The Myth of Corporate Tax Residence

Elkins, David

The thesis of this article is that such an assumption is unwarranted and that tax residence is an attribute of individuals only, inapplicable to the corporate entity. Already at the outset, it is important to stress that the argument is not semantic. I will not rest my claim on the fact that, as nonphysical entities, corporations cannot “reside” in a place in the same sense that natural persons can. Rather, I will argue that the distinction between residents and nonresidents derives from the need to delineate the universe within which certain norms of distributive justice operate and that, as the nature of the corporate entity precludes its membership in any scheme of distributive justice, the categories of “resident” and “nonresident” are inapplicable to it.

Part II will explore why residence is a relevant attribute when determining the tax liability of individuals. It will explain that income tax is an application of the principle that tax liability should accord with ability-to-pay and that, in turn, ability-to-pay derives from a certain set of conceptions regarding distributive justice. Under these conceptions, distributive justice is not universal in scope, but applies only to those with a significant personal connection to a given society. Residents are those who are subject to taxation in accordance with their ability to pay. For nonresidents, the guiding principle in determining tax liability is not distributive justice but rather commutative justice.

Part III will examine whether the concept of residence is applicable to corporations. It will argue that as corporations have no personal identity, experience neither pleasure nor pain, have no personal attachments, and are not Kantian rational beings, they cannot be members of a collective to which the terms of distributive justice apply.

Part IV distinguishes between corporations and their shareholders. Although corporations cannot be residents of a country, individual shareholders can, and as computing their ability-to-pay requires taking into account their accession to wealth derived from shareholding, a means must be found whereby to tax them on that income. In the domestic arena, the corporate income tax serves this function. However, with regard to any corporation with both U.S. and foreign shareholders, the imposition of tax on the corporate entity as a proxy for taxing individual shareholders is not feasible. Consequently, the current corporate tax regime is unviable in the international arena.

Part V describes in broad outline an alternative international corporate tax regime that would attempt to reach the worldwide income of resident shareholders and the U.S.-source income of nonresident shareholders.

Part VI summarizes the findings and offers some concluding thoughts.


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Columbia Journal of Tax Law

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November 21, 2017