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There were several developments and talking points in the tax arena in 2016. Firstly, there was the continuing trend of the tax authorities seeking to close loopholes to prevent tax avoidance. For example, the US Treasury Department reformed the rules on tax inversions in order to prevent US companies from establishing their headquarters abroad and employing post-inversion maneuvers (such as earnings stripping). This had a major impact on the market for large-scale tax inversions, such as Pfizer’s proposed $160bn acquisition of Ireland-incorporated Allergan, which was ultimately scrapped.

The tax authorities also went after base erosion and profit shifting (BEPS) strategies, which exploit gaps in the international tax framework to effectively avoid tax. This increased the compliance burden for multinationals and thus initiated reviews and new implementations in tax planning - especially regarding transfer pricing and the way companies manage (and report) the profits gained domestically and by their foreign subsidiaries. As a result, law firms reported an increase in transfer pricing cases both domestically and internationally, and many practices increased their resources to handle such cases.

Also intended to cut tax avoidance were the final regulations announced by the Internal Revenue Service (IRS) regarding property owned by controlled foreign corporations and partnerships; this also generated a significant uptick in enquires for law firms.

In the financial products space, a key talking point was the continued strength of the private equity space during 2016, with total investment of $158.1bn into US targets, marking a 7.5% increase. The current top sectors include technology, energy and utilities, as well as industrials and chemicals. There has also been a higher demand for advice on specialty finance products, such as healthcare financings.

In October 2016, in what was a significant development, the US Treasury and the Internal Revenue Service issued its hotly anticipated final and temporary regulations on how certain debt instruments will be characterized for US tax purposes - revising earlier proposals that were met with considerable resistance. These final regulations maintain the basic framework of proposals but narrow the scope in ways that are beneficial to private equity funds.

In terms of other regulations, the equity securities market faced changes with the introduction by the IRS of Section 871(m), which came into effect at the beginning of 2017. The new rule is intended to prevent the avoidance of withholding tax on dividends paid by US corporations, which means that payments on these financial instruments are subjected to a withholding of 30% tax. In the CLO space, the US risk retention rules for asset-backed securities (which became active in December 2016) require the collateral managers in transactions to hold a specific percentage of the value.

Looking at tax law in light of the new Trump administration, a complete reform has been proposed that would introduce lower US corporate rates - down from 35% to 15% - as well as enforce repatriation from companies holding offshore profits. Trump’s tax adviser, Stephen Moore, stated in an interview that the latter rule would function to encourage former US companies now registered in Europe to return to the US and benefit from lighter taxes.

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