Optimal Tax Treaty Administrative Guidance

With the advent of economic globalization, U.S.-based multinational enterprises have developed increasingly complex international tax-reduction strategies that frequently rely on provisions of one or more of the sixty-odd bilateral income tax treaties to which the United States is a party. The appropriate interpretation of U.S. tax treaties often is uncertain, a situation that on the one hand invites aggressive tax planning by multinational enterprises, and on the other hand poses challenges for federal courts that must determine whether such planning has crossed the line from legitimate to abusive. In an article to which this short paper is a response, Professor Michael Kirsch calls for tax treaty guidance in the form of new Treasury regulations. This paper articulates three criteria that are essential to effective tax treaty guidance and argues that treaty guidance in the form of Treasury regulations would not satisfy those criteria. The article then briefly suggests some other possible forms that effective tax treaty guidance might take.