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I. Introduction
One of the most contentious issues in U.S. tax policy in recent years concerns the manner in which large U.S. multinational companies are taxed-or not.1 Employing a multi-layered configuration of foreign subsidiaries-in a structure known as the "double Irish, Dutch sandwich"* 2-banner U.S. companies like Apple, Cisco, and Google3 have significantly reduced their global tax bills by shifting profitable aspects of their businesses to low-tax countries. Reformers point to the inefficiency and unfairness of conferring special tax benefits on the kind of large technology-intensive multinationals best able to avail themselves of these "loopholes," while other U.S. businesses pay full freight.4 The multinationals themselves point to the intensity of global competition and the hobbling effect of full exposure to U.S. tax rates.* * * * 5
The debate is, of course, more complex than this simple back and forth-indeed, far more complex. The tax-reducing structures themselves-whose colorful names make better press than how they actually work-are almost unsoundably elaborate and only rarely publicly visible.6 The laws and regulations governing these structures are voluminous, scattered, and ever-shifting.7
But this Article is not so much about the debate as about its terms. And regarding these, it asks an apparently simple question: When we speak of "U.S. multinationals," what do we mean by "U.S."? More specifically, to what extent are these "U.S." companies owned by nonU.S. investors?
A staunch internationalist might come to this question in hope of finding that global capital markets are getting the better of narrowminded nationalism. A staunch nationalist might come to the question wary of finding that transnational economic interests are getting the better of elected national governments. I come to this question only indirectly, in a manner that is hopefully less ideological and admittedly more lawyerly. My interest in the question arises because, as I argue, ownership nationality plays an important role in several key sections of the brief for retaining, enhancing, or only partially limiting the tax benefits now available to large U.S. multinationals. My interest is in whether these arguments carry weight. As such, I am interested in the suppositions on which they rest.
Part II brings to the fore ownership nationality's8 role in the current policy discussion regarding the taxation of large U.S. multinationals.9 The competitiveness of...