DEPARTMENT OF THE TREASURY 

WASHINGTON, D.C. 

SECRETARY OF THE TREASURY 

Mr. Jean-Claude Juncker 

President of the European Commission 

Rue de la Loi 200/W etstraat 200 

1 049 Bruxelles/Brussel 

Dear Commission President Juncker: 

February 11, 2016 

I am writing to address the recent state aid investigations being conducted by the European 

Commission (EC) Directorate-General for Competition (DG COMP). Over the last several 

weeks, my staff and I have discussed these issues extensively with Commissioner Margrethe 

V estager and her staff and with other key representatives of the EC. 

As you know, the United States continues to work with the G-20 and others to curtail the erosion 

of our respective corporate tax bases. In the last few years, we have made important progress by 

working together through international organizations and initiatives focused on this serious 

problem. We are concerned that DG COMP's sweeping interpretation of the EU legal doctrine 

of "state aid" threatens to undermine this progress. While we recognize that state aid is a 

longstanding concept, pursuing civil investigations- predominantly against U.S. companiesunder this new interpretation creates disturbing international tax policy precedents. It could 

undermine the well-established basis of mutual cooperation and respect that many countries have 

worked so hard to develop and preserve. For the reasons described below, we respectfully urge 

you to reconsider this approach. 

The United States shares the EC's strong interest in preventing major multinational companies 

from shifting income from higher-tax countries to low- or no-tax jurisdictions. President Obama 

has proposed a robust business tax reform plan that would address this problem, and he 

repeatedly has urged our Congress to enact it into law as soon as possible. Moreover, the 

United States has played a leading role in the G-20 and the OECD Base Erosion and Profit 

Shifting (BEPS) project. The BEPS project has produced a broad set of measures to prevent and 

deter international corporate tax avoidance. Countries and companies around the world are 

responding by reforming their policies and behavior. 

In this context, the United States is disappointed that DG COMP appears to be pursuing 

enforcement actions that are inconsistent with, and likely contrary to, the BEPS project. Last 

December, Treasury's most senior international tax official, Robert Stack, described our 

concerns in detailed testimony before the U.S. Senate Finance Committee. I have enclosed a 
copy of his testimony. In summary, we have four principal concerns with the new approach to 

state aid, as we currently understand it. 

First, DG COMP has sought to impose penalties retroactively based on a new and expansive 

interpretation of state aid rules. We appreciate that the state aid doctrine is a longstanding 

component of EU competition law. We also recognize that the selective application of tax rules 

could potentially constitute impermissible state aid. Our team is not aware, however, of any 

previous instance-in the many decades of state aid jurisprudence- in which DG COMP has 

applied its current theory of selectivity. Instead, DG COMP appears to be adopting an entirely 

new legal theory and applying it retroactively in a broad and sweeping manner. This raises 

serious concerns about fundamental fairness and the finality of tax rulings throughout the entire 

European Union. 

Second, DG COMP appears to be targeting U.S. companies disproportionately. The legal theory 

underlying its investigations logically should apply to all multinational firms, not just those 

based in the United States. Yet three of the four current transfer pricing cases reportedly involve 

Member State arrangements with U.S. firms. In addition, public reports suggest that DG COMP 

is seeking billions of dollars in penalties from U.S. firms-far more than what it is seeking from 

non-U.S. companies. 

Third, DG COMP's approach appears to target, in at least several of its investigations, income 

that Member States have no right to tax under well-established international tax standards. U.S. 

multinationals generally do not conduct the cutting-edge research and development that creates 

substantial value in the European Union, and as a result, comparatively little of their income is 

attributable to their European operations. We recognize that the U.S. system will only tax this 

income upon repatriation, and many U.S. firms are choosing to defer paying tax liabilities by 

keeping income overseas in low-tax jurisdictions. This is a serious problem that we seek to 

address through President Obama's business tax reform plan and the BEPS project. This 

problem, however, does not give Member States the legal right to tax this income. Doing so 

would directly harm U.S. taxpayers. When U.S. companies repatriate revenue- as tax reform 

proposals from both U.S. political parties would require them to do within a fixed timeframeany assessments paid to Member States could be eligible for foreign tax credits. This loss of 

revenue would impose a direct cost on American taxpayers. 

Fourth, DG COMP's approach could undermine U.S. tax treaties with EU Member States. As 

you know, Member States have exclusive authority over income tax under EU law. 

Accordingly, the United States does not have an income tax treaty with the European Union. 

DG COMP's new assertion of authority raises serious questions about this relationship and the 

finality of income taxation-related dealings with Member States. We expect that this new 

uncertainty could damage the business climate in Europe and deter foreign direct investment. 

The United States remains firmly committed to working with Europe and the rest of the world to 

prevent the continuing erosion of our corporate tax base. We believe, however, that the ongoing 

state aid investigations threaten to undermine the important progress we have made together in 

this area. The Treasury Department is not alone in this view. Many Members of our Congress 

have strongly echoed these concerns, and have urged Treasury to take strong action. 
For all of these reasons, we respectfully urge you to reconsider pursuing these unilateral actions 

and instead focus on our collective work through the BEPS project. Thank you for your 

consideration. Please do not hesitate to reach out to me or my staff to discuss these and other 

important matters. 

Sincerely, 

Jacob J. Lew 

Enclosure 

cc: First Vice-President Frans Timmermans 

Commissioner Pierre Moscovici 

Commissioner Margrethe V estager 
Testimony of Robert B. Stack, Deputy Assistant Secretary (International Tax Affairs)

U.S. Department of the Treasury

Before the Senate Finance Committee

December 1, 2015

Chairman Hatch, Ranking Member Wyden, and distinguished members of the Committee, I 

appreciate the opportunity to appear today to discuss some key international tax issues, including 

the recently completed G20/Organization for Economic Cooperation and Development (OECD) 

Base Erosion and Profit Shifting (BEPS) project. We appreciate the Committee’s interest in these 

important issues. 

I would like to begin by describing the outcome of the G20/OECD BEPS project, and then 

describe the expected BEPS follow-on work. I will then link that discussion to a consideration of 

the need for general corporate and international tax reform, as well as the related need to address 

U.S.-base stripping and inversion transactions. I will close with a discussion of the European 

Commission’s current state aid investigation of multinational firms, including U.S. 

multinationals. 

G20/OECD Base Erosion and Profit Shifting (BEPS) Project 

In June 2012, at the G-20 Summit in Los Cabos, Mexico, the leaders of the world’s largest 

economies identified the ability of multinational companies to reduce their tax bills by shifting 

income into low- and no-tax jurisdictions as a significant global concern. They instructed their 

governments to develop an action plan to address these issues, which was endorsed by G-20 

leaders in September 2013 in St. Petersburg. The OECD has hosted this process, but all G-20 

governments, some of which are not members of the OECD, had a role. The G20/OECD BEPS 

Action Plan outlined 15 specific areas for further examination. The results were delivered to 

Finance Ministers this October in Lima, Peru, and to President Obama and other world leaders at 

last month’s G20 summit in Antalya, Turkey. 

The United States has a great deal at stake in the BEPS project and a strong interest in its 

success. Our active participation is crucial to protecting our own tax base from erosion by 

multinational companies, much of which occurs as a result of exploiting tax regime differences. 

A key goal of BEPS is to identify those differences and write rules that close loopholes. In 

addition, as the home of some of the world’s most successful and vibrant multinational firms, we 

have a stake in ensuring that companies and countries face tax rules that are clear and 

administrable and that companies can avoid unrelieved double taxation, as well as expensive tax 

disputes. Both the United States and our companies have a strong interest in access to robust 

dispute resolution mechanisms around the world. In contrast, failure in the BEPS project could 

well result in countries taking unilateral, inconsistent actions, thereby increasing double taxation, 

the cost to the U.S. Treasury of granting foreign tax credits, and the number and scale of tax 

disputes. Indeed, notwithstanding the BEPS project, some countries have taken unilateral action, 

and it is our hope that they will reconsider those actions in the post-BEPS environment. 
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The principal target of the BEPS project was so-called “stateless income,” basically very low- or 

non-taxed income within a multinational group. The existence of large amounts of stateless 

income in a time of global austerity has called into question the efficacy of longstanding 

international tax rules. This issue is prominent in a global economic environment in which 

superior returns can accrue to intangibles that are easily located anywhere in the world and that 

often result from intensive research and development activities that a single multinational may 

conduct in many countries, or that result from marketing intangibles that can be exploited in one 

country but owned and financed from another country. Some countries with large markets 

believe that some of these premium profits should be taxed in the market country, whereas 

current international norms attribute those profits to the places where the functions, assets, and 

risks of the multinational firm are located – which are often not the market countries. Finally, I 

would be remiss to not note that the ability of U.S. multinationals to defer tax on large amounts 

of income in low- and no-tax jurisdictions has fed the perception of tax avoidance by these 

multinationals. This perception exists even though the U.S. would tax that income upon 

repatriation to the U.S. parent firm – whether voluntarily by the taxpayer, or through a deemed 

repatriation that might occur as a part of tax reform. 

The G20/OECD project produced a broad array of reports outlining measures addressing 

stateless income ranging from revision of existing standards to new minimum standards, as well 

as describing common approaches, all of which are expected to facilitate the convergence of 

national practices. All OECD and G20 countries have committed to minimum standards in the 

areas of preventing treaty shopping, requiring country-by-country reporting, fighting harmful tax 

practices, and improving dispute resolution. In transfer pricing, existing standards have been 

updated. With respect to recommendations on hybrid mismatch arrangements and best practices 

on interest deductibility, countries have agreed on a general tax policy direction. In these areas, 

we expect that practices will converge over time through the implementation of the agreed 

common approaches. In the United States, most of the rules restricting the use of hybrid entities 

and hybrid securities and the rules limiting excessive interest deductibility would require 

Congressional action, and the Administration proposed new policies along these lines in the 

FY2016 Budget. Guidance based on best practices will also support countries in the areas of 

disclosure initiatives and controlled foreign company (CFC) legislation. Finally, participants 

agreed to draft a multilateral instrument that countries may use to implement the BEPS work on 

tax treaty issues. 

I would like to highlight some of the more important outputs from the BEPS project. Interest 

expense deductions are a major contributor to the BEPS problem. The ability to achieve 

excessive interest deductions, including those that finance the production of exempt or deferred 

income, is best addressed in a coordinated manner. The BEPS project has agreed on a best 

practice approach, which recommends that countries provide two alternative caps on interest 

deductions from which companies can choose. The first cap is a fixed ratio, which is similar to 

the rules under current U.S. law and looks at the ratio of interest expense to earnings before 

interest, taxes, depreciation and amortization, also known as EBITDA. The BEPS 2015 Final 

Report recommends that countries adopt a fixed ratio for allowable interest deductions within a 

range of 10 percent to 30 percent of EBITDA (current U.S. law allows up to 50 percent). The 

report also recommends that countries adopt as an alternative cap a group ratio based on 

earnings. Under this cap, each entity in a multinational group could deduct interest up to its 
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allocable portion of the group’s third party interest expense, which would be determined based 

on the entity’s proportionate share of the group’s worldwide earnings. This rule is based on the 

premise that multinational groups should be able to deduct interest up to their group-wide third 

party interest expense. The combination of this rule with a low fixed ratio also would ensure that 

groups would not be able to use related party loans to deduct interest expenses well in excess of 

the group’s third party interest expense. As discussed below, the President’s FY2015 and 

FY2016 Budget have included a proposal that is in line with this recommendation. 

The OECD has agreed on hybrid entity and hybrid security best practices that target a 

“deduction/no inclusion” situation (i.e., a tax deduction in one country without an income 

inclusion in the other country) and a double deduction situation (i.e., tax deductions taken in 

more than one jurisdiction for the same item). In the case of the “deduction/no inclusion” 

scenarios, these recommendations would require Congressional action, and are broadly 

consistent with rules proposed in the President’s FY2015 and FY2016 Budget The 

recommendations addressing double deductions are modeled after existing U.S. rules. 

Importantly, the OECD approach to this action item is to neutralize the mismatch in tax 

outcomes, but not otherwise interfere with the use of such arrangements so as to not adversely 

affect cross-border trade and investment. 

An agreement on a minimum standard to secure progress on dispute resolution was reached to 

help ensure that cross-border tax disputes between countries over the application of tax treaties 

are resolved in a more effective and timely manner. The Forum on Tax Administration (FTA), 

including all OECD and G20 countries along with other interested countries and jurisdictions, 

will continue its efforts to improve mutual agreement procedures (MAP) through its recently 

established MAP Forum. This will require an assessment methodology to ensure the new 

standard for timely resolution of disputes is met. In parallel, a large group of countries is 

committed to move quickly towards mandatory binding arbitration. It is expected that rapid 

implementation of this commitment will be achieved through the inclusion of arbitration as an 

optional provision in the multilateral instrument that would implement the BEPS treaty-related 

measures. 

Standardized country-by-country reporting and other documentation requirements will give tax 

administrations a global picture of where profits, tax, and economic activities of multinational 

enterprises are reported, and the ability to use this information to assess various tax compliance 

risks, so they can focus audit resources where they will be most effective. Multinational 

Enterprises (MNEs) will report their revenues, pre-tax profits, income tax paid and accrued, 

number of employees, stated capital, retained earnings, and tangible assets in each jurisdiction 

where they operate. The implementation package provides guidance to ensure that information is 

provided to the tax administration in a timely manner, that confidentiality is preserved, and that 

the information is used appropriately. The filing requirement will be on multinationals with 

annual consolidated group revenue equal to or exceeding EUR 750 million, meaning this regime 

applies only to the largest and most sophisticated entities. 

The existing standards in the area of transfer pricing have been clarified and strengthened as part 

of the BEPS project. Because the transfer pricing work is based on the arm’s length principle, it 

is consistent with U.S. transfer pricing regulations under section 482. A key element of the work 
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relates to the arm’s length return to so-called “cash boxes,” which would be entitled to no more 

than a risk-free return if they are mere funders of activities performed by other group members. 

The work on cash boxes is one aspect of new approaches to risk, which generally provide that 

contractual allocations of risk are respected only when the party contractually allocated risk has 

the capacity to control the risk and the financial capacity to bear it. The transfer pricing work 

also addresses specific issues relating to controlled transactions involving intangibles, including 

providing a special rule for hard-to-value intangibles akin to the U.S. “commensurate with 

income” standard. 

Where do we go from here? Certain technical work remains for the OECD in 2016 and beyond. 

More importantly, however, we believe the best way to foster the G20 goal of supporting global 

growth is to actively promote the connection between foreign direct investment, growth, and 

efficient and effective tax administrations. Too often countries fail to recognize that strong civil 

institutions promote growth and investment. The OECD is expected to present to the G20 a 

framework for moving forward at the Finance Minister’s meeting to be held in China in February 

2016. We are working hard to ensure that issues around effective and fair tax administration are 

made part of the post-BEPS agenda. 

International Tax Reform 

The G20/OECD BEPS project shined a spotlight on so-called stateless income, a phenomenon 

that is a byproduct of outdated tax rules. I would like to outline the steps the United States could 

take today to reform our own tax system to improve competitiveness, secure our tax base, and 

reduce incentives for profit shifting by U.S. firms. 

As the President has proposed, we should reform our business tax system by reducing the 

corporate income tax rate and broadening the base. It is frequently noted that the United States 

has a high statutory corporate rate, but much lower effective tax rates. High statutory rates 

encourage multinational firms to find ways to shift profits, especially on intangible income, to 

other jurisdictions. So lowering our statutory rate while broadening the base could help reduce 

erosion of the U.S. base. 

But it would only be a start, because even with lower rates U.S. multinationals would continue to 

aggressively seek ways to lower their tax bills by shifting income out of the United States since 

there will always be jurisdictions with lower tax rates. We can, however, take other steps. 

First, the President’s framework for business tax reform proposes a minimum tax on foreign 

earnings that represent excess returns, which typically arise from intangible assets. This would 

reduce the benefit of income shifting and impose a brake on the international “race to the 

bottom” in corporate tax rates. Other recent tax reform plans have included similar proposals, 

which would improve on the current complex international tax rules by requiring that companies 

pay a minimum rate of tax (either to the United States or to a foreign jurisdiction) on all foreign 

excess returns. 

Second, as part of tax reform, we should also take a close look at interest deductibility, noting 

that our thin capitalization rules are inadequate and that our system actually gives an advantage 

to foreign-owned multinationals. These foreign-owned multinationals can lend funds to their 
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U.S. subsidiary to benefit from interest deductions against a 35 percent tax rate, while the related 

interest income is subject to significantly lower tax rates, or no tax at all, in the lending 

jurisdiction. It is especially disconcerting to observe that among the foreign multinationals that 

most aggressively take advantage of this strategy are so-called “inverted” companies – that is, 

foreign-parented companies that were previously U.S.-parented. The Administration’s FY2016 

Budget proposes to level the playing field by limiting the ability of U.S. subsidiaries of a foreign 

multinational to claim interest deductions in the United States that greatly exceed their 

proportionate share of the group’s global interest expense. Specifically, this proposal would limit 

a U.S. subsidiary’s interest expense deductions to the greater of 10 percent of the subsidiary’s 

EBITDA or the subsidiary’s proportionate share of worldwide third-party interest expense, 

determined based on the subsidiaries’ share of the multinational’s worldwide earnings. 

A related Administration FY2016 Budget proposal would limit a U.S. multinational’s ability to 

claim a U.S. deduction for interest expense that is related to foreign subsidiary income. U.S. 

multinationals typically borrow in the United States to benefit from interest deductions against a 

35 percent tax rate, but they then use the borrowed cash throughout the multinational group, 

financing operations that may not be subject to current U.S. tax. Indeed, we have recently seen 

examples of U.S. multinationals borrowing in the United States – rather than bringing back cash 

from offshore operations – to pay dividends to their shareholders. The proposal would align the 

treatment of interest expense deductions with the treatment of the income supported by the 

proceeds of the borrowing. 

In addressing stripping of the U.S. base, it is also important to consider so-called “hybrid 

arrangements,” which allow U.S. subsidiaries of foreign multinationals to claim U.S. deductions 

with respect to payments to related foreign entities that do not result in a corresponding income 

item in the foreign jurisdiction. These arrangements produce stateless income and should be 

remedied. To neutralize these arrangements, the Administration’s FY2016 Budget proposes to 

deny deductions for interest and royalty payments made to related parties under certain 

circumstances involving hybrid arrangements. For example, the proposal would deny a U.S. 

deduction where a taxpayer makes an interest or royalty payment to a related person and there is 

no corresponding inclusion in the payee’s jurisdiction. 

Additionally, shifting intangibles outside the United States is a key avenue through which U.S. 

base erosion occurs. The principal means of shifting intangible income is to undervalue 

intangible property transferred offshore or to take advantage of the uncertainty in the scope of 

our definition of intangibles. Once this intellectual property is located offshore, the income that it 

produces can accrue in low- or no-tax jurisdictions. The Administration’s FY2016 Budget 

contains a number of proposals that would discourage the corporate tax base erosion that occurs 

via intangibles transfers. In addition to our proposal to impose a minimum tax on excess returns, 

the FY2016 Budget would explicitly provide that the definition of intangible property includes 

items such as goodwill and going concern value and would also clarify the valuation rules to 

address taxpayer arguments that certain value may be transferred offshore without any U.S. tax 

charge. Another proposal would update subpart F to currently tax certain highly mobile income 

from digital goods and services.
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Corporate Inversions 

By lowering rates and reducing the ability of multinationals to severely reduce their U.S. taxable 

income through outsized interest deductions, the United States could go a long way towards 

reducing the incentives that U.S. multinationals have to invert. Doing nothing and letting our 

corporate tax base erode through inversions will worsen our fiscal challenges over the coming 

years. Once companies undertake an inversion transaction, there is a permanent loss to the U.S. 

income tax base because it is unlikely that these companies will return their tax residence to the 

United States. 

An anti-inversion provision has been part of the Internal Revenue Code since 2004, but 

experience has shown that this provision insufficiently deters inversions. According to a 2014 

Congressional Research Service report, forty-seven U.S. corporations reincorporated overseas 

through corporate inversions in the ten-year period ending July 2014. This marked an increase 

from only 29 inversions in the prior 20 years. More inversions have occurred since the CRS 

report and proposed inversions are being reported in the media on a fairly regular basis. 

Only legislation can decisively stop inversions. The Administration has been working with 

Congress for several years in an effort to reform our business tax system, make it simpler and 

more pro-growth, and remove the incentives that encourage companies to engage in inversions. 

To reinforce the existing anti-inversion statute, the Administration has proposed in recent 

Budgets to broaden the scope of the statute to prevent more inversion transactions. As amended 

by the proposal, the statute would provide that, unless the inverted company has substantial 

business activities in the country where it purports to have moved its tax residence, the inverted 

company would continue to be treated as a domestic corporation for U.S. federal income tax 

purposes if either (i) shareholder continuity in the inverted company after the transaction is more 

than 50 percent, or (ii) the transaction involved the combination of a larger U.S. entity with a 

smaller foreign entity and the group maintains its corporate headquarters in the United States. 

This strengthened anti-inversion statute is necessary to prevent a permanent reduction in federal 

corporate income tax revenues. 

In the interim, it is Treasury's obligation to protect the tax base, and we have repeatedly stated 

that we will use all of our existing administrative tools to address this problem. In Notice 2014-

52, which was issued in September 2014, Treasury and the IRS took several steps to address 

inversions. First, the notice announced rules that would prevent inverted companies from 

accessing a foreign subsidiary’s earnings while deferring U.S. tax through the use of so-called 

hopscotch loans (which are loans from a foreign subsidiary of the former U.S. parent either to the 

new foreign parent or one of its foreign affiliates). Second, the notice closed a loophole pursuant 

to which an inverted company could restructure the group’s ownership in the foreign subsidiaries 

of the former U.S. parent and thereby access earnings in those entities without incurring the U.S. 

tax that would otherwise have been due. Third, the notice made it more difficult for U.S. 

companies to invert by strengthening the requirement that the former owners of a U.S. company 

own less than 80 percent of the new combined entity. 
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A few weeks ago, Treasury and the IRS issued Notice 2015-79 to further limit the ability of U.S. 

companies to invert and to reduce the tax benefits of inversions. This most recent notice makes it 

more difficult for U.S. companies to undertake a corporate inversion by (1) limiting the ability of 

U.S. companies to combine with foreign entities using a new foreign parent located in a “third 

country;” (2) limiting the ability of U.S. companies to inflate the new foreign parent 

corporation’s size and therefore avoid the rule requiring minimum ownership of the combined 

firm by the shareholders of the foreign target entity; and (3) requiring the new foreign parent to 

be a tax resident of the country where the foreign parent is created or organized in order to take 

advantage of the substantial activity exception that permits an inversion into a country in which 

the inverted group has at least 25 percent of its worldwide business activities. Additionally, the 

notice reduces the tax benefits of inversions by limiting the ability of an inverted company to 

transfer its foreign operations to the new foreign parent after an inversion transaction. 

Treasury will continue to examine additional ways to reduce the tax benefits of inversions, 

including through limiting the ability of inverted companies to strip earnings with intercompany 

debt. However, only legislation can effectively address these issues. To this point, we look 

forward to working with Congress in a bipartisan manner to protect the U.S. tax base, to address 

the issue of corporate inversions, and to reform our business tax system. 

State Aid Investigation 

In June 2014, the European Commission opened three in-depth investigations to examine 

whether decisions by tax authorities in Ireland, the Netherlands, and Luxembourg with regard to 

the corporate income tax paid by Apple, Starbucks, and Fiat Finance and Trade, respectively, 

complied with the EU rules on state aid. In October 2014, the EU announced that it had also 

opened an in-depth investigation into whether the decision by Luxembourg’s tax authorities with 

regard to the corporate income tax to be paid by Amazon complied with EU rules on state aid. 

On October 21, 2015, the EU Commission announced its conclusions that Luxembourg has 

granted selective tax advantages to Fiat’s financing company and the Netherlands has granted 

selective tax advantages to Starbucks’s coffee roasting company. Finally, press reports have 

explained that tax rulings given to several other U.S. companies are also being examined by the 

EU Commission. In the area of state aid, as I understand it, the remedy is for the Commission to 

require the member state to collect the amount of income tax that, in the Commission’s view, 

should have been imposed in the first place. State aid rulings can go back and reexamine up to

ten years of prior conduct. 

Treasury has followed the state aid cases closely for a number of reasons. First, we are concerned 

that the EU Commission appears to be disproportionately targeting U.S. companies. Second, 

these actions potentially undermine our rights under our tax treaties. The United States has a 

network of income tax treaties with the member states and has no income tax treaty with the EU 

because income tax is a matter of member state competence under EU law. While these cases are 

being billed as cases of illegal state subsidies under EU law (state aid), we are concerned that the 

EU Commission is in effect telling member states how they should have applied their own tax 

laws over a ten-year period. Plainly, the assertion of such broad power with respect to an income 

tax matter calls into question the finality of U.S. taxpayers’ dealings with member states, as well 

as the U.S. Government’s treaties with member states in the area of income taxation. Third, the 
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EU Commission is taking a novel approach to the state aid issue; yet, they have chosen to apply 

this new approach retroactively rather than only prospectively. While in the Starbucks case, the 

sums were relatively modest (20 to 30 million Euros), they may be substantially larger – perhaps

in the billions – in other cases. The retroactive application of a novel interpretation of EU law 

calls into question the basic fairness of the proceedings. Fourth, while the IRS and Treasury have 

not yet analyzed the equally novel foreign tax credit issues raised by these cases, it is possible 

that the settlement payments ultimately could be determined to give rise to creditable foreign 

taxes. If so, U.S. taxpayers would wind up footing the bill for these state aid settlements when 

the affected U.S. taxpayers either repatriate amounts voluntarily or Congress requires a deemed 

repatriation as part of tax reform (and less U.S. taxes are paid on the repatriated amounts as a 

result of the higher creditable foreign income taxes). 

Finally, and this relates to the EU’s apparent substantive position in these cases, we are greatly 

concerned that the EU Commission is reaching out to tax income that no member state had the 

right to tax under internationally accepted standards. Rather, from all appearances they are 

seeking to tax the income of U.S. multinational enterprises that, under current U.S. tax rules, is 

deferred until such time as the amounts are repatriated to the United States. The mere fact that 

the U.S. system has left these amounts untaxed until repatriated does not provide under 

international tax standards a right for another jurisdiction to tax those amounts. We will continue 

to monitor these cases closely. 

Conclusion

Chairman Hatch, Ranking Member Wyden, and distinguished Members of the Committee, let 

me conclude by thanking you for the opportunity to appear before the Committee to discuss the 

Administration’s work on various international tax matters. We appreciate the Committee’s 

continuing interest in the BEPS Project, international tax reform, inversions, State Aid, and other 

matters. On behalf of the Administration, that concludes my testimony, and I would be happy to 

answer any questions.