Treasury's Unfinished Work on Corporate Expatriations

Continued tax-motivated inversions of U.S. corporations into foreign corporations highlight the systemic tax advantages that a foreign-owned U.S. corporation has over a U.S.-owned corporation in avoiding U.S. corporate tax on U.S. business income. In the absence of congressional action, this article emphasizes the need for the Treasury to further reduce U.S. tax incentives for inversions and other foreign acquisitions of U.S. corporations. The two most important of the tax incentives are earnings stripping and the ability to use, directly or indirectly, a U.S. group’s unrepatriated foreign earnings for the benefit of shareholders of the foreign parent corporation without incurring current U.S. income tax. These tax advantages will not be meaningfully reduced by any plausible lowering of the top U.S. corporate tax rate. Moreover, earnings stripping would be exacerbated by adoption of a territorial system. Treasury should use the administrative authority Congress delegated to it under Code sections 385 and 956 to restrict these foreign parent tax advantages and counter renewed market pressure on U.S. groups to engage in this form of tax avoidance. Treasury should employ existing anti-abuse regulations to address use of unrepatriated CFC earnings to benefit foreign parent groups.