Thursday, April 2, 2020
Reuven S. Avi-Yonah (Michigan), Antitrust and the Corporate Tax: A Missed Opportunity?:
Big Tech have clearly become for early 21st century America what Standard Oil, U.S. Steel, and the railroads were to early 20th century America: The embodiment of corporate power that enjoys a near monopoly on an important segment of economic activity. In response, Sen. Elizabeth Warren (D-MA) has proposed to treat the Big Tech as common carriers (forbidding them from selling their own goods and services on their platforms) and force them to dispose of their recent anti-competitive acquisitions. There may, however, be another way of reining in the power of the Big Techs that is less drastic than breaking them up, and may be a helpful complement to antitrust enforcement. This way derives from the other early 20th century innovation that was intended in 1909 to curb the power of the monopolies: The corporate tax.
The corporate tax can limit corporate power in three ways. First, even a low rate corporate tax requires corporations to provide the government with detailed information about their activities that is hard to obtain without a corporate tax (e.g., it forces them to calculate profits per taxing jurisdiction, which they may not otherwise do). Second, potentially the corporate tax, like any tax, involves the power to destroy if the rate is high enough. The knowledge that this could happen may limit the aggressiveness of corporate management (i.e., in the case of the Big Techs, their founders). Third and most important, the corporate tax can be used as a regulatory device, with the effective rate being raised or lowered either for specific desirable or undesirable activities (e.g., maintaining or compromising privacy) or in response to an overall corporate social responsibility score.
I believe that corporate taxation may be a useful complement to antitrust enforcement in curbing the power of the Big Techs. However, the original corporate tax may no longer have the necessary tools to do so. That is because of changes enacted in the period between the end of World War I and the Great Depression that have gradually weakened the original anti-monopolization power of the corporate tax. This paper suggest that the new Digital Services Tax (DST) may play a useful regulatory role to curb the monopoly power of Big Tech.