Taxing Social Impact Bonds

An exciting new way to fund social services has recently emerged. This new financing mechanism, called a social impact bond (SIB), has the potential to help us tackle some of our nation’s most challenging social problems. Broadly speaking, a SIB is a type of “pay-for-success” contract where private investors provide the upfront capital to finance a social program, but only recoup their investment and realize returns if the program is successful. Like any new financing instrument, SIBs create numerous regulatory challenges that have not yet been addressed. One unresolved issue is the tax implications of a SIB investment. This Article argues that the current law allows for multiple possible characterizations of the SIB arrangement for tax purposes. This uncertainty as to the correct characterization of a SIB investment can affect a private investor’s ultimate tax liability and subject the investor to an unnecessary audit risk. A SIB investment can also expose a nonprofit investor to additional taxes or, possibly, even cause it to lose its tax-exempt status. Despite the potentially substantial tax implications of a SIB investment, no guidance exists on this issue. This Article is the first to analyze the federal income tax consequences to investors who participate in a SIB-funded program. It concludes that SIB arrangements should generally be classified as contingent debt instruments under the current tax law but that it may be appropriate to bifurcate the transaction in the case of nonprofit investors. To address the substantial tax uncertainty created by the current law, this Article also argues that Internal Revenue Service guidance is ultimately necessary and suggests ways to structure the SIB arrangement to minimize the risk of any negative tax implications until such guidance is issued. Doing so will hopefully encourage investors to invest in SIBs and thereby unlock an additional source of capital to fund much needed social services

Tax Abuse - Lessons from Abroad

How does a government distinguish between tax planning and tax abuse? Most democratic societies agree that citizens have a right to limit their tax liability through tax planning. However, governments generally also agree that this right does not extend to tax abuse. Tax abuse substantially reduces government tax revenues and weakens the integrity of our tax systems and the efficiency of our economy. Thus, making this distinction between tax planning and tax abuse is critical. In an attempt to identify and counter tax abuse and its detrimental effects, the United States recently enacted an anti-abuse rule in Section 7701(o) of the Internal Revenue Code. Because tax abuse is difficult to legislatively define, Section 7701(o) relies heavily on the judiciary to make the ultimate determination of which transactions are abusive. This Article contends that the international experience with similar general anti-avoidance rules indicates that Section 7701(o) will not be a universal cure for tax abuse but can be an effective anti-abuse tool if certain judicial, legislative and administrative steps are taken. Therefore, it proposes a reform to Section 7701(o) that would counter the textualist trend and other judicial approaches that potentially undermine the statute while simultaneously increasing the statute’s fairness and predictability

Can Blockchain Revolutionize Tax Administration?

Experts predict that the use of smart contracts and other applications of blockchain technology could revolutionize the manner in which we do business. Blockchain technology promises the elimination of middlemen, increased trust and transparency, and improved access to shared information and records. Thus, it is no surprise that companies and entrepreneurs are developing blockchain solutions for an array of markets, ranging from real estate to health care. But can this new technology revolutionize tax administration? This Article is the first to consider blockchain technology’s role in addressing the shortcomings of our current administration system— namely, a large tax gap, high compliance and administrative costs, and operational inefficiencies. To mitigate these problems, this Article introduces two innovative uses of blockchain technology in the tax space: a blockchain-based platform for information returns and a blockchain-based platform for digital invoices. Implementing these blockchain-based platforms for tax administration presents significant opportunities to digitalize and automate certain tax processes, improve tax compliance and enforcement, and minimize many inefficiencies currently involved in the tax administration process. This Article also considers the broader implications of using technology to improve tax administration by demonstrating that any blockchain tax initiative is unlikely to make meaningful improvements to tax processes without additional government action. It, therefore, sets forth normative steps for policymakers to take in supporting the use of blockchain and other technologies in the tax space. By doing so, this Article promotes a proactive approach to exploring and understanding blockchain technology’s benefits, limitations, and implications to ultimately place the government in the best position to modernize our tax administration system

Cloudy with a Chance of Taxation

The growth of the digital economy, and, in particular, cloud computing, has put a significant strain on sales taxation and other consumption tax systems. The borderless, anonymous, and digital nature of cloud computing raises questions about the paradigm used to determine the character of the transaction and the location where consumption, and therefore, taxation occurs. From a U.S. perspective, the effective resolution of these issues continues to grow in importance in light of the recent Supreme Court decision in South Dakota v. Wayfair and the growing number of U.S. businesses transacting overseas in jurisdictions that impose value-added taxes (VATs). The cloud magnifies difficulties with VAT compliance and enforcement, as businesses increasingly are subject to VAT laws in multiple jurisdictions. Tax authorities therefore have to collect from remote vendors who have numerous opportunities for VAT avoidance and evasion. The outcome of these challenges is unfair competition, a burden on international trade, and a huge gap in VAT revenues. In this important Article, we closely analyze these cutting-edge challenges and contribute to the debate on how to tax the digital economy. We argue that while the approaches taken by both the Organisation for Economic Co-operation and Development, of which the United States is a member, and the European Union introduce some noteworthy improvements to the current system, more substantial measures are necessary. Thus, we propose a range of fundamental changes that include improving the existing registration-based VAT system through the enhanced use of new technologies, replacing the current system with a blockchain real-time basis VAT system, and shifting the VAT collection burden from suppliers to payment intermediaries. As the digital transformation of the economy accelerates, each of these changes will help adapt consumption taxation to the modern realities of our digital era

Cooperative Federalism and the Digital Tax Impasse

The digital economy is changing faster than the law can respond and has challenged legal systems worldwide. In the tax space, the digital economy has undermined traditional tax systems in ways that have created significant tax compliance and enforcement challenges, substantial tax revenue losses, and unwarranted distortions in the market between digital and traditional transactions. These problems are well recognized both in the legal literature and in the public sphere. Unfortunately, the legal reforms that are needed in this space have been slowed by a combination of technical, conceptual, and political impediments. This Article focuses on the digital tax landscape at the U.S. subnational level to demonstrate how those factors are preventing meaningful legal reform and why a novel approach to tax reform may be successful in breaking the current impasse. The difficulty of reform is particularly problematic in the tax context because reform ideally includes multijurisdictional uniformity on fundamental aspects like tax bases, the characterization of digital income, and sourcing rules. Legal reform is complicated enough on a unilateral basis. Asking for uniformity in those reforms across jurisdictions can seem all but impossible. To respond to these issues, many scholars apply a fiscal federalism lens to evaluate whether reform responsibility is better assigned to the U.S. federal government rather than to the states themselves. However, this Article disagrees that the digital tax impasse will be fixed through state or federal efforts alone. Instead, we argue that the conditions in this area of the law may require policymakers to explore a cooperative federalism framework. A cooperative federalism structure represents a middle-ground solution where Congress could use its resources to incentivize interstate uniformity but leave the substantive tax rulemaking to the states. This targeted type of federal intervention would better harness the strengths of both the federal and state governments, preserve state tax sovereignty, and overcome many of the shortcomings of past digital tax reform efforts

Social Impact Bonds: A Tax-Favored Investment?

Social impact bonds (SIBs) have recently generated a lot of excitement nationwide as an innovative way to finance social projects. A SIB is a financing mechanism that uses private capital to fund social services, with the government only repaying investors their capital plus a potential return on investment if improved social outcomes are achieved. As such, it brings together the private, public, and non-profit sectors in a manner that unlocks an additional source of capital to fund social service providers, promotes innovation, encourages interagency cooperation, and creates more accountability. Despite these benefits, tax law likely hinders the development of SIB-funded programs in the United States by discouraging private investment in SIBs. This Article is the first to consider the role of U.S. tax law in promoting SIB investments by examining the tax implications of a SIB investment from both a doctrinal and policy perspective. It concludes that the current tax system creates unnecessary compliance risks for private SIB investors and unjustifiably treats SIB investments less favorably than comparable investments, thereby increasing administrative complexity, distorting investment decisions, and creating inequities among similarly situated investors. Given the unintended discriminatory tax treatment towards SIBs, this Article argues that Congress should consider enacting legislation to make a SIB investment a tax-favored investment. This change could best be achieved by extending preferential tax rates to SIB earnings, exempting SIB earnings from taxation, or by allowing an upfront deduction for contributions to SIB investments. By modifying the tax law to treat SIB investments more in parity with comparable investments, SIB-funded programs will likely attract additional private capital and allow SIBs to potentially make a meaningful impact on some of our nation’s most challenging social problem

Common Sense Recommendations for the Application of Tax Law to Digital Assets

In response to the Joint Committee on Taxation’s July 2023 request for comments on application of various Internal Revenue Code sections on digital assets, we propose a consistent set of rules to apply current law to digital assets. We highlight that the underlying economics and characteristics of transactions should be the primary concern for the application of rules and the valuation of digital assets. We believe any digital asset rules should (1) treat classes of digital assets with unique characteristics differently based on their economics, (2) minimize incentives for users to engage in tax-motivated structuring of transactions, and (3) allow the Internal Revenue Service authority to react to and regulate new classes of digital assets as they are created. We do not believe that the unique features of digital assets are a challenge to applying current law or warrant special tax preferred treatment

Taxing the Robots

Robots and other artificial intelligence-based technologies are increasingly outperforming humans in jobs previously thought safe from automation. This has led to growing concerns about the future of jobs, wages, economic equality and government revenues. To address these issues, there have been multiple calls around the world to tax the robots. Although the concerns that have led to the recent robot tax proposals may be valid, this Article cautions against the use of a robot tax. It argues that a tax that singles out robots is the wrong tool to address these critical issues and warns of the unintended consequences of such a tax, including limiting innovation. Rather, advances in robotics and other forms of artificial intelligence merely exacerbate the issues already caused by a tax system that under-taxes capital income and over-taxes labor income. Thus, this Article proposes tax policy measures that seek to rebalance our tax system so that capital income and labor income are taxed in parity. This Article also recommends non-tax policy measures that seek to improve the labor market, support displaced workers, and encourage innovation, because tax policy alone cannot solve all of the issues raised by the robotics revolution. Together, these changes have the potential to manage the threat of automation while also maximizing its advantages, thereby easing our transition into this new automation era

Transfer Pricing Challenges in the Cloud

Cloud computing - the provision of information technology resources in a virtual environment - has fundamentally changed how companies operate. Companies have quickly adapted by moving their businesses to the cloud, but international tax standards have failed to follow suit. As a result, taxpayers and tax administrations confront significant tax challenges in applying outdated tax principles to this new environment. One particular area that raises perplexing tax issues is the transfer pricing rules. The transfer pricing rules set forth the intercompany price a cloud service provider must charge an affiliate using its cloud services, which ultimately affects in which jurisdiction the company’s profits are taxed. This Article argues that the fundamental features of cloud computing exacerbate some of the more difficult transfer pricing problems that already exist. Specifically, due to the nature of the cloud, the current transfer pricing rules give U.S. multinational enterprises substantial freedom to shift profits to low-tax jurisdictions and avoid tax in the United States in a practice commonly referred to as base erosion and profit shifting, or “BEPS.” This type of aggressive international tax planning often results in stateless income – income that disappears for tax purposes. As such, it has become a pressing problem worldwide that poses a serious risk to tax sovereignty, tax fairness, and the integrity of the corporate income tax. In response to significant political pressure resulting from these undesirable tax policy results, the OECD has launched an action plan to address the BEPS problem. Although an important first step, the OECD’s work falls short of coming up with an innovative solution that will restore taxation on stateless income. In response, this Article recommends that, given the features of this new business environment, an international tax reform solution that adopts formulary apportionment or the profit-split methodology on a coordinated global basis would better address BEPS and minimize the undesirable policy results of our current transfer pricing rules

Taxing Social Impact Bonds

An exciting new way to fund social services has recently emerged. This new financing mechanism, called a social impact bond (SIB), has the potential to help us tackle some of our nation’s most challenging social problems. Broadly speaking, a SIB is a type of “pay-for-success” contract where private investors provide the upfront capital to finance a social program, but only recoup their investment and realize returns if the program is successful. Like any new financing instrument, SIBs create numerous regulatory challenges that have not yet been addressed. One unresolved issue is the tax implications of a SIB investment. This Article argues that the current law allows for multiple possible characterizations of the SIB arrangement for tax purposes. This uncertainty as to the correct characterization of a SIB investment can affect a private investor’s ultimate tax liability and subject the investor to an unnecessary audit risk. A SIB investment can also expose a nonprofit investor to additional taxes or, possibly, even cause it to lose its tax-exempt status. Despite the potentially substantial tax implications of a SIB investment, no guidance exists on this issue. This Article is the first to analyze the federal income tax consequences to investors who participate in a SIB-funded program. It concludes that SIB arrangements should generally be classified as contingent debt instruments under the current tax law but that it may be appropriate to bifurcate the transaction in the case of nonprofit investors. To address the substantial tax uncertainty created by the current law, this Article also argues that Internal Revenue Service guidance is ultimately necessary and suggests ways to structure the SIB arrangement to minimize the risk of any negative tax implications until such guidance is issued. Doing so will hopefully encourage investors to invest in SIBs and thereby unlock an additional source of capital to fund much needed social services