Does the BEAT Violate International Law?

Does the BEAT Violate International Law?

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The Tax Cuts and Jobs Act of 2017 (“TCJA”) marked the most dramatic revision to the U.S. tax code in decades. Several TCJA provisions affected the U.S.’s international tax rules. However, none were more innovative than the Base Erosion and Anti-Abuse Tax (“BEAT”).  The BEAT combats base erosion and profit shifting (“BEPS”), strategies employed by multinational corporations (“MNCs”) that shift profit from high to low tax jurisdictions to minimize global tax liability. Countries have traditionally controlled BEPS by amending their tax rules to eliminate the availability of specific practices and by monitoring transactions between an MNC’s international affiliates (“cross-border transactions”) to ensure they were made at arm’s length. Innovatively, the BEAT combats BEPS by requiring MNCs to recalculate their taxable income entirely excluding deductions from certain cross-border transactions historically associated with BEPS. If tax liability on this modified taxable income is greater than an MNC’s regular tax liability, the MNC must pay the difference. The U.S. is unlikely to face repercussions for the reasons discussed above.