Foreign Administrative Law and International Taxation : a Case Study of Tax Treaty Implementation in China

U.S. taxpayers and the IRS increasingly have to take into account the interactions between U.S. and foreign laws, but they have paid little attention to the administrative law backgrounds of foreign tax laws. In a growing range of cases, the need for such attention has become urgent. This Article describes a novel class of cases encountered by U.S. taxpayers that emanate from tax treaty implementation in China. In these cases, U.S. (and other foreign) investors face certain rules that conflict with common treaty interpretations, and that, at the same time, are not legally binding under Chinese domestic law. The question arises as to whether U.S. taxpayers should contest such rules in China. Equally, the IRS faces the question of what to do with such errant treaty interpretations. These questions for U.S. tax law and policy cannot be answered without understanding the Chinese administrative law approach to treaty implementation. This Article suggests that affected U.S. taxpayers cannot simultaneously avoid contesting the applications of the Chinese rules and claim, for U.S. law purposes, that they have taken “all practical and effective remedies” to reduce their tax liabilities. It also suggests that the U.S. rules on what qualifies a compulsory tax payment constitute a way of “exporting” U.S. concepts of the rule of law. But most fundamentally, it argues that to protect their rights and expectations under tax treaties, U.S. taxpayers and the IRS must tap unfamiliar mechanisms that enhance the rule of law, such as legislative, judicial, and executive oversight