Articles
Vol. 5, No. 1
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5 Colum. J. Tax. L. 1
Income Tax Treaty Policy in the 21st Century: Residence vs. Source
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The United States has repeatedly attempted to stop tax base erosion for almost the entire post-World War I era, and yet the same problems exist today.  The need for fundamental tax reform is front-page material in the major newspapers with the US transfer pricing rules and US multinationals portrayed as public enemy #1.  The OECD this month issued a report entitled “Addressing Base Erosion and Profit Shifting,” and in a competing fashion several important developing countries have initiated their own pact to develop cooperative strategies on these issues outside of the framework of the OECD and UN. 

The attached manuscript studies the historical record and sets forth a competing model for dealing with these matters which pre-dated the existing model treaties and transfer pricing paradigm.  This earlier paradigm was offered by the International Chamber of Commerce’s but was prematurely abandoned by the League of Nations in favor of the existing paradigm.  In light of the fact that the existing paradigm has failed so miserably, the earlier proposal should be re-considered.

In the inevitable re-examination process, there will be a fascinating range of political, economic, and business issues to be addressed. Tax administrations will need to ascertain how their resources could be redeployed to foster economic growth. MNEs will need to assess the impact of new treaty concepts on their global effective tax rate planning models.

The critical question is who will initiate the evolution to come. All countries are anxious to protect their respective tax bases. At the present time, it appears that the BRICS and Source Countries have planted their stake in the sand, rejecting the existing order and declaring an intention to update the rules that apply to their own tax base defense. The OECD appears to be principally driven by the need to defend its Member country tax bases, hoping, no doubt, that BRICS and Source Countries will ultimately follow its lead.  Whichever organization emerges as the new-found thought leader on these questions, it is now time to give the original International Chamber of Commerce recommendation a fair consideration on its merits (which, interestingly, addresses the current concerns of BRICS and Source Countries).

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5 Colum. J. Tax. L. 41
The Influence of Historical Tax Law Developments on Anglo-American Laws and Politics
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This article highlights the influence of historical Anglo-American tax law developments on the formation of new political institutions and laws.  In critical periods of English and U.S. history, individuals rebelled against arbitrary royal taxes.  In turn, they demanded new tax laws that became embedded in documents from the Magna Carta to the English Bill of Rights to the Declaration of Independence that promoted democratic constraints on the use of state power to assess and collect taxes.  Over time, the idea that individuals are entitled to equal treatment under the law, and possess inalienable human rights, emerged in part as a result of these tax law developments.  The discussion in this article supports the view that pragmatic concerns over property and taxation drove important English and American political and legal reforms.
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5 Colum. J. Tax. L. 70
The Charitable Deduction Games: Are the Laws in Your Favor?
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The article considers why the United States only grants a deduction for charitable contributions made to US charities from a historic standpoint and why doing so is problematic in the fight against global ills.  The Charitable Deduction Games examines an alternative approach to cross-border giving that is currently spreading throughout the European Union (“EU”) as a result of the 2009 landmark case Hein Persche v. Finanzamt Ludenscheid.  After an examination of Persche, the article explores the UK model that has resulted in response to the decision and considers why the US should adopt a similar model.  Next, the article considers why the Netherlands has been reluctant to adopt a similar model in light of its historic stance.  Finally, The Charitable Deduction Games examines the responses of various EU Member States to Persche and concludes with a proposal of how Persche should affect US laws governing cross-border giving.
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5 Colum. J. Tax. L. 101
Designing a Legal Vehicle for Social Enterprises: An Issue Spotting Exercise
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Social entrepreneurship is at the juncture of creative capitalism and social innovation.  It aims at combining the best of two sectors, and thus is cramped in the traditional vehicles designed for either world in isolation. Although the social bottom line of these enterprises can usually meet the broad charitable purpose requirement of the Internal Revenue Code, tax-exempt vehicles have proven to be unable to hose the financial one.  Conversely, the advantages of for-profits stem from their flexibility, but their failure to receive funding from tax-exempts and the lack of a social enterprise brand have made it necessary to design new vehicles.
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