Page 2 – Harvard Business Law Review (HBLR)

Foreign investment in China has always been wrought with contention, accented by the latest trade disputes between the United States and China. In March, the People’s Congress of China took active steps to create change and to ease anxiety foreign investors face when it passed the Foreign Investment Law (“FIL”).¹ The new law replaces three existing laws that have governed foreign investment since the 1980s.

The law is expected to create a positive shift for those investing in Chinese markets by promoting trade, streamlining efficiency, and protecting foreign investors. The law will go into effect on January 1, 2020, but will have few immediate short-term effects.²

The long-term forecast, however, is more promising, with projections of $1.5tn of inbound investment into China within ten years.³ Nonetheless, such sweeping changes will bring new legal challenges. Lawyers will be operating with little guidance until regulators weigh in on implementation concerns.

The double-edged nature of the FIL is its overly broad policies, which allow for flexibility. Critics find the law fails to outline changes that will yield improvements to the investment scheme.⁴ However, the FIL shows China’s willingness to adapt. Through the process of trial and error, regulators will create guidelines to implement the ideals outlined in the FIL. Until then, foreign investors should consider balancing these concerns and weighing the risks of moving new ventures into China.

More specific changes in the FIL include clarification of what qualifies as a foreign investment enterprise (“FIE”).⁵ While better than its predecessors, which lacked clear categories and focused mostly on foreign direct investments, the FIL definition expands the scope of what qualifies as an FIE. However, ambiguity remains for foreign investors. Additionally, it remains unclear if Chinese investors can invest in FIEs.

Some of the provisions formally adopt existing policies, such as the Negative List for foreign investments and the pre-establishment national treatment.⁶ Expanded nationwide in 2018, the Negative List opens all sectors not listed to foreign investors.⁷ The pre-establishment national treatment grants these foreign investors and their investments equitable market access with domestic investors and investments.

Another change is the formal switch to the registration system, where foreign investors register instead of the previous system, which required approval by the Minister of Commerce for each decision. However, the FIL also created new reporting obligations that are not described in detail.⁸ These additional reporting requirements leave many unsure of the burden on foreign investors.

Perhaps the most substantial legal challenge moving forward for foreign investors is the requirement for FIEs to modify their governance structure to comply with PRC Company Law. Those FIEs which currently exist under the current laws have a five-year grace period to revisit their corporate structures and become compliant with the unified corporate regime. The old FIL provided for a specific corporate framework between foreign and Chinese investors. Previously, the board of directors was the decision-making body, and laws required unanimous approval on certain issues to protect minority shareholders.⁹ Now, shareholders will become the decision-making authority with two-thirds approval required. Companies may want to renegotiate the terms of joint ventures they entered before this change was enacted.

Joerg Wuttke, European Union Chamber of Commerce in China president, believes the FIL addresses the concerns of foreign investors.¹⁰ The additional protections for trade secrets and valuable technology foreign companies bring to China have long been sought by both the U.S. and the EU. Wuttke also believes when the FIL is fully implemented, it will address significant business complaints brought by both the EU and the U.S. but is also concerned about its lack of clarity.

While there are many more provisions and changes encompassed in the FIL, the sentiment remains that this is the first step toward fair trading for foreign investors in China. Although much must happen before investors see a tangible benefit, China has now come to the bargaining table with sincerity.

There are many factors a business might consider when deciding where to locate its offices, including proximity to certain pools of labor, suppliers, and customers, regulatory conditions, and the historic roots of the company. But when a company’s operations are spread across multiple jurisdictions—both inside and outside the United States—where is the company actually located for the purpose of receiving specific tax or regulatory treatment? The answer to this important question continues to evolve in both domestic and international contexts, as lawmakers attempt to incentivize economic activity while preventing excessive tax avoidance. This note will present two examples of legal regimes, one domestic and one international, that consider what a company needs to do in order to qualify for a geography-based tax benefit.

Locating a business in a tax-advantaged Opportunity Zone

The Tax Cuts and Jobs Act of 2017 included generous tax benefits in the form of capital gains tax deferral and elimination for certain investments in designated “opportunity zones” throughout the United States. Qualifying investments held for more than ten years can receive, among other benefits, complete exclusion of capital gains. The proposed regulations explain that a geographically-dispersed business would qualify as a Qualified Opportunity Zone Business if: (a) at least half of the hours that employees and independent contractors (and employees of independent contractors) spend working on the business are performed within an opportunity zone;¹ (b) at least half of the amount paid by the business to employees and independent contractors (and employees of independent contractors) is for services performed in an opportunity zone;² or (c) both the tangible property of the business that is in an opportunity zone and the management or operations functions of the business that work in an opportunity zone are each necessary to generate at least half of the business’s gross income.³ Thus a software company that sells to customers around the world could qualify as a Qualified Opportunity Zone Business and enjoy the tax benefits as long as it locates a significant percentage of employees, independent contractors, or management and assets in opportunity zones.

Locating a business in a jurisdiction with advantageous tax treaties while satisfying the Principal Purposes Test (PPT) of the Multilateral Instrument (MLI)

In recent years, the Organization for Economic Cooperation and Development (OECD) has stepped up its efforts to reduce base erosion and profit shifting (BEPS), “tax planning strategies that exploit gaps and mismatches in tax rules to artificially shift profits to low or no-tax locations where there is little or no economic activity, resulting in little or no overall corporate tax being paid.”⁴ The OECD’s major initiative to deal with this issue, the (MLI), is an effort to standardize rules that preclude many BEPS activities by taxpayers.⁵ This effort to coordinate measures by various countries has been successful and as of June 1, 2019, 88 jurisdictions have signed the MLI.⁶ A required element in the MLI is the Principal Purposes Test (PPT) provision, which provides that “a benefit under the Covered Tax Agreement shall not be granted in respect of an item of income or capital if it is reasonable to conclude, having regard to all relevant facts and circumstances, that obtaining that benefit was one of the principal purposes of any arrangement or transaction that resulted directly or indirectly in that benefit…”⁷ In short, a company needs to have real, substantial reasons for locating in a jurisdiction, and cannot have its location decisions driven by tax considerations only.

In 2017, the OECD provided preliminary examples of situations in which “it would not be reasonable to deny the benefit”⁸ of tax treaties enjoyed by resident investment companies, the kinds of firms that often exploit the benefits of tax treaties when structuring their partnerships and transactions. Factors considered in determining that the PPT is satisfied include whether the company’s location decision was “mainly driven by the availability of directors with knowledge of regional business practices and regulations,” whether the company employs an experienced local management team, whether a majority of its directors are residents of the country and have expertise in investment management, and the legislative landscape for specific types of business in that country (e.g., a real estate investment entity or a securitization company).⁹

Broader lessons for tax-sensitive location planning

As tax authorities become more sophisticated in their attempts to preempt tax planning which reduces their tax receipts, companies need to substantiate their location decisions with better “facts on the ground.” “Substance” considerations are nothing new, but in a changing legislative landscape affected by geopolitics (trade wars, the spectre of Brexit, and legislative attempts to match their tax policies with a increasingly-digital world), companies need to make sure their “substance” is sufficient. Whether that means demonstrating that most of the company’s revenues are earned through the efforts of employees working in the jurisdiction, as under the opportunity zone laws in the United States, or whether that means that experienced directors running the company’s operations live in the jurisdiction as in the OECD MLI guidance, there may be little room for error with significant tax dollars on the line.

Although the corresponding final regulations are not yet available, the opportunity zone tax law passed in 2017 has generated significant buzz among investors, business owners, and community groups. The law, codified in Internal Revenue Code Sections 1400Z-1 and 1400Z-2, incentivizes new investment in businesses and real estate in designated low-income communities throughout the United States. The law is expected to unlock significant investment but is also controversial because of the lack of reporting requirements, the open questions surrounding the degree to which low-income people will benefit from the law, and the rich benefits it offers investors. Under the law, investors can receive tax deferral and tax elimination, including the complete elimination of capital gains from qualifying investments held for more than ten years.¹ The law may also provide an added benefit to investors: a way to improve their tax position through the strategic use of debt. Unless regulators restrict the tax benefits available to investors who leverage their opportunity zone equity investments, those investments may produce significant benefits throughout the investment term, not only at disposition.

In the landmark tax case, Crane v. Commissioner (1947),² the Supreme Court held that the amount of a nonrecourse mortgage is included in the basis of a property, a determination significant for calculating a gain on sale or exchange but also for the purpose of determining the amount of depreciation deductions available to a taxpayer. Depreciation deductions allow taxpayers to reduce their income tax liability by deducting from income a portion of an asset’s basis, according to an IRS-allowed depreciation schedule.³ But these deductions are not “free”; they are offset by reductions in the property’s basis, increasing the tax liability to the taxpayer upon the disposition of the property. The Crane decision was significant—indeed, opening the door to many forms of tax avoidance—because it allowed taxpayers to obtain major tax benefits by financing investments with debt. By doing so, investors could enjoy depreciation deductions generated by property much more valuable than their own equity investments. Even if a future tax bill were higher because of the reduction in basis, the investors would benefit from years of tax deferral. But the petitioner in the Crane case, Beulah Crane, tried to take this benefit one step further. She used her apartment building’s debt value when calculating depreciation deductions but omitted the debt value when calculating the amount realized when she sold the property.⁴

While Crane’s attempt to whipsaw the IRS was inconsistent with the Court’s holding—she lost the case—the opportunity zone law may allow investors to accomplish a similar result. Although IRC § 1400Z-2 stipulates that equity investments made in opportunity zone funds shall have a zero basis,⁵ the Crane decision suggests that an investor may enjoy a large basis in an opportunity zone investment through the use of debt, since the amount of a mortgage will be included in basis. This is significant because the depreciation deductions would probably not contribute to a higher tax bill in the future, as gains will be excluded as long as the investment is held for more than ten years.⁶ Although the investor’s basis would be reduced each year according to the depreciation deductions taken, the opportunity zone benefit would allow a step up in basis to fair market value at disposition after ten years,⁷ assuming the investor complied with all of the required opportunity zone rules. Assuming investors are able to benefit from leveraged investments in this way, the new law may bring more tax-driven, rather than fundamentals-driven, investment to the designated low-income communities. If this happens, the law’s supposed alignment of interests between investors and communities—through its focus on long-term, fundamentals-driven, equity investments, might be significantly eroded. Final regulations are expected in the coming months. Stay tuned.

The United Kingdom is scheduled to leave the European Union on March 29th. This date is the consequence of Article 50 of the Consolidated Version of the Treaty on European Union (Treaty on European Union), which establishes that the date in which a state shall cease to be a member of the European Union is either the date of entry into force of a withdrawal agreement negotiated by the European Council and the withdrawing member, or, lacking such an agreement, two years after notification by the state of its intention to withdraw.¹ In other words, European Union law sets an outer temporal limit to a negotiated departure.

In the past two years, the two sides have been negotiating just that. The result is the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (Withdrawal Agreement),² which establishes, broadly:

that European Union citizens and United Kingdom citizens may reside in the other’s territory;³
a transition period during which European Union law would continue to apply to the United Kingdom although the latter would have ceased to be a part of the former;⁴
the creation of a single customs territory between the European Union and the United Kingdom in the even that no further agreement on trade relations is reached prior to the expiration of the transition period;⁵
that any disputes about the interpretation of the Withdrawal Agreement may be referred to binding arbitration.⁶

But to enter into force, the Withdrawal Agreement needs to be ratified by both the European Union and the United Kingdom. Failure to ratify the Withdrawal Agreement would still result in the United Kingdom leaving the European Union on March 29th due to the automatic nature of the mechanism created by Article 50. In such case, one of two outcomes is likely. While there technically is a third scenario that temporarily extends membership of the European Union through a request for an extension unanimously approved by the European Council,⁷ this option would merely delay the earlier two scenarios.

First, the United Kingdom could permanently remain in the European Union. In a recent preliminary reference, the European Union’s highest court established that the United Kingdom has the option of deciding to do so unilaterally, on grounds that departure cannot be forced on a member state who does not wish to leave.⁸ Nevertheless, such a decision must be “unequivocal and unconditional,” suggesting that it may not be used tactically to obtain a negotiating advantage.⁹ In brief, the United Kingdom could decide to remain in the European Union only if it truly intended to remain.

Second, agreements alternative to the Withdrawal Agreement could be concluded. Indeed, the underlying need for the provisions of the Withdrawal Agreement remains, suggesting that alternative agreements equivalent to the portions of the Withdrawal Agreement on which political agreement can be reached could be negotiated. Taken together, such agreements could result in a substantial replication of the Withdrawal Agreement.

It should however be noted that the Withdrawal Agreement is in large part an attempt at facilitating a further negotiation, that of the mechanics of the relation between the United Kingdom and the European Union, by ensuring that European Union law would continue to apply while such negotiations take place. Failure to agree on an equivalent to the Withdrawal Agreement’s transitional period would mean that consequences arising out of the cessation of application of European Union law to the United Kingdom would become immediately relevant without negotiations on such issues having happened. Put differently, the lack of a transitional period would immediately expand the scope of negotiations to all issues arising out of the end of the application of European Union law.

This is possibly best illustrated through an example. European Union law currently allows investment firms authorized to operate in one European Union member state to freely provide such services in another member state.¹⁰ During a transitional period, this would continue to be the case, and an alternative of such a provision could potentially be negotiated before the end of the transitional period. On the contrary, the lack of a transitional period would make it immediately necessary to negotiate a replacement.

In the coming weeks or months, depending on whether an extension of European Union membership is agreed upon, clarity will be made on which of these options the United Kingdom will choose. Ratification of the Withdrawal Agreement would result in two years of intense negotiations on the mechanics of future United Kingdom relations with the European Union. Failure to do so and failure to agree on a transitional period would result in the necessity to have such negotiations immediately.

“‘Stranded assets’ are assets that have suffered from unanticipated premature write-downs, devaluations or conversions to liabilities.”¹

With a non-binding proposal for a Green New Deal (“GND”) that would “achieve net-zero greenhouse gas emissions” introduced in Congress,² climate change policy is at the forefront of a national conversation with familiar arguments. Those in favor of a GND describe the proposal as an appropriate response to an existential threat posed by climate change³ while those opposed characterize it as a very expensive way to destroy jobs.⁴

Regardless of position, GND-style or other climate-related regulations, such as a carbon tax favored by major petroleum producers,⁵ will have a dramatic effect on the economy. However, policy makers are not addressing the potential impact of sudden regulatory changes on Americans’ investments. Americans and financial institutions have hundreds of billions of dollars invested in carbon-intensive industries.⁶ These exposures are compounded by investments in (other) financial institutions that have similar, if not nearly identical, holdings.⁷ Additionally, $1.4 trillion worth of commercial and residential property is located within one-eighth of a mile of the U.S. coast.⁸

This leads to the idea of stranded assets. Any attempt to mitigate the impact of climate change will result in the devaluation of certain businesses and assets. By one estimation, “a third of [global] oil reserves, half of [global] gas reserves and over 80 per cent of current coal reserves should remain unused from 2010 to 2050” to hit the United Nations’ target of keeping the average global temperature below that of the pre-industrial era average by 2°C.⁹ Under this somewhat extreme scenario, the assets used to extract these resources, as well as the fossil-fuel-related equity and debt securities, become virtually worthless as cash flows dwindle.¹⁰

Financial losses caused by stranded assets will not be limited to firms with fossil-fuel related capital expenditures and their investors and creditors. For many Americans, the most significant investment is their home.¹¹ Natural disasters obviously pose a threat to the $882 billion in residential property at risk of projected sea level rise by 2100.¹² However, there is evidence that markets for housing at risk of flooding are not efficient. Less sophisticated owner-occupiers, rather than more sophisticated investors, are not discounting property values in real estate transactions to account for rising sea levels, leaving them vulnerable to financial shock.¹³ A subtler effect concerns insurance. Of the eleven million structures in FEMA flood zones, less than half carry catastrophe insurance.¹⁴ Similarly, one-fifth of National Flood Insurance Program policies are officially subsidized and charge less than the full risk level.¹⁵ Any regulation that alters the current flood insurance scheme, especially one that requires owners to purchase insurance or that alters subsidies, could force holders to more significantly internalize their own risk, affecting real estate values.¹⁶

Uncertainty about the future effects of climate change, the prospects of future climate-related regulation, and the form of such regulation(s), if any, prevents market forces from efficiently pricing assets at risk of becoming stranded due to environmental concerns. To prevent financial shock, any regulation addressing climate change or its risks should be enacted quickly, deliberately, and in such a way that allows maximum possible predictability for markets to adjust.¹⁷