Taxation in a Global, Digital Economy: Recent Developments

In the most recent edition of the Tax Strategy & Benefits Newsletter, our colleagues address international efforts to find a consensus on the tax challenges arising from digitalization of the global economy.

The G20/OECD Base Erosion and Profit Shifting (BEPS) Project has so far failed to find an international consensus.  That delay and lack of progress has led others to explore alternative paths. The European Union, in particular, has sought to lead the way in defining the problems and formulating the answers.  The Tax Strategy & Benefits Newsletter considers the status of the EU’s interim and long-term proposals, and discusses the reasons for, and nature of, the opposition to those proposals that are emerging, primarily from the US.  The Newsletter also covers developments in three other jurisdictions – Spain, the UK and Australia – each of which have shown a willingness to act unilaterally to tax digital businesses.  Finally, our colleagues provide a brief overview of the likely road ahead, emphasizing that while interim measures may ameliorate immediate public concern in the short-term, they will not resolve the long-term issue of identifying the optimal location for taxation in an ever-changing global economy.

The newsletter may be accessed on our website or by clicking the link below:

Midterm Election Analysis

On Tuesday, November 6, voters across the US cast ballots in the first major referendum since the election of President Donald J. Trump in 2016. As a result of the most expensive midterm elections in history, Democrats will be in charge of the House of Representatives and Republicans will expand their control of the Senate when the 116th Congress convenes on January 3, 2019. Given this divide, many pundits already are predicting that nothing will be done in Washington for the next two years. 

However, our Public Policy team disagrees with that analysis. Rather than focus on headlines about House Democrats drawing up subpoenas to demand documents from the Trump Administration, we discuss potential areas of compromise that could lead to substantial legislation in the run up to the 2020 elections.

In our 2018 Midterm Elections Analysis, our colleagues discuss the prospects for Congress to adopt a comprehensive privacy and cybersecurity bill, and envision possible scenarios where Congress could find common ground with President Trump in the areas of infrastructure and immigration reform. Further, we share our perspectives on a host of other issues, such as US tax and trade policy.

Read the full analysis here.

Webinar: Bid Protest Process – Don’t Be Late!

The US federal government contracts bid protest process and timing is different based on the type of procurement and contract vehicle involved. You could be left without much of a remedy if you miss a critical deadline.

To help lessen the anxiety, some of our legal experts from our government contracts team – Karen Harbaugh, Jeremy Dutra and John Sharp – are offering a webinar that covers the ins and outs of the bid protest process. We will explain the complexity and potential pitfalls. A protest gone wrong could cause valuable business opportunities or disrupted relationships. We would like to help you get ahead of the situation and avoid those panic-inducing moments. 

The webinar will be held from 11 a.m. to Noon EST on December 5, 2018.  Please click here to register.  Webinar login instructions will be provided following registration. 

2018 US Midterm Elections Overview

As the past few years have made very clear, political issues have the potential to impact supply chains.  Squire Patton Boggs’ Public Policy Practice has created a 30-day outlook for the upcoming US Midterm Elections. The overview—which includes updated polling, party funding comparisons, and a discussion of races that are considered “toss ups”—is now live on our web site, accessible through the following link: https://www.squirepattonboggs.com/en/insights/publications/misc/2018-us-midterm-elections-overview.  This overview will be updated periodically leading up to the November 6 election to provide real-time information.

 View our 30-day outlook.

2018 US Midterm Elections Overview

October 2018

Our best-in-class Public Policy Practice provides exceptional expertise and unparalleled levels of political analysis to make sure you stay informed and are heard at the right time by the right people. In the US and globally, we help clients understand the political environment and key stakeholders in each, and what government policies and regulations may impact their goals and objectives. Our presence in nearly all major world capitals spans six continents.

Since May 2018, our preeminent Public Policy team has carefully tracked and compiled data to display current trajectories for the US midterm elections in November 2018. Our 2018 Midterm Elections Overview highlights competitive Senate and House races which will define the 116th Congress, but does not attempt to predict the outcome.

The Senate overview provides recent polling and political rankings from Real Clear Politics, Cook Political Report and Sabato’s Crystal Ball, while the House overview imparts a general look into more competitive races. Information regarding both chambers is supplemented by previous voter trends in congressional and presidential elections. Our congressional midterm analysis further leverages unique political insight from former Senate Majority Leader Trent Lott (R) and Senator John Breaux (D), co-chairs of our Public Policy Practice.

Additionally, Republicans currently hold a majority in both gubernatorial and attorney general positions throughout the country. We profile several key races for each position and illustrated President Trump’s respective endorsements to target where and if the Republican advantage will remain intact.

This overview will be updated periodically leading up to the November 6 election to provide real-time polling information.

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The contents of this update are not intended to serve as legal advice related to individual situations or as legal opinions concerning such situations. Counsel should be consulted for legal planning and advice.

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Potential Impact of Recent US Tariffs and Trade Actions on the Automotive Industry

The US Department of Commerce investigation into the threat of automotive imports to US national security under Section 232 of the Trade Expansion Act of 1962, as amended, started in May 2018.  Currently, the Trump Administration is considering a 25% tariff on vehicles and auto parts from all foreign countries of origin.  Additional Section 301 tariffs against China have been announced, and the outcomes of US and Mexican bilateral trade negotiations remain unclear.  For insight into these recent trade actions, including the potential impact on the automotive industry and practical advice for manufacturers, please read this Summary of Recent US Trade Actions and the Potential Impact on the Automotive Industry.

A live webinar on the same topic, presented by our colleagues Cipriano Baredo III, Frank Samolis and Stacy Swanson, is scheduled for 10:00 am EST, September 28, 2018.  For more information, and to register, please click here.  We hope you can join us.

Section 301 Tariffs – Recent Developments

The following is an update from Frank Samolis, a partner in our Washington DC office, and Rory Murphy, an associate in our Washington DC office.  Frank is co-chair of our International Trade Practice and he advises clients on a wide range of international trade matters.  Rory is a member of our Public Policy International Practice who focuses on providing US public policy guidance. 

In the past few months, the United States has rolled out three lists of Section 301 tariffs that it has imposed, or will soon impose, on products being imported from China.  For each list there has been, or will soon be, both a public comment period – during which companies could ask for specific tariff lines to be removed from the proposed list of tariffs – followed by a product exclusion process – during which companies can ask that specific products imported under an effected tariff line to be excluded from the higher duty rates.

In the past 24 hours, there have been three significant developments:

  • The Trump Administration finalized List 3 of the Section 301 tariffs.  Approximately 300 of the proposed 6,300 List 3 tariff lines were removed as a result of public comments.  From September 24-December 31, 2018, products on List 3 will face an additional 10 percent duty.  Starting on January 1, the additional tariffs on these products will increase to 25 percent.
  • This morning, China announced it would retaliate against the United States’ most recent action by imposing 5 or 10 percent tariffs on approximately 5,200 U.S. products worth $60 billion.
  • The Office of the U.S. Trade Representative (“USTR”) announced a product exclusion process for List 2 of the Trump Administration’s Section 301 tariffs via the Federal Register.  Similar to the product exclusion process for List 1, requesters are encouraged to file using a yet-to-be-released form from USTR and asked to address whether (1) the product is available only from China, (2) the increased duties would cause severe economic harm to the requester or other US interests, and (3) the product is strategically important or related to “Made in China 2025” or other Chinese industrial programs.  If an exclusion is granted under this process, it would apply retroactively to August 23.  The product exclusion requests will be due December 18.

Finally, there are reports that China may cancel high-level bilateral meetings tentatively planned for later this month.

For your convenience, all of the upcoming deadlines are listed below.

List

Exclusion Process

Public Comment Period

  • List 1 (818 Tariff lines/$34 billion worth of Chinese products)
  • Product exclusion process open through October 9, 2018
  • Public comment period is closed.  Tariffs imposed as of July 6.
  • List 2 (284 tariff lines/$16 billion worth of Chinese products)
  • Product exclusion process open through December 18, 2018
  • Public comment period is closed. Tariffs imposed August 23.
  • List 3 (approximately 6,000 tariff lines/$200 billion worth of Chinese products)
  • Product exclusion expected, but not announced.
  • Public comment period closed.  Tariffs to be imposed September 24.

 

Force Majeure in a Tight Labor Market

2018 has produced a tight labor market for many manufacturers.  Particularly in the electronics, aerospace, and trucking/automotive sectors, skilled laborers are becoming increasingly difficult to find.  As a consequence, many manufacturers are finding themselves in a position where they are unable to perform contracts that have any degree of complexity without a level of scrap and/or corrective action that renders the contract uneconomical – because they don’t have skilled workers capable of shepherding these difficult contracts to performance.  And products that have manufacturing difficulties may not be apparent to the eye:  Truck panels or circuit boards that appear no different from standard-issue products may involve tight tolerances and specifications that only become apparent when the resulting products fail to perform as intended or fail to meet applicable specifications.

Solving the problem of insufficient skilled manufacturing workers on a policy level will involve time, coordination, and careful strategy.  American education institutions need to stay in close communication with industry, to know what skills the modern manufacturing worker needs to have.  Economic incentives have to be right to retain the most skilled workers.  And technology has to adequately support the manufacturing workforce to produce robust products.  But, in the short and medium term, is there anything that manufacturers can do to cope with these difficulties caused by labor shortages? Continue Reading

Cross-post from the frESH Blog – Food Labeling Issues and Trends: Lessons from Recent Allergen Recalls

Our colleague, Nicola Smith, recently published an article covering “Food Labeling Issues and Trends in Europe: Lessons for US and European Practitioners from Recent Allergen Recalls”, which is now available for download here.  Click below to read more about further examples of recalls due to safety or allergen information.  The continuing trend of recalls for allergens and other reasons are a reminder to operators which distribute foods or other products across jurisdictions that it is worth ensuring that recall protocols and procedures cover global supplies properly.

Food Labeling Issues and Trends: Lessons from Recent Allergen Recalls

Cross-post from the frESH Blog – Brexit: will there be a potential supply chain disruption for the chemicals sector?

Squire Patton Boggs attorney Anita Lloyd provided details to The UK in a Changing Europe about the potential effects of Brexit on chemical regulation.  Due to the way that REACH works on a whole supply-chain basis, when the UK leaves the EU, there could be significant disruption to cross-border supply chains and the many billions of pounds’ worth of trade in chemicals, unless measures can be agreed with the EU.  Read more here on the complexities surrounding the EU REACH Regulation and the legal challenges posed by Brexit, particularly in a no-deal scenario.

How Do You, Your Suppliers and Customers Fare as Trade Tensions Escalate?

It has been a tumultuous year for trade.

Nearly all steel and aluminum imported into the US now face additional 25% and 10% tariffs, respectively, after the Trump Administration determined such imports threatened US national security. An additional 25% tariff will be added to a growing list of products from China, following a US investigation into China’s intellectual property practices and policies. The US also launched a Section 232 investigation on auto imports, the results of which could be released as early as September. The EU and other US trading partners are responding with retaliatory tariffs, which will increase the costs of importing US products on almost 2,000 tariff lines.

While the real economic pain of these tariffs may not be felt until the fourth quarter, they have already disrupted global supply chains and added to the cost of doing business. The countries involved in and products affected by the current trade tensions are changing at a rapid pace. Recognizing the difficulties companies face in tracking current developments and potential increased costs throughout their supply chains, the trade experts of Squire Patton Boggs have been advising companies globally on impacted tariff lines and processes available to comment on and challenge these tariffs in the US and certain foreign markets, including how to apply for product exclusions.

Find out how your products, suppliers, and customers fare in the trade war by downloading Squire Patton Boggs’ Tariff Book.

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