’s evolving tax expenditure jurisprudence and argues that, while this jurisprudence may suggest a new and promising model for fiscal federalism, it may also have negative social policy implications. It also points out that the court analyzes direct spending and tax expenditures under different rubrics despite their economic equivalence …

Formulary Appointment In The U.S. International Income Tax System: Putting Lipstick On A Pig?, J. Clifton Fleming Jr., Robert J. Peroni, Stephen E. Shay

Michigan Journal of International Law

An affiliated corporate group consists of two or more corporations linked by sufficient stock ownership to cause them to function as an economic unit instead of as independent economic actors. Thus, an affiliated corporate group engaged in international business is often referred to as a multinational enterprise (MNE), a term that we will use throughout this Article. When corporate members of an MNE engage in transactions among themselves, the prices they employ (transfer prices) will significantly affect the amount of overall MNE income that is allocated to each member and, hence, to the tax bases of the various countries in …

Changing Tides: Tax Haven Reform And The Changing Views Of Transnational Capital Flow Regulation And The Role Of States In A Globalized World, Jeffrey Kraft

Indiana Journal of Global Legal Studies

The transnational free flow of capital represents one of the core factors driving the globalization of the world since the beginning of the Bretton-Woods era. Under the "traditional" Neoliberal theory of globalization, this free flow of capital remains sacrosanct, an unstoppable force with which state actors cannot and should not interfere. However, the recent financial crisis has caused some to question this absolute faith in the benefits of unregulated transnational capital flows and to assert that the state still has a role to play in influencing the creation of international norms on capital. Tax haven regulation represents one area that …

Is Cricket Taxing? The Taxation Of Cricket Players In India, Rishi Shroff

Pace Intellectual Property, Sports & Entertainment Law Forum

This Essay examines the taxation of crickets in the context of Indian law. It examines the concept of non-resident “star” companies created by Indian cricketers as a mechanism to avoid the taxation of their global income in India.

Personal Service Versus Royalty Income For Athletes, Chanpheareak (Luis) Chim

The Contemporary Tax Journal

No abstract provided.

Tax Incentives To Move Jobs Back To The U.S., Gamaliel Salazar

The Contemporary Tax Journal

No abstract provided.

The Contemporary Tax Journal Volume 3, No. 2 – Spring 2014

The Contemporary Tax Journal

No abstract provided.

The Contemporary Tax Journal’S Interview Of Pam Olson, Stuti Seth

The Contemporary Tax Journal

No abstract provided.

The Devil In The Details: Reflections On The Camp Draft, Reuven S. Avi-Yonah

Articles

The discussion draft of the Tax Reform Act of 2014 (TRA 14) released by House Ways and Means Committee Chair Dave Camp, R-Mich., on February 26 represents a major effort for fundamental and far-reaching reform of U.S. tax law. Unfortunately, while many parts of the proposal seem sensible as an effort to bring back the spirit of 1986, the international tax reform proposals are deeply flawed and based on obsolete assumptions of the world that faces U.S. multinationals in 2014.

Maritime Emissions Taxation: An Alternative To The Eu Emissions Trading Scheme?, Jon M. Truby

Pace Environmental Law Review

Focusing on the EU’s alternative proposal of an emissions tax, this article analyzes the possibility for the imposition by an EU Member State of a targeted environmental tax to reduce maritime emissions. It considers how such a tax can be imposed in a manner that will not be detrimental to commercial interests and can instigate the desired impact. Importantly, it focuses upon providing a greater incentive for the maritime industry to invest in the most efficient shipping fleet to reduce emissions. It concludes by comparing whether such a perceived maritime emissions tax could be more advantageous than including maritime emissions …

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 …

Transfer Pricing: Un Practical Manual – China, Richard Thompson Ainsworth, Andrew Shact

Faculty Scholarship

Any contemporary Chinese transfer pricing assessment needs to consider the United Nation (UN) Practical Manual on Transfer Pricing for Developing Countries released in May 2013. In particular, Chapter 10 discusses Country Practices and presents China’s most up to date transfer pricing policy statement.

China is not an Organization for Economic Cooperation and Development (OECD) member nor has it formally adopted the OECD’s Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations. Chapter 10 makes it very clear that China is charting a different transfer pricing course in at least nine important areas. China believes that: 1. significant comparability adjustments are …

Racking Up The Money: A Solution To The Ongoing Battle Between Rico And The Revenue Rule, Kye C. Handy

Global Business Law Review

The Revenue Rule, a common law rule from British court systems, prevents foreign countries from bringing claims in the United States to enforce or adjudicate tax claims that did not happen in the United States. The United States Supreme Court in Pasquantino v. United States held that Canada’s right to collect imported liquor taxes was not barred by the Revenue Rule. However, the Second Circuit in European Community v. RJR Nabisco Inc., ruled the European Union and Colombia could not recover lost tax money or enforcement costs from cigarette smuggling under RICO because of the Revenue Rule. The European Community …

What Makes A Dutch Company Dutch? The Evolution Of Us Limitation-On-Benefits Provisions, Patricia A. Brown

Articles

No abstract provided.

Peer Pressure: Why America Should Succumb To The Territorial Tax Temptation, Paul Petrick

Global Business Law Review

This Note argues that the United States should adopt a territorial tax system. Currently, the United States is one of a small group of nations that employs a worldwide system of taxation. Under a worldwide system, income is taxed both in the country where it is earned and in the country where the taxpayer resides. Alternatively, under a territorial system, income is taxed only in the country where it is earned. By adopting a territorial system, the United States would jettison the duplicative taxation inherent in the worldwide system. Additionally, the presence of anti-inversion rules, controlled foreign corporation rules, and …

Igas Vs. Maatm: Has Tax Bilateralism Outlived Its Usefulness?, Reuven S. Avi-Yonah, Gil Savir

Law & Economics Working Papers

The main concern about the IGAs is that they enshrine the bilateral model of tax information exchange that has dominated the 20th century. Unfortunately, there are good reasons to believe this bilateral model does not work, especially when IGAs are signed with countries like the Cayman Islands who have no interest in reciprocity and every interest in making them not work.

Instead, there is an alternative. In response to the financial crisis and the outrage it caused in Europe about tax evasion by the wealthy, the OECD has proposed a Multilateral Agreement for Administrative Assistance in Tax Matters (MAATM), which …

What The Beps, Yariv Brauner

UF Law Faculty Publications

Unprecedented attention to aggressive international tax planning has shaken the earth under the most powerful players in the world of international tax policy design. The media exposure of what Bloomberg's calls “The Great Corporate Tax Dodge,” combined with the ever-growing discontent of civil society with the magnitude of contribution of the largest multinational enterprises to the society within which they operate, has recently forced the politicians to take action. Leaders of the strongest world economies demanded a revision of the rules of the international tax regime that would generate more revenues for their challenged coffers and would restore public trust …

The U.S. As Tax Haven? Aiding Developing Countries By Revoking The Revenue Rule, Samuel D. Brunson

Faculty Publications & Other Works

Over the years, many OECD countries, including the United States, have identified tax havens as a significant problem, and have acted to limit the ability of their taxpayers to use tax havens to reduce their taxes. The United States has implemented tax regimes, including subpart F and the passive foreign investment company rules, and disclosure regimes, such as the recently-enacted FATCA rules, to prevent U.S. taxpayers from taking advantage of tax haven jurisdictions.

But the intersection of a number of U.S. tax rules, it turns out, makes the United States an attractive place for foreigners to invest—and hide …

A Model Treaty For The Age Of Beps, Reuven S. Avi-Yonah, Oz Halabi

Law & Economics Working Papers

The OECD’s Base Erosion and Profit Shifting (BEPS) project promises to bring about the most fundamental changes in the international tax regime since its inception in the 1920s. The fundamental idea behind the various BEPS projects is that the OECD has fully embraced the idea that double non-taxation can have as deleterious consequences as double taxation and that therefore the various aspects of the current rules that enable multinational enterprises (MNEs) to achieve double non-taxation should be reconsidered.

The BEPS Action Plan, adopted by the OECD in July 2013, sets an ambitious time table for the various items, which are …

Revisiting The Tax Treatment Of Citizens Abroad: Reconciling Principle And Practice, Michael S. Kirsch

Journal Articles

In an increasingly mobile world, the taxation of citizens living abroad has taken on increased importance. Recent international administrative developments — most notably, the weakening of foreign bank secrecy and expansion of global information sharing norms — have further raised the profile of this issue. While U.S. law traditionally has taxed U.S. citizens living abroad in the same general manner as citizens living in the United States, a number of scholars have proposed abandoning the use of citizenship as a jurisdictional basis to tax. In its place, they would apply residence-based principles — i.e., exercising full taxing rights over U.S. …

The Oecd's Flawed And Dated Approach To Computer Servers Creating Permanent Establishments, Monica Gianni

Vanderbilt Journal of Entertainment & Technology Law

As the digital economy changes the way that we do business, tax laws have been challenged to adapt appropriately to this nontraditional business method. International tax rules were developed in a different technological era. To accommodate electronic commerce, existing tax rules either have to be applied to electronic-commerce transactions, or new rules have to be developed. The Organisation for Economic Co-operation and Development (OECD) has taken the lead in studying and recommending appropriate international taxation rules for electronic commerce. This Article focuses on the original central tax issue that the OECD considered--jurisdiction to tax income from electronic commerce based on …

Locality V. Online Travel Company: Does The Bell Finally Toll For Quill Corp. V. North Dakota, Jaan Rannik

Journal of Business & Technology Law

No abstract provided.