In 1931, a young American tax lawyer named Mitchell B. Carroll embarked on a “world tax tour” to find out how different countries and colonies were choosing to tax increasingly global companies. Upon his return, he and some 37 co-authors published a lengthy survey on the Taxation of Foreign and National enterprises: five dense volumes that set the stage for a new international order of corporate taxation.
Carroll’s report pioneered what became known as the “separate entity” principle, which holds that a parent company and its subsidiaries—say, Alphabet Inc. and Google—ought to be considered separately for tax purposes. In order to put the right price tag on transactions between different legal entities in the same company (the so-called transfer pricing problem), another legal fiction known as the “arm’s length standard” emerged. This rule sets the accounting value of cross-border transactions taking place within multinational firms. Companies are supposed to price the goods and services they trade based on what they might have cost if they’d been sold to independently owned companies competing on the free market. This is a key principle of the current international taxation regime, but it has fallen into disrepute: It lends itself to too many subjective judgments and manipulations, which result in excessive leeway for companies to decide where their profits are booked.
In early October this year, the Organization for Economic Cooperation and Development, which issues taxation guidelines for the world’s wealthiest nations, proposed a thorough rethinking of the way taxing rights are allocated across jurisdictions. A key proposal is to adopt “unitary” taxation: a simple system that empowers states to consider multinationals as single, consolidated entities, and to tax them on a share of their worldwide profits based on where real economic activity occurs (sales or employment, for instance). In international tax lingo, this method is also called “formulary apportionment.” This would prevent multinationals from shifting their profits to low-tax countries instead of where the money is actually generated.
The 1930s were a time of intense tax competition because of spectacular postwar tax rate hikes, and nations were already clashing over profit shifting. The Carroll tax tour took place shortly after a momentous French-American tax dispute involving First National City Bank of New York, General Motors, and other brand names made headlines on both sides of the Atlantic. French tax authorities were trying to reclaim their taxing rights on the dividends paid out by these American companies. Some of their profits had been generated by French subsidiaries, and from the point of view of Paris, France was entitled to a certain portion. American companies refused to divulge their accounts, so the French resorted to computing the tax on their own based on the public information they could find and the estimated value of assets located on French soil—for instance, National City Bank of New York’s building on the Champs-Elysées.
The United States sided with the aggrieved companies, which were quickly accumulating unpaid bills and losing court battles in France.
Mitchell B. Carroll and his mentor, the Yale economist T.S. Adams, went so far as to sail to Europe in 1929 with a mission to get the French to “back down”—but discussions hit a snag over American tariffs on French wine. Carroll began his global tax survey shortly after, under the aegis of the League of Nations. The tour was funded by the Rockefeller Foundation.
Contrary to what Carroll would later claim, there was no clear consensus in the survey on the separate accounting method. In Spain, the Parliament started taxing firms based on where they made money after a raft of profit-shifting scandals. Federal jurisdictions such as Switzerland preferred to use the same method to allocate taxable corporate profit. In fact, by Carroll’s own avowal and as the French crisis clearly showed, there was a clear “tendency on the part of tax officials to resort more and more to fractional apportionment.” Interestingly, the United States itself never ceased to use this method internally to allocate corporate profit across states.
Carroll’s report, however, turned the tide. As the world’s largest creditor, the United States had a keen interest in using its newfound economic and political clout to promote rules that would maximize its own taxing rights and the interests of its corporations. Carroll was “a product of the Mellon Treasury and the United States Commerce department,” as tax law professor Stanley Langbein explains; he saw it as his mission to prevent the world from following France’s lead.
In 1933, the Franco-American tax dispute was still unresolved. Americans were pressuring the French into ratifying a treaty that the latter viewed as much too favorable to American interests. The French caved in only under the direct threat of reprisal taxes, introduced for the occasion in an obscure corner of the IRS code.
Then, last summer, France announced that it would tax large technology companies, not unlike the way it had decided to unilaterally tax the profits of General Motors and others in the 1930s. Our world is very different, but century-old tax wars will only keep repeating themselves if we fail to devise a new and fair way to organize global taxing rights in the 21st century.
Mitchell mocked the French move at the time, suggesting, jokingly, that France “was trying to collect enough to cover the World War I debt to the United States!” This brash assertion of power may now seem out of place. Yet, last summer, senators called the US Treasury to resuscitate the very same section created to punish France in 1934.
In early December, the United States abruptly and unexpectedly decided to act on this looming threat to retaliate against France. If the Trump administration proceeds as planned, the cost of French wine could double before long. Plus ça change!
The 1930s, much like today, were an era of retreating multilateralism. But having seen what can go wrong when the rules are written to favor giant corporations—growing inequality within and between nations, private business interests to whose will entire governments bend, and endless tax wars—it seems more important than ever to redesign the global tax order in an equitable way.
We now have a unique chance to rethink the rules in a way that makes space for the taxing rights of developing countries. This requires an ambitious global tax regime that distributes taxing rights according to where sales are generated, but also as a function of where companies employ workers, and what country’s natural resources they use. The international tax system we have inherited emerged in a world of colonial empires and oppressive fiscal imperialism. We need new rules, and we need to think harder about who gets to set them. At the Global Taxing Rights conference recently hosted by the International Tax Justice Network, Jayati Ghosh, a professor at Jawaharlal Nehru University in New Delhi and commissioner at the Independent Commission for the Reform of International Corporate Taxation (ICRICT), rightly remarked that current international negotiations still reveal a “colonial pattern of exploitation refined for the 21st century.” What we need is a New International Tax Order that also works for the Global South, and a better negotiating forum would be the UN, not the OECD, a club that excludes developing countries.
Presidential candidates Bernie Sanders and Elizabeth Warren have released plans that would help get us out of the current international tax chaos while reducing income and wealth inequality at home. Warren’s proposal to introduce “a country-by-country minimum tax on foreign earnings” goes in the right direction. Her newly unveiled plan to end global financial corruption clearly shows that she will commit to much greater international tax cooperation. Sanders, on his part, has for some time now been at the forefront of the battle against tax havens.
Trump’s 2017 Tax Cuts and Jobs Act did little to curb global profit-shifting, and his tax unilateralism poses a global danger. It is still unclear how Biden and Buttigieg plan to bring about domestic and global tax justice. One thing is sure, however: Simply recycling the failed policies of the past will not do the trick.
Putting tax havens out of business and creating a just global tax order is a radical business. It’s becoming increasingly clear who’s really up to the task.