Edward D. Kleinbard (Cleary Gottlieb Steen & Hamilton, New York) has published The Business Enterprise Income Tax: A Prospectus, 106 Tax Notes 97 (2005), also available on the Tax Analysts web site as Doc 2004-23324, 2005 TNT 2-37. Here is the abstract:
In recent months, Kleinbard asserts, many policymakers, practitioners, and politicians have argued the case for fundamental tax reform. Reform advocates, he says, often point to the recent wave of corporate tax shelter controversies as emblematic of the Internal Revenue Code’s complexity and economic inefficiency and conclude that our current income tax is a system gone irredeemably awry.
Most tax reform advocates urge that our income tax system be replaced or supplemented by a consumption tax (most often, a value added tax). This paper, by contrast, urges a genuine reformation of the income tax applicable to business enterprises. Kleinbard’s central thesis is that, in our decades-old quest for a perfect income tax, we have failed to design a very good one.
Kleinbard proposes a new "business enterprise income tax" that would comprise four related revisions to our current system for taxing business income:
- First, a broadening of the business tax base to impose entity-level tax on all business enterprises, whatever their form. Thus, partnerships, for example, would become taxable entities.
- Second, a comprehensive new approach to the taxation of financial capital invested in business enterprises, the cost of capital allowance system, which would eliminate current law distinctions between debt and equity, and subject all investors to current tax on their implicit returns, regardless of whether they receive current cash distributions.
- Third, the repeal of our tax-free incorporation and reorganization rules, and their replacement with a uniform asset-acquisition tax model, coupled with new "tax-neutral" tax rates on the disposition of business assets.
- Fourth, the replacement of our current schizophrenic consolidated return rules with comprehensive true consolidation principles.
Kleinbard argues that the resulting system would be fairer, more efficient, and simpler than current law. Most important, the business enterprise income tax should reduce greatly the role of tax considerations in business thinking.
