Article: Minimum Taxation in the United States in the Context of GloBE

Abstract

The introduction of the minimum tax in Pillar II of the Organization for Economic Cooperation and Development (OECD)/G20/Inclusive Forum(IF) framework was generally seen as a response to the US Tax Cuts and Jobs Act (TCJA) of 2017. The TCJA included both a minimum tax on outbound income (the Global Intangible Low-Taxed Income, or ‘GILTI’) and a minimum tax on inbound income (the Base Erosion Anti-Avoidance Tax, or ‘BEAT’). These were seen as the precursors to the Income Inclusion Rule (IIR) and the Under Tax Payments Rule (UTPR). Thus, unlike Pillar I which was perceived as a device to impose more tax on the US digital giants, Pillar II was seen as more consistent with US tax policy. This story is true to some extent, but the relationship between the US and Pillar II is more complicated. Pillar II was the culmination of years of efforts to implement the single tax principle (STP), which has its origins in the 1920s but was not the guiding principle of US tax policy for a long period before the TCJA. Moreover, the TCJA does not fully implement Pillar II, and it is unclear whether the US can in fact do so. In this article, the authors first discuss the relationship between the TCJA and Pillar II, then the possible US responses to Pillar II, and finally what would happen if the US does not implement Pillar II. In general, if Pillar II is not implemented in the US, the tax consequences are likely to be increased double taxation as well as a shift in revenues from the US to foreign jurisdictions. GloBE, pillar 2, TCJA