Thursday, April 29, 2021

Scholarship update

Now that my teaching for the 2020-21 academic year is actually done - leaving aside an exam next week - I've been able to turn back to writing as a fairly full-time activity. I'm sometimes able to write during the semester, but that hadn't been so this year - what with teaching on Zoom, wanting to rethink things even if I've taught them many times before, and having care issues relating to senior family members.

Finding topics, or at least fresh takes that I am interested in writing up, is also more challenging than it used to be. Let's face it, I've written about quite a lot of things since entering academia in 1987. So many things within the general realm of what I might write about are no longer fresh or new to me. And though I will return to a theme if I have reason to do so, I get bored too readily to make a regular practice of it.

On the other hand, if I can find an angle that excites or at least intrigues me, I feel I can bring more to the table in some ways than I could earlier in my career. There are certainly some advantages to my having a broader frame of reference, along with more knowledge and experience, than I did when I was younger.

That being so, I now have a pretty decent agenda of things to write about that will take me quite a while. The current list, leaving aside casebook updates, my annual Jotwell piece, and the like, stands as follows:

1) I've just started a piece with the working title The Economics, Law, and Politics of Seeking Increased Taxation of Multinationals. It discusses why and how understandings and main policy goals seem to have changed a bit recently in the international tax field. I previewed some of the thinking that underlies it here.

2) I've agreed to write a book chapter on inequality and redistribution in a forthcoming edited volume concerning new directions for tax policy research more generally. Among the main topics will be the state of the play and where to go next, as I see it, with regard to issues not just of class but also of race.

3) I've agreed to co-author (with a good friend whom I have co-authored with previously) a piece discussing Ed Kleinbard's scholarship for a tribute symposium. The aim here is not just to offer well-deserved praise, but also to place his work in context and discuss its relationship to the complementary roles played by different types of scholarship.

4) With Stanley Surrey's memoirs finally appearing in print shortly, I am planning to write an article about Surrey's distinct scholarly role and contributions. This, too, will have an element of looking at the underlying enterprise, and the "scientist vs. moralist" choice (as William F. Buckley, of all people, put it while interrogating Surrey) that one may face.

5) In my literature / inequality / sociology vein, I've long wanted to write something about P. G. Wodehouse, whose delightful work is far more interesting than he might have meant it to be with regard to changing early twentieth century notions of class. I had been unable to find an angle that quite worked for me, and "literature and inequality" didn't seem to be quite the right frame (albeit related to it), but I am hopeful that I may now have found an approach that might yield fruit. Where I'd publish the darned thing is another question - it wouldn't be either a book or a law review article.

I'm also now engaged in looking to publish my main work of the last year-plus, covering the era of the pandemic (and the first thing I have ever written entirely at home). It's a completed shortish book manuscript (45,000 words) - I believe quite lively and readable, and with things to say about where we are today as a country - that is currently entitled Bonfires of the American Dream in American Rhetoric, Literature, and Film

Thursday, April 15, 2021

Tentative NYU Tax Policy Colloquium Plans for Fall 2021

I have been making plans for the fall 2021 NYU Tax Policy Colloquium, against the backdrop of continued pandemic-related uncertainty. Also, my co-convenor for the last three years, Lily Batchelder, may be moving up to better things for the next couple of years. I also have concluded that inviting another co-convenor is more than a bit tricky, given that said person would need to agree to be in NYC for live teaching if things do indeed proceed sufficiently well, pandemic-wise.

Speakers, by contrast, can be (and have been) invited on the basis that they will be able to participate via Zoom even if we are otherwise meeting live. An institutional commitment by NYU to live appearances by those who are teaching a given class (again, assuming that the pandemic sufficiently ends) apparently would not apply to guest speakers. And "hybrid" technologies for live plus Zoom have been in development for the last year.

However, while speakers can participate by Zoom, I simply don't know at this stage whether, in the event that we aren't all-Zoom due to the persistence of the pandemic, we would be able to accommodate Zoom attendees in the audience. In last fall's sessions, much though I missed having live sessions, I was delighted by our ability to draw participants who were many time zones away from us, and who could not have come in person, even absent the pandemic.

So there are a lot of open questions still. But I have decided that, if I'm going to be teaching the colloquium solo, I need to cut it back a bit. A fresh paper every week, with two hours meeting with the students plus a two-hour public session, is simply too grueling - far more effort, for example, than teaching a four-hour lecture class. So I will be cutting it back to one paper and one meeting a week, generally with each paper having a class meeting one week and a public session the next.

As the 2021 fall semester will be 13 rather than the usual 14 weeks, I decided  to schedule 7 public sessions, vs. 6 private ones. But of course we need to start in week 1 with a class session, so that we can start getting to know each other. Thus, the public sessions will be held in weeks 2, 4, 6, 8, 10, 12, and 13.

Another thing I don't know yet is when the sessions will take place. I am hoping that the public sessions will be at 4 pm EST or thereabouts. But they were earlier in the afternoon last fall, reflecting both our Zoom-adjusted schedule and the aim of allowing people to attend from European time zones. In any event, I'm pretty sure that all of the sessions will be held on Tuesdays.

Will we have our traditional small-group dinners after live public sessions? I am hoping so, but it is obviously too early to tell.

I have now scheduled all our speakers. Again, I am hoping that all will appear live and in person. But any of them may and will use Zoom instead if needed. Our public sessions will be as follows:

September 14 - Jake Brooks and David Gamage

September 28 - Daniel Hemel

October 12  Jennifer Blouin

October 26 - Manoj Viswanathan

November 9 - Ruth Mason and Michael Knoll

November 23 - Mindy Herzfeld

November 30 - Alan Auerbach

Monday, April 12, 2021

Link to Ed Kleinbard book event at USC

 I recently posted here about a Zoom book event that was held at USC on March 31, concerning the late Ed Kleinbard's great book, What's Luck Got To Do With It?

The event is now viewable here. Suzanne Greenberg, Ed McCaffery, and Greg Keating all offer excellent comments, after which there is audience discussion. My question (or rather, more of a comment) can be viewed at around 57:27. For some reason I am rocking back and forth a bit as I speak, which I usually have the sense not to do on Zoom (not sure why it happened this time), but the audio is okay even if I half-wish that bit of video could be (or had been) turned off.

Friday, April 09, 2021

Ten quick observations on the Made in America Tax Plan

 The Treasury Department has just released a short document, The Made in America Tax Plan, explaining and describing the main features in President Biden's proposed tax plan that, as I understand it, would be part of the budget reconciliation infrastructure bill.

As I seem to like lists of ten (as shown both here and here), here are ten quick preliminary reactions to what the report says and, in a few cases, doesn't as yet say.

1) The New Progressive Consensus - The report and its proposals are extensively grounded in recent cutting-edge academic research. (Perhaps this should be no surprise, given the list of experts who have joined the Biden Treasury Department - even if I have personal reasons for dissenting from Paul Krugman's statement that "it's hard to find a tax expert who hasn't joined the Biden team"!).

Let me dare to propose here a label for the underlying research. I think of it as the "new progressive consensus" regarding business and corporate taxation. To be clear, I don't mean to assert that there's a new consensus, generally shared among experts and researchers all the way across all methodological and ideological spectra, that happens to be progressive. Rather, among those who are more on the progressive side I discern this broader emerging consensus, which also has broader influence although it is by no means uncontested by those with different intellectual or ideological commitments. (Yes, despite the ideal of empirical economics as a "science," political preferences do indeed tend to correlate with empirical beliefs, and even those of us who are looking at the empirics entirely in good faith may have unconscious biases. There is also reason to think that, insofar as empirical beliefs and policy preferences are correlated, the causal arrow does not run just from the former to the latter.)

Perhaps the core element of the new progressive consensus that the Treasury document relies upon (with extensive research citations) is that, in substantial degree, the corporate income tax falls on excess profits, not normal returns. To that degree, corporate profits can be taxed efficiently and without reducing investment, the incidence of the tax will be borne predominantly by shareholders (and, over the longer term, wealthy holders of capital more generally), and the corporate income tax is a vital tool for achieving vertical distributive justice.

Once one is looking at rents, monopoly profits, and other sources of extra-normal returns, rather than at normal returns (e.g., the pure risk-free return to waiting), policy conclusion after policy conclusion can pretty much take a 180-degree turn. 

A second key element in the new progressive consensus is  that the artificiality of the legal concepts that are used in corporate income taxation - for example, the notion of income as having a geographical source - means that companies often respond to tax rate differences and changes far more through formalistic profit-shifting than through real changes in where they are actually doing particular things. Losing actual domestic "investment" that might have had positive spillovers is different from losing tax revenue due to the "games they play" - especially when the success of the latter is endogenous to the legal rules' particular details.

2) Labor, Capital, and "Capital" - A central policy aim of the report is to reverse the dramatic shift over many decades of tax burdens from labor to capital. I would note, however, that capital here includes "capital" - i.e., that which is reported as capital, for example because it takes the form of stock appreciation that the founders and other owner-employees chose not to pay out to themselves as explicit salary. In conventional speech, labor vs. capital used to denote different groups of people: the workers versus the owners. This then all got muddied, actually at least in part for good intellectual reasons, due to rising appreciation of the facts that workers have human capital and capitalists often work on their own behalf. But the old usage may be returning, for the good reason that it helps one to distinguish between groups whose income is predominantly reported as labor income versus capital income. That can make "labor vs. capital" a good proxy for "the poor and middle versus the top 1 or 0.1 percent," even if much of what we really mean is low-wage versus high-wage.

3) The Corporate Sector Versus the Broader Business Sector - The Treasury document focuses almost exclusively on the corporate income tax, although (as it notes) the US business sector has an unusually large non-corporate component. It notes that this difference does not explain away the fact that US corporate tax revenues, as a percentage of GDP, are exceptionally low by OECD standards. (The OECD norm is about 3%, as compared to, in the US, 2% pre-TCJA and 1% post-TCJA.) While obviously the relative size of the US non-corporate business sector affects these computations, relative to the case where all US business was corporate in form, it is very far from being the whole story, especially given how high US corporate profits have been over the last 15 years.

Still, the non-corporate part of the US business sector is important, too. While presumably this was beyond the report's assigned scope, and might also complicate the politics of enacting desired tax changes, it would certainly be a move in the right direction to supplement the document's proposals with repeal of the egregious section 199A passthrough deduction.

4) Importance of cross-crediting - Turning from broad generalities to the Biden plan's particulars, it advocates switching in GILTI from the allowance of cross-crediting, as between income earned in high-tax versus low-tax countries, to the use of a country-by-country regime. I have in recent work argued that cross-crediting has structurally undesirable tax planning effects even if one holds constant (through the use of other changes) a given regime's overall rigor or burden imposed. The Treasury document emphasizes instead the important point that, with cross-crediting, profit-shifting from the US even to high-tax foreign countries can have a substantial tax avoidance payoff, because seemingly high-tax foreign source income, unlike what is reported as US source income, can be shielded from US tax via cross-crediting.

5) Proposed changes to GILTI - There are three of particular importance here:

(a) raising GILTI's global minimum tax rate from 10.5% to 21% (through a reduction of the GILTI exclusion from 50% to 25%, while the corporate tax rate increases from 21% to 28%), 

(b) eliminating the current rules' exclusion of a deemed 10% return on foreign tangible assets, and

(c) as noted above, shifting from a worldwide to a per-country application of GILTI's 80% foreign tax credit. 

For reasons that I have discussed elsewhere, the latter two changes are significant structural improvements, even leaving aside their effect on the overall tax burden that GILTI imposes. There are also very good reasons to increase the tax rate on US companies foreign source income, pertaining (for example) to profit-shifting and overall US revenue needs.

The other side of the coin, obviously, is the question of whether the tax burdens that this imposes (via taxation of foreign source income) on US companies, relative to foreign companies, could redound to our national disadvantage. The Treasury responds to this concern mainly by (a) noting data and arguments that suggest limited real responses, (b) proposing to strengthen anti-inversion rules, and (c) as the question is not so much foreign source income for its own sake as the use of profit-shifting to avoid the US tax on US activity, proposing to strengthen anti-profit-shifting rules as they apply to foreign multinationals, outside the realm of GILTI. (This pertains in particular to the proposed BEAT replacement that I discuss below.)

A further possible response that may need to be considered as time goes on is expanding the definition of US corporate tax residence. As is well-known, we mainly determine US corporate residence on the basis of US incorporation, whereas most other countries rely on where management or headquarters or a large portion of operations are located. Our approach, though on its face quite formalistic, has actually proved more resilient (even with respect to new companies)than one might have expected, in part due to American incorporation's appeal, e.g., to Americans who are starting new companies and don't yet know if they will succeed in creating wildly successful global brands.

But, the more weight one places on US corporate residence, such as by making GILTI more effective, the stronger the case for considering a broader approach to corporate residence - e.g., extending it in the alternative to companies that are either incorporated OR headquartered here, perhaps with some provision for better coordinating our corporate residence rules with those of peer countries. The Treasury document sticks a toe in these waters, but only insofar as it would extend the anti-inversion rules to certain transactions in which the foreign acquirer is managed and controlled in the US.

6) Replacing the BEAT with "SHIELD" - The Treasury document notes the BEAT rules' poor design and frequent avoidability, leading to their ineffectiveness in curtailing profit-shifting to low-tax jurisdictions. I agree that the BEAT is a failure and ought to be repealed (or else, at the least, be unrecognizably transformed), subject to the point that profit-shifting through the making of US-deductible payments to foreign affiliates in low-tax jurisdictions still needs to be addressed.

The SHIELD proposal that the document sketches out as a replacement certainly sounds worthy of further development. In brief, it would deny US tax deductions for payments to foreign affiliates that are subject, in their own jurisdictions, to a low effective rate of tax. Pending a multilateral agreement between countries to lay this out, the default rate trigger would be the GILTI rate (i.e., 21%).

My scholarship has raised the question of to what extent a country (such as the US) actually benefits unilaterally when it thus disfavors the payment (by a company whose owners include resident individuals) of low, rather than high, foreign taxes. These objections may diminish substantially, however, in the case of cooperative multilateral effort to discourage profit-shifting - which the proposal, in this respect among others, aims to enhance and expand.

7) Buh-bye to FDII - The proposal would repeal FDII, our ill-designed (and probably illegal) export subsidy that can actually encourage outbound profit-shifting and asset-shifting. Given the length of this blogpost already, I will simply say: Hear, hear, and good riddance to bad rubbish.

8) Minimum tax on book income - The proposal retains, but scales back, the Biden campaign's proposal to impose a minimum tax on highly profitable companies' financial accounting income (aka book income). As modified, the minimum tax would apply at a 15% rate to US companies with more than $2 billion of reported profits for a given year. Certain tax credits, including foreign tax credits, would be allowed to reduce this minimum tax liability (which, as a minimum tax, would be payable only to the extent that it exceeded the company's regular corporate tax liability).

As I have discussed elsewhere, I am a bit skeptical about the use of a minimum tax structure here. Also, financial accounting experts, who know a lot more about book income than I do, tend to be resoundingly hostile to giving book income any sort of tax implications. I'm inclined to be respectful of their views on a subject that they know so much about, although I wonder every now and then about whether there might be a bit of a NIMBY aspect to their thinking. (In fairness, tax policy experts are subject to exactly the same thing.)

Even if one concludes that they are wrong, or at least that their concerns are overstated - but equally, if one agrees with them but takes it as given that some such provision is going to be enacted - a lot of hard design work needs to be done to make a minimum tax on book income the best overall instrument that it can be. For example, one issue posed by an annual exemption amount is year-by-year fluctuations in the relationship between annual book income and that amount. This concern extends, of course, to companies that report a financial accounting loss in a particular year, and huge profits in other years. There are also such questions as whether divergences between book income and taxable income that appear entirely "innocent" - i.e., as not actually suggestive (once properly understood) of either tax avoidance or financial reporting manipulation - should be backed out of the computation. But once one allows any of that, what about the danger of further empowering lobbyists to take aim either at financial accounting rules themselves or at their modified use in the book income minimum tax?

One obvious question about the proposal - which the Treasury document describes only in very general terms - is whether there is a notch problem here. For example, does the proposal (a) wholly exempt a company with $1.999 billion of book income in a given year, yet (b) potentially impose a tax liability of just over $300 million on a company with $2.001 billion of book income?

I would presume that the answer is No, and that, as good design sense would suggest, $2 billion is an exemption amount, with the result that only book income above the threshold would face the 15% minimum tax. But the document as written does not (at least to me) make this entirely clear.

9) The broader aim of calling off the race to the bottom and curtailing tax competition - Among the document's key responses to concern that the US would suffer competitive loss, relative to peer countries as well as tax havens, if it raised the effective rate both on US source income and on the foreign source income of US companies, is its advocacy of greater global tax cooperation. It's easy to be skeptical about the prospects of achieving such an aim. But the US has surprised skeptics on this front before, such as in the aftermath of FATCA's enactment. OECD BEPS-related global cooperation has also perhaps, on balance, exceeded the more pessimistic expectations that many (including me) may have had at the time. 

The SHIELD proposal is the document's most direct response to these concerns. As in the case of FATCA, the US would be deploying its global economic clout towards rewarding cooperation relative to noncooperation. Plus, as was the case with FATCA, other countries have something to gain as well, if cooperation in discouraging profit-shifting becomes sufficiently widespread. And it simply is not the case that, say, a lone holdout necessarily undermines the whole thing.

Suppose, for example, that a given tax haven holds out, while everyone else cooperates. It's a matter of OUR law, not the tax haven's, whether we afford legal respect for tax purposes to its determinations that a given company is its resident or that certain global income arose there. Moreover, only so much actual economic activity (if any) can shift to the haven, and what remains in our country - whether it involves production, consumption, residence, or anything else that it is costly to shift - can have its tax consequences depend on what we discern about the company's entire range of global activities.

10) The broader issue of "competitiveness" - There is surely no buzzword more commonly found in discussions of tax, trade, and global economic activity in general than that of "competitiveness." Unsurprisingly, the words "competitive" and "competitiveness" appear in the Treasury document no fewer than ten times.

Reflecting the terms' multifacetedness and ambiguity, the usages vary. For example, the document notes that making the US more productive, such as through well-designed infrastructure investment, would increase the appeal of investing and operating in the US, and employing US workers. Of course, making US people and assets more productive would be desirable (all else equal) even in the absence of global competitive concerns. But it is certainly fair play to invoke competitiveness rhetoric in favor of something that is more broadly desirable.

Otherwise, the document's main uses of "competitiveness" rhetoric are twofold. First, existing tax incentives to offshore investment actually make the US less competitive in the standard use of the term. Second, the competitive pressures in the global race to the bottom can be countered, at least to a significant degree, due both to the market power that the US has, and to the prospects for inducing greater multilateral cooperation.

Thursday, April 01, 2021

Edward Kleinbard's What's Luck Got to Do With It?

 I have been meaning for some time to write an appreciative note here concerning the late Edward Kleinbard's outstanding new book - completed by him last year, just in time from a medical standpoint - What's Luck Got To Do With It?

The book is an important contribution, laser-focused on a key aspect of America's greatest current ills, involving the demise of anything approaching equal opportunity, as runaway high-end wealth inequality raises the ladders to be ever more distant from the ground floor.

Shock fact that the book mentions: the government does more to subsidize college education by children from rich families than poor or middle class ones (!). Only in America. This comes on top of the rich families' spending ever more in comparative as well as absolute terms than those below them in the economic scale.

The book follows up on Ed's previous book, We Are Better Than This: How Government Should Spend Our Money in pivoting from a primary tax focus to one of looking at the fiscal system as a whole, with emphasis on expanding opportunity by recognizing how superior peer countries' fiscal policies typically are to ours, with their greater provision of healthcare, education, and other basics.

One key topic of emphasis in the new book is how the ideology that Ed called market triumphalism, and I have similarly labeled as "market meritocracy," poisons the well by creating the false belief that both success and failure in one's career and economic enterprises are wholly deserved. Even if we falsely believed that people had reasonably equal starting points, the new book adduces powerful evidence regarding the dominant role of luck in determining who succeeds or fails, even with unequal "ability" levels on top of seemingly equal starting points.

The book convincingly ties the false downplaying of luck's role to underlying psychological factors. But - I suspect, out of diplomacy, because Ed was seeking to persuade, not alienate, American readers and especially those with potential policy influence - it does not place as much emphasis on how American ideology makes this an especially toxic line of  thinking in our popular culture and politics. This is a topic that I address in my as yet unplaced book manuscript, Bonfires of the American Dream (a kind of follow-up to Literature and Inequality).

One especially interesting aspect of What's Luck Got To Do With It? is its philosophical focus. At a USC Law School Zoom book talk yesterday - the video from which may soon be posted - this topic came up, especially in remarks by Ed's USC colleague Gregory Keating. In general, Ed's philosophical alignment in the new book has some common ground with that of "liberal egalitarianism," as espoused most prominently by Ronald Dworkin. Yet it is to the "right" of Dworkin in one sense, and to the "left" in another sense. (I put the terms "right" and "left" in scare quotes to clarify that I do not mean to link this too closely to the debased state of current U.S. politics, on the increasingly fascist right especially.)

The book is seemingly to the "right" of Dworkin in positing that people should be deemed to have a right to retain the "brute luck" associated with innate ability differences as a matter of birth, and that only brute luck differences from differential environments are fair game for redistribution.

But it is both seemingly and actually to the "left" of Dworkin in positing that option luck differences - from the playout of deliberate choices that we make - should be on the redistributive table as well.

I would disagree with Ed on the first of these two points - considering differences in innate ability an aspect of brute luck that is fair game for redistributive attention - if I were convinced that he were asserting it as a foundational moral principle. But I think the book makes it clear that he is offering this as a concession to win wider acceptance. For example, it describes as "unfair" the fact that taller people have higher average earnings than shorter ones, although it disclaims any effort to address this disparity. The view appears to be that, even with innate ability differences taken off the table - a move that not only comports with some intuitions that we all have, but that may help to encourage people to view themselves as responsible to do the best they can - there is still plenty of scope to make our society vastly more just than it currently is.

By contrast, the sense in which the book is to the "left" of Dworkin is critically important. Dworkin's framework can be used, whether or not he would have done so himself, to justify radically unequal outcomes that reflect, for example, Jeff Bezos' or Mark Zuckerberg's having won winner-take-all contests with huge payoffs, in part because they were simply a bit luckier than their rival contestants. With luck being as important to people's outcomes as the book shows that it is, meaningful egalitarianism of the scope that it had for Ed requires addressing ex post inequality (albeit, still with an eye to incentives) without allowing it to be ruled out of bounds simply because some won and others lost in competitive markets where they all deliberately played.