The 2021 Corporate Transparency Act: The Next Frontier of U.S. Tax Transparency and Data Debates

Abstract

As we enter the third decade of the twenty-first century, twin revolutions—one in digital data, the other in international tax—are well underway. Both are global phenomena with independent momentum, but in practice they intersect and often find themselves in tension. Increasingly pervasive digital data has prompted major debates over privacy, artificial intelligence, government overreach, and digital crime. The past year has witnessed growing concern and litigation regarding expanded data collection and use in both the private and public sectors, with the COVID-19 pandemic igniting clashes between public health and privacy. At the same time, international tax trends have favored expanded transparency and disclosure to combat fraud, evasion, corruption, and questionable tax policy. Not surprisingly, efforts to pursue tax transparency have bumped up against data-related concerns, and countries struggle to balance competing goals. These uneasy tensions are evident in U.S. international tax policy and practice, where the United States has sometimes actively sought comprehensive tax data while at other times it has resisted data collection and exchange.

In January 2021, the United States enacted new beneficial ownership legislation, the Corporate Transparency Act. The new regime marks a notable shift in the country’s approach to international tax transparency and will likely serve as the next major testing ground for U.S. efforts to develop a coherent policy frame for the twin revolutions. This Article uses the 2021 legislation as a case study to explore where and how the tensions between data protection on the one hand and transparency and disclosure on the other will likely manifest, the kinds of choices that will need to be made, and the likely risks from these choices. Achieving a satisfactory balance is not easy. As my coauthor Shu-Yi Oei and I have articulated elsewhere, the needs for tax transparency and disclosure can be profound, but so too can the risks of unfettered data access in a digital age.