For Haven\u27s Sake: Reflections on Inversion Transactions

This article discusses “inversion” transactions, in which a publicly traded U.S. corporation becomes a subsidiary of a newly established tax haven parent corporation. In the last three years, an increasing number of these transactions have been taking place, undeterred by the shareholderlevel tax imposed by the IRS on them in 1994. The article first discusses the reasons for the increasing popularity of the transactions and the tax goals they aim at achieving (primarily avoiding subpart F and U.S. earnings stripping). The article then discusses the tax policy implications of these transactions. In the short run, the article suggests that the proper response is a redefinition of the concept of corporate residency. The article criticizes the shareholder-based redefinitions embodied in some current anti-inversion proposals, and suggests instead adoption of a modified “managed and controlled” test for all corporations. In the longer run, inversions may lead to abandonment of residence based corporate taxation in favor of source-based taxation. If that is the case, it is imperative to preserve the corporate tax base by developing better methods of determining the source of income (for example, formulary apportionment), and by putting some limits on tax competition