Repatriating Tax-Exempt Investments: Tax Havens, Blocker Corporations, and Unrelated Debt-Financed Income

49 Pages Posted: 29 Jan 2011 Last revised: 26 Mar 2013

Samuel D. Brunson

Loyola University Chicago School of Law

Date Written: January 01, 2012

Abstract

Up to one-third of the money invested in hedge funds comes from tax-exempt entities. However, the tax law prevents tax-exempt entities from investing directly or indirectly with borrowed money. This limitation prevents tax-exempt entities from investing in U.S. hedge funds, and instead forces them to invest through tax havens. Tax-exempt entities are not the only investors using tax havens, however. U.S. taxpayers use tax havens to shave an estimated $40 billion to $70 billion off of their collective tax bills annually.

Congress never intended to force tax-exempts to invest through tax havens; that is an unintended consequence of Congress’s shutting down transactions in which taxpayers used tax-exempt entities’ exemptions to reduce their own taxes. The avenue Congress chose - the unrelated debt-financed income rules - failed to effectively combat the abuse, however, and today serve primarily to distort the investment decisions of tax-exempt entities. In order to allow Congress to effectively combat the abuse of tax havens, as well as to allow tax-exempt entities to make better investment decisions, the unrelated debt-financed income rules should be repealed and their putative policing of tax-exempt entities’ behavior should be replaced by expanding the tax shelter rules. The tax shelter rules would be more effective at preventing abusive behavior and at allowing tax-exempt entities to participate in non-abusive economic transactions.

Keywords: tax-exempt entities, unrelated business income tax, UBTI, unrelated debt-financed income, reportable transactions, listed transactions, sale-leaseback, tax haven, hedge fund, blocker corporation

JEL Classification: H2, H26, K34

Suggested Citation

Brunson, Samuel D., Repatriating Tax-Exempt Investments: Tax Havens, Blocker Corporations, and Unrelated Debt-Financed Income (January 01, 2012). Northwestern University Law Review, Vol. 106, No. I, 2012; Loyola University Chicago School of Law Research Paper No. 2011-003. Available at SSRN: https://ssrn.com/abstract=1750359

Samuel D. Brunson (Contact Author)

Loyola University Chicago School of Law ( email )

25 E. Pearson
Chicago, IL 60611
United States

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