Wednesday, June 21, 2023
Rosenzweig: Is there an implicit bias in international tax law?
Adam Rosenzweig (University of Washington), Is there an implicit bias in international tax law? (JOTWELL) (reviewed by Steven Dean (Brooklyn), Surrey’s Silence: Subpart F and the Swiss Subsidiary Tax that Never Was, 87 Law & Contemp. Probs. __ (2024):
As has become almost cliché at this point, the international tax regime is facing a watershed moment… spearheaded by the Organization for Economic Co-operation and Development’s Base Erosion and Profit Shifting (BEPS) project. Economic (OECD). While BEPS addresses a wide variety of topics, one of its main focuses is combating tax havens. BEPS is the successor to the 1998 OECD Harmful Tax Competition project which, unlike the broader BEPS, focused almost exclusively on a “name and shame” campaign against tax havens. These efforts against tax havens can trace their history back to the enactment of “Subpart F” of the Internal Revenue Code, which is generally considered the first concerted effort against tax havens. The brainpower behind Subpart F was Assistant Secretary of the Treasury for Fiscal Policy Stanley Surrey (while on leave from Harvard Law School). Surrey has been mentioned as the best tax attorney of his generation; his influence can be felt to this day throughout the tax laws of the United States and the world.
Faced with this imposing presence, Steven Dean dares to ask the question “Was Surrey racist?” in his new article Surrey’s Silence: Subpart F and the Swiss Subtax That Never Was.
This question is not buried in a footnote or even in the final section, but rather is the first three words of the abstract. The effect is palpable, in part because the reader is forced to consider the provocative question in a vacuum without the benefit of reading the article itself. Like any good use of rhetorical hyperbole, Dean employs strong language to shake the reader’s assumptions and open up space to consider a difficult subject in a subtle and profound way.
Dean deftly works within this newly opened intellectual space to present the larger thesis of the article: is it possible that the international tax regime as a whole could be imbued with implicit bias from its founding? The argument (substantially simplified) is as follows: (1) Surrey and his team started the Subpart F project focused specifically and primarily on Switzerland. which was the jurisdiction of choice for the largest US corporations seeking to avoid or evade US taxes; (2) when Subpart F became law, Switzerland had disappeared from the legislative narrative; and (3) in its place had emerged a new narrative focused primarily on the small island nations of the Caribbean as so-called tax havens. …
As I was reading the article, I found myself thinking repeatedly, “if someone as brilliant as Surrey couldn’t recognize their own implicit bias, what chance do I have?” However, instead of feeling hopeless, I found the self-talk inspiring. What if the only crucial difference between me and Surrey is precisely that I’m having this internal dialogue? In this regard, perhaps the greatest strength of Dean’s article is its ability to engage the reader in such a dialogue, and thereby invite the reader to join in the difficult, sometimes painful, and ultimately crucially important conversation. all the life the world needs.
https://taxprof.typepad.com/taxprof_blog/2023/06/rosenzweig-is-there-implicit-bias-in-international-tax-lawstrong.html