Reuven S. Avi-Yonah

International tax as international law : an analysis of the international tax regime

1. Introduction: Is there an international tax regime? Is it part of international law? 2. Jurisdiction to tax 3. Sourcing income and deductions 4. Taxation of non-residents: investment income 5. Taxation of non-residents: business income 6. Transfer pricing 7. Taxation of residents: investment income 8. Taxation of residents: business income 9. The tax treaty network 10. The tax arbitrage, tax competition, and the future of the international tax regime.

The Three Goals of Taxation

The current debate on whether the US tax base should be income or consumption has been waged in terms of the traditional criteria for evaluating tax policy - efficiency, equity and administrability. Proponents of the consumption tax have argued that it is superior to the income tax on all three grounds. If that argument is correct, it is difficult to understand why most countries have both income and consumption taxes, and why countries like the United States adopted the income tax as a substitute for consumption taxes. This paper argues that the debate omits consideration of the goals of taxation in the modern era, which are (1) to raise revenue for government activities, (2) to mitigate unequal distributions of wealth in society, and (3) to regulate private economic activity. When these goals are taken into consideration, it is clear that both income and consumption taxes have a role in modern tax policy, and that the US should follow the path of other developed countries and employ both at the federal level.

Formulary Apportionment: Myths and Prospects - Promoting Better International Tax Policy and Utilizing the Misunderstood and Under-Theorized Formulary Alternative

This paper seeks to re-examine the formulary alternative to transfer pricing by inquiring whether partial integration of formulary concepts into current practices would offer a reasonable alternative to transfer pricing rules. We believe that the key to achieving an equitable and efficient allocation of MNE income is to solve the problem of the residual, i.e., how to allocate income generated from mobile assets and activities whose risks are born collectively by the entire MNE group. These assets and activities generate most of the current transfer pricing compliance and administrative costs, as well as tax avoidance opportunities. A limited formulary tax regime that allocates only the residual portion of MNE income may therefore offer significant advantages. Furthermore, such a regime would not require significant deviations from current practices, or substantial modifications of the international tax regime.

The Rise and Fall of Arm's Length: A Study in the Evolution of U.S. International Taxation

A revised and updated version of the 1995 article (Va. Tax Review) on the evolution of US transfer pricing rules.

Citizens United and the Corporate Form

In Citizens United vs. FEC, the Supreme Court struck down a Federal statute banning direct corporate expenditures on political campaigns. The decision has been widely criticized and praised as a matter of First Amendment law. But it is also interesting as another step in the evolution of our legal views of the corporation. This article argues that by viewing Citizens United through the prism of theories about the corporate form, it is possible to see that the majority and the dissent departed from previous Supreme Court jurisprudence on the First Amendment rights of corporations. It is also possible to then predict what arguments can be expected next.

Bridging the North/South Divide: International Redistribution and Tax Competition

Finding ways to help bridge the North/South divide in terms of life expectancy, health, and living conditions may be the most important task facing humanity at the beginning of the 21st century. The Millennium Development Goals adopted by the UN are a beginning step toward that goal, and require additional funding of about

A Proposal to Adopt Formulary Apportionment for Corporate Income Taxation: The Hamilton Project

50 billion per year (over existing aid). However, under current conditions, it seems extremely unlikely that democratic approval can be given in developed countries to such an increase in aid, and certainly not to the level of redistribution required to bridge the gaps. Nor are new methods of financing, such as the Tobin Tax, likely to be enacted given rich world opposition. In these circumstances, the best policy approach is for the rich countries to help developing countries help themselves. In order to do that, they need to restrict harmful tax competition among developing countries and competition to attract flight capital by developed countries.

Taxation as Regulation: Carbon Tax, Health Care Tax, Bank Tax and Other Regulatory Taxes

The current system of taxing the income of multinational firms in the United States is flawed across multiple dimensions. The system provides an artificial tax incentive to earn income in low-tax countries, rewards aggressive tax planning, and is not compatible with any common metrics of efficiency. The U.S. system is also notoriously complex; observers are nearly unanimous in lamenting the heavy compliance burdens and the impracticality of coherent enforcement. Further, despite a corporate tax rate one standard deviation above that of other OECD countries, the U.S. corporate tax system raises relatively little revenue, due in part to the shifting of income outside the U.S. tax base. In this proposal, we advocate moving to a system of formulary apportionment for taxing the corporate income of multinational firms. Under our proposal, the U.S. tax base for multinational corporations would be calculated based on a fraction of their worldwide income. This fraction would simply be the share of their worldwide sales that occur in the United States. This system is similar to the current method that U.S. states use to allocate national income across states. The state system arose due to the widespread belief that it was impractical to account separately for what income is earned in each state when states are highly integrated economically. Similarly, in an increasingly global world economy, it is difficult to assign profits to individual countries, and attempts to do so are fraught with opportunities for tax avoidance. Under our proposed formulary apportionment system, firms would no longer have an artificial tax incentive to shift income to low-tax locations. This would help protect the U.S. tax base while reducing the distortionary features of the current tax system. In addition, the complexity and administrative burden of the system would be reduced. The proposed system would be both better suited to an integrated world economy and more compatible with the tax policy goals of efficiency, equity, and simplicity.

Problems with Destination-Based Corporate Taxes and the Ryan Blueprint

This paper addresses three questions: 1. Is regulation a legitimate goal for taxation? 2. Which tax is best suited for regulation? 3. Would it be better to allocate just one goal per tax among the major taxes (individual and corporate income tax and VAT)? It then analyzes the proposed bank tax and the enacted health care tax as regulatory taxes, and concludes that the first is desirable (as is a carbon tax) but the second is not.

Taxation and Inequality

With the election of Donald Trump and the Republican Party’s domination of Congress, House Speaker Paul Ryan’s blueprint for fundamental tax reform requires more careful analysis. The Ryan blueprint combines reduced individual rates with a destination-based cash flow type business tax applicable to all businesses. The destination based business tax at the center of the blueprint has several major problems: It is incompatible with our WTO obligations, it is incompatible with our tax treaties, and it will not eliminate the problems of income shifting and inversions it is designed to address. In addition, these proposals generate vexing technical problems that are not easily fixed as well as significant political problems. Finally, due to the tax rates that have been proposed, the plan is likely to generate large revenue losses and a less progressive tax system. We conclude by recommending better tax policy solutions to our current corporate tax problems.