[go: up one dir, main page]
IDEAS home Printed from https://ideas.repec.org/p/btx/wpaper/1411.html
   My bibliography  Save this paper

US Supreme Court Unanimously Chooses Substance over Form in Foreign Tax Credit

Author

Listed:
  • Charles E McLure

    (Stanford University)

  • Jack Mintz

    (University of Calgary)

  • George R. Zodrow

    (Rice University)

Abstract
In a recent unanimous decision in the PPL case, the US Supreme Court ruled that a one-timeretroactive British “Windfall Tax” levied on 32 public utilities that were privatised between 1984 and 1996 was eligible for the US foreign tax credit (FTC). The Court rejected the contention of the US Internal Revenue Service that eligibility for the FTC should be governed by the legislative form of the tax rather than its economic substance. This decision could have farreaching implications for the creditability of taxes that are not ordinarily thought to be income taxes, including various cash-flow business taxes that are key elements of several proposals recommending replacement of the income tax with a consumption-based tax. This article examines these issues, arguing that one and arguably both of the most common forms of cash flow consumption-based taxes should be creditable; it also discusses questions that remain about the interpretation of key regulatory requirements that govern creditability.

Suggested Citation

  • Charles E McLure & Jack Mintz & George R. Zodrow, 2014. "US Supreme Court Unanimously Chooses Substance over Form in Foreign Tax Credit," Working Papers 1411, Oxford University Centre for Business Taxation.
    • Handle: RePEc:btx:wpaper:1411
    as

    Download full text from publisher

    File URL: http://www.sbs.ox.ac.uk/sites/default/files/Business_Taxation/Docs/Publications/Working_Papers/series-14/WP1411.pdf
    Download Restriction: no
    ---><---

    References listed on IDEAS

    as
    1. Devereux, Michael P & Griffith, Rachel, 2003. "Evaluating Tax Policy for Location Decisions," International Tax and Public Finance, Springer;International Institute of Public Finance, vol. 10(2), pages 107-126, March.
    2. Manfred Rose & Rolf Wiswesser, 1998. "Tax Reform in Transition Economies: Experiences from the Croatian Tax Reform Process of the 1990s," Palgrave Macmillan Books, in: Peter Birch Sørensen (ed.), Public Finance in a Changing World, chapter 9, pages 257-278, Palgrave Macmillan.
    3. McLure, Charles E. Jr. & Zodrow, George R., 1998. "The Economic Case For Foreign Tax Credits for Cash Flow Taxes," National Tax Journal, National Tax Association, vol. 51(n. 1), pages 1-22, March.
    4. Robin Boadway & Neil Bruce & Jack Mintz, 1984. "Taxation, Inflation, and the Effective Marginal Tax Rate on Capital in Canada," Canadian Journal of Economics, Canadian Economics Association, vol. 17(1), pages 62-79, February.
    5. Charles E. McLure, Jr. & George R. Zodrow, 2007. "Consumption-based Direct Taxes: A Guided Tour of the Amusement Park," FinanzArchiv: Public Finance Analysis, Mohr Siebeck, Tübingen, vol. 63(2), pages 285-307, June.
    6. Harry Grubert & Rosanne Altshuler, 2013. "Fixing the System: An Analysis of Alternative Proposals for the Reform of International Tax," National Tax Journal, National Tax Association;National Tax Journal, vol. 66(3), pages 671-712, September.
    7. Bernd Genser & Andreas Reutter, 2007. "Moving Towards Dual Income Taxation in Europe," FinanzArchiv: Public Finance Analysis, Mohr Siebeck, Tübingen, vol. 63(3), pages 436-456, September.
    8. Duanjie Chen & Jack Mintz, 2012. "Capturing Economic Rents from Resources through Royalties and Taxes," SPP Research Papers, The School of Public Policy, University of Calgary, vol. 5(30), October.
    9. George R. Zodrow, 2019. "Should Capital Income Be Subject to Consumption-Based Taxation?," World Scientific Book Chapters, in: George R Zodrow (ed.), TAXATION IN THEORY AND PRACTICE Selected Essays of George R. Zodrow, chapter 5, pages 131-168, World Scientific Publishing Co. Pte. Ltd..
    10. Jack Mintz, 1995. "Corporation tax: a survey," Fiscal Studies, Institute for Fiscal Studies, vol. 16(4), pages 23-68, November.
    11. McLure, Charles E. Jr. & Zodrow, George R., 1998. "The Economic Case for Foreign Tax Credits for Cash Flow Taxes," National Tax Journal, National Tax Association;National Tax Journal, vol. 51(1), pages 1-22, March.
    Full references (including those not matched with items on IDEAS)

    Citations

    Citations are extracted by the CitEc Project, subscribe to its RSS feed for this item.
    as


    Cited by:

    1. Kayis-Kumar, Ann, 2015. "Thin capitalisation rules: A second-best solution to the cross-border debt bias?," MPRA Paper 72031, University Library of Munich, Germany.
    2. Ey, 2015. "Experiences with cash-flow taxation and prospects. Final report," Taxation Papers 55, Directorate General Taxation and Customs Union, European Commission.

    Most related items

    These are the items that most often cite the same works as this one and are cited by the same works as this one.
    1. Charles E. McLure Jr. & Jack Mintz & George R. Zodrow, 2019. "US Supreme Court Unanimously Chooses Substance over Form in Foreign Tax Credit Case: Implications of the PPL Decision for the Creditability of Cash-flow Taxes," World Scientific Book Chapters, in: George R Zodrow (ed.), TAXATION IN THEORY AND PRACTICE Selected Essays of George R. Zodrow, chapter 7, pages 195-225, World Scientific Publishing Co. Pte. Ltd..
    2. George R. Zodrow, 2010. "International Taxation and Company Tax Policy in Small Open Economies," Chapters, in: Iris Claus & Norman Gemmell & Michelle Harding & David White (ed.), Tax Reform in Open Economies, chapter 6, Edward Elgar Publishing.
    3. George Zodrow, 2006. "Capital Mobility and Source-Based Taxation of Capital Income in Small Open Economies," International Tax and Public Finance, Springer;International Institute of Public Finance, vol. 13(2), pages 269-294, May.
    4. Margaret K. McKeehan & George R. Zodrow, 2019. "Balancing Act: Weighing the Factors Affecting the Taxation of Capital Income in a Small Open Economy," World Scientific Book Chapters, in: George R Zodrow (ed.), TAXATION IN THEORY AND PRACTICE Selected Essays of George R. Zodrow, chapter 12, pages 347-396, World Scientific Publishing Co. Pte. Ltd..
    5. Michael P. Devereux & Peter Birch Sørensen, 2006. "The Corporate Income Tax: international trends and options for fundamental reform," European Economy - Economic Papers 2008 - 2015 264, Directorate General Economic and Financial Affairs (DG ECFIN), European Commission.
    6. Bev Dahlby & Kevin Milligan, 2017. "From theory to practice: Canadian economists’ contributions to public finance," Canadian Journal of Economics/Revue canadienne d'économique, John Wiley & Sons, vol. 50(5), pages 1324-1347, December.
    7. Kayis-Kumar, Ann, 2016. "International tax planning by multinationals: Simulating a tax-minimising intercompany response to the OECD's recommendation on BEPS Action 4," MPRA Paper 72828, University Library of Munich, Germany.
    8. Dhammika Dharmapala, 2016. "The Economics of Corporate and Business Tax Reform," CESifo Working Paper Series 5864, CESifo.
    9. Christian Keuschnigg & Martin Dietz, 2007. "A growth oriented dual income tax," International Tax and Public Finance, Springer;International Institute of Public Finance, vol. 14(2), pages 191-221, April.
    10. Kayis-Kumar, Ann, 2015. "Taxing cross-border intercompany transactions: are financing activities fungible?," MPRA Paper 71615, University Library of Munich, Germany.
    11. Rumpf, Dominik, 2013. "Zinsbereinigung bei der Dualen Einkommensteuer," Beiträge zur Finanzwissenschaft, Mohr Siebeck, Tübingen, edition 1, volume 32, number urn:isbn:9783161528699, May.
    12. Bird, Richard M. & Zolt, Eric M., 2011. "Dual Income Taxation: A Promising Path to Tax Reform for Developing Countries," World Development, Elsevier, vol. 39(10), pages 1691-1703.
    13. Paolo M. Panteghini, 2005. "Asymmetric Taxation under Incremental and Sequential Investment," Journal of Public Economic Theory, Association for Public Economic Theory, vol. 7(5), pages 761-779, December.
    14. Peter Birch Sørensen, 2006. "Can Capital Income Taxes Survive? And Should They?," EPRU Working Paper Series 06-06, Economic Policy Research Unit (EPRU), University of Copenhagen. Department of Economics.
    15. Ernesto Zangari & Elena Pisano, 2019. "Forward-looking effective tax rates in the banking sector," Temi di discussione (Economic working papers) 1236, Bank of Italy, Economic Research and International Relations Area.
    16. Smith, James L., 2014. "A parsimonious model of tax avoidance and distortions in petroleum exploration and development," Energy Economics, Elsevier, vol. 43(C), pages 140-157.
    17. Evers, Maria Theresia & Finke, Katharina & Köstler, Melanie & Meier, Ina & Scheffler, Wolfram & Spengel, Christoph, 2014. "Gemeinsame Körperschaftsteuer-Bemessungsgrundlage in der EU: Konkretisierung der Gewinnermittlungsprinzipien und Weiterentwicklungen," ZEW Discussion Papers 14-112, ZEW - Leibniz Centre for European Economic Research.
    18. Ganghof, Steffen, 2006. "The politics of tax structure," MPIfG Working Paper 06/1, Max Planck Institute for the Study of Societies.
    19. Ernst Fehr & Wolfgang Wiegard, 2001. "The Incidence of an Extended Ace Corporation Tax," CESifo Working Paper Series 484, CESifo.
    20. Tibor Hanappi & Ana Cinta González Cabral, 2022. "The impact of the international tax reforms under Pillar One and Pillar Two on MNE’s investment costs," International Tax and Public Finance, Springer;International Institute of Public Finance, vol. 29(6), pages 1495-1526, December.

    More about this item

    Keywords

    US Supreme Court PPL decision; windfall profits tax; foreign tax credit; cash flow tax; rent tax;
    All these keywords.

    JEL classification:

    • H25 - Public Economics - - Taxation, Subsidies, and Revenue - - - Business Taxes and Subsidies
    • H8 - Public Economics - - Miscellaneous Issues

    NEP fields

    This paper has been announced in the following NEP Reports:

    Statistics

    Access and download statistics

    Corrections

    All material on this site has been provided by the respective publishers and authors. You can help correct errors and omissions. When requesting a correction, please mention this item's handle: RePEc:btx:wpaper:1411. See general information about how to correct material in RePEc.

    If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

    If CitEc recognized a bibliographic reference but did not link an item in RePEc to it, you can help with this form .

    If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your RePEc Author Service profile, as there may be some citations waiting for confirmation.

    For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: Dongxian Guo (email available below). General contact details of provider: https://edirc.repec.org/data/sbsoxuk.html .

    Please note that corrections may take a couple of weeks to filter through the various RePEc services.

    IDEAS is a RePEc service. RePEc uses bibliographic data supplied by the respective publishers.