Home-Country Effects of Corporate Inversions

This Article develops a framework for the study of the unique effects of corporate inversions (meaning, a change in corporate residence for tax purposes) in the jurisdictions from which corporations invert ( home jurisdictions ). Currently, empirical literature on corporate inversions overstates its policy implications. It is frequently argued that in response to an uncompetitive tax environment, corporations may relocate their headquarters for tax purposes, which, in turn, may result in the loss of positive economic attributes in the home jurisdiction (such as capital expenditures, research and development activity, and high-quality jobs). The association of tax-residence relocation with the dislocation of meaningful economic attributes, however, is not empirically supported and is theoretically tenuous. The Article uses case studies to fill this gap. Based on observed factors, the Article develops grounded propositions that may describe the meaningful effects of inversions in home jurisdictions. The case studies suggest that whether tax-relocation is associated with the dislocation of meaningful economic attributes is a highly contextualized question. It seems, however, that inversions are more likely to be associated with dislocation of meaningful attributes when non-tax factors support the decision to invert. This suggests that policymakers should be able to draft tax-residence rules that exert non-tax costs on corporate locational decisions in order to prevent tax-motivated inversions

The Function of Corporate Tax-Residence in Territorial Systems

In this symposium Essay, I explore the instrumentality of corporate tax-residence determination in territorial tax systems. Using the United States as a case study, I show that tax-residence determination had a historic “positive functionality”. Namely, tax-residence positively pointed to the source of income earned, and distributed by, a corporation. However, in current economic environment the positive functionality is obsolete. Instead, the modern functionality of corporate tax residence is a “negative” one. That is, to assure that income is not sourced at a jurisdiction in which income could not have possibly been produced. Under such a view, corporate tax-residence should be constructed as an anti-income-shifting mechanism. One way to achieve such result is to base corporate tax-residence determination on formulary apportionment that takes into account the corporation\u27s real economic attributes, as well as the proportional part of corporation’s contribution to the control-group earnings. The functionality of formulary apportionment in this context is not to allocate tax jurisdiction (the traditional use of formulary apportionment), but rather to assure that a corporation is not a resident where it has no economic existence. Current territorial reform proposals in the United States ignore the important function of tax-residence in supporting source-taxation. I therefore conclude with a call to incorporate a reform of corporate-tax residence determination in any territorial reform legislation

Are Cryptocurrencies \u27Super\u27 Tax Havens?

I describe the mechanisms by which cryptocurrencies — a subcategory of virtual currencies — could replace tax havens as the weapon-of-choice for tax-evaders. I argue such outcome is reasonably expected in the foreseeable future due to the contemporary convergence of two processes. The first process is the increasing popularity of cryptocurrencies, of which Bitcoin is the most widely recognized example. The second process is the transformation of financial intermediaries to agents in the service of tax authorities, as part of the fight against offshore tax evasion. Financial institutions are faced with increased governmental pressure to deliver information about account holders, to withhold taxes from earnings accumulating in financial accounts, and to remit such taxes to taxing authorities around the world. Significantly, cryptocurrencies possess all the traditional characteristics that tax haves do; Earnings are not subject to taxation, and taxpayers’ anonymity is maintained. The operation of cryptocurrencies, however, is not dependent on the existence of financial intermediaries. Thus, cryptocurrencies have the potential of defeating the recent successes of governments in battling offshore tax evasion. I further suggest that while governments have paid some attention to this issue, they have so far failed to identify the acuteness of the potential problem

Are Cryptocurrencies \u27Super\u27 Tax Havens?

I describe the mechanisms by which cryptocurrencies — a subcategory of virtual currencies — could replace tax havens as the weapon-of-choice for tax-evaders. I argue such outcome is reasonably expected in the foreseeable future due to the contemporary convergence of two processes. The first process is the increasing popularity of cryptocurrencies, of which Bitcoin is the most widely recognized example. The second process is the transformation of financial intermediaries to agents in the service of tax authorities, as part of the fight against offshore tax evasion. Financial institutions are faced with increased governmental pressure to deliver information about account holders, to withhold taxes from earnings accumulating in financial accounts, and to remit such taxes to taxing authorities around the world. Significantly, cryptocurrencies possess all the traditional characteristics that tax haves do; Earnings are not subject to taxation, and taxpayers’ anonymity is maintained. The operation of cryptocurrencies, however, is not dependent on the existence of financial intermediaries. Thus, cryptocurrencies have the potential of defeating the recent successes of governments in battling offshore tax evasion. I further suggest that while governments have paid some attention to this issue, they have so far failed to identify the acuteness of the potential problem

The Discursive Failure in Comparative Tax Law

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 form of paradigmatic discourse. The result is that contemporary academic literature in comparative tax law contains strongly conflicting arguments, running parallel courses, without ever engaging each other. In this Article, I try to construct a framework for a coherent and vigorous academic discourse on comparative taxation. I do so by placing existing comparative tax scholarship in the context of pivotal debates within general comparative law, and point out the abundant contradicting arguments in the field of comparative tax law. One cannot help but wonder how is it that tax comparatists have failed to support or rebut each other\u27s positions. One possible reason for this lack of engagement is perhaps that it enables tax comparatists to rest comfortably in the warm confines of their own scholarship without being bothered by questions regarding their methodological -- and consequently their ideological -- stances. Finally, for the sake of a debate, I offer my own views by responding to a recent article authored by Carlo Garbarino