Tuesday, January 24, 2023
Shayak Sarkar (UC-Davis; Google Scholar) presents Capital Migration at UC-San Francisco today as part of its Center on Tax Law' Tax Policy Colloquium hosted by Heather Field and Manoj Viswanathan:
Money moves, while migrants linger. If humans face borders, capital and corporations are purportedly “borderless.” Yet what precisely renders capital and reliant businesses foreign, the designation underlying migration?
This Article unpacks capital migration and the responses it elicits. It does so by parsing capital and corporate migration’s intersection with human migration as well as identifying conceptual parallels. As a first parallel, the citizenship binary is insufficient to understand both human and capital migration, as international tax law illustrates. Second, on the recurrent question of federalism, states, alongside the federal government, possess tax authority over foreign capital and corporations. As I argue, just as immigration tax federalism permits nonuniformity, so might capital and corporate tax federalism under the Foreign Commerce Clause.
Beyond theoretical parallels, this Article refutes the separation of capital migration and human migration by examining where they meet: human migration regimes that attract capital. “Capital purchase migration” in universal or treaty investor visas allows foreign capital to pave our streets and then the contributor’s path to permanent residency. “Capital facilitating migration” permits the temporary workers necessary for an investment to flourish.
Yet even as these regimes generate capital and human migration, both migrations must face a fear of the foreign. That fear lies not only in the much-discussed Committee on Foreign Investment in the United States but also in our everyday lives and communities. As this Article explains, capital migration includes the aesthetic “intrusion” of newcomers’ residential investments and the controversial commercial investments catering to these newcomers. Through low-level laws—municipal ordinances—communities, including longer-settled but fellow migrants, police this foreign capital and the people behind it. As such, this Article reorients our understanding of capital migration as both literally and metaphorically connected to human migration, for better or for worse. While this connection counsels local tax flexibility, I caution against fear-based barriers to capital migration.
See also Shayak Sarkar, Capital Controls as Migrant Controls, 109 Cal. L. Rev. 799 (2021) (reviewed by Juliet Stumpf (Lewis & Clark; Google Scholar) here)