Taxation-Transnational Commons^™

Challenging The Johnson Amendment: What Safe Space Gets Right - And Wrong, Benjamin Leff

Scholarly Articles in Law Reviews & Journals

There has long been a scholarly debate about the so-called Johnson Amendment, which is the statutory provision that prohibits charities from “intervening” in campaigns for public office. Some scholars argue that the Johnson Amendment, or at least the IRS’s interpretation of it, unconstitutionally prevents charities from exercising their fundamental rights to speech or religious liberty. Activists have tried to provoke IRS enforcement of the prohibition so they could argue their interpretation of the Constitution in court, but the IRS appeared to be avoiding litigation on the issue. On March 18, Students and Academics for Free Expression, Speech, and Political Action …

Addressing Base Erosion: Impact Of The No Tax Breaks For Outsourcing Act On Tax Inversions And Profit Shifting, T. Scott Shogren

American University Business Law Review

The modern landscape of international taxation presents complex challenges arising from cross-border transactions and diverse tax regimes. This Comment delves into the intricate world of tax inversions, a process whereby U.S. firms shift their corporate headquarters abroad, thereby exploiting different tax jurisdictions. The implications of tax inversions are significant, and some scholars estimate there are substantial global tax revenue losses.

This Comment examines the mechanics of tax inversions, analyzing the tools employed by multinational corporations to reduce their tax liabilities, such as debt concentration and earnings stripping. This Comment also explores legislative responses, including the No Tax Breaks for Outsourcing …

Money Grab: How The G20/Oecd Inclusive Framework For Taxation Could Unnecessarily Disrupt Corporate Incentives And Misallocate Taxing Rights, William T. Anderson

Vanderbilt Journal of Transnational Law

The Organisation of Economic Co-operation and Development (OECD) is proposing a dramatic shift to international corporate taxation that both sets a floor for corporate tax rates across the globe and transforms how countries obtain taxing rights over large multinational corporations. This Note focuses on the proposed framework for re-allocating taxing rights over corporations away from the traditional requirement of a physical presence in a country to mere revenues in a country. This Note identifies problems with the proposal as it relates to artificially altering corporate incentives and structures, as well as the proposal's incompatibility with theories of taxation- including Adam …

Disabusing The Tax Aid Narrative: What Inter-National Tax Equity Really Means For "Poor" Countries And How To (Re)Frame It, Okanga Ogbu Okanga

PhD Dissertations

International tax regimes (e.g., the “double taxation regime”) are created by states with competing tax jurisdiction to coordinate their tax rules and, specifically, to address common efficiency problems like international double taxation. In developing such regimes, states attempt to balance competing tax policy priorities: efficiency, administrability, and equity. This work engages with equity, as a policy norm of international tax (inter-national tax equity). It is my thesis that the framing/articulation of inter-national tax equity suffers from a narrative problem that, perhaps, stems from its apparent conceptual unclarity and multifarious usage. This narrative problem is most evident in the articulation of …

A Constitutional Moment In Cross-Border Taxation, Steven Dean

Faculty Scholarship

The complex pattern of formal and informal rules that governs the taxation of cross-border transactions tends to be thought of as rigidly path dependent. (Rixen, 2011) In truth, the Classification and Assignment Constitution has repeatedly undergone sudden changes initiated by influential actors. A failure to acknowledge the power wielded by a handful of states and organizations nurtures an evolutionary myth of cross-border taxation, but a close examination reveals traces of intelligent design, with repeated interventions altering the course of its development.

A century ago a material constitution coalesced around an elegant but flawed algorithm providing for the "classification and assignment …

Stabilizing “Pillar One”: Corporate Profit Reallocation In An Uncertain Environment, Itai Grinberg

Georgetown Law Faculty Publications and Other Works

This paper is about how the world reestablishes international tax order.

The paper focuses on the OECD’s work on profit reallocation and asks whether this multilateral effort can be successful in stabilizing the international tax system. The analysis centers on the current leading concepts for reallocating profit among jurisdictions under what is known as “Pillar One” of the OECD work programme. To analyze whether any Pillar One concept can be turned into a stable multilateral regime, it is necessary to specify certain elements of what a proposal to reallocate profits might entail. Accordingly, this paper sets out two strawman proposals. …

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.

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 …

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.

Taxing Remote Sales In The Digital Age: A Global Perspective, Walter Hellerstein

Scholarly Works

This Article addresses three fundamental questions raised by the taxation of remote sales in the digital age from a global perspective, but focuses on the implications, if any, of the answers to these questions in the global context for the U.S. subnational retail sales tax. First, should remote sales be taxed under a consumption tax? Second, if the answer to the first question is “yes,” where should such sales be taxed? Third, how can remote sales be taxed effectively under a consumption tax in the digital age?4

A Hitchhiker’S Guide To The Oecd’S International Vat/Gst Guidelines, Walter Hellerstein

Scholarly Works

The OECD’s International VAT/GST Guidelines, which were released in their consolidated form at the OECD’s Global Forum on VAT in Paris in late 2015, are the culmination of nearly two decades of efforts to provide internationally accepted standards for consumption taxation of cross-border trade, particularly trade in services and intangibles. This article provides a roadmap to the Guidelines, especially for readers who may be unfamiliar with consumption tax principles, in general, or VATs in particular. Part II of the article provides the background to the Guidelines, describing the basic features of a VAT, the problems with which the Guidelines are …

Too Much Collateral Damage; Fatca: The Well-Intentioned, Yet Misguided And Unconstitutional, Tax Law, Zac Delap

Journal of the National Association of Administrative Law Judiciary

This paper will examine FATCA in five parts: beginning with an introduction in Part I, Part II will provide the pertinent background that gave rise to the law, Part III will present the essential elements of FATCA, Part IV will offer pertinent liberty and constitutional arguments against FATCA, and Part V will analyze each argument's possibility of succeeding.

Net Operating Losses And Mistakes In Closed Tax Years, James R. Gadwood

NYLS Law Review

No abstract provided.

The Battle Over Taxing Offshore Accounts, Itai Grinberg

Georgetown Law Faculty Publications and Other Works

The international tax system is in the midst of a contest between automatic information reporting and anonymous withholding models for ensuring that nations have the ability to tax offshore accounts. At stake is the extent of many countries’ capacity to tax investment income of individuals and profits of closely held businesses through an income tax in an increasingly financially integrated world.

Incongruent initiatives of the European Union, the Organisation for Economic Cooperation and Development (OECD), Switzerland, and the United States together represent an emerging international regime in which financial institutions act to facilitate countries’ ability to tax their residents’ offshore …

Brain Drain Taxation As Development Policy, Yariv Brauner

UF Law Faculty Publications

This article examines the potential use of taxation to generate development funds in connection with the immigration of skilled immigrants from developing into developed countries, known as the "brain drain," if designed according to the principles of the new development agenda. It explains that a tax on the brain drain that has been discussed for several decades, yet considered impossible to administer, may be administratively and legally implementable within the framework of the current international tax regime. It argues that designing such a tax according to the principles of the new development agenda, tying together the collection and use of …

The Discursive Failure In Comparative Tax Law, Omri Y. Marian

UF Law Faculty Publications

Tax comparatists tend to bemoan the grim status of their chosen field. Complaints are aimed both at the scarcity of decent comparative legal tax scholarship, and at the lack of a theoretical foundation for the study of comparative tax law. The purpose of this Article is to portray a more sanguine, yet critical, view of this field. Sanguine, since a sympathetic reading of contemporary comparative tax scholarship demonstrates that there is more than enough such scholarship to generate a lively debate on comparative tax works and their methodologies. Critical, since all of these works fail to produce even the faintest …

A Framework For An Informed Study Of The Realistic Role Of Tax In A Development Agenda, Yariv Brauner

UF Law Faculty Publications

This article builds on the insights of this development research to develop a new agenda for tax incentives (and equivalent tax measures), the research of their merits when used by developing countries, and their optimal design. The stated goal of these incentives is to attract foreign direct investment, and ultimately enhance economic growth and promote development. Almost all countries use such tax incentives, and business interests strongly support and even demand their use, yet, economic research in general, and the international economic organizations in particular, have been skeptical about their effectiveness." Tax incentives are not only ubiquitous, but also very …

Value In The Eye Of The Beholder: The Valuation Of Intangibles For Transfer Pricing Purposes, Yariv Brauner

UF Law Faculty Publications

This article assesses the desirability of our current, arms' length based, transfer pricing regime by analyzing its theoretical and practical effectiveness in application to transfers of intangibles. A detailed analysis of the practice of valuation of intangibles, which is the key component in the application of this regime, exposes its weaknesses that result in undesirable market incentives. These incentives create a strong bias in favor of large multinational enterprises, yet, even if one favored such bias, it is achieved using an uncontrollable, costly and wasteful legal mechanism. The article particularly criticizes the regime's disregard of the unique characteristics of intangibles …

The Incomplete Global Market For Tax Information, Steven A. Dean

Faculty Scholarship

No abstract provided.

Taxation As A Global Socio-Legal Phenomenon, Allison Christians, Steven Dean, Diane Ring, Adam H. Rosenzweig

Faculty Scholarship

This essay makes a proposal that may not be controversial among those with a particular interest in international law, but may be less accepted among those primarily interested in tax law: that international social and institutional structures shape, and are shaped by, historical and contemporary domestic policy decisions. As a result, to incorporate these lessons, tax scholarship should turn to fields such as international relations, organizational theory, and political philosophy to provide a broader framework for understanding the rapid changes that are taking place in tax policy and politics in the United States and around the world.

Tax Shelters And The Code: Navigating Between Text And Intent, Steven A. Dean, Lawrence M. Solan

Faculty Scholarship

Tax shelters raise difficult problems of statutory interpretation. In her interesting article, Of Lenity, Chevron, and KPMG, Kristin Hickman explores one of them: the recent tendency of courts to apply the rule of lenity in civil cases, potentially leading to a narrow interpretation of the Code that would undermine efforts to collect the taxes that Congress intended to impose. In that article and in earlier work, she also discusses the importance of courts deferring to the IRS under the Chevron doctrine as a tool in collecting taxes. We agree both with Hickman's articulation and analysis of this problem. Here, we …

Integration In An Integrating World, Yariv Brauner

UF Law Faculty Publications

During the second half of the last century, many countries gradually replaced their so-called classical corporate tax regimes, under which corporate earnings were taxed twice -- once in the hands of the corporation, and again when distributed to corporate shareholders as dividends -- with an integrated regime (imputation), which taxed such earnings only once. The driving force behind this trend was the expectation of significant efficiency gains. This clear and gradual trend has been abruptly reversed with the turn of the century. The phenomenon we call globalization, and in particular the proliferation of cross-border business and investment, has materially contributed …

International Trade And Tax Agreements May Be Coordinated, But Not Reconciled, Yariv Brauner

UF Law Faculty Publications

A recent WTO case held the U.S.' export tax subsidies illegal. Despite strong political resistance, which fed a long and costly legislative process, the U.S. recently repealed these subsidies. This case and the U.S. reaction revealed that although the U.S. is the single super economic power, it is not as dominant a player as some portray it. The case also shed light on the tension between the present international trade and tax regimes and the difficulty of applying WTO law to income tax measures. This tension did not escalate earlier mainly because countries tended not to use their income tax …

An International Tax Regime In Crystallization, Yariv Brauner

UF Law Faculty Publications

The grand illusion of a single, worldwide, tax system that will eliminate all international inefficiencies, and assist all the nations of the world to maximize their relative advantages, is, as commonly accepted, utopian. The tax, academic and professional, writing in the field of international taxation, and cross-border interaction, between tax systems and jurisdictions has grown, exponentially, in the last decade, but no significant work has been done to prove, or disprove, the naivety of this hypothesis. Some scholars and tax executives, in certain international organizations, have discussed ideas along this line, but no single organization has, seriously, attempted to promote …

Spontaneous Tax Coordination: On Adopting A Comparative Approach To Reforming The U.S. International Tax Regime, Anthony C. Infanti

Vanderbilt Journal of Transnational Law

The excessive complexity of the U.S. international tax regime is well documented. Although many commentators have cited the need for simplification, their proposals often maximize other policy goals at the expense of simplicity. Even reform proposals aimed principally at clarifying the tax code are ordinarily focused on the "internal" complexity of the code, seeking improvements only for U.S. taxpayers struggling with a single complex provision of the code or the baffling interaction, of two U.S. rules. This Article focuses on the interaction between U.S. tax law and the rules of other nations, and is intended to illustrate the benefits that …

Respect For "Form" As "Substance" In U.S. Taxation Of International Trusts, Donald D. Kozusko, Stephen K. Vetter

Vanderbilt Journal of Transnational Law

...we might decide that the attribution rule should not be applied so broadly, or so automatically. But how would such a system be devised by regulation? The attribution rule could be applied to trusts in which the discretion of the trustee is very limited and the beneficial interests so clearly ascertainable that the trust is, for all practicable purposes, transparent. That is, however, only a small universe of cases. This leads to the further conclusion that the attribution rule has to be applied based on a facts and circumstances determination of the beneficial interest in each case. Yet that seems …

Double Taxation - Treatment Of Corporate Earnings Under American And German Law, Roland Schmidt

LLM Theses and Essays

This thesis is going to describe the different ways the United States and Germany deal with the problem of double taxation in the legal context of corporate distributions to its shareholders in the form of dividends. Tax law is particularly one of the areas of laws that are subject to frequent and often substantial changes. This is true for the German as well as for the U.S. tax laws. Since some of the issues being discussed in the United States today in connection with the corporate tax law are similar if not identical to the issues discussed in Germany before …

The Steel Products Decision: An Inquiry Into The Treatment Of The Value-Added Tax Under The Countervailing Duty Law, Charles L. Chambers

Vanderbilt Journal of Transnational Law

It is not often that one small clause in a tariff act becomes a major issue between domestic producers and the firms which import competitive foreign goods, a major issue in trade talks between the United States and the European Community, and a bone of contention between the Congress and the Executive Branch. Yet, section 303 of the Tariff Act of 1930 has done just that and no solution to the issues it has raised is in sight...

Section 303 of the Tariff Act of 1930 is simple enough on its face. It imposes a countervailing duty on any goods …

Tax Consequences Of Foreign Currency Fluctuations, Sheldon S. Cohen

Vanderbilt Journal of Transnational Law

This article concerns the United States federal income tax treatment of the gains and losses resulting from transactions involving currencies other than the United States dollar. United States income taxes must be computed and paid in United States dollars. Therefore, when persons subject to United States income taxes engage in transactions involving foreign currencies, they must account for their profits in terms of dollars for United States income tax purposes. This result follows even if the taxpayer does not actually convert the results of these transactions into dollars. Whether the failure to convert is voluntary, or results from legal restrictions …