"For Haven's Sake: Reflections on Inversion Transactions"

Michigan Law Authors
Areas of Interest
Publish Date
2002
Publication
Tax Notes International
Publication Type
Journal Article
Abstract

This article discusses “inversion” transactions, in which a publicly traded U.S. corporation becomes a subsidiary of a newly established tax haven parent corporation. In the last three years, an increasing number of these transactions have been taking place, undeterred by the shareholder level tax imposed by the IRS on them in 1994. The article first discusses the reasons for the increasing popularity of the transactions and the tax goals they aim at achieving (primarily avoiding subpart F and U.S. earnings stripping). The article then discusses the tax policy implications of these transactions. In the short run, the article suggests that the proper response is a redefinition of the concept of corporate residency. The article criticizes the shareholder-based redefinitions embodied in some current anti-inversion proposals, and suggests instead adoption of a modified “managed and controlled” test for all corporations. In the longer run, inversions may lead to abandonment of residence based corporate taxation in favor of source-based taxation. If that is the case, it is imperative to preserve the corporate tax base by developing better methods of determining the source of income (for example, formulary apportionment), and by putting some limits on tax competition. The author would like to thank Michael Barr, Peter Canellos, Merritt Fox, David Hasen, Jim Hines, Doug Kahn, Kyle Logue, Mike McIntyre, Dan Shaviro, David Sicular, and Phil West for their helpful comments.