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The Tax Cuts and Jobs Act: Lessons for the future | American Enterprise Institute

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This blog post is part of a series dedicated to analyzing the impact of the Tax Cuts and Jobs Act. Click here to see all of the blogs in the #TCJANowWhat series.

As a lawyer and noneconomist, I approach the topic with a
different twist from that of my fellow bloggers — one that reflects my focus on
global tax developments. In particular, I’m interested in looking at why and
how the Tax Cuts and Jobs Act’s (TCJA) outcomes appear to deviate from the
objectives of those who were instrumental in its design and conception. In
analyzing the TCJA’s impact, it’s also important to consider the role global
tax developments played in influencing US legislative goals and how the law
might affect future global developments. US tax law changes tend to have ripple
effects worldwide.

Although the TCJA was passed in a largely partisan process, there was broad bipartisan consensus in the international tax policy proposals floated in the decade leading up to enactment of the TCJA — including those embedded in the Obama administration budgets — as to the goals of international tax reform. These widely agreed-on objectives included lowering the corporate tax rate to achieve greater parity with the rates of most of our major trading partners, adopting some variation on a territorial system also to achieve greater parity with other countries (the US being the only major economy attempting to tax companies’ worldwide income), ending the incentives for US corporations to keep their foreign earnings (even if not their actual cash) overseas, and enacting anti–base erosion measures to prevent US companies from shifting profits from high-tax to low-tax jurisdictions, including both from the US to other countries, and among other foreign countries.

A press release on tax reform in the US is pictured during a press conference of the United Nations Conference on Trade and Development in Geneva, Switzerland February 5, 2018 REUTERS/Denis Balibouse

The TCJA enacted a number of provisions that at least
nominally should have achieved these goals. It reduced the corporate rate significantly.
It adopted a 100 percent dividends received deduction on foreign distributions.
It also enacted anti–base erosion provisions in the form of a vastly expanded
subpart F regime and a tax on outbound base-eroding payments.

But few give TCJA high marks, with critics on the left
arguing that it gave away the store with little benefit and objections from the
corporate world that the regime as a whole fails to deliver its promised
benefits because of the penalties and complexity associated with the anti–base
eroding provisions and the limitations on territoriality. Conservative
thinkers, meanwhile, argue that the act accomplished its goals at the cost of
inordinately increasing the federal budget deficit and that the uncertainty it
created means that it will fail to produce the economic stimulus desired.

Why did the results deviate so far from their objectives? Is
it that the goals were misconceived or that they became diluted in the
political process? Either way, the gap between policymakers’ objectives and the
resulting legislative outcome suggests that policymakers, in developing tax
proposals, need to be thinking more deeply about the process in which
theoretical ideas are translated into legislation.

Another aspect of the TCJA that generally receives short
shrift is the extent to which global tax trends influenced its provisions. If
one views the TCJA measures that are universally condemned as bad policy (such
as the pass-through deduction) as political compromises needed to achieve
successful passage of international reform and international reform as an
imperative to reset the US system in response to global changes, the oddities
in the TCJA make more sense. That doesn’t diminish from the harmful results of
poorly drafted provisions, but it does help reflect on the need for, and shape
of, future changes.

On the flip side, discussing the TCJA’s economic impact
purely in domestic terms fails to acknowledge the significant impact it has
had, and will continue to have, on the global tax policy debate. US enactment
of the global intangible low-taxed income tax and the base erosion anti-abuse
tax — even if they are poorly designed provisions — has already shifted the
global conversation toward acceptance of minimum taxes and other anti–base
erosion measures. Like in the domestic sphere, the full impact of the TCJA on
the global tax system can’t yet be fully known. But it seems likely that it
will have a leveling effect on the global corporate tax base. Although the
immediate effect may be reduced US tax revenues, the long-term impact may be
the protection of a global corporate tax base.

Mindy Herzfeld is a professor of tax law at the University of Florida Levin College of Law and of counsel at Ivins, Phillips & Barker, Chtd.

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