How the new US tax code encourages tech firms to move assets back to the US by cutting taxes on foreign-derived intangible income, like IP, to 13.125% from ~35%
Sam Schechner / Wall Street Journal : Tweets: @gopsenfinance , @davidclowery , @samschech , and @paulhannon29 Tweets: GOP Senate Finance / @gopsenfinance : American companies rich in #IP are looking at a new tax-friendly regime: the United States. Read more via @wsj. http://on.wsj.com/2DyTAR6 #taxreform @davidclowery : Won't work unless USPTO stops PTAB from arbitrarily invalidating so many patents by forcing trial. Capricious protection of property rights is what keeps investment out of corrupt regimes. Why would you bring IP to US if it suffers same fate? @ipwatchdog https://www.wsj.com/... Sam Schechner / @samschech : Goodbye, ‘Double Irish.’ Hello... Single Americano? https://www.wsj.com/... Paul Hannon / @paulhannon29 : No more Double Irish? A new deduction in the tax code makes the U.S. a more attractive option for companies. https://www.wsj.com/... via @WSJ
Context & Ripple Effects
The 13.125% rate on foreign-derived intangible income is the carrot half of the December 2017 overhaul whose stick was provisions curbing tech giants' use of low-tax foreign jurisdictions — the same bill that let Apple bring back its $252B foreign cash pile without a major tax hit. GOP Senate Finance is actively marketing the new regime to American companies rich in IP.
Two counterweights frame whether the pull works: Ireland still undercuts the US on paper at 12.5%, though its later move to join the 15% global minimum tax narrows that gap; and critics like David Lowery argue PTAB patent invalidations make US property rights too capricious for IP holders to relocate. Years on, Section 174's forced amortization of software labor pushed IP back abroad — evidence the incentive can be undone by other parts of the code.
First-order effects
- Tech firms holding patents and other intangibles offshore now weigh 13.125% FDII against Ireland's 12.5%, making US IP domicile newly competitive for the first time in years.
- Companies that kept profits in low-tax foreign jurisdictions face the squeeze the overhaul was designed to apply, with repatriation now priced as the rational default.
Second-order effects
- Ireland's rate advantage erodes as it signs onto the 15% global minimum, forcing European HQ jurisdictions to compete on substance — talent, enforcement, R&D treatment — rather than headline rates.
- Patent-quality concerns become a siting variable: if PTAB invalidation practices persist, they blunt the pull of the lower rate regardless of what the tax code offers.
Third-order effects
- If rate convergence holds — an OECD floor abroad plus FDII at home — IP location shifts from pure tax arbitrage toward enforcement quality and cost-of-innovation rules, where Section 174 shows US policy itself can reverse the flow.
- Corporate tax competition structurally migrates from headline corporate rates to bespoke intangible-income regimes, with the global minimum capping how far any single jurisdiction can undercut another.
The trend: IP domicile is shifting from jurisdiction-shopping on headline rates toward wherever the combined after-tax, after-enforcement return is highest, as the US FDII regime and the OECD minimum converge the field.