Thursday, April 19, 2012
Omri Y. Marian (Sullivan & Cromwell, New York), Meaningless Comparisons: Corporate Tax Reform Discourse in the United States, 32 Va. Tax Rev. ___ (2012):
This article examines the role that international comparisons play in current corporate tax reform discourse in the United States. Citing the need to make the U.S. corporate tax system more competitive, comparisons are frequently used to assess other jurisdictions’ tax-competitiveness, and many legislative proposals are supported by such comparative arguments. Examining such discourse against the background of several theoretical approaches to comparative law, this article argues that to the extent that comparisons are aimed at providing guidance for prospective reform, this purpose is not well served. Participants in the corporate tax reform discourse, from both sides of the aisle, lack any comparative methodological discipline. They execute comparisons in an incoherent way, often ignoring important differences between the United States and the jurisdictions it is compared to. The result is proposals that are based on misperceptions of the way that corporate tax laws operate in the compared jurisdictions. The article further suggests that a coherent methodology, if explicitly harnessed to promote a well-defined agenda, could make international comparison a constructive instrument of tax-policy making.