In this episode of Tax Notes Talk, Jonathan Samford and Kevin Klein of the Global Business Alliance discuss the proposed section 899 retaliatory tax and other international tax provisions included in the Senate version of the One Big Beautiful Bill Act.
Tax Notes Talk is a podcast produced by Tax Notes. This transcript has been edited for clarity.
David D. Stewart: Welcome to the podcast. I’m David Stewart, editor in chief of Tax Notes Today International. This week: two big beautiful bills.
We’ve been closely following the progress of the reconciliation bill, with episodes on Opportunity Zone changes and clean energy tax credits included in the House version, which you can find linked to in the show notes. And now, the Senate has released their version of the bill text.
When the House released its take on the One Big Beautiful Bill Act, one international tax provision left stakeholders concerned. The proposed section 899 would allow the executive branch to raise taxes on taxpayers connected to countries believed to have discriminatory or extraterritorial tax regimes. So how did the Senate address the House’s retaliatory tax and other international tax provisions? And what effects could the international business community feel from either chamber’s version of the bill?
To walk us through all of this, joining me now from the Global Business Alliance is president and CEO, Jonathan Samford, and senior vice president of government affairs, Kevin Klein. Jonathan, Kevin, welcome to the podcast.
Jonathan Samford: Thanks, David. Excited to be here.
Kevin Klein: Thank you, David. Appreciate the opportunity.
David D. Stewart: So why don’t we start off with setting some levels here? Could you give us some background on the state of U.S. international tax before the reconciliation bill?
Jonathan Samford: Well, I appreciate that question. The Global Business Alliance, we are representing about 200 of the most well-recognized brands in the world. Our members are originally companies that were founded abroad, found success, and brought that success here to the United States. They collectively are from 23 countries, all of them friends and allies of the United States, and have massive operations here in the United States in their own right. So they’re large U.S. employers. The lion’s share of foreign direct investment flows into manufacturing — a little over a third of it is in manufacturing. So a lot of our companies are in the manufacturing space, but they cover every facet of the economy and are collectively in every congressional district across the country. So that gives us a really good perspective on how the U.S. is doing in terms of its international competitiveness for economics and policy.
And I can tell you that Republicans really led the way in 2017 with the Tax Cuts and Jobs Act in setting international frameworks that really didn’t exist, prior to that. Things like BEAT [base erosion and antiabuse tax], GILTI [global intangible low-taxed income], FDII [foreign-derived intangible income] — these were the frameworks that created an international system that made the U.S. more competitive in conjunction with the lower tax rate that was introduced at that time. And what we’ve seen is a surge in global investment into the United States, about 35 percent since 2017.
David D. Stewart: What was the international business community looking for or hoping to see out of a new tax bill?
Jonathan Samford: Well, I think there was a lot of things that were really positive in 2017, as I mentioned, with the frameworks that were created. A few of those provisions were set to change. And so I think that there’s an opportunity for Congress to improve on what was already put in place in 2017 with this latest iteration.
There’s also a big issue that we’re concerned about, but I think there are some positive elements to what has been proposed in the One Big Beautiful Bill for international investment. Kevin, do you want to talk a little bit about that?
Kevin Klein: Sure. So I think that a lot of the focus on potential changes within a new reconciliation tax bill at this stage, coming almost 10 years after TCJA, and the timeline that was laid out at that point, is fixing some of the cliffs and penalties that were set to come online due to the reconciliation process when TCJA was first passed back in 2017.
So as Jonathan alluded to, some of the international provisions specifically were set to get somewhat less taxpayer favorable — FDII rates, GILTI rates both set to change in a negative direction for taxpayers. Also, the BEAT was set to get worse at the end of 2025. The rate would go from a current 10 percent to 12.5 percent, and the treatment for various tax credits would also get more harsh within the BEAT. There’s also some general business provisions around R&D [research and development] expensing, section 174, bonus depreciation, business interest expense deductibility under section 163J, all of which have gotten slightly less taxpayer friendly over time that the business community was hoping to get fixed in this bill.
Jonathan Samford: One of the interesting things about the international businesses that have chosen to invest and create jobs here, I mentioned at the top that a lot of that investment goes into the manufacturing sector. And today, one in four Americans who work in a manufacturing role earn their paycheck from an international company, and about $80 billion annually is reinvested by these international companies back into their R&D, doing work that is really incredible in terms of pushing the latest in technology and innovation. They are leading the way for America’s innovation advantage. And again, it’s companies that made that deliberate decision to invest and create jobs here.
David D. Stewart: So let’s get into what we have seen. First, we’ll start with the bill as it came out of the House. I understand that there was some movement largely on the intellectual property side, the FDII, GILTI sort of things. So can you tell us what did we see from the House version?
Kevin Klein: Sure, so I’ll dive in on that. So in the House version, we saw some temporary fixes to a lot of the provisions that I mentioned earlier. So section 174 R&D, the GILTI revision, and FDII revisions that I mentioned earlier were to be addressed but only for a shorter timeline. In the Senate version, those have been extended coming forward.
But also in the House version, we saw some other changes in international tax that are directly tied to pillar 2 and the global minimum tax regime that’s being negotiated abroad, which we can dive into further.
David D. Stewart: Let’s talk a bit about that. We weren’t necessarily expecting it, but we saw this section 899 retaliatory tax that seems to be tied to pillar 2. Could you tell us what does that do?
Jonathan Samford: Yeah, so as I mentioned, there’s a lot to like in the One Big Beautiful Bill. Unfortunately, there is one provision that is squarely aimed at international companies that operate here in the United States. This provision known as 899 — or the revenge tax, as some have called it — it would not only contradict President Trump’s investment vision for America, it also guts a lot of the gains that have been made from TCJA. As I mentioned, we’ve seen a tremendous amount of investment come into the United States as a result of America becoming more competitive in international tax. And that surge is exactly what is targeted by this provision.
We actually did an economic analysis study of what the consequences of this provision would be, and what we found is quite stark. Seven hundred thousand jobs here in the United States are at risk because of this one provision. It’s expected this provision would eliminate about $100 billion of GDP annually in the long run. And when you look at the economic growth potential of the entire One Big Beautiful Bill, this one provision, this discriminatory and punitive provision, eliminates one third of that economic growth potential.
Kevin Klein: Yeah, so I guess I would follow up on that and just dive into a little bit of the mechanics of the provision and how it was first presented in the House bill and where it stands now. So to set the stage a bit, there have been legislative efforts, mostly around House Republicans, that were aimed at pillar 2 and the global minimum tax for a number of years now, and we’ve been following those for a while. Chairman Smith from the Ways and Means Committee in the House has been a big proponent of doing something on the global minimum tax for quite a while. Other members of the committee as well have been supportive. So that’s not entirely a surprise that there was an effort to put something on the bill, but what we got in proposed section 899 is in some ways a mashup of previous proposals and in some ways new.
And what it would actually do is, it gets at the issue through three punitive taxes. One is increased tax rates on effectively connected income for foreign nationals. So this is something that, for most companies, is going to hit hardest if you’re in a branch structure. It’s going to be most impactful, because of that, on financial services forms for the most part.
The second is increased withholding tax rates that would go up 5 percent a year, up to a potential cap of 20 percent over the statutory rate. And that’s an important detail because many companies that are headquartered in countries where we have a bilateral tax treaty actually pay withholding tax rates that are sometimes 0 percent, 5 percent, 10 percent — something lower than what the statutory rates are. So here you would have a 5 percent rate increase each year up to a cap based on the higher statutory rate. You could, over 10 years, go from a 0 percent withholding tax rate to a 50 percent withholding tax rate, which of course is very, very punitive.
And then the third is changes to the BEAT. Many of those changes are limitations of various safe harbors that keep folks out of that tax, but also increases the rate from 10 percent to 12.5 percent. Therefore, it would apply to many more taxpayers that it doesn’t currently apply to.
David D. Stewart: Are there any particular industries that would be more hard hit by this than others?
Jonathan Samford: That’s a great question, and within the confines of this provision, it’s rather indiscriminate. It targets companies based on where they’re globally headquartered, not what activity they are providing or what benefits they’re providing to the U.S. economy and America’s workforce. In that regard, it’s quite indiscriminate.
I will note though that most of the foreign direct investment in the United States is highly concentrated from just eight countries. Seventy-five percent of all the cross-border investment that has come into the United States is originating from all longtime friends and allies of the United States. It’s countries like Japan, Canada, Great Britain, and some European countries. And so this is going to disproportionately impact, just based on that fact, those companies from countries that either have a DST or a UTPR on the books.
David D. Stewart: I understand there was a bit of a question about whether this could be included in the Senate version of the bill. Could you tell us about the sort of procedural issue that it ran into?
Kevin Klein: Sure. So bills that are moving through the reconciliation process in the Senate are subject to what we colloquially call the Byrd rule, which is actually a series of rules that determines whether or not a bill or provision within a bill is correctly situated within reconciliation or can be done under reconciliation. Because it is a series of rules, there’s a series of challenges, and one of the ones that was raised around this particular provision is whether or not this provision was actually within the jurisdiction of the Senate Finance Committee, or if it should be within the jurisdiction of a different committee, specifically the Senate Foreign Relations Committee. And this is important because under the Byrd rule, you can’t include a provision that is within the jurisdiction of a committee that didn’t receive budget reconciliation instructions.
So the argument here would be that the provision violates tax treaties and supersedes tax treaties, and tax treaties are within the Senate Foreign Relations Committee’s jurisdiction. Our understanding is that the Senate parliamentarian has reviewed that and decided that it is a proper tax provision within Senate Finance and can be included in the bill.
There are other potential Byrd rule challenges that might still be made under other aspects of the Byrd rule, including whether or not the revenue impact of this bill — which the Joint Committee on Taxation has scored as raising $116 billion over 10 years — whether that is merely incidental to the policy impact of the bill, which obviously would be extraordinarily high, given the bill’s intent to change foreign tax law and get involved with diplomatic conversations.
David D. Stewart: What would this do to the international consensus from the OECD? What happens to all these countries that had agreed on a global minimum tax?
Jonathan Samford: Well, I think the bigger question is, what is it going to do to America’s workforce? And the answer to that is it’s going to put many, many thousands of jobs at risk. You look at our analysis and it shows 700,000 jobs, and we actually go into a state-by-state analysis of that. There are a number of states that have a disproportionate amount of jobs supported by international companies that made a deliberate decision to invest and create jobs here in the U.S.
But even the Joint Committee on Taxation’s analysis of the House bill shows that this is a tax hike that is a revenue loser in the long run. It shows, if you look at those numbers over that 10-year window, that it basically increases the revenue collected for the government for the first three years. But then starting in year four, it’s less and less each year. And actually in the last two years of that 10-year window, it loses revenue. And that’s a recognition, a sobering recognition, that companies will not be able to operate in such a punitive and discriminatory tax environment.
David D. Stewart: So what have we been hearing from international businesses? Have they been vocal in opposition to this?
Jonathan Samford: Well, our organization is the premier voice for the inbound business community, and we have certainly raised concerns around this issue, talking about it when many people weren’t. So I think what’s really interesting on this is maybe two points. First, President Trump has made a focal point of his second administration to encourage more companies to invest and create jobs in the United States. You look at the open investment policy that he issued in February where he says, and I’m quoting, “Welcoming foreign investment and strengthening the United States world-leading capital markets will be a key part of America’s golden age. My administration will make the United States the world’s greatest destination for investment dollars.”
During the first 100 days, when we clicked over that milestone, a central focus of the accomplishments that the White House espoused was over $5 trillion in new investment pledged in the first 100 days of his second administration. We’ve seen continual announcements of companies making decisions to invest here, and the White House has been promoting those appropriately. So the president has set a pro-growth agenda here in terms of attracting more companies to invest and create jobs. And this one provision, which is highly punitive and discriminatory towards companies who are guilty of nothing more than deciding to create opportunities here in the United States, is in direct contradiction to the president’s vision.
David D. Stewart: So we’re recording today on June 17, and just last night we finally got a look at the Senate’s version of this bill. So what have we seen from the Senate version here?
Jonathan Samford: Yeah, I don’t think Kevin’s been able to get much sleep as he’s been piling through the various details, but I think that there is recognition in the Senate version that the House version was not ready for law. There’s a lot of real concerns that have been raised around what was proposed, and I think there’s room for further refinement with this provision.
Kevin Klein: Yeah, I agree with that. I think that the Senate version reflects that there has been more heartburn amongst lawmakers in recent weeks as they’ve come to understand the potential impact of the provision, potential impact on investment in the United States if [section] 899 were to actually be enacted.
To get into some of the more specifics, the biggest feature — the biggest change, I should say — of the Senate version of the bill is that there is now a one-year delay in implementation, which to Jonathan’s point, really speaks to a recognition that this thing is not entirely baked and not ready to go right now, and that there needs to be more time for negotiation at the OECD and on pillar 2 before these provisions can really bite and have the force of law. So there is that change.
There are also some other changes within the technical aspects of it, and as you mentioned, we just got this last night, so we’re still reading through it. But I would highlight that the increase in withholding tax rates in the provision now is capped at 15 percent after three years. So instead of having that 5 percent increase up to potentially a total of 30 percent, if you’re in a 0 percent treaty situation under the House bill, now you would have 5 percent a year up to a cap of 15 percent over whatever your treaty rate is. So that’s a better provision, but still problematic and still deeply painful.
Within the BEAT space, there is also some changes to the BEAT itself that are in other parts of the bill and change the BEAT outside of the context of section 899 that roll through into this, one of which is a big rate increase. So the current BEAT rate is 10 percent. I noted that if we did nothing under TCJA, it would go to 12.5 percent at the end of 2025. This bill changes it to 14 percent, and part of why it changes it to 14 percent is to offset a high-tax exception that exists in the regular BEAT in one part of the bill. But you don’t get that high tax exception in section 899. So the BEAT portion is still there and still very punitive within section 899.
David D. Stewart: So is this Senate version more palatable to the international tax community? I assume there’s definitely still areas for lobbying.
Jonathan Samford: Well, we certainly are putting forward a couple of ideas that I think would help refine the purpose of this legislation, this provision, and help align it with the president’s investment vision. And to just clarify, our organization is not a proponent of DSTs [digital services taxes] and the frustrations that congressional Republicans and congressional Democrats had with the prior administration as they were setting up the OECD framework, the pillar 2 framework. So this isn’t about defending pillar 2 or DSTs. This is about the consequence of this punitive and discriminatory tax provision and the impact it’ll have on American workers. That’s our concern.
But I think there is a way that this provision can be further refined to still accomplish the goals that proponents have, while at the same time better aligning it with the president’s investment vision. Kevin, do you want to talk a little bit about what that proposal might look like?
Kevin Klein: Sure. To your point, there’s definitely still some opportunity to make some positive changes here, and we’re hoping that this proposal will be part of those positive changes. We are floating this with policymakers now, but the idea is to have an investment incentive safe harbor. And let’s take the president’s two competing priorities, one of which is incentivizing more investment in the U.S. and making the U.S. the best place in the world to do business, and the other one of which is to get the U.S. out of pillar 2 [and] create a potential parallel track system where the U.S. taxes are not touched by pillar 2. Let’s align these goals and we think that that can be done within section 899.
The way that we would do that, the way the investment incentive safe harbor would work, is that there would be an exclusion from the effects of section 899 for any taxpayer whose U.S. capital expenditures or R&D expenditures have averaged out to more than a $100 million per year over a three-year period. So the idea here is that by linking relief from the retaliatory tax provisions to newer sustained U.S. investment, you turn 899 into an onshoring incentive rather than a penalty. And then foreign headquartered firms would have a very clear measurable path to avoid the surcharge moving forward. And to do so would be to double down on the United States.
David D. Stewart: So with this provision just hanging out there as somewhat threatening, are businesses reacting to it?
Jonathan Samford: Unfortunately, we are already starting to see reports in the press about companies who are hitting pause on long-term U.S. investments. There was a story today in Bloomberg about an Australian company that is putting pause on future investments out of concern for this one provision. Republicans deserve a lot of credit for what they did in terms of leading the way on international policy and making the U.S. more competitive in terms of international tax in 2017.
It is really disheartening to see that there are provisions that are not only threatening American jobs and the gains that have been made since TCJA was enacted, but are actually pushing away future employers from making that decision to create jobs here. There’s an open question: Is the United States still welcoming of international companies?
David D. Stewart: Well, it’s going to be fascinating to watch how this plan develops over time. Jonathan, Kevin, thank you for explaining that to us and walking us through it.
Jonathan Samford: It’s been a pleasure. Thanks, David.
Kevin Klein: Thanks so much.
Read the full article here