Following up on my previous posts:
Wall Street Journal editorial, Beltway 'Strip' Club: Democrats Imagine New Ways to Raise Taxes on Corporations:
Washington's tax collectors fear that foreign firms may fund their U.S. subsidiaries with debt so these U.S. units can deduct the interest payments. The foreign parent companies can then receive these interest payments. With more debt held in the U.S., the firms may be able to boost the profits of their overseas units and pay less in taxes, since taxes are lower nearly everywhere else in the world than in the U.S. ...
The White House is nonetheless looking to raise corporate taxes administratively while Mr. Schumer seeks to do so legislatively. Team Obama was thrilled by a recent paper from former Treasury official and current Harvard Law School professor Stephen Shay. Mr. Shay claims that without any change in the law the Administration can simply overturn years of precedent by declaring that some debt will now be treated as equity, and voila, higher tax bills.
This would involve claiming authority under a provision of law known as Section 385 that was not intended to stop corporate inversions, but rather to define generally what is stock and what is debt. As Mr. Shay admits, "Section 385 is not normally thought of as an antiabuse provision (indeed, it has hardly been thought of at all since it was amended in 1992) and this proposal is to apply it to only a subset of related party cases—those involving expatriated entities."
No doubt a wave of lawsuits would follow. But if Treasury is looking for a short-term political victory it could issue a temporary regulation, avoid the usual notice and comment period, and earn headlines by interrupting pending inversion deals. Another full election cycle might pass before the courts rule on the legality of this tax grab.
The Harvard Law brand might seem to lend some heft to this novel idea, but in his paper Mr. Shay credits the intellectual contributions of two, er, scholars from Change to Win, the advocacy shop funded by labor unions. And nobody does disinterested legal analysis like the Teamsters. ...
Bloomberg BNA, Executive Action on Inversions? Not So Fast:
Can President Obama deal with corporate inversions-which occur when a U.S. company merges with a foreign competitor in order to create a parent organization with a tax residency abroad--on his own?
After pressure from his fellow Democrats, Obama and the Department of Treasury have said they're looking into it. Some former officials -- including Stephen Shay, a professor of law at Harvard University and a former deputy assistant secretary at Treasury -- have suggested that Obama can use his executive authority to deal with earnings stripping, one of the chief incentives for inversion deals.
The dynamic might make it seem like the issue is mainly a political one -- that, as with immigration and climate change, the main consideration for the White House is whether the policy goal is worth enraging Congress even further.
But, in fact, the legal authority for Obama or the Treasury Department to act is far from certain. In fact, many tax experts -- some who share the goal of cracking down on inversions -- believe the president has very little leeway to act without support from Congress.
"The arguments for Treasury regulation are based on laudable policy instincts, which I share. But they are very strained readings of the relevant regulatory authority," said Edward Kleinbard, a professor of law at the University of Southern California and the former chief of staff for the U.S. Congress Joint Committee on Taxation. "In fact, they are so strained, I think in the long term they would do more harm than good in terms of Treasury's ongoing relationships with Congress, and its ability to take courageous stands through regulation in the future." ...
"My reading of this rule is that they are authorized to have a general rule that distinguishes debt from equity," said Reuven Avi-Yonah, director of the international tax LL.M. program at the University of Michigan Law School. "If they try to do that, I think the companies would sue them." ...
Ultimately, the statement that Treasury was looking into possible anti-inversion regulations may be more important than any actual regulations the department might issue. "I frankly think it's a question of whether they could make enough noise to scare people," said Willard Taylor, an adjunct professor of law at New York University, who has written about inversions in the past. "As to specific options, I really don't see very much there."