April 11, 2017 The Tax Lawyer

Subsidized Foreign Tax Credits and the Economic Substance Doctrine

Volume 70, No. 2 - Winter 2017

John P. Steines

Abstract

    In the preceding decade several large U.S. corporations, mainly banks, entered into complicated loan agreements (“foreign tax generators”) with foreign banks in which, contrary to the result in straightforward loans, they obtained a foreign tax credit for easily avoidable foreign tax that was economically borne by the foreign banks. As a result, the U.S. Treasury lost in excess of one billion dollars in revenue. The government challenged the credits and has thus far prevailed in court in all of the cases, but others are still pending. If a conflict among the circuits develops, there will certainly be a petition for certiorari and the possibility of Supreme Court review. The cases are being decided under the economic substance doctrine, which denies tax benefits to technically correct tax planning where there is no non-tax business purpose for the transaction. This Article demonstrates, by comparison with straightforward loans, how generators enable the U.S. and foreign banks and the foreign bank’s home country to share the U.S. revenue loss, as well as how they result in a credit for taxes inappropriately “subsidized” by the foreign government.

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