The Tax Lawyer

Section 267A and the Taxation of Hybrid Mismatches under the Code

Shay Moyal

Abstract

Hybrid mismatches are differences in tax rules between countries. It has been one of the main tools for multinationals to minimize their tax liabilities. As such, it has been a subject of concern for many legislators, international tax scholarship, and countries worldwide and evoked intriguing intellectual discussions on their legitimacy and how to address them. Indeed, this issue encompasses many complex issues, including the differences between accounting for the legal and economic situations of taxpayers, corporate and individual taxpayers, international tax and international law, distinguishing different types of income and more. These considerations are taken into account to address the conflict between the jurisdictions’ freedom to tax their subjects as they wish and their fight against base erosion and tax competition to ensure their ability to redistribute wealth in their societies. The recently enacted hybrid rules were designed to disallow deductions from payments of interest, royalties, and dividends by or from foreign related parties if such related parties are not already taxed for these payments. The legislative intent, structure of these sections, and the similarities between the first OECD’s Base Erosion and Profit Shifting show that these sections are international customary law. As such, this paper seeks to analyze and improve the current law by leaning on international tax principles and recent international tax trends, and argues that a BEAT-like minimum tax approach to these hybrid payments would apply the international tax principles substantially and coherently better as it prevents double non-taxation as well as de-minimis taxation and over taxation. In addition, this approach may reduce the complexity of the current law.