Taxation-Transnational Commons^™

U.S. Tax Reform: Considerations For Service Members [Notes], Kan Samuel

Faculty Scholarship

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 …

Taxing The Digital Economy Post-Beps…Seriously, Andres Báez Moreno, Yariv Brauner

UF Law Faculty Publications

For years the advent of the digital economy has left countries stumped in their attempt to tax income earned by foreign firms without physical presence within their jurisdiction. International organizations and their member countries have failed in their attempts to tweak the rules of the international tax regime and address these challenges presented by the digital economy. This article argues that such conservative approach could not work, and fundamental reform is inevitable. The article proposes a withholding tax solution, explaining its merits and demonstrating its superiority over alternative reforms proposed to date.

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.

What Is Puerto Rico?, Samuel Issacharoff, Alexandra Bursak, Russell Rennie, Alec Webley

Indiana Law Journal

Puerto Rico is suffering through multiple crises. Two are obvious: a financial crisis triggered by the island’s public debts and the humanitarian crisis brought on by Hurricane Maria. One is not: the island’s ongoing crisis of constitutional identity. Like the hurricane, this crisis came from outside the island. Congress, the U.S. Supreme Court, and the Executive Branch have each moved in the last twenty years to undermine the “inventive statesmanship” that allowed for Puerto Rico’s self-government with minimal interference from a federal government in which the people of Puerto Rico had, and have, no representation. From the point of view …

The Internationalization Of Tax Disputes Issues And Options Of A Standing International Tax Court, Xueliang Ji

Cardozo International & Comparative Law Review

With the growing criticisms on the traditional investor-state arbitration mechanism, the European Union has proposed an innovative provision named the Investment Court System ICS, and it has introduced it in some significant bilateral investment treaties, like Comprehensive Economic and Trade Agreement CETA and Transatlantic Trade and Investment Partnership TTIP. In the meantime, as taxation is a component of the investment polies, the protection of the rights enjoyed by the foreign taxpayers matters as well. However, the current tax related dispute settlement methods also have several defects. This article attempts to incorporate the ICS in resolving tax related disputes and taking …

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 …

The Rule Of Law In International Tax Relations, Jinyan Li

All Papers

This paper discusses the issue of rule of law in international tax relations. International tax relations refer to the relationship between countries in terms of substantive tax laws and tax administration. It aims to contribute to the conversations about the Belt and Road Initiative (BRI) tax administration cooperation.

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 …

Attacking Innovation, Jeffrey A. Maine

Faculty Publications

Economists generally agree that innovation is important to economic growth and that government support for innovation is necessary. Historically, the U.S. government has supported innovation in a variety of ways: (1) a strong legal system for patents; (2) direct support through research performed by government agencies, grants, loans, and loan guarantees; and (3) indirect support through various tax incentives for private firms. In recent years, however, we have seen a weakening of the U.S. patent system, a decline in direct funding of research, and a weakening of tax policy tools used to encourage new innovation. These disruptive changes threaten the …

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.

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 …

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 …

China As A "National Strategic Buyer": Toward A Multilateral Regime For Cross-Border M&A, Jeffrey N. Gordon, Curtis J. Milhaupt

Faculty Scholarship

Unlike the case of cross-border trade, there is no explicit international governance regime for cross-border M&A; rather, there is a shared understanding that publicly traded companies are generally for purchase by any bidder – domestic or foreign – willing to offer a sufficiently large premium over a target’s stock market price. The unspoken premise that undergirds the system is that the prospective buyer is motivated by private economic gain-seeking.

The entry of China into the global M&A market threatens the fundamental assumptions of the current permissive international regime. China has become a significant player in the cross-border M&A market, particularly …

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.

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 …