Critiquing (And Repairing) the New International Tax Regime

23 Pages Posted: 16 Aug 2019 Last revised: 26 Nov 2019

Date Written: October 25, 2018


In this Essay, I address three serious problems created — or left unaddressed — by the new U.S. international tax regime. First, the new international rules aimed at intangible income incentivize offshoring and do not sufficiently deter profit shifting. Second, the new patent box regime is unlikely to increase innovation, can be easily gamed, and will create difficulties for the United States at the World Trade Organization. Third, the new inbound regime has too generous of thresholds and can be readily circumvented. There are ways, however, to improve upon many of these shortcomings through modest and achievable legislative changes, eventually paving the way for more ambitious reform. These recommendations, which I explore in detail below, include moving to a per-country minimum tax, eliminating the patent box, and strengthening the new inbound regime. Even if Congress were to enact these possible legislative fixes, however, it would be a grave mistake for the United States to become complacent in the international tax area. In addition to the issues mentioned above, the challenges of the modern global economy will continue to demand dramatic revisions to the tax system.

Keywords: tax, international tax, TCJA, GILTI, FDII

Suggested Citation

Kysar, Rebecca M., Critiquing (And Repairing) the New International Tax Regime (October 25, 2018). 128 Yale L.J. Forum 339 (2018); Fordham Law Legal Studies Research Paper No. 3436942. Available at SSRN:

Rebecca M. Kysar (Contact Author)

Fordham University School of Law ( email )

150 West 62nd Street
New York, NY 10023
United States

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