2014

The Treasury Department put out theword that Secretary Jack Lew is consideringregulatory curbs on corporate tax inversions, a step that may be intended to increase pressure on Congress to act once it returns from its summer recess in September.
The matter of how much authority Treasury has to limit inversions has generated its own controversy.
For the story, go here.

The top U.S. marginal corporate tax rate of 39.1 percent -- the highest rate among OECD countries and the third highest in theworld -- harms U.S. global competitiveness, given that theworldwide average top rate has declined over the past 10 years from 29.5 percent to 22.6 percent, the Tax Foundation said in an August report.

For the report, go here.

Lawmakers should consider prompt, targeted legislation to prevent tax base erosion from corporate inversions,which may be surging because of growth of unrepatriated earnings and pessimism about a U.S. shift to a territorial tax system, Kimberly Clausing of the Tax Policy Center said in an August 20 report.

For the report, go here.

Participants in an August 20 American Bar Association Section of Taxationwebinar discussed EU proposals corresponding to action items of the OECD's base erosion and profit-shifting initiative, reviewed the state of the law and reaction to BEPS in Europe, and examined the underlying reasons for the United States' apparent blasé response.
Olivier Dauchez of the Paris office of Gide Loyrette Nouel said thatwhile responsibility for direct taxation fallswithin the competence of EU member states, each state must exercise that competence in a manner consistentwith EU laws. EU laws governing fundamental freedoms preclude a member state from discriminating against foreign nationals and companies. Consequently, taking advantage of tax benefits explicitly provided by a member state cannot be deemed abusive in itself. A restriction of a fundamental freedom is permissible onlywhen justified by overriding reasons of public interest.
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Increased tax revenue should flow from an improved U.S. intellectual property regime, a coalition representing high-technology companies said.
Policies to discourage relocating intellectual property abroadwould boost U.S. taxable income, the Silicon Valley Tax Directors Group said in a letter to Senate Finance Committee Chairman Ronwyden (D-Ore.) and ranking member Orrin Hatch (R-Utah). Tax revenue on IP,which currently goes to foreign governments orwould in the future,would instead remain in the U.S.
The letter, signed by the tax directors from 78 high-tech U.S. companies such as Apple Inc., Microsoft Corp. and Adobe Systems Inc., made a number of suggestions to make that happen.
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"The need of the hour" among transfer pricing issues is for countries to formulate uniform regulations to reduce controversies over related-party outsourcing fees and restructuring costs, the International Fiscal Association said in a new report.
Such regulations also ought to address the attribution of location savings between associated enterprises participating in outsourcing arrangements and provide for corresponding transfer pricing adjustments, the report said.
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Multinationals may have to overhaul their business structures if the OECD's final anti-treaty-shopping proposals don't deviate significantly from their original form, according to Leonard Khaw of Deloitte Shanghai.
Khaw spoke on an August 13 Deloittewebcast on action 6 of the OECD's base erosion and profit-shifting initiative,which calls for measures to prevent the granting of treaty benefits in inappropriate circumstances.
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Not contentwith the highest corporate tax rate in the industrializedworld, President Obama and Sen. Chuck Schumer (D., N.Y.) seem determined to make the U.S. even less hospitable to business. Both are developing plans to make it more expensive for multinational companies to invest in America.
You read that correctly. Their policy answer to the problem of too-few jobs is to raise costs on employerswhowant to move money from overseas and spend it in the U.S. The President's rhetoric is about targeting "corporate deserters"who have moved their legal address out of the U.S., but his proposalswould discourage investment from overseas.
For the story, go here.

Treasury Department officials are assembling a list of administrative options for Secretary Jacob Lew to consider forways to deter or prevent U.S. companies from reorganizing overseas primarily to avoid paying federal taxes, an agency official said Monday.
For the article, go here.

The OECD has released a discussion draft of proposals to eliminate mismatches of income and deduction arising from hybrid instruments and hybrid entities. Under the proposals, substantive tax laws in each jurisdictionwould depend on the tax laws in other jurisdictions. Public comments have been received, and a public hearing has been held. A final version of the proposals is expected to be considered in November of this year.
This report comments on the proposals relating to hybrid instruments. It is presented in two parts. Part 1, published in the August 11 issue of Tax Notes, provided historical background and discussed policy issues raised by the proposals, aswell as some of the technical questions and unexpected results. Part 2 in this issue discusses additional technical concerns, the scope of hybrid instruments thatwould be covered by the proposals, effective date issues, and conclusions. This issue beginswith Section III.B.5.h of the report.
For the report, go here. (subscription required)

Barack Obama, presiding over an unusually dismal post-recession economy, might make mattersworsewith a distracting crusade against the minor and sensible business practice called "inversion," more aboutwhich anon. So, consider his credentials as an economic thinker.

Obama,who thinks ATMs and airport ticket kiosks cost America jobs, gave a speech last year regretting that Maytagworkers in Illinois lost their jobswhen the plant moved to Mexico, but rejoicing that more Honda cars "are made in America than anyplace else" and that Airbuswas "building new planes in Alabama." Maytag moved partly because in Illinois,which is not a right-to-work state, the price of unionizedworkers made Mexico a sensible choice. And Airbus is in right-to-work Alabama because capital, being mobile, goeswhere it iswanted and stayswhere it is treatedwell.

Alabama, and the Honda manufacturing states (Alabama, Georgia, North Carolina, South Carolina, Indiana and Ohio; all but Ohio are right-to-work), attracted these jobs by practicing "entrepreneurial federalism" - tailoring tax and regulatory policies to gain competitive advantages against other states. Progressives deplore this as a "race to the bottom." Conservatives call it a rationality competition.

Which brings us to "inversions,"whereby in the past decade approximately 50 U.S. companies have mergedwith foreign firms and located their headquarters overseas, becoming subject to that country's lower corporate taxation. The U.S. system, unlike those of most major nations, taxes the profits that domestic corporations earn overseas, even though these profits are also taxed overseas. This double taxation is one reason that approximately $2 trillion in U.S. corporate earnings is being kept abroad rather than brought home for domestic investment.

For the article, go here.

Most offshore countries saw increases in new business incorporations in the second half of 2013, a reflection of their favorable corporate tax policies, according to a report from a consulting firm for offshore corporations.
The report, released Aug. 14 by Appleby Global Group Services Ltd., said new registrations grew from 5 percent to 10 percent in most countries as the global economy continued to recover. However, overall new registrations slid due to a decline in the British Virgin Islands, by far the biggest destination for offshore incorporations.
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U.S. Sen. Chris Coons took exception Sundaywith U.S.-based companies that reincorporate outside of the country in pursuit of tax savings, saying executives that authorize so-called tax inversions "are not following their duty as Americans."
Coons, a Delaware Democrat, appeared on Fox News Sunday alongside John Engler, president of the Business Roundtable, an association of top chief executives, to discuss a spike in inversions,which has rankled officials inwashington and in Delaware,where the state budget relies heavily on corporate revenue.
For the story, go here.

Senate Finance Committee Chair Ronwyden, D-Ore., said August 14 he hopes to have in place by September bipartisan anti-inversion legislation that includes a proposal to address earnings stripping -- comments coming just hours after a Democratic senator released details of a plan to do so.
Finance Committee member Charles E. Schumer, D-N.Y., released the details of a proposal that targets earnings stripping by placing limits on inverted companies' ability to claim the interest expense deduction. The plan is still being drafted into legislation,which Schumerwill officially introduce after the Senate returns in September, an aide said.
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Sen. Charles E. Schumer (D-N.Y.) launched a new attack on corporate inversions but appeared to hit a headwind from Senate Finance Committee Chairman Ronwyden (D-Ore.).
Schumer outlinedwhat he called a Democratic proposal Aug. 14 to curb companies' ability to transfer foreign debt to their U.S. operations to receive more favorable tax treatment, a practice known as earnings stripping.wyden respondedwith a statement saying he continues to seek a bipartisan solutionwith the committee's ranking member, Sen. Orrin Hatch (R-Utah).
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Sen. Charles Schumer (N.Y.) on Thursday took aim at a tax break used by companies that reincorporate abroad, as Democrats ramped up their populist campaign against "corporate deserters."

Schumer's measure seeks to roll back a practice known as "earnings stripping,"which allows U.S. subsidiaries to take a tax deduction on interest payments after receiving a loan from their foreign parent.

For the story. go here.

Senate Finance Committee Chairman Ronwyden, D-Ore., issued a statement today regarding congressional proposals to close the inversion loophole.
"This issue demands a resolution in the near term and I hope to have bipartisan legislation in place come September."
For the statement, go here.

According to much conventionalwisdom, the flap over corporate "tax inversions" is just the latest evidence that the tax code needs a comprehensive overhaul like the one agreed to by congressional leaders and President Reagan in 1986.

Whether you consider it greedy and unpatriotic for U.S. companies to establish corporate headquarters in lower-tax foreign countries, or merely regrettable but rational, part of the solution is to lower that rate and recoup lost revenue by closing loopholes, it is said.

"Lower rates, broader base"was the cardinal principle of the 1986 reform. And it is still the mantra of tax reformers today. There's just one problem: In 2014, the 1986 model looks like "a dead end." Or so argues Michael J. Graetz, a former Treasury official in the first Bush administration and longtime advocate of radical tax reformwho teaches at Columbia Law School.

For the story, go here.

Senator Charles Schumer released a proposal today thatwould limit deductions available for U.S. companies that take a foreign address to reduce their taxes.
Schumer, a New York Democrat,wants to curb a practice known as "earnings stripping," inwhich companies that engage in inversion transactions then load up their U.S. operationswith debt and reduce their U.S. taxable income.
Schumer's plan may become part of a broader effort by Democratic lawmakers to curb inversions,which faces major hurdles before it can become law.
For the story, go here.

Thewave of corporations seeking to "invert," or reincorporate as offshore companies, requires action. But lobbyists' preferred solution, reducing our corporate tax rate,will not solve this problem.

For the story, go here.

For the last severalweeks, President Obama, politicians,washington insiders and some in the media have filled the airwaveswith inflammatory rhetoric about "inversion" transactions, inwhich U.S. companies reincorporate overseas. They suggest that such companies are "unpatriotic" and "corporate deserters" ÔøΩ serious charges to level against companies that, even after inverting,will employ tens of thousands of Americans, play a vital role in the U.S. economy and pay significant taxes on U.S. income.
As the executive chairman of one of those companies, I've been stunned by thewillingness of politicians to choose easy political sound bites over trying to solve the real issue.
For the story, go here.

Inversions are not new. Inversions reduce U.S. taxes onforeignincomeÔøΩnoton U.S. based income.Yet in a short period they have undergone a startling metamorphosis.
Once theywere interesting transactions for a few companieswith the right facts and international ambitions.Then almost out of the blue, these deals became one of the hottest trends in years. Equally suddenly, inversionsÔøΩand those perpetrating themÔøΩbecame pariahs.
For the story, go here.

President Obama and legislators are embroiled in a debate overwhether and how to punish companies that seek U.S. tax relief by buying a smaller foreign company and legally reincorporating in its country. So-called tax inversions are at a record high, and Obama has suggested it's not a victimless activity. "It's not right," he said on August 6. "The lost revenue to Treasury means it has got to be made up somewhere, and that typically is going to be a bunch of hard-working Americans,who either pay through higher taxes themselves" or cuts to government services.
The inversion debate is a sign of unhappinesswith U.S. corporate tax rates,which are the highest in the developedworld and tempting companies to jump overseas in the first place. And fixing the tax code, by reducing those onerous rates and plugging loopholes, requires the government to find some new sources of income elsewhere. Enter federal climate policy,which for years now has been held up as a potential funding source forwhatever anyone needs at the moment. Two environmental economists propose that federal income from a carbon tax could help reboot the U.S. corporate tax code. And a rebooted corporate tax codewould then have the effect of reducing the cost of the carbon tax to GDP.
For the story, go here.

In an August 13 letter to President Obama, several House and Senate Democrats urge executive action on inversions.
For the letter, go here.

Samuel Thompson Jr. of Penn State Law has expressed support for legislation and administrative actions to curtail corporate inversions and related transactions, specifically endorsing a proposal to issue regulations under section 385 thatwould target artificial debt instruments issued by a U.S. corporation to its new foreign parent.

For the letter to Treasury, go here.

U.S. companies are looking for all sorts ofways to reduce their tax bill. But scores of big U.S. companies just paid no taxes or effective tax rates of 0%.

For the story, go here.

Political heat has intensified on tax "inversions" after awave of cross-border mergers and acquisitions. A tax inversion occurswhen a U.S.-headquartered firm acquires or mergeswith a smaller global firm, but the headquarters are located in the acquired firm's country because of tax considerations. Obviously, this is a tax policy issue. So it is telling that Democrats in the House and Senate introduced legislation to prevent inverted companies from receiving government contracts, instead of dealingwith the tax policy issue. Clearly, this signals that Democrats are only interested in playing politics, not fixing the problem.
What should they be doing?
For the article, go here.

Jeffery Kadet of the University ofwashington School of Law has suggested to Treasury two proposals for eliminating the economic incentives that encourage corporate inversions, neither ofwhichwould require Congress to pass legislation.

For the letter, go here. (Subscription required)

Proposals for anti-expatriation legislation, such as restrictions on interest expense deductions and limitations on management and control, could discourage foreign direct investment in the United States, the Organization for International Investmentwarned the Senate Finance Committee in an August 5 letter.

For the letter, go here.

Michael L. Schler discusses technical and policy issues, aswell as unexpected results, that arise under the OECD's proposals to eliminate mismatches of income and deduction resulting from hybrid instruments and hybrid entities.
For the article, go here.

President Barack Obama is facing increasing pressure to bypass Congress and act on corporate inversions unilaterallyÔøΩbut many tax experts believe the administrationwould be on shaky ground in doing so.
"The arguments for Treasury regulation are based on laudable policy instincts,which I share," said Edward Kleinbard, a professor of law at the University of Southern California, and former chief of staff of the U.S. Congress's Joint Committee on Taxation. "But they are very strained readings of the relevant regulatory authority." In fact, he said, those arguments are so strained that theywould do more harm than good to "Treasury's ongoing relationshipwith Congress, and its ability to take courageous stands through regulation in the future."
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The steady rise in U.S. corporations buying foreign companies and then moving their headquarters abroad is not personal, it's just business.
It reflects the increasingly obvious fact that America's high corporate tax rates put our companies at a competitive disadvantage against foreign companies, especiallywhen competing for global markets. Yet a number of commentators have tried to make it personal.
For the article, go here.

A group of accountants said Friday that they're tired of being blamed by President Obama for a rash of new offshore tax deals.

Scott Adair, president of the New York State Society of Certified Public Accountants, said that Obama should be looking closer to home if hewas seeking to hold someone responsible for so-called corporate inversions.
"If President Obamawants to point fingers, perhaps he should point them at Congress for creating the very loopholes he vilifies. Sustainable corporate tax reform is the elephant in this room," Adair said in a statement.
For the story, go here.

The recentwave of corporate tax inversions has triggered interest inwhat motivates these tax-driven transactions now. Corporate executives have argued that inversions are explained by an "anti-competitive" U.S. tax environment, as evidenced by the federal corporate tax statutory rate,which is high by international standards, and by its "worldwide" tax base. This paper explainswhy this competitiveness narrative is largely fact-free, in part by using one recent articulation of that narrative (by Emerson Electric Co.'s former vice-chairman) as a case study.

For the paper, go here.

Corporations now have toweigh much more than just their tax billwhen decidingwhether to shift their legal addresses overseas.

President Obama thisweek vowed to curb the influx of companies buying smaller foreign competitors to slash their tax bill through a corporate "inversion," just the latest sign that an issue little-known outside the taxworld a few short months ago has evolved into potent political fodder.

For the story, go here.

U.S. companies thatwant to lower tax bills by moving their legal address overseas have bulked up their lobbying efforts since April as the Obama administration and some lawmakers seek to curb the practice.
In total, nine companies that have sought cross-border mergers, are considering doing so or are targets of such deals have begun lobbying on legislation to stop the practice, federal disclosure reports show.

"There are a lot of reasonswhy tax reform is stuck in Congress, and one of them is because big companieswith vested interestswant it to be stuck," said Adam Rappaport, a senior counsel at Citizens for Responsibility and Ethics inwashington.

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J.D. Foster, deputy chief economist at the U.S. Chamber of Commerce, points out that merger transactions resulting in a foreign-domiciled business are a real and consequential symptom of serious flaws in the U.S. tax system.
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Forwhat appears to be the first time since the statutewas enacted in 2004, the IRS has issued a private letter ruling (LTR 201432002) applying the section 7874 anti-inversion rules to a set of taxpayer facts, concluding in the taxpayer's favor that the proposed transactionwon't trigger inversion gain.
Although the ruling is a first, it's not particularly surprising and doesn't touch on the kinds of inversion transactions in the news lately.
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What has prompted the current inversion trend? A change in U.S. law is not the reason. Section 7874,which attempts to restrict U.S. companies from expatriating overseas, has existed unchanged for over 10 years. Instead, thewave of inversions may be explained by a complex and interacting set of factors, including tax competition, increased foreign earnings, and decreasing reputational risk forwould-be inverters.

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Over the past few months, many companies have responded to our overly burdensome corporate tax system by re-domiciling their headquarters overseas. Such moves leave the United Stateswith a smaller tax base that results in many billions of dollars in lost revenue. Clearly, this is a cause for concern, and, unfortunately, it is unlikely to go away anytime soon.
Despite this grim reality, however, every Democratic proposal offered so far to deter such action has been purely political.what's more, these proposals contain punitive and retroactive provisions thatwould exacerbate the problem.
For the op-ed, go here.

The Obama administration is exploring a range of possibleweapons in the tax code to try to deter companies from relocating overseas for tax purposes through so-called inversion mergers.
Each potential change comeswith its own potential pitfalls and risks, and no decisions have been made. Meantime, lawyers and bankers are busy doing their own homework in order to gauge how any changes might hurt existing or proposed corporate deals.
For the story, go here.

If the Treasury Departmentwas trying to scare investors away from corporate inversions by saying the U.S.would examineways to stop the deals, itworked.
Stock markets punished companies pursuing inversions on Aug. 6 and investors have genuine reason for concern about the prospects for cross-border mergers that limit U.S. corporate taxes.
The policy landscape on inversions has shifted significantly since lastweek,when U.S. lawmakersÔøΩdeadlocked on tax policyÔøΩleftwashington for a five-week break.

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The corporate income tax rate in Japan is known to be one of the highestworldwide. To encourage foreign companies to do business in Japan and make the country a more attractive location for investments, Prime Minister Shinzo Abe is considering reducing the corporate income tax rate to a "competitive rate in the global market".
For the story, go here.

Between 1983 and 2004 therewere 29 inversion transactions out of the US. In the decade following, almost 50 companies restructured using the method.whatever the motivation, inversions are in vogue. ITR's special report looks at the knock-on impacts of the currentwave of inversions, including shareholder pressure to consider an option they see their rivals pursuing and the possible inflammation of the tax morality debate in the US.
For the story, go here.

The U.S. corporate tax system is broken.
Recent efforts by major corporations to mergewith smaller foreign firms and move their corporate residence overseas to reduce their U.S. tax liability have sparked outrage and prompted proposals to curb such transactions.
Tax avoidance by U.S. corporations, however, is not limited to thosewho migrate overseas. Congressional hearings earlier this year highlighted efforts by major U.S. firms to avoid taxes by shifting their reported profits to affiliates in low-tax countries.
Policy makers and expertswidely agree that current proposals to limit corporate expatriations are only a stopgap and that broader reforms are needed. President Barack Obama and Rep. David Camp, the Republican chairman of the Houseways & Means Committee, among others, have proposed cutting the corporate tax rate and eliminating tax breaks that help many firms avoid tax.
For the story, go here.

Three prominent Democratic senators on Tuesday urged President Barack Obama to use his executive authority to reduce or eliminate tax breaks for companies that shift their headquarters overseas to cut their U.S. tax bills.
"Althoughwewill continue towork toward a legislative solution to the problem,we urge you to use your authority to reduce or eliminate tax breaks associatedwith inversions," the senatorswrote in a letter to the president.
For the story, go here.

On July 3, 2014, New Zealand's Revenue Minister Todd McClay revealed that the OECD has agreed the final recommendations for the first set of actions to tackle base erosion and profit shifting (BEPS) by multinational enterprises,which are due to be finalised in September. So as the BEPS project approaches a crucial juncture, this feature summarises key developments in its brief history and other issueswhich could have a major bearing on its outcome.
For the story, go here.

The administration and Congressional Democrats have signaled their intention to make corporate flight from the U.S. a populist issue in the run-up to the mid-term elections. The Democrats' policy prescriptions for these redomiciliations or "inversions" threaten to cost U.S. jobs and ignore the underlying flaws in the tax code that drive many of these overseas transactions. As tax policy, the anti-inversion proposals advanced by the administration and certain Congressional Democrats are flawed, and as budget policy, they areweaker still.

For the story, go here.

There is almost no one left in officialwashingtonwho doesn't think something should be done about inversions. But there is a lot of variety in the solutions being proposed,which makes consensus almost impossible.

For the story, go here.

The Obama administration has broad legal authority to stop corporate inversions.
The dispute boils down to law versus politics.
For the article, go here.