Rationalizing the Arbitrary Foreign Tax Credit

61 Pages Posted: 5 Mar 2020 Last revised: 22 Feb 2021

See all articles by Jordan M. Barry

Jordan M. Barry

University of San Diego School of Law

Ariel Jurow Kleiman

University of San Diego School of Law

Date Written: February 21, 2021

Abstract

The foreign tax credit is a cornerstone of the United States’ international tax regime and enjoys broad bipartisan support. Yet despite its enduring popularity, careful analysis reveals that the foreign tax credit is surprisingly arbitrary. Taxes are creditable in their entirety or not at all, and only “pure” income taxes receive a credit. Even a slight deviation from the law’s narrow definition of an income tax renders a foreign tax completely uncreditable.

The current approach is clearly problematic. It is a fundamental tenet of tax policy that the law should treat items based on their economic substance, but the credit’s all-or-nothing approach does not. Nor do the policy rationales underlying the foreign tax credit support starkly different treatment for pure income taxes compared to all other taxes.

We identify principles to reform the foreign tax credit in accordance with economic substance and the policy goals underlying the credit. We then use those principles to evaluate various possible reforms. Depending on which goals policymakers choose to prioritize, plausible options range from eliminating the credit to greatly expanding its scope. But in any event, the way forward involves abandoning the credit’s sharp, arbitrary distinction between pure income taxes and all other taxes.

Keywords: tax, tax policy, international taxation, corporate taxation, foreign tax credit

JEL Classification: K34, H25, F23

Suggested Citation

Barry, Jordan and Jurow Kleiman, Ariel, Rationalizing the Arbitrary Foreign Tax Credit (February 21, 2021). San Diego Legal Studies Paper No. 20-438, Available at SSRN: https://ssrn.com/abstract= or http://dx.doi.org/10.2139/ssrn.3548960

Jordan Barry

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

Ariel Jurow Kleiman (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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