Denver Journal of International Law & Policy Volume 6 Number 2 Spring Article 11 May 2020 Vol. 6, no. 2: Full Issue Denver Journal International Law & Policy Follow this and additional works at: https://digitalcommons.du.edu/djilp Recommended Citation 6 Denv. J. Int'l L. & Pol'y This Full Issue is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Denver Journal of International Law & Policy by an authorized editor of Digital Commons @ DU. For more information, please contact [email protected],dig- [email protected]. DENVER JOURNAL OF INTERNATIONAL LAW AND POLICY VOLUME 6 1976-1977 Denver Journal OF INTERNATIONAL LAW AND POLICY VOLUME 6 NUMBER 2 SPRING 1977 INTERNATIONAL ASPECTS OF THE TAX REFORM ACT OF 1976 TAXING BoYcorrs AND BRIBES ........................................... G. C . Hufbauer J. G. Taylor 589 The authors examine the tax penalty provisions of the Tax Reform Act of 1976 and the Export Administration Act Amendments of 1977 in relation to U.S. persons who "participate in or cooperate with" international boycotts or bribery. The article discusses the various types of international boycotts and the penalty, computational, and reporting requirements imposed on participants as clarified by the Treasury Guidelines and Revenue Proce- dures. The authors conclude with a discussion of the novelty, complexity, and potential impact of the legislation. TAKING SIDES: AN OVERVIEW OF THE U.S. LEGISLATIVE RESPONSE TO THE ARAB BOYCOTT ............................................ John M . Tate Ralph B. Lake 613 The current legislative scheme in opposition to the Arab boycott is generally directed against the Arab League countries' secondary and tertiary, indirect forms of boycott. Provisions in the Tax Reform Act of 1976, recent public disclosure requirements, and sections of the Export Administration Act of 1977 all aim to discourage U.S. exporters from taking boycott-related action. The dilemma facing the U.S. taxpayer in attempting to comply with these legislative enactments is presented, along with a discussion of the advisabil- ity of even having such legislation. THE TAX REFORM ACT OF 1976: TREATMENT OF FOREIGN INCOME AND EFFECTS ON U.S. DEVELOPMENT OF FOREIGN MINERAL RESOURCES .................................. William J. Nolan, Jr. 635 The author discusses the significance of the extensive legislative changes embodied in the Tax Reform Act of 1976, as applied to U.S. mineral resource corporations. Many of the changes will result in a substantial increase of overseas business costs through repeal or modification of tax credits and the elimination of certain positive incentives. The loss of special treatment for capital invested in less developed countries and treatment of certain foreign capital gains as domestic will tend to discourage the development of foreign mineral resources and lessen the ability to compete in foreign markets. IMPACT OF THE TAX REFORM ACT OF 1976 ON AMERICANS WORKING ABROAD ........................................... Marianne Burge 647 Section 911 of the Internal Revenue Code dealing with the exclusion granted to U.S. citizens for income earned abroad was substantially altered by the 1976 Tax Reform Act. Burge discusses the changes and analyzes their addi- tional cost impact on taxpayers and employers' tax reimbursement plans. She cites particularly the virtual repeal of the exclusion, the increased costs to employers of doing business abroad, and the problem of making a tax- saving election under section 911 for employees who may be transferred to other locations. TAX REFORM ACT OF 1976: CONTROLLED FOREIGN CORPORATIONS ...................................... Richard W Graham 661 The author focuses on those sections of the Tax Reform Act of 1976 which affect subpart F and section 1248 of the Internal Revenue Code. The 1976 Act has changed some of the rules for taxing a U.S. shareholder's foreign earnings from a Controlled Foreign Corporation. He discusses the changes in the treatment of year-to-year income from shipping, insurance, earnings invested in U.S. property, and Export Trade Corporations. He also explains how the 1976 Act has broadened the powers, described in section 1248, for taxing the disposition of a U.S. citizen's foreign corporation stock as if it were a repatriation of tax deferred earnings. FOREIGN SITUS TRUSTS ...... ......... ......................... M ark S. C aldwell Peter B. Nagel 675 Recent amendments to the Internal Revenue Code culminate longstanding efforts by Congress to curtail the use of foreign situs trusts. Provisions of the Tax Reform Act of 1976 deem income earned by a foreign trust with U.S. beneficiaries to be earned currently by those persons who transfer property to such a trust. Changes in the throwback rules, including the possible impo- sition of a nondeductible interest charge, now render foreign trusts consider- ably less attractive than their domestic counterparts. Finally, the section 1491 excise tax provisions now impose a maximum capital gains rate tax on the transfer of appreciated property to a foreign trust. STUDENT COMMENTS PARENS PATRIAE ANTITRUST SUITS BY FOREIGN NATIONS ......................................... R ussell L . Cap lan 705 The author explores the parenspatriae suit as an alternative means by which foreign governments can bring antitrust actions on behalf of their citizens in United States courts. The historical development of parens patriaeis traced to show the legitimacy of this type of action. The author proceeds to discuss the problems encountered by a foreign government in its efforts to sue Ameri- can antibiotic manufacturers. The conclusion is that a parens patriae suit is the most effective means by which a foreign country can prosecute its action. THE PITFALLS OF ACT OF STATE ANALYSIS IN THE ANTITRUST CONTEXT: A CRITIQUE OF HUNT V. MOBIL OIL ......................................... D avid K . Pansius 749 International antitrust issues pose perhaps the greatest challenge to the act of state doctrine. On the one hand, courts are understandably reluctant to prosecute complaints alleging restraints on U.S. foreign commerce when the acts of foreign sovereigns are integral elements of the cause of action. On the other hand, a blanket refusal to investigate antitrust claims when sovereign acts are involved will unduly preclude review of illegal private conspiracies. Much of this tension arises from the mistaken notion that courts cannot investigate private acts motivating a sovereign's anticompetitive determina- tions - the act of state doctrine grants no such immunity from review. Rather, the act of state doctrine only protects private anticompetitive acts compelled by the sovereign himself. Consequently, barring an exception such as the Noerr doctrine, a private actor will be liable for conspiracies to force government action injurious to his competitors. BOOK NOTES 777 Denver Journal OF INTERNATIONAL LAW AND POLICY Taxing Boycotts and Bribes* G.C. HUFBAUER** J.G. TAYLOR*** I. LEGISLATIVE HISTORY A. The Setting Between October 1973 and January 1974 the Mideast oil cartel raised the posted price of petroleum from $3.00 to $11.65 per barrel. In February 1975, Eli Black, President of United Brands, jumped to his death in mid-Manhattan. These seem- ingly unrelated events coalesced in the Tax Reform Act of 1976. Among other provisions, the Act contains severe tax penalties for U.S. persons who agree to participate in or cooperate with an international boycott or who bribe foreign officials. The Arab boycott of Israel can be traced to 1946 when the Arab League declared that products of Palestinian Jews were to be considered undesirable in Arab countries. The year 1948 witnessed the creation of Israel, a de jure state of war between Israel and the Arab nations, and the Arab boycott office. All three still exist today. Until recently, however, the boycott was honored in the breach. With the quadrupling of oil prices and the multiplication of Arab economic power, boycott practices which previously existed mainly on paper were suddenly imple- mented and became a matter of concern-to Arab nations, to Israel, and to the United States Congress.' * The authors are associated with the United States Treasury Department. The views expressed are opinions of the authors and should not be construed to reflect the views of the Treasury Department. ** Deputy Assistant Secretary for Trade and Investment Policy, United States Deparment of the Treasury. Formerly Director, International Tax Staff, United States Department of the Treasury. *** Economist, Office of International Monetary Affairs, United States Depart- ment of the Treasury. Formerly Economist, International Tax Staff, United States Department of the Treasury. 1. Wall St. J., June 25, 1976, at 1, col. 6. 590 JOURNAL OF INTERNATIONAL LAW AND POLICY VOL. 6:589 Overseas bribery, like the boycott, has existed for many years. Boycott concern was triggered not by sensational new bribes, but by front page revelation of longstanding practices.' Two bills were introduced during the second session of the 94th Congress to deal with these problems. On March 15, 1976, Senator Ribicoff and others introduced S. 3138, specifically aimed at the boycott of Israel. On March 16, 1976, Senator Harry Byrd, Jr., introduced S. 3150, aimed at the bribery of foreign officials. Over the serious misgivings of Senator Long, the two bills were melded together and included in the Senate Finance Committee version of H.R. 10612. 3 They passed the Senate essentially unchanged on August 6, 1976. Since the House had enacted no legislation on bribes or boycotts, the issues went to conference. Bills were also introduced by Senators Stevenson and Wil- liams,4 and by Representatives Koch and Bingham5 to address the boycott problem through tighter language in the Export Administration Act.' Among other features, these bills would have mandated disclosure of corporate boycott reports by the Commerce Department; prohibited U.S. firms from furnishing information pursuant to a boycott request on the firm's direc- tors, officers, shareholders, or employees; and prohibited a re- fusal to deal with other U.S.