Jurisdiction to Tax Corporations

54 Pages Posted: 9 Apr 2013 Last revised: 28 Sep 2013

Omri Y. Marian

University of California, Irvine School of Law

Date Written: April 5, 2013

Abstract

Corporate tax residence is fundamental to our federal income tax system. Whether a corporation is classified as “domestic” or “foreign” for U.S. federal income tax purposes determines the extent of tax jurisdiction the United States has over the corporation and its affiliates. Unfortunately, tax scholars seem to agree that the concept of corporate tax residence is “meaningless.” Underlying this perception are the ideas that corporations cannot have “real” residence because they are imaginary entities and because taxpayers can easily manipulate corporate tax residence tests. Commentators try to deal with the perceived meaninglessness by either trying to identify a normative basis to guide corporate tax residence determination, or by minimizing the relevance of corporate tax residence to the calculation of tax liabilities. This Article argues that both of these approaches are misguided. Instead, this Article suggests a functional approach, under which corporate tax residence models are designed to support the policy purposes of corporate taxation. This Article concludes that the U.S. should reform the way it defines “domestic” corporations for tax purposes by adopting a two-pronged tax residence test: the place where the corporation’s securities are listed for public trading, or the place of the corporation’s central management and control.

Keywords: International Taxation, Corporate Taxation, Tax Jurisdiction, Comparative Taxation, Tax Reform

JEL Classification: H25, K34, E62

Suggested Citation

Marian, Omri Y., Jurisdiction to Tax Corporations (April 5, 2013). 54 Boston College Law Review 1613 (2013). Available at SSRN: https://ssrn.com/abstract=2245802

Omri Y. Marian (Contact Author)

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Ste. 1000
Irvine, CA 92697-1000
United States

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