Tuesday, September 30, 2014

Three interesting but totally different articles in today's Times

An article on the decision not to bail out Lehman Brothers (suggesting that it was in some ways arbitrary, ill-thought-out, deceptively presented, and quite political) builds on recent pieces discussing AIG et al (with no haircut whatsoever for Goldman Sachs) that bring to mind the dual nature of the 2008 rescues.  On the one hand, the Fed's interventions were necessary to prevent true global macroeconomic calamity, well beyond the plenty-bad-enough consequences that we nonetheless experienced, and yet they were politically attacked in a way that could make doing the right thing harder in the future.  (Then again, perhaps the political costs of rescue do help to ease, if only slightly, the moral hazard problems caused by knowing that one is too big or central to fail.)  But on the other hand, they reinforce my sense that in some ways the rescuers' choices really can't withstand much scrutiny, given how they arbitrarily played favorites and reflected the undue political influence of players such as Goldman.

On  a totally separate theme, an article on the European Commission's preliminary finding that Ireland gave Apple tax advantages that amounted to illegal state aid, and may be ordered to collect billions of dollars in back taxes that the Irish government, with an eye to future freedom of action in making deals with companies, may not even want.

Finally, for comic relief, Mitt Romney keeps bringing to mind the song, "How Can I Miss You if You Won't Go Away?"

Book review for Fixing U.S. International Taxation

Christiana Panayi of the Queen Mary University in London has written a book review of my recently published book Fixing U.S. International Taxation.  It should be appearing shortly in the British Tax Review.  The text of the review goes something like this:

"Professor Daniel Shaviro is a well-known and widely published professor of international taxation at New York University. As the title suggests, in this book Shaviro advances several proposals aimed at improving US international tax law. Broadly, his main proposal is to set the average effective rate on foreign-source income of US multinationals somewhere below the statutory corporate rate and above zero. He also proposes to eliminate deferral advantages and to abolish the foreign tax credit, replacing it with a deduction for foreign taxes.

"Shaviro’s writing is clear and highly thought-provoking. In spite of the complexities of the issues in place, the author manages to offer a concise and comprehensible overview of the problems plaguing the current discourse on reform of US international tax law.

"There are six chapters in this 200 page book.

"Chapter one is an introductory chapter. Here, Shaviro identifies the problems with the current rules of US international tax law, and reviews the academic debate on these problems. He sets out “the core dilemmas in international tax policy” and “the defects in prevailing modes of analysis”, before laying down the parameters for his proposals and the main policy implications.

"All of these issues are examined in greater detail in the following chapters.

"Chapters two and three delve into the basics of the US international tax regime. The author focuses on what he considers to be the main building blocks of this regime, namely the rules for determining corporate residence, some source rules such as transfer pricing, the rules on foreign tax credits and the rules on deferral and Subpart F. Chapter three revisits these building blocks, but the focus is on the main incentives and tax planning opportunities that the existing rules create and the possible impact of marginal changes to these rules.

"Chapter four explores the global welfare perspective on US international tax policy. The author reaches the conclusion that global welfare analysis plays a small role, notwithstanding its normative appeal. In fact, in Shaviro’s view, prevailing international tax practices are not greatly influenced by global welfare considerations. In any case, the author argues that the potential gains that are available through global cooperation are much more limited than in the field of international trade. In this chapter, the author goes on to reject what he calls the global “alphabet
soup” and the single-bullet approach of achieving global welfare. The alphabet soup is a reference to the acronyms used for capital export neutrality (CEN), capital import neutrality (CIN), national neutrality (NN), and, more recently, capital ownership neutrality (CON), national ownership neutrality (NON) and global portfolio neutrality (GPN). All of these concepts are analysed at some length. Shaviro concludes that  “[w]hile global welfare considerations may be important when unilateral cooperation is sufficiently feasible, in the main countries must and will make international tax policy choices in a largely unilateral setting”.

"This idea, which he describes as the unilateral national welfare perspective, is further elaborated in Chapter five, wherein the basic elements of this perspective are analysed. Shaviro argues that foreign-sourced income should be subject to a lower rate than is currently the case, but the base should be broadened. Both deferral and foreign tax credits should be eliminated.

"On the basis of these conclusions, Shaviro sets out in Chapter six the practical steps that should be taken to improve US international tax policy. In addition to the above proposals, Shaviro makes further interesting suggestions. Inter alia, he argues that the concept of US corporate residence should include companies that are incorporated abroad but have US headquarters. He also argues for the application of formulary approach to allocating interest expenses.

"Interestingly, though rather briefly, at the end of this chapter, Shaviro touches on the topic of transfer pricing versus formulary apportionment, and emphasises the importance of 'think[ing] about the proper choice of factors' under formulary apportionment. He suggests the use of all three traditional factors (sales, employees and assets), but would give extra weight to the sales factor.

"This book offers an excellent analysis of the topic and it is especially helpful to non-US tax lawyers. One of its main strengths is that while it shows a wealth of knowledge of public finance, the writing is plain and understandable to those not well versed with public economics. Apart from the bold—but practical—suggestions made for reform, the book also identifies issues that need further examination. It provides an excellent benchmark for further research to be undertaken.

"Rather humbly, Shaviro closes the book 'with the hope that you, at least—the current reader—have found new ideas here that will stimulate further reflection'. Most open-minded readers will certainly do so."

Sunday, September 28, 2014

NYU-UCLA conference on Piketty's Capital in the Twenty-First Century

The conference is this Friday, 9 am - 4 pm, alas by invitation only due to space limitations (but we might be able to fit in a few more people), at NYU Law School.  Papers by Liam Murphy (philosophy), Suzanne Mettler (political science), Gregory Clark (economic history), Wojciech Kopsczuk (economics), and myself with Joe Bankman (law).  Piketty to respond verbally to all papers.

Papers are or will be available to those registered for the conference, but not to be posted just yet.  I am reasonably happy with Joe's and my paper, but obviously we will see how others respond.

Friday, September 26, 2014

A short comment on baseball

A now-mediocre player, on a now-mediocre team, gets a walk-off hit at home (apparently, his first such in 7 years) in a meaningless game. Fans go crazy. But living in the past turns sour at some point (as we Met fans well know)..

Sunday, September 21, 2014

Another long silence ...

While on sabbatical, I've been traveling again, mixed personal and work.  Recent locales: Paris, Giverny, Vienna, Budapest, now Vienna again, all fantastic places in very different ways.  I'll be back in NYC on Wednesday.

While away, I've noticed a disagreement about U.S. corporate inversions among 2 friends, Ed Kleinbard at USC Law School and Kim Blanchard at Weil Gotschal.  Ed's views on inversions are well-known, and I generally agree with them (although his approach and mine to U.S. international tax issues certainly differ in some respects - e.g., I am more hostile to the foreign tax credit and more leery about how far we can push residence-based WW taxation of U.S. companies even in the short run).

Kim had a recent letter to Tax Notes disagreeing with Ed (who no doubt will be responding very soon).  I read her piece (from afar) as suggesting that Ed views the new wave of inversions as essentially sham transactions that are purely motivated by tax avoidance, whereas clearly some of them may have significant non-tax effects that may even be sought-after and intended independently of the tax benefits.  E.g., if a big U.S. company merges with a big non-U.S. company, then even if they put the latter company on top for tax reasons, and even if the tax benefits of ceasing to have a U.S. company at the very top are appealing, then the deal may be far from a pure paper-shuffling sham.

I don't think that one needs sham transactions to have the concerns about inversions that Ed has been expressing.  The need to have a real and not wholly insignificant merger, in order to get the tax benefits of an inversion, does indeed provide a potential friction that can reduce the frequency of inversions relative to the scenario where it's purely a paper play, but that doesn't prevent one from having concerns about the effects on the U.S. tax base of permitting them to go forward in the face of their often having significant tax benefits that will increase their frequency.

I would tend to favor treating even economically significant inversions as triggering an automatic deemed repatriation ending deferral (at least for a significant % of foreign earnings) for the U.S. company's CFCs (even if they remain such), possibly with deferred payment that bears an interest rate for the deferral.  I also think we need to find our way towards what I call more residence-neutral rules for determining the source of income earned by companies that are active in the U.S. as well as abroad, i.e., addressing the extra opportunities to strip income out of the U.S. that may arise for foreign-headed multinationals.  But in the interim I'd regard inversions as a problem even when they are "real" transactions with significant non-tax effects.

Thursday, August 28, 2014

Allergies

... are the body's version of McCarthyism.  The immune system can't find enough real enemies, so it invents fake ones and makes everything worse.

Explaining August's nearly unbroken radio silence

Another month almost gone - the last in my favorite three-month stretch of the year (aka the true, as opposed to purely astronomical or even meteorological, summer) - and I have scarcely posted lately.  Thus, for example, I have yet to mention here the Burger King inversion story, although over the last couple of days I have been discussing it with members of the press.

I've been traveling for much of the month, first on vacation and then, as a parent, to help deliver a rising freshman to his college in southern California.  Two side benefits that I got from the latter trip were as follows.

First, I was able to fit in a trip to the Nixon Museum in Yorba Linda.  As a long-time Nixon aficionado, this was a treat indeed.  (I realize that no one under 50 can truly appreciate Nixon's astounding comic, dramatic, and literary greatness as a better-than-fictional character.)

Nixon's memoirs begin with the line "I was born in the house my father built."  Speak of great openings, although I never tried to read the rest as I gather it falls short of his most personally revealing work, "Six Crises."  But the house his father built is actually there at the library, at its original site, and I got to step inside.  Also at the Nixon Library is the famous helicopter from which he did his characteristic V-for-Victory pose before boarding to fly away from the White House after he resigned.  Other features include his and Pat's graves, a reconstruction of the White House East Room, and a fairly balanced review of his career.  (The National Archives now runs the place, helping to account for the balance.)

Rather a melancholic site, however, especially in light of Nixon's grandiose ambitions, along with the certainty that he must have felt, even as late as March 1973, that he had fully achieved them.  His ultimate disgrace not only is recounted there, but affects everything about the site.  Not for him the giant Pharaonic monument that I am sure he wanted.  For one thing, the money evidently wasn't there post-disgrace.  Instead, it is quite modest.  Presumably to help make ends meet, they have to rent out the place for weddings, real estate seminars, and the like.  You don't see that sort of thing in Napoleon's Invalides.

Biggest surprise: We got there just after it opened, and the parking lot was completely full, requiring us to park in the Quaker church lot (I think it was) across the street.  I had been joking all the way there about the giant lines we would face, and then was startled to see this evidently confirmed.  But not so fast.  It turned out that the reason for the full parking lot was a seminar offering pointers to real estate salesman.

Best comment: Standing just outside the main building during a tour, my wife and I saw a little field mouse race down a corner of the sidewalk and disappear into a small hole on the lawn.  She noted that seeing a rat on the grounds would have been more appropriate still.

On to the second side benefit of the trip.  It gave me a chance to read Balzac's Pere Goriot, discussed extensively by Thomas Piketty in Capital in the Twenty-First Century and to feature as well in the review that I am co-authoring with Joe Bankman for the NYU-UCLA Tax Policy Symposium on (and with) Piketty that will take place at NYU on October 3.  (Side-comment: We realized that this was Yom Kippur Eve when we scheduled the event, but it was the only mutually convenient date available).

I had previously read Pere Goriot and several other works by Balzac, back in the 1970s, when it in particular had made a strong impression although I didn't entirely like it, but hadn't been through it since.  Lots of boiling melodrama, long declamatory speeches, etc.  "What will Paris say?"  I must admit that I continue to strongly prefer two roughly contemporary French novels that I regard as similar in genre (i.e., bildungsroman featuring an upwardly mobile adventurer): Stendhal's The Red and the Black, which was published five years earlier, and Flaubert's Sentimental Education, which came out more than 30 years later.  But Balzac certainly has a rude and highly theatrical gusto, and if unfashionably unjaded he is certainly plenty cynical.

In our NYU-UCLA commentary, we will be quibbling a bit with how Piketty interprets Pere Goriot as a social document. But I'll save that for later - with luck we may reach the stage of posting the full piece on SSRN within a couple of weeks or even less.

Tuesday, August 19, 2014

The Obama Administration's move towards greater unilateral executive action

Today's New York Times notes "Mr. Obama's increasingly expansive appetite for the use of unilateral action on issues including immigration, tax policy, and gay rights," which it says has "emboldened activists and businesses to flock to the administration with their policy wish lists."

Esteemed colleagues at other law schools have been playing a prominent role in urging unilateral executive action to address significant tax policy issues that typically, in the past, would have been handled through legislation.  For example,  Steve Shay has written about what the Administration can do unilaterally through its regulatory levers about corporate inversions. Victor Fleischer argues that the Treasury's regulatory authority would permit it to address unilaterally, not just inversions (as to which he says "[t]here is no question that Professor Shay gets the law right" concerning the Treasury's regulatory powers), but also the carried interest loophole for hedge fund managers.

As I was quoted as saying in Fleischer's carried interest write-up, it should be no surprise that the Treasury is thinking in these terms, even though traditionally it would not have acted to change policies that customary practice assigns to the legislative process.  "[W]hen the legislative process is as broken as it has become today ... it's simply inevitable that administrations will care less about such comity, and be more willing to advance their policy views in controversial areas through the unilateral exercise of regulatory authority."

Would it be better if the Obama Administration were more circumspect, even assuming (in keeping with my own views) that Shay and Fleischer are right in tax policy terms?  Definitely yes in a better, but counter-factual, state of the world.  But when the legislative process has so completely broken down, the question changes to that of whether one is sufficiently incrementally worsening things at the institutional level to outweigh the policy benefits.

In other words, suppose the Obama Administration changes policies in these two areas but then the next Republican Administration reverses both sets of regulatory changes, and also pushes through lots of stuff that either comity or blind acceptance of then-prevailing practice discouraged the Bush Administration from doing.  Then the next Democratic Administration flips things back the other way, and so on.  Meanwhile, as the Times article notes, special deals and favors start being meted out through regulatory changes, without even the admittedly limited scrutiny that such things get when done legislatively.

This does not sound like a great state of the world.  But I think it is where we are headed in any event, and under administrations from both parties.  So again, I see the principled question for the Obama Administration as whether it is significantly aggravating / speeding up this process if it takes an aggressive stand during its last 2-plus years in office.

I tend to think not, on the ground that we are headed there with all due speed anyway, and that the next Republican Administration will not be greatly discouraged from doing such things, where it wants to, by Obama Administration forbearance.  Think of filibusters, which minorities always had the power to do, but generally accepted as subject to limitations of convention that have by now almost wholly eroded.  In that type of environment, honoring conventional limitations on the exercise of one's legal rights or powers makes a lot less sense than otherwise.  It's a prisoner's dilemma scenario in which everyone else is defecting anyway.

UPDATE: Jonathan Chait provides a well-chosen hypothetical for critiquing the view that I take above.  In response to discretionary non-enforcement of legal rules - as distinct from issuing new regulations - he argues that, if President Obama can, say, decide not to enforce particular immigration laws, then what is to prevent, say, a President Romney from announcing that he would stop all enforcement actions against the non-payment of estate taxes?

The example is not legally on point for my discussion above, since discretionary non-enforcement of a law on the books is distinct from revising administrative regulations that permissibly define applicable law.  But the same concern about escalating breakdown of accepted norms that we rely on in practice is surely germane.  And the conclusion might either be that one should tread a bit lightly after all, or that we are in big trouble whether one side unilaterally does so or not, given the accelerating breakdown of norms that, as Chait notes, are no less crucial than our express constitutional and legal structure to "secur[ing] our republic."

Monday, August 18, 2014

Forthcoming conference at NYU Law School on Piketty's Capital in the Twenty-First Century

Here is the text of an announcement that has just been sent out.  The event has been in the works for some months now, but I didn't think I should mention it here until it officially went public.

I will mention further details in due course.

Fourth Annual NYU/UCLA Tax Policy Symposium:
Thomas Piketty’s Capital in the Twenty-First Century
NYU School of Law
Greenberg Lounge (40 Washington Square South)
Friday, October 3, 2014, 9:00 AM to 4:00 PM

On Friday, October 3rd, at NYU School of Law, the Fourth Annual NYU/UCLA Tax Policy Symposium will address Thomas Piketty’s groundbreaking and best-selling book, Capital in the Twenty-First Century.  The day-long event will consist of five panels featuring leading scholars who will analyze the book from economic, legal, historical, political science and philosophical perspectives.  Thomas Piketty will participate in the discussion and deliver responses to each of the papers presented.

Confirmed panels and paper presentations are:

·         Wojciech Kopczuk, Columbia University; moderated by David Kamin, NYU School of Law
·         Joseph Bankman, Stanford Law School, and Daniel Shaviro, NYU School of Law; moderated by Eric Zolt, UCLA School of Law
·         Gregory Clark, UC-Davis; moderated by Joshua Blank, NYU School of Law
·         Suzanne Mettler, Cornell; moderated by Jason Oh, UCLA School of Law
·         Liam Murphy, NYU School of Law; moderated by Kirk Stark, UCLA School of Law

All papers will be published in the Tax Law Review in 2015.

Due to the anticipated high interest in this event, participation will be limited to NYU Law and UCLA School of Law faculty, students and invited guests.  An invitation and registration information will be e-mailed shortly.

The NYU/UCLA Tax Policy Symposium hosted by NYU School of Law and UCLA School of Law is a joint annual conference focusing on tax policy issues from both a legal and economic perspective.  It provides a forum in which leading scholars, policymakers, and practitioners can analyze complex tax policy questions and options for reform, and brings together members of both NYU Law’s tax law faculty and UCLA Law’s business law and policy program.  It builds on tax policy symposia that have historically been hosted by the Tax Law Review, the premier law school journal for tax policy scholarship, and the UCLA Colloquium on Tax Policy and Public Finance, started in 2004.  Financial support for this conference is provided by NYU School of Law and the Lowell Milken Institute of Business Law and Policy, UCLA School of Law.