Cross-border Outsourcing: U.S. International Tax Pitfalls, Pratfalls, and Opportunities

Abstract

During the past decade, there has been a surge in outsourcing by businesses both in the United States and abroad. In the face of this surge in outsourcing as well as the trend toward outsourcing activities that come closer and closer to a business' core, some commentators have underscored the need for businesses to make an educated decision about whether and what to outsource. This article, which, as its title indicates, is particularly concerned with cross-border outsourcing, is written in the same vein. It provides a non-exhaustive examination of the myriad of circumstances under which a decision to outsource the provision of goods or the performance of services to a foreign provider can affect the application of the U.S. international tax regime to the outsourcing business. The purpose of this article is to foster greater awareness of the sometimes dissonant tax aspects of cross-border outsourcing and thereby impel businesses and their legal advisors to take a more holistic view of the decision to outsource - a view that encompasses not only the potential business benefits and detriments of a decision to outsource, but also the potential tax benefits and detriments of such a decision.