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Corporations Law Nyu by omb19852


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									The Obama Administration’s Tax
 Reform Proposals Concerning
Controlled Foreign Corporations

         Daniel Shaviro
        NYU Law School

         U.S. political background
What common features for U.S. politics of (a) international taxation
and (b) the death penalty?
The U.S. international tax ceasefire-in-place reflects 3 competing
political elements:

1) Pro-worldwide: tax reform/base-broadening on progressivity
grounds (!), plus fear of job flight / runaway factories.

2) Pro-exemption: “competitiveness” & interest group politics.

3) Pro-foreign tax credit: popular aversion to “double taxation,”
reinterpreted by academics as concern for worldwide efficiency (via
End result: hard to move either way; huge tax planning costs relative
to revenue raised.                                              2
   Has anything changed politically?
U.S. politics is VERY slow to notice WW trends (e.g., rising
tax competition, other countries’ shift towards exemption).

Interest group politics is (if anything) more pervasive than ever,
seemingly good news for the pro-exemption side.

BUT – in overall U.S. politics the rightward shift of 2000-2008
has been more than reversed (for reasons having nothing to do
with U.S. international taxation).

This potentially favors the pro-worldwide side even though, on
this issue standing alone, there has been no shift to the left.

            Behind the Obama
         Administration’s proposals
Addressing “tax breaks” for “runaway factories” was a
campaign talking point – & there are desperate revenue
needs, few politically appealing targets.

Hence, no surprise to see a proposal purporting to raise $200
billion through 2019, with a focus on controversial tax planning.

In the short run, proposal is (mostly?) going nowhere: higher
priorities, lack of Treasury tax staff, Congressional opposition.

But clearly an important marker that will influence subsequent
legislative debate.
    The main proposals for CFCs
The Administration’s proposals are partly aimed at evasion by
individuals. But for US multinationals, 3 main elements:

1) Deduction disallowance (estimated $60B, 2011-2019).

2) Foreign tax credit: pooling & other changes ($43B).

3) Disregarded entities / subpart F ($86.5B !?).

 The Administration thus hopes to raise $189.5B on U.S.
 outbound over 9 years ($21B/year), as compared to $16B
 paid in 2004 on foreign active earnings.
       (1) Deduction disallowance
Current law: complicated “WW interest allocation” treats some
interest expense incurred in U.S. as foreign source. Similar
approaches for, e.g., domestic HQ & 50% of R&D expenses.

BUT – no deductions are directly disallowed by reason of being
treated as foreign source. Only effect is on FTC limit.

Result: same as deduction disallowance for excess-credit U.S.
firms, but no effect on other U.S. firms.

Administration proposes to disallow deductions for all U.S.
firms where allocated/apportioned to deferred CFC income.

 Akin to partial, uneven, indirect repeal of deferral.
    Effects of deduction disallowance
Proposal would affect multiple margins – not just, say, where invest
fixed capital (CEN) or who owns a given asset (CON).
Discourages U.S. firms’ ownership of foreign operations (bad) but
also indirectly reduces tax value of avoiding repatriation (good).

When deduction-source rules are “correct” (matching TPs’ true
marginal decisions), note scenario with good incentive effects:

Say I’d otherwise spend $100 in the U.S. ($65 after-tax) to earn $90
in Singapore ($73.80 after-tax, no residual U.S. tax).

But: in practice, will also discourage outlays to generate purely U.S.-
source income (as well as high-taxed foreign income). AND it’s
overkill absent any Singapore deduction.

     (2) Foreign tax credit changes
 The principal change: “pooling” approach to indirect FTC from
 CFC repatriations.

 Suppose CFC-A has $1M earnings & paid $300K foreign taxes,
 while for CFC-B it’s $1M, $100K.
Current law: indirect FTCs depend on choice of CFC – so $100K
dividend could generate either $30K or $10K in credits (ignoring gross-up).

 Proposal – FTCs depend on average ratio of all foreign taxes to
 CFC earnings (here, 20%).
Effects: ends “master-blender”-style repatriation matching (good),
discourages outbound ownership (bad), discourages repatriation
              (3) Use of check-the-box
                  to avoid subpart F
 Background: subpart F treats CFC passive income as a U.S.
 deemed dividend – including interest from intra-group loans.

 Hence, if Acme’s German sub pays interest to Caymans sub,
 German tax savings negated by extra U.S. tax.
In 1996, U.S. – without considering international implications –
simplified its entity classification rules, permitting “disregarded
U.S. companies quickly realized that they could now avoid sub-
part F in the above scenario, via Caymans disregarded entity.

Proposal would bar disregarded entity status in such cases.
      Check-the-box proposal, cont.
U.S. Treasury could amend the regulations without Congress,
but note political & budgetary accounting obstacles.

Clearly a good proposal IF one sufficiently (a) likes the subpart
F policy of impeding overseas tax saving or (b) dislikes large
unintended policy changes from the regulatory process.

Effects: discourages outbound ownership (bad), discourages
overseas tax saving given one’s investment pattern (bad).

                   The bottom line?
Overall direction of greater WW tax on U.S. firms: I’d say wrong &
futile, with other countries going the other way & rising ease of
avoiding use of U.S. entities.

Political prospects seem dim, unless broader U.S. trends give those
who favor greater WW taxation discretionary political capital that they
choose to spend this way.

Inducements to wasteful tax planning, on margins other than who
owns non-U.S. assets, are eased in some cases, worsened in others.

My own preferred reform directions: (1) exemption without transition
windfall OR (2) burden-neutral improvement of the ceasefire-in-place
AND (3) residence-neutral improvement of domestic source rules.

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