Thursday, November 7, 2019
Zhiyuan Zuo (Cleary Gottlieb, New York), A Gain Must Lie Where It Falls: Matching Tax with Economics in Subchapter K, 11 Colum. J. Tax L. ___ (2019):
Society suffers efficiency costs when tax and economics are mismatched. This principle is illustrated by the tax neutrality doctrines that are the cornerstone of the U.S. international tax system and by the BEPS’s efforts to combat arbitrary income shifting. While society has an interest in maximizing pre-tax income from all economic activities, self-interested taxpayers seek only to maximize their after-tax income. A good, non-arbitrary tax policy must thus incentivize taxpayers to maximize both their pre-tax and after-tax income. This note provides a novel efficiency analysis of the rules under Subchapter K and reveals the efficiency costs that arise when arbitrary tax liabilities sever the positive connection between pre-tax and after-tax income. It applies the insight gained from the efficiency analysis to the Treasury’s various flawed efforts under Subchapter K to match tax with economics, including the Substantial Economic Effect (SEE) safe harbor and doctrines under section 704(c). The Article then explores alternatives to the Treasury’s “one-size-fits-all” solution, focusing on a detailed analysis of the economic effect equivalence (EEE) test and so-called target allocations
Revealing the tension between target allocations and some of the fundamental principles of section 704 regulations, the Article presents a solution to the long-debated capital shift problem in target allocations.