December 4, 2009
On December 4, 2009, Tax Executives Institute submitted the following comments on certain tax compliance and revenue provisions in H.R. 3962, the Affordable Health Care for America Act. The comments were filed with the Chairs and Ranking Members of the House Ways and Means and Senate Finance Committees as well as congressional staff. TEI’s comments were prepared under the aegis of its Federal Tax Committee, whose chair is John A. Mann of Walgreens Co. Jeffery P. Rasmussen, TEI Tax Counsel, is the legal staff liaison to the Federal Tax Committee and coordinated the preparation of the comments.
Tax Executives Institute urges Congress to reject proposals in pending health care reform legislation to (1) codify the economic substance doctrine and the related penalties, (2) establish a heightened “more likely than not” tax reporting standard for large corporations, (3) expand corporate information reporting requirements, and (4) override certain treaty provisions. Despite the laudable goals of H.R. 3962, the Affordable Health Care for America Act, the tax compliance provisions in the legislation are misguided and would be counterproductive; they would cause substantial taxpayer burdens without improving tax compliance or administration.
TEI is the preeminent association of in-house tax professionals worldwide. Our 7,000 members work for 3,200 of the largest companies in the United States, Canada, Europe, and Asia. The Institute is dedicated to the development of sound tax policy, to promoting the uniform and equitable enforcement of the tax laws, and to reducing the costs and burdens of administration and compliance to the benefit of taxpayers and the government alike.
Codification of Economic Substance Doctrine
Section 562 of H.R. 3962 would (1) codify the economic substance doctrine and (2) impose a 20-percent penalty for underpayments of tax attributable to transactions lacking economic substance that are disclosed to the IRS. The penalty would increase to 40 percent for undisclosed noneconomic transactions. In addition, none of the current law exceptions to the imposition of underpayment penalties (whether substantial authority, reasonable basis plus disclosure, or reasonable cause and good faith) would apply to transactions lacking economic substance. Finally, the current law exceptions for understatement penalties attributable to “tax shelter” transactions or “reportable” transactions lacking economic substance would be repealed. In effect, the provision establishes a strict liability penalty for entering into “tax shelter” or “noneconomic” transactions.
A. Economic Substance Doctrine Should Not Be Codified. Intended as an anti-abuse rule, the proposed codification of the economic substance doctrine would clarify that in any case in which the economic substance doctrine is relevant to a transaction a taxpayer must establish that (1) the transaction changes in a meaningful way (apart from federal income tax effects) the taxpayer’s economic position and (2) the taxpayer has a substantial non-federal-tax purpose for entering into a transaction. If a taxpayer relies on profit potential to demonstrate a meaningful change in economic position or a substantial non-tax purpose, the present value of the reasonably expected pre-tax profit must be substantial in relation to the present value of the expected net tax benefits that would be allowed if the transaction were respected.
Regrettably, the proposal is unlikely to achieve its intended effect, in significant part because the terms relevant, meaningful, substantial, and reasonably expected are subjective, undefined in the statute, and hence would not clarify when the economic substance doctrine applies. Equally important, the lack of clarity means the provision does not identify the transactions or parts of a transaction to which the proposal would apply and thus could not possibly deter the transactions it seeks to staunch. In addition, the provision in H.R. 3962 would require that “any State or local income tax effect which is related to a Federal income tax effect . . . be treated in the same manner as a Federal income tax effect.” Given the disparate tax treatment of affiliated groups under federal and state rules, however, applying this provision would be far from easy because of uncertainty over which entities’ or taxpayers’ state income tax effects are related to a federal income tax effect, how they are related, and how they are thus relevant to the analysis.
The courts developed the economic substance doctrine as a common law “backstop” to the Internal Revenue Code’s substantive provisions more than 60 years ago.1 The doctrine allows courts to step in to prevent abuses of the Code’s substantive provisions, and history confirms the courts’ willingness to exercise that authority, with the IRS winning myriad cases in recent years. Thus, one court has explained:
The economic substance doctrine represents a judicial effort to enforce the statutory purpose of the tax code. From its inception, the economic substance doctrine has been used to prevent taxpayers from subverting the legislative purpose of the tax code by engaging in transactions that are fictitious or lack economic reality simply to reap a tax benefit.2
Despite the rhetorical overlay, there is little evidence that codification of the doctrine is necessary. Indeed, statutorily “clarifying” the doctrine would do nothing to curb illegitimate transactions because there are no illegitimate transactions currently beyond the judicial doctrine’s reach.
This is not merely the view of taxpayers and taxpayer organizations such as TEI. The Treasury Department and IRS have historically both voiced concerns about the need for and the possible unintended consequences of codifying the doctrine.3 Codification would complicate the system, confuse taxpayers and revenue agents, raise significant issues of statutory construction, impede the courts’ ability to rely on existing precedent, and interfere with legitimate commercial transactions.4 Thus, enacting a complex, subjective anti-abuse rule might well be counterproductive and even frustrate IRS efforts to combat abusive transactions.5 Moreover, given the government’s court victories, the proposal would raise no revenue were it not for the associated — and indefensible — strict liability penalty. As a result, TEI urges rejection of the codification of the economic substance doctrine.
B. The Imposition of a Strict Liability Penalty Is Contrary to Sound Tax Policy. A rational penalty system must recognize that taxpayers who endeavor in good faith to comply with the nation’s amorphous body of tax laws should not be penalized. Civil tax penalties should be exacted only for deviations from a standard of conduct that is clearly defined by Congress, the Treasury Department, or the Internal Revenue Service. Indeed, the IRS Commissioner’s Executive Task Force on Civil Penalties wrote in 1989 that “[c]ivil tax penalties should exist for the purpose of encouraging voluntary compliance and not for other purposes, such as the raising of revenue.”6
From this flow three principles. First, in order to encourage compliant behavior, a penalty must relate to a known, discernible standard of conduct — one where both taxpayers and the IRS know what is expected. Second, the standard must be established in advance. Third, the taxpayer must have in fact deviated from the standard, i.e., the penalty should be fault-driven.
The proposed strict liability penalty in section 562 of H.R. 3962 violates all three principles. First, the economic substance doctrine is, above all else, an amorphous doctrine that is applied where necessary to combat transactions deemed, after the fact, not to comport with the results intended by Congress; taxpayers cannot know in advance whether it will apply. Second, the proposed statutory provision does not address the crucial questions of when the doctrine should apply or to which transactions (or portions thereof).7 As a result, there will be good faith disputes between taxpayers and the IRS about whether the doctrine should apply.8 Such disputes about nebulous provisions of the Code or the application of its provisions in novel factual circumstances underscore that taxpayers could not know in advance that their transactions fail to comply. Similarly, the definition of “tax shelter,” which has been in section 6662 in its current form since 1997, is too imprecise to serve as a basis for the imposition of a strict liability penalty.9
Moreover, recent experience demonstrates that imposing stiff penalties without permitting taxpayers an opportunity to demonstrate why an exception or waiver of the penalty should apply can have unintended consequences.10 A reasonable cause exception is an important safety valve in the tax system because it enhances fairness and reduces disputes over penalties where the taxpayer acted reasonably and in good faith, even where the IRS and courts ultimately disagree with the taxpayer’s judgment about a particular transaction. Finally, a strict liability penalty could embolden IRS agents to threaten assertion of the economic substance doctrine merely to extract settlement concessions during examinations.
Significantly, since the provision does not provide clear guidance on its scope and application, the penalty cannot deter volitional acts by taxpayers. Hence, it will not promote voluntary compliance. As important, the penalty’s arbitrariness will undermine the fairness — and the perception of fairness — of the tax system. For these reasons, the strict liability penalty for noneconomic or “tax shelter” transactions should be rejected.
More Likely Than Not Standard for Large Corporation Underpayment Penalty
Under section 563 of the bill, the reasonable cause and good faith exception of present law section 6664(c)(1) would apply to the underpayment of tax by a “specified person” only if the taxpayer has a reasonable belief that the tax treatment is more likely than not the proper treatment of the item.11 A “specified person” is (i) any person required to file periodic or other reports under section 13 of the Securities and Exchange Act of 1934, and (ii) any corporation with gross receipts in excess of $100 million for the taxable year involved. In effect, the provision applies to “large” or publicly traded corporations.
The proposal will vitiate the ability of large corporations and public companies to avoid the section 6662(d) substantial underpayment penalty by eliminating the penalty exception for disclosed positions that have at least a reasonable basis and by raising the standard for avoiding the penalty for undisclosed positions from substantial authority to more likely than not. TEI believes that adoption of the heightened “more likely than not” standard for large or publicly traded corporations belies the complexity of the tax law and would seriously undermine the fairness of the Code’s penalty provisions.12 Large or publicly traded companies are no less diligent than other taxpayers in carrying out their compliance obligations under the self-assessment tax system. Indeed, U.S. securities laws and generally accepted accounting principles, including FIN 48 relating to the reporting of uncertain tax positions,13 promote an extremely high level of diligence in all financial matters, including tax return preparation.
Moreover, a “more likely than not” standard is not the appropriate standard for transactions that are not clearly abusive. Indeed, because of the inherent uncertainty and ambiguity in the complex tax law that companies must comply with, many return positions for ordinary day-to-day items are supportable only by a reasonable basis or substantial authority. For example, nearly every taxpayer faces the commonplace question of whether repair expenditures should be capitalized or deducted. This seemingly simple decision is complicated by an extensive set of regulations, a series of ad hoc rulings, and a considerable body of conflicting judicial decisions that lead to multiple interpretations. Where there are multiple interpretations of a rule, or no single controlling authority on an unsettled issue, such as capitalization, it will be challenging to determine whether any reporting position is more likely than not correct. As a result, the taxpayer would be subject to a penalty under this proposal even when there is no position where the taxpayer could have a
reasonable belief that the tax treatment is more likely than not the proper treatment of the item.14
The challenge of determining whether a position is supported by a more likely than not level of authority is especially difficult with new Code provisions. In many cases, it may be impossible to determine whether a given tax return position has “more likely than not” support until the IRS provides guidance on a new provision.15 For example, the effective date of the section 409A reporting requirements for deferred compensation, which was enacted in 2004, was delayed several times as the IRS developed workable guidance.16 In the interim, taxpayers were permitted to make “reasonable” interpretations of many complex issues that might — or might not — have been supported by a more likely than not level of authority.
In addition, there are areas of the Code where the IRS will not issue private letter rulings or other taxpayer-specific guidance. It would be especially harsh to impose a penalty on a taxpayer for failing to have “more likely than not” support for a position where a taxpayer makes reasonable efforts to comply but is stymied because the IRS will not issue guidance relating to its specific transaction.
Finally, during the last 10 years, Congress has enacted several provisions, and the Treasury Department and IRS have undertaken various initiatives, to encourage greater transparency and voluntary disclosure of transactions or items the IRS may wish to scrutinize. Because it would not be possible to achieve a more likely than not level of authority for all return positions, the provision would perversely undermine current incentives to make disclosures about positions that are supportable, but “close to the line” and thus of interest to the IRS.
For the foregoing reasons, we urge Congress to reject the proposal that tax return positions for large or publicly held corporations must be supported by a more likely than not level of authority in order to avoid a penalty.
Effective date. Section 563 is proposed to be effective for transactions entered into after the date of enactment. An immediate effective date, however, will not afford the IRS time to develop and issue guidance on a number of issues, nor will it be able to modify its systems and forms to accommodate a mid-year change. Likewise, taxpayers would be left without sufficient guidance on a new provision to enable an assessment of its implications and to make necessary changes in their systems or governance structure. Consequently, the effective date of the proposal should, at a minimum, be delayed and should apply to transactions entered into in tax years beginning after the date of enactment.
Information Reporting on Payments to Corporations
Section 553 of the bill would expand the information reporting requirements for payments to corporations, amending section 6041 of the Code to require that all payments in excess of six hundred dollars be reported on Form 1099-MISC (Miscellaneous Income), including payments for property. Under longstanding regulations, payments to corporations are generally exempt from reporting requirements except in specifically enumerated circumstances (e.g., payments for attorneys’ fees or proceeds payable to an attorney).
TEI applauds Congress’s desire to target pockets of noncompliance and to take appropriate actions to shrink the tax gap. We are proud of our record of working with congressional tax-writing committees, the IRS, and the Department of the Treasury to devise and fine-tune diverse strategies for enhancing compliance in a cost-effective and equitable manner. We have significant reservations, however, about section 553 and regret that the proposal would impose undue compliance burdens on already compliant payers and on payees that have already demonstrated an extraordinarily high level of compliance.17
TEI submits that the proposal to require the filing of Forms 1099 in respect of all payments to corporations, including payments for property, is overbroad and will impose substantial costs on payers and recipients without yielding significant benefits to the tax administration system. The information filing requirements could increase by hundreds of thousands or even millions of Forms 1099 annually and companies will be impelled to revise their processes and information systems in order to comply with the new reporting requirements and avoid penalties.18
Moreover, corporations that receive the Forms 1099 would have to store them, and the proposal raises the specter that payees might be compelled to match, or reconcile, the amounts reported to their books of account or their tax returns — a process that will lead to countless mismatches, especially where the payee is an accrual basis or fiscal-year taxpayer (receiving information returns prepared on a cash and calendar-year basis). The situation is complicated where the payments are received by a subsidiary under its taxpayer identification number (TIN) but reported on the consolidated income tax return filed under the TIN of the corporate parent. The unavoidable mismatches between amounts reported by payers and payees would likely result in the annual filing of millions of information returns that would provide little or no value to the IRS in identifying noncompliance.19 For the foregoing reasons, section 553 should not be adopted.
If corporate information reporting requirements are to be modified, we recommend that Congress direct the IRS to exercise its regulatory authority to expand corporate information reporting regulations selectively and only in specific areas where noncompliance has been documented. Thus, rather than requiring what amounts to an annual “data dump” of all payments to every corporate payee, we recommend that the IRS be directed to identify specific pockets of noncompliance and then craft administrative rules that weigh the burden of additional data collection and reporting against the expected level of enhanced compliance.
Limitation on Treaty Benefits for Certain Deductible Payments
Under section 561 of the bill, the amount of U.S. withholding tax imposed on deductible related-party payments cannot be reduced under any U.S. income tax treaty unless such withholding tax would have been reduced under a U.S. income tax treaty if the payment were made directly to the foreign parent corporation of the payer.
This proposal would abrogate the withholding tax provisions of numerous U.S. tax treaties. Although Congress has authority to override tax treaties through subsequently enacted legislation, doing so would constitute a breach of international tax law as well as an affront to our treaty partners. Legislative overrides damage the credibility and reputation of the United States as a member of the international community, undermine the trust and expectations of treaty partners, and harm U.S. citizens and residents by hindering the Department of the Treasury in its efforts to obtain favorable concessions from foreign governments when negotiating and renegotiating tax treaties.20 Overrides evince a “go it alone” hubris that invites retaliation, which would potentially harm overseas U.S. business interests and investments. Thus, we urge Congress to reconsider its practice of enacting provisions such as section 561.
TEI understands that there are sound tax policy reasons for limitation-on-benefits provisions in tax treaties. We submit, however, that where new issues arise as a result of commercial or legal developments in either treaty country that warrant limitations on benefits, the proper approach is to negotiate a new protocol with that country.21 Since the proposed provision is both unwarranted and offensive to international norms, we urge Congress to reject section 561 of H.R. 3962.
If you have any questions about TEI’s positions on the tax compliance provisions in H.R. 3962, please contact TEI’s Executive Director, Timothy J. McCormally, or Chief Tax Counsel, Eli J. Dicker, at 202.638.5601.
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1 Gregory v. Helvering, 293 U.S. 465 (1935).
2 Coltec Industries, Inc. v. United States, 454 F.3d 1340 (Fed. Cir. 2006), cert denied, 127 S. Ct. 1261 (2007).
3 See, e.g., Solomon Says Rule Not Enough to Fix Tax Patent Problem; Other Issues Discussed, BNA DAILY TAX REPORT, G-6 (October 15, 2007).
4 The Joint Committee on Taxation’s explanation of the bill states that the provision is not intended to alter the tax treatment of certain basic business transactions that, under longstanding judicial and administrative practice, are respected because the choice between meaningful economic alternatives is largely or entirely based on comparative tax advantages. Among these basic transactions are (1) the choice between capitalizing a business enterprise with debt or equity; (2) a U.S. person’s choice between utilizing a foreign corporation or a domestic corporation to make a foreign investment; (3) the choice to enter a transaction or series of transactions that constitute a corporate organization or reorganization under subchapter C; and (4) the choice to utilize a related-party entity in a transaction. See TECHNICAL EXPLANATION OF THE REVENUE PROVISIONS CONTAINED IN H.R. 3962, THE AFFORDABLE HEALTH CARE FOR AMERICA ACT OF 2009, AS AMENDED, Joint Committee on Taxation, JCX-47-09, at 90 (November 5, 2009). Regrettably, the mere existence of an “angel list” implies that transactions omitted from the list would be subject to challenge.
5 IRS officials have criticized codification of the economic substance doctrine on multiple grounds, including that the enactment of excessive penalties may make it difficult for the IRS to assert and sustain them and that substantial IRS and Chief Counsel resources will have to be diverted to analyzing and justifying the application of the penalty. Perhaps most important, codification may give taxpayers and their advisers a way to plan around the literal version of a codified rule — the very thing the judicial doctrine is intended to prevent. See, e.g., Economic Substance Codification Could Create Tax Shelter Problem, Korb Warns, BNA DAILY TAX REPORT, G-8 (February, 15, 2008); Senate Panel’s Economic Substance Bid, Unlikely to Raise Revenue, BNA DAILY TAX REPORT, G-8 (October 11, 2007); Korb Criticizes Economic Substance Bill, Says No Decision Yet on ‘Textron’ Decision, BNA DAILY TAX REPORT, G-8 (October 15, 2007); Korb Notes Declining Revenue Estimate for Economic Substance Codification, 2007 TNT 212-6 (November 1, 2006).
6 Commissioner’s Executive Task Force on Civil Penalties, Internal Revenue Service, Report on Civil Tax Penalties, at 1 (February 21, 1989), available at 89 TNT 45-36, Doc. 89-1586 (emphasis supplied).
7 The penalty will apply to “any disallowance of claimed tax benefits by reason of a transaction lacking economic substance . . . or failing to meet the requirements of any similar rule of law.” Neither the proposed statute nor the Code or regulations currently provide a definition for the term “any similar rule of law.” The description of the provision by the Joint Committee on Taxation also supplies little guidance. The phrase clearly expands the scope of the penalty beyond transactions lacking economic substance but it is unclear to what other transactions it does apply. Since the phrase does not provide fair warning of the conduct or transactions to be avoided, it exacerbates the ambiguity and uncertainty of the penalty and will serve no deterrent effect beyond the current penalty structure for engaging in noneconomic or “similar” transactions. As important, if the phrase is intended to apply to other common law doctrines, such as “substance over form” or “step transaction,” there will likely be many unintended consequences. For example, despite a plethora of guidance, it is challenging to determine whether an ordinary leasing transaction (i.e., not a
reportable transaction, such as a Sale-in-Lease-Out) is an operating lease or a financing for a purchase. Since either treatment is acceptable under the Code, why should a taxpayer be potentially subject to a strict liability penalty if a court ultimately determines the transaction should be recharacterized simply because the wrong form was selected and reported on the return?
8 Some recent IRS appellate court victories in cases applying the economic substance doctrine have reversed lower court decisions in favor of the taxpayer. Indeed, in some cases the appellate court decisions were split opinions. Proponents of the doctrine’s codification aver that uncertainty about the doctrine’s application demands statutory clarification. Although we disagree, the courts’ uncertainty about when and to what transactions the doctrine should apply underscores why a strict liability penalty is unjustified.
9 Under section 6662, a “tax shelter” is “a partnership or other entity, any investment plan or arrangement, or any other plan or arrangement, if a significant purpose of such partnership, entity, plan, or arrangement is the avoidance or evasion of Federal income tax.” Even though the provision was enacted 12 years ago, the IRS and Treasury Department have not issued meaningful guidance interpreting when “a significant purpose” of avoidance or evasion of tax exists.
10 See Letter dated June 12, 2009, from Senators Max Baucus and Charles Grassley and Representatives John Lewis and Charles W. Boustany to the Honorable Douglas W. Shulman (requesting suspension of enforcement of strict liability penalties imposed on certain listed transactions entered into by small business taxpayers), available electronically at 2009 TNT 113-25, Doc. 2009-13542. See Letter dated July 6, 2009, from the Honorable Douglas W. Shulman (announcing suspension of collection enforcement activities with respect to certain transactions with tax benefits below a specified level), available electronically at 2009 TNT 128-15, Doc. 2009-15335.
11 Under section 6662, an accuracy-related penalty applies to the portion of any underpayment that is attributable to (1) negligence, (2) any substantial understatement of income tax, (3) any substantial valuation misstatement, (4) any substantial overstatement of pension liabilities, or (5) any substantial estate or gift tax valuation understatement. Except in the case of tax shelters, the amount of any understatement is reduced by any portion of the understatement attributable to an item if (1) the treatment of the item is supported by substantial authority, or (2) facts relevant to the tax treatment of the item are adequately disclosed and there is a reasonable basis for its tax treatment. The section 6662 penalty generally is abated by section 6664(c) (even with respect to tax shelters) in cases in which the taxpayer can demonstrate that there is “reasonable cause” for the underpayment and that the taxpayer acted in good faith.
12 This provision would undermine, rather than encourage, voluntary compliance because it is arbitrary and lacks any rational basis. It is unclear, for example, why a taxpayer with say, $101 million in gross receipts would be subject to a higher standard of compliance than a taxpayer with $99 million dollars in gross receipts.
13 See FASB Interpretation No. 48, Accounting for Uncertainty in Income Taxes: an interpretation of FASB Statement No. 109, No. 28 1-B (June 2006).
14 Under current law, the taxpayer has substantial authority to support its reported position — and that is the highest level of support possible in the circumstances.
15 In such a case, a company subject to FIN 48 would likely be required to establish a reserve for its uncertain tax position. Under FIN 48 a financial statement reserve is required whenever the statement issuer is unable to establish that a tax positions is supported by a more likely than not level of authority. Would the IRS automatically assert the penalty for any position reflected in a taxpayer’s FIN 48 analysis? We do not believe that would be appropriate because there are many circumstances where an absence of guidance or conflicting authorities would prevent taxpayers from establishing positions with a more likely than not level of support.
16 See, e.g., Notice 2006-79, 2006-43 I.R.B. 1 (“A plan adopted on or before December 31, 2007 will not be treated as violating section 409A(a)(2), (3) or (4) on or before December 31, 2007 if the plan is operated through December 31, 2007 in reasonable, good faith compliance with the provisions of section 409A and applicable provisions of Notice 2005-1 . . . .”). (Emphasis supplied.)
17 The Internal Revenue Service’s 2001 study of the national tax gap estimated that $25 billion of the $345 billion tax gap is attributable to large corporations. In testimony before the Senate Finance Committee, the IRS Commissioner identified the sources contributing to the corporate tax gap — from the complexity of the tax code to the expanding number of “book-tax” differences and to “abusive” transactions. Unreported income is not among the compliance concerns identified for large corporations. See IR-2006-94, IRS Commissioner Testifies before Senate Committee on Finance on Compliance Concerns Relative to Large and Mid-Size Businesses — Written Testimony of Commissioner of Internal Revenue Mark Everson (June 13, 2006), available electronically at 2006 TNT 114-9, Doc. 2006-11401.
18 Payers will also have to solicit and store a substantial number of additional Forms W-9 Request for Taxpayer Identification Number and Certification. Corporate payees will be required to respond to the increased requests.
19 Matching payments for property reported by the purchaser of goods with income reportable by the seller of goods will be highly problematic because the property for which payment is received will likely be part of the selling corporation’s inventory. Thus, the selling corporation will have a basis in the property that will be deducted as part of its cost of goods sold deduction. The relationship between gross proceeds received and the income reported by the seller can only be confirmed by examining the seller’s books and records. An information matching program alone will not identify underreported income for sales of business inventory. Since most large corporations are already subject to continuing examination, few if any adjustments to their taxable income will be made as a result of the information reporting program. On the other hand, in order to identify whether income from sales of property was properly reported by small businesses, the IRS would have to substantially increase the number and scope of audits of small businesses beyond its currently available resources. As a result, the expanded information reporting will likely not produce the intended compliance benefits.
20 Tax treaties are essential for promoting U.S. trade because they generally provide mechanisms for relief of double taxation as well as for mutual reductions in the respective countries’ withholding taxes. In addition, the exchange-of-information provisions in treaties serve a vital tax administration function. If treaty partners are frustrated by treaty overrides, the policy and administrative benefits of treaties will be diminished.
21 The U.S. Treasury Department has demonstrated repeatedly that it will negotiate appropriate limitation-on-benefits provisions. See, e.g., the most recently negotiated protocols with Iceland and Hungary, which include new, comprehensive limitation-on-benefits provisions. See also ‘Shoring Up’ Treaties Without Comprehensive LOB Provisions a Priority, Says Treasury Official, 117 Tax Notes 671 (Nov. 12, 2007).