Narrower Provisions Affecting Multinational Profit Shifting
Various more narrow provisions could be considered that would be more focused on preventing
abuses and have fewer consequences for the overall structure of international corporate taxation.
Note that P.L. 111-226 addresses a number of problems with the foreign tax credit; these changes
are summarized below along with other legislation in 2011 relating to international tax avoidance
and evasion.
Eliminate Check-the-Box, Hybrid Entities, and Hybrid Instruments
A number of proposals have been made to eliminate check-the-box and in general to adopt rules
that would require legal entities to be characterized in a consistent manner by the United States
and the country in which an entity is established. This proposal has been made by McIntyre.119
Rules requiring that legal entities be characterized in a consistent manner by the United States
and by the country in which they are established and that tax benefits arising from inconsistent
treatment of instruments be denied would address this particular class of provisions that
undermine Subpart F and the matching of credits and deductions with income. President Obama’s
first budget proposal included a provision that disallows a subsidiary to treat a subsidiary
chartered in another country as a disregarded entity.
Tighten Earnings Stripping Rules; Limit Interest Deductions
In the American Jobs Creation Act of 2004, a further restriction on earnings stripping rules was
considered as an alternative to the anti-inversion measure. These provisions were not enacted but
were to be studied in a Treasury report. The 2004 House proposal would have raised revenue by dropping the debt-to-asset share test and lowering the interest share standard to 25% for ordinary
debt, 50% for guaranteed debt, and 30% overall. In general, further restrictions on earnings
stripping could be considered to address shifting through debt for U.S. subsidiaries of foreign
parents.
President Obama’s budget proposals include a more restrictive rule for multinational firms,
allocating interest across the firm’s related groups in proportion to earnings.120 Allocation rules
were also included in Chairman Camp’s Tax Reform Proposal in the 113th Congress (H.R. 1).