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9 Colum. J. Tax L. 5 (2017-2018)

handle is hein.journals/colujoutl9 and id is 1 raw text is: 







                                 ARTICLES




  THE MYTH OF CORPORATE TAX RESIDENCE



                                      David  Elkins*


                                         Abstract

         The issue of corporate residence has recently attracted a great deal of attention in
both the popular press and in academic  discourse, primarily because of the phenomenon  of
corporate inversions. The consensus among  commentators  is that the root of the problem is a
flawed  definition of corporate residence, and they have therefore proposed  replacing the
current definition, which relies upon place of incorporation, with another that relies upon
control and management,   home  office, customer base, source of income, or the residence of
shareholders.
         The thesis of this article is that the concept of tax residence is inapplicable to
corporations. Residence  in tax law  delineates the boundaries of distributive justice, and
whereas   corporations cannot  be parties  to a scheme   of distributive justice, corporate
residence is a misnomer.  The  incongruity of corporate residence along with the fact that
residence is a fundamental  concept in international taxation is one reason that the current
international tax regime has proven unviable.
         The article then goes on to describe in broad outline an international corporate tax
regime  that avoids the problem of corporate residence by focusing on shareholders instead of
on corporations.















          Professor of Law, Netanya Law School, Israel. Visiting Professor of Law, Tulane University Law
 School, Fall 2017. Ph.D., Bar-Ilan University 1999; LL.M. Bar-l1an University 1992; LL.B., Hebrew
 University of Jerusalem 1982. The ideas that developed into this paper were presented at the Tax Policy
 Colloquium at Loyola, Los Angeles, in response to a presentation by Professor Robert Peroni. In a more
 developed form, this paper was presented at the Law and Society conference in Mexico City, at the Fourth
 International Round Table on Taxation and Tax Policy in Netanya, Israel, and at the Tulane Law School
 Intellectual Life Faculty Workshop. I thank the participants at each of these events for their insightful
 comments.

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