Academic journal article Washington and Lee Law Review

Corporate Tax Policy for the Twenty-First Century: Integration and Redeeming Social Value

Academic journal article Washington and Lee Law Review

Corporate Tax Policy for the Twenty-First Century: Integration and Redeeming Social Value

Article excerpt

The past seven years have witnessed the culmination of a series of dramatic changes in our income tax policies towards corporations and their shareholders. Relationships among the principal provisions of the individual and corporate income taxes that had prevailed for the preceding one-half century, and the expectations that those relationships created, were quitea bruptly turned on their heads. One might expect that such a mini-revolution in income tax policy would be succeeded by a prolonged period of relative calm during which vaguely conceived modifications were rationalized and structural gains consolidated.(1) That, however, seems most unlikely to occur. The major elements of the current statutory approach to corporate taxation have not gained general acceptance and the political equilibrium that produced and briefly sustained that statutory pattern has been destabilized by the change in political administrations. The prescription is for further change, and even now serious proposals are piling up before Congress. That continuing change is not to be regretted; the statutory pattern that emerged primarily in the 1986 legislation was far too economically irrational to deserve greater longevity.

While further modification to our corporate tax policy seems both inevitable and imminent, the direction in which that policy now will move is far from clear. It is therefore an appropriate time to reflect upon corporate tax policy for the twenty-first century. As in other human endeavors, the look forward is illuminated by the light of the past.


At least since 1936, the United States nominally has imposed a separate and cumulative tax on the incomes and profits of both individuals and corporations. While that general statutory pattern is deeply entrenched in our taxing system, the resulting potential for the "double" taxation of profits derived by incorporated business has discomforted virtually all students of income taxation. Over the history of the dual system of taxation, that discomfort produced a variety of statutory provisions designed to ameliorate the nominal income tax burden in greater or lesser degree.(2) Perhaps more importantly, other less calculated but equally effective policies and practices which further mitigated double taxation were widely tolerated throughout this period.

As corporate taxation entered 1986, a wide range of features of the taxing system served to reduce the effective rate of tax at either the corporate or the shareholder level, in many cases eliminating one or the other level of tax all together. The more significant of those elements of the taxing system might include the following.

At the corporate level:

1. Corporate Tax Rate. In general, the maximum rate of income tax applicable to corporations was substantially lower than the maximum rate of tax that might be applicable to individuals. For example, during much of the period following World War II, the corporate tax rate was less than seventy-five percent of the maximum individual rate.(3) In addition, relatively small, closely held corporations benefited from further rate reductions at the corporate level through the progressive rate structure which, in its various manifestations, had the general effect of halving the tax rate on very low corporate incomes.(4)

2. Exemption from Tax on Certain Distributed Income. The income tax on income or gain inherent in property distributed to shareholders was entirely forgiven under the so-called Genera) Utilitie's doctrine.(5) That peculiar feature of prior law opened numerous avenues for elimination of double taxation. Thus, in its most abusive application, the double taxation of closely held corporations could be essentially eliminated by confining dividends to distributions of appreciated property, including inventory.(6) Any corporation, large or small, might eliminate tax on the appreciation in corporate properties, again including inventory, by purporting to sell all of its assets to a second corporation, even one partly owned by the shareholders of the transferor. …

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