One Nation Among Many: Policy Implications of Cross-Border Tax Arbitrage

Abstract

Cross-border tax arbitrage arises where a transaction is subject to two or more countries’ differing tax regimes. Conflicts between the tax rules create unique opportunities for the parties to engage in profitable tax planning – opportunities that would not be available if the transaction occurred entirely domestically in one of the countries. These opportunities have been a growing feature of the multi-jurisdictional business world and have raised issues concerning whether and how countries, such as the United States, should respond. This Article examines cross-border tax arbitrage in the context of both domestic tax policy and of other international tax issues, and considers potential responses. It proposes an analytic framework for cross-border tax arbitrage based on specific case studies. The Article concludes by proposing a balancing test for determining the appropriate treatment of specific instances of cross-border tax arbitrage.