2017 Articles

Minimum Global Effective Corporate Tax Rate as General Anti-Avoidance Rule

Azam, Rifat

In this article, I propose to add a new provision to the U.S. Internal Revenue Code that adopts a minimum global effective corporate tax rate that will serve as a general anti-avoidance rule and is targeted toward international corporate tax avoidance. According to this proposed new section, if the global effective corporate tax rate of any American Multi-National Corporation (MNC) is below 15%, the MNC will then be required to close the gap and pay the U.S. Treasury up to the minimum.[28] For purposes of my proposal, the global effective corporate tax rate will be calculated according to the ratio between the global corporate tax paid and the global earnings and profits (E&P) in the financial statements of the MNC.[29] The tax imposed according to my proposed rule is an interim liability that serves to limit tax avoidance schemes on international transactions.

I argue that this rule is expected to reduce the incentives for international tax avoidance because all MNCs will be liable for the minimum global effective corporate tax rate no matter which tax-planning scheme is used. In my opinion, this regime improves the fairness and efficiency of the U.S. international corporate tax regime while protecting and maintaining the competitive position of American MNCs in the global digital economy. I contend that my proposal is politically feasible in the U.S. because the U.S. must act in order to protect its base and its multinationals in the new international environment. Without U.S. response, other unilateral or international responses are likely to negatively affect U.S. interests as the State Aid Cases of Apple and other U.S. multinationals reveal. My proposal is feasible since it is consistent with the ideology and interests of both Democrats and Republicans. Furthermore, the Obama Administration has already proposed a similar minimum tax, and the similarities between my proposal and that of the Administration outweigh the differences.[30] I use Former President Obama’s minimum taxation proposal to support the political feasibility of my minimum taxation proposal, but at the same time, I argue that my proposal is distinct and more appropriate than Former President Obama’s proposal and other proposals of minimum taxation such as the Shay, Fleming and Peroni interim minimum tax[31] and the Grubert, Altshuler minimum tax versions.[32] If the United States adopts this proposed rule, it will substantially contribute, through “constructive unilateralism”, to international tax reform that will better equip the global community to meet the challenges of a twenty-first century digital economy. [33]

This article contributes to a timely issue of international taxation. It brings a fresh perspective on the debate about international corporate tax avoidance. My proposal is innovative and distinct from current discourse and other proposals. Little attention has been given by scholars of international corporate tax avoidance to the extensive literature and comparative experience available that addresses: (i) the impact of corporate tax avoidance at the national level and (ii) the government’s attempts to limit such behavior, particularly through regulatory reform.[34] My proposal deviates from the current puzzling situation in that it utilizes the significant insights that this literature provides in order to improve reform efforts at the international level. Therefore, rather than proposing an entirely new scheme that addresses the challenges presented by international corporate tax avoidance in an isolated manner, my proposal uses relevant experiences at the domestic level in the United States and in other countries as a foundation.

Following this introduction, Part II describes the current U.S. rules of international taxation on outbound and inbound transactions as well as the interaction between these rules and (i) the bilateral rules provided by the U.S. treaty network and (ii) the international norms such as the OECD norms. Furthermore, Part II analyzes the challenges faced by the U.S. and the global tax regime as a result of international corporate tax avoidance. Data is provided to illustrate the impact. Part III explores the current American responses to this challenge. Part IV briefly describes the OECD international response through the BEPS project and examines the interactions between the American responses and the OECD responses. In Part V, I present my proposal in detail, as well as the philosophy and justifications behind it. I compare my proposal to other proposals of minimum taxation, and I respond to counterarguments. I end my article with a brief conclusion.