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The $1.5tn debt-financed US tax reform that was signed into law by President Trump on December 22 marked the biggest change in national tax law since 1986. The swift preparation of the 500-page document resulted in a considerable number of glitches that were not anticipated by the lawmakers, which will require additional rulings during 2018. US tax practices have been kept busy staying up to date with the changes and briefing clients on how the new legislation affects each of them individually.

In general terms, the heaviest impacts come from the permanent reduction in corporate tax from 35% to 21%, the repeal of the corporate alternative minimum tax, and the various tax cuts for individuals (set to expire in 2026) that will mostly provide tax relief to America’s top earners. Ninety percent of US companies are structured as pass-through entities - either ‘S-corporations’ or limited-liability companies - and will instead receive a financial boost from a temporary 20% tax decrease on their first $315,000 of qualified business income until 2025. The real estate industry benefits from a reduction on tax on dividends from REITs, which might also result in lower net operating losses, and is further exempt from the 30% EBITDA (earnings before interest, tax, depreciation and amortization) limitation on net interest expense deductions.

In the context of tax controversy, the new bill’s reported ambiguities are likely to generate numerous questions and thus the potential for disputes. In particular, lawyers have been busy thinking about how the bill will impact the relationship between federal and state tax laws, with the latter perhaps acquiring a more prominent role in future.

The IRS has been subject to increasing pressure due to budget constraints. For this reason, legal proceedings before the IRS are likely to decrease, and taxpayers will increasingly be expected to go to court to solve their tax controversies. Other key areas from a controversy point of view are IRS reviews of private equity, transfer pricing and advance pricing agreement transactions. Alongside a number of big international firms, such as Mayer Brown and Morrison & Foerster LLP), tax controversies are typically handled by smaller specialist practices with a focus both on federal and state tax law - these include Caplin & Drysdale, Chartered, Chamberlain, Hrdlicka, White, Williams & Aughtry and Miller & Chevalier Chartered.

The Trump administration’s new tax bill was the pivotal event of 2017 in the context of international tax also. Specifically, the lowering of the corporate tax rate will create a major incentive to repatriate offshore funds to the US, and there will likely be significant implications for cross-border M&A and private equity transactions. In addition, the tax bill has created considerable uncertainty overseas, with tax authorities in Europe and elsewhere unsure how to respond.

International tax lawyers reportedly spent a large part of 2017 trying to anticipate the developments envisaged by the tax reform and advising clients accordingly. 2018 is expected to be a year of adjustment, in which major changes included in the bill will be gradually implemented. Besides advisory work on tax reform, international tax practices have kept themselves busy with transfer pricing, BEPS (base erosion and profit shifting) and offshore structures. Firms at the forefront of international tax work are typically those with large international networks, such as Baker McKenzie LLP, McDermott Will & Emery LLP and Latham & Watkins LLP, although there are some notable exceptions, such as two-office firm Cravath, Swaine & Moore LLP. Paul, Weiss, Rifkind, Wharton & Garrison LLP, Fenwick & West LLP and Kirkland & Ellis LLP are increasingly prominent.

The recent tax reforms also contained few direct changes to the laws governing financial products. Any increase in work will stem from how the clients, particularly the major financial institutions, structure their investments and products as a result of changing behaviours. The debt markets will be particularly affected, as the use of debt to take money out of the US will be curtailed. At the time of writing, lawyers were still taking a wait-and-see approach as the market gradually digested the full impact of the reforms, but other anticipated changes included an increase in structuring work that might previously have gone to offshore tax havens.

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