[Congressional Record Volume 144, Number 135 (Thursday, October 1, 1998)]
[Senate]
[Pages S11279-S11284]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. BREAUX (for himself and Mr. Mack):
  S. 2535. A bill to prohibit the Secretary of the Treasury from 
issuing regulations dealing with hybrid transactions; to the Committee 
on Finance.


                   Subpart F of Internal Revenue Code

 Mr. BREAUX. Mr. President, today Mr. Mack and I are 
introducing legislation to place a permanent moratorium on the 
Department of the Treasury's authority to finalize any proposed 
regulations issued pursuant to Notice 98-35, dealing with the treatment 
of hybrid branch transactions under subpart F of the Internal Revenue 
Code. It also prohibits Treasury from issuing new regulations relating 
to the tax treatment of hybrid transactions under subpart F and 
requires the Secretary to conduct a study of the tax treatment of 
hybrid transactions and to provide a written report to the Senate 
Committee on Finance and the House Committee on Ways and Means.
  By way of background, the United States generally subjects U.S. 
citizens and corporations to current taxation on their worldwide 
income. Two important devices mitigate or eliminate double taxation of 
income earned from foreign sources. First, bilateral income tax 
treaties with many countries exempt American taxpayers from paying 
foreign taxes on certain types of income (e.g. interest) and impose 
reduced rates of tax on other types (e.g. dividends and royalties). 
Second, U.S. taxpayers receive a credit against U.S. taxes for foreign 
taxes paid on foreign source income. To reiterate, these devices have 
been part of our international tax rules for decades and are aimed at 
preventing U.S. businesses from being taxed twice on the same income. 
The policy of currently taxing U.S. citizens on their worldwide income 
is in direct contrast with the regimes employed by most of our foreign 
trading competitors. Generally they tax their citizens and domestic 
corporations only on the income earned within their borders (the so-
called ``water's edge'' approach).
  Foreign corporations generally are also not subject to U.S. tax on 
income earned outside the United States, even if the foreign 
corporation is controlled by a U.S. parent. Thus, U.S. tax on income 
earned by foreign subsidiaries of U.S. companies--that is, from foreign 
operations conducted through a controlled foreign corporation (CFC)--is 
generally deferred until dividends paid by the CFC are received by its 
U.S. parent. This policy is referred to as ``tax deferral.''
  In 1961, President John F. Kennedy proposed eliminating tax deferral 
with respect to the earnings of U.S.-controlled foreign subsidiaries. 
The proposal provided that U.S. corporations would be currently taxable 
on their share of the earnings of CFCs, except in the case of 
investments in certain ``less developed countries.'' The business 
community strongly opposed the proposal, arguing that in order for U.S. 
multinational companies to be able to compete effectively in global 
markets, their CFCs should be subject only to the same taxes to which 
their foreign competitors were subject.
  In the Revenue Act of 1962, Congress rejected the President's 
proposal to completely eliminate tax deferral, recognizing that to do 
so would place U.S. companies operating in overseas markets at a 
significant disadvantage vis-a-vis their foreign competitors. Instead, 
Congress opted to adopt a policy regime designed to end deferral only 
with respect to income earned from so-called ``tax haven'' operations. 
This regime, known as ``subpart F,'' generally is aimed at currently 
taxing foreign source income that is easily moveable from one taxing 
jurisdiction to another and that is subject to low rates of foreign 
tax.
  Thus, the subpart F provisions of the Internal Revenue Code (found in 
sections 951-964) have always reflected a balancing of two competing 
policy objectives: capital export neutrality (i.e. neutrality of 
taxation as between domestic and foreign operations) and capital import 
neutrality (i.e. neutrality of taxation as between CFCs and their 
foreign competitors). While these competing principles continue to form 
the foundation of subpart F today, recent actions by the Department of 
the Treasury threaten to upset this long-standing balance.
  On January 16, 1998, the Department of the Treasury announced in 
Notice

[[Page S11280]]

98-1l its intention to issue regulations to prevent the use of hybrid 
branches ``to circumvent the purposes of subpart F.'' The hybrid branch 
arrangements identified in Notice 98-11 involved entities characterized 
for U.S. tax purposes as part of a controlled foreign corporation, but 
characterized for purposes of the tax law of the country in which the 
CFC was incorporated as a separate entity. The Notice indicated that 
the creation of such hybrid branches was facilitated by the entity 
classification rules contained in section 301.7701-I through -3 of the 
income Tax Regulations (the ``check the box'' regulations).
  Notice 98-11 acknowledged that U.S. international tax policy seeks to 
balance the objectives of capital export neutrality with the objective 
of allowing U.S. businesses to compete on a level playing field with 
foreign competitors. In the view of the Treasury and IRS, however, the 
hybrid transactions attacked in the Notice ``upset that balance.'' 
Treasury indicated that the regulations to be issued generally would 
apply to hybrid branch arrangements entered into or substantially 
modified after January 16, 1998, and would provide that certain 
payments to and from foreign hybrid branches of CFCs would be treated 
as generating subpart F income to U.S. shareholders in situations in 
which subpart F would not otherwise apply to a hybrid branch as a 
separate entity. This represented a significant expansion of subpart F, 
by regulation rather than through legislation.
  Shortly after Notice 98-11 was issued, the Administration released 
its Fiscal Year 1999 budget proposals which, among other things, 
included a provision requesting Congress to statutorily grant broad 
regulatory authority to the Treasury Secretary to prescribe regulations 
clarifying the tax consequences of hybrid transactions in cases in 
which the intended results are inconsistent with the purposes of U.S. 
tax law. . . .'' While the explanation accompanying the budget proposal 
argued that this grant of authority as applied to many cases ``merely 
makes the Secretary's current general regulatory authority more 
specific, and directs the Secretary to promulgate regulations pursuant 
to such authority,'' the explanation conceded that in other cases, 
``the Secretary's authority may be questioned and should be 
clarified.''
  Notice 98-11 and the accompanying budget proposal generated 
widespread concerns in the Congress and the business community that the 
Treasury was undertaking a major new initiative in the international 
tax arena that would undermine the ability of U.S. multinationals to 
compete in international markets. For example, House Ways and Means 
Committee Chairman Bill Archer wrote to Treasury Secretary Rubin on 
March 20, 1998 requesting that ``Notice 98-11 be withdrawn and that no 
regulations in this area be issued or allowed to take effect until 
Congress has an appropriate opportunity, to consider these matters in 
the normal legislative process.'' The Ranking Democrat on the 
Committee, Charles Rangel, wrote to Secretary Rubin expressing strong 
concerns about the Treasury's increasing propensity to ``legislate 
through the regulatory process as evidenced by Notice 98-11.
  Despite these concerns, on March 23, 1998, the Treasury department 
issued two sets of proposed and temporary regulations, the first 
relating to the treatment of hybrid branch arrangements under subpart 
F, and the second relating to the treatment of a CFC's distributive 
share of partnership income. As Notice 98-1l had promised, the 
regulations provided that certain payments between a controlled foreign 
corporation and a hybrid branch would be recharacterized as subpart F 
income if the payments reduce the payer's foreign taxes.
  The week after the temporary and proposed regulations were issued, 
the Senate Finance Committee considered H.R. 2676, the Internal Revenue 
Service Restructuring and Reform Act of 1998. A provision was included 
in the bill prohibiting the Treasury and IRS from implementing 
temporary or final regulations with respect to Notice 98-11 prior to 
six months after the date of enactment of H.R. 2676. The Senate bill 
also included language expressing the ``sense of the Senate'' that 
``the Department of the Treasury and the Internal Revenue Service 
should withdraw Notice 98-11 and the regulations issued thereunder, and 
that the Congress, and not the Department of the treasury or the 
Internal Revenue Service, should determine the international tax policy 
issues relating to the treatment of hybrid transactions under subpart F 
provisions of the Code.''
  Opposition to Notice 98-11 and the temporary and proposed regulations 
continued to mount. On April 23, 1998, 33 Members of the House Ways and 
Means Committee wrote to Secretary Rubin expressing concern about the 
Treasury's decision to move forward and issue regulations pursuant to 
Notice 98-11 without an appropriate opportunity for Congress to 
consider this issue in the normal legislative process, urging Treasury 
to withdraw the regulations.
  In the face of these and other pressures from the Congress and the 
business community, on June 19, 1998, the Treasury Department announced 
in Notice 98-35 that it was withdrawing Notice 98-1l and the related 
temporary, and proposed regulations. According to Notice 98-35, 
Treasury intends to issue a new set of proposed regulations to be 
effective in general for payments made under hybrid branch arrangements 
on or after June 19, 1998. These regulations, however, will not be 
finalized before January 1, 2000, in order to permit both the Congress 
and Treasury Department the opportunity to further study the issues 
that were raised following the publication of Notice 98-1l earlier this 
year.
  While we applaud the Treasury's decision to withdraw Notice 98-1l and 
the temporary regulations, we believe that additional legislative 
action is needed to prevent the Treasury from finalizing the 
forthcoming regulations until Congress considers the issues involved. 
We believe that only the Congress has the authority to achieve a 
permanent resolution of this issue. Notice 98-35, like its predecessor, 
Notice 98-1l continues to suffer from a fatal flaw; it is the 
prerogative of Congress, and not the Executive Branch, to pass laws 
establishing the nation's fundamental tax policies. Simply put, Notice 
98-35 adds restrictions to the subpart F regime that are not supported 
by the Code's clear statutory language, and there has been no express 
delegation of regulatory authority to the Treasury that relates 
specifically to the issues presented in the Notice.
  More importantly, we question the policy objectives to be achieved by 
Notice 98-35 and the accompanying proposed regulations. We do not 
understand the rationale for penalizing U.S. multinational companies 
for employing normal tax planning strategies that reduce foreign (as 
opposed to U.S.) income taxes. Moreover, Notice 98-35 is contrary to 
recent Congressional efforts to simplify the international tax 
provisions of the Code. For example, the Congress reduced complexity 
and ridded the code of a perverse incentive for U.S. companies to 
invest overseas by repealing the Section 956A tax on excess passive 
earnings in 1996. Again in 1997, the Congress repealed the application 
of the Passive Foreign Investment Company regime to U.S. shareholders 
of controlled foreign corporations because of the complexity involved 
in applying both regimes, in addition to enacting a host of other 
foreign tax simplifications. Therefore, in order for Congress to gain a 
better understanding of the Treasury Department's position on this 
matter, our bill would require the Treasury to conduct a thorough study 
of the tax treatment of hybrid transactions under subpart F and to 
provide a report to the Senate Committee on Finance and House Committee 
on Ways and Means on this issue.
  If the forthcoming regulations are permitted to be finalized by the 
Treasury, U S multinational businesses will be placed at a competitive 
disadvantage vis-a-vis foreign companies who remain free to employ 
strategies to reduce the foreign taxes they pay. Clearly, such a result 
should be permitted to take effect only if Congress, after having an 
opportunity to fully consider all of the tax and economic issues 
involved, agrees that the arguments advanced by the Treasury are 
compelling and determines that additional statutory changes to subpart 
F are necessary and appropriate.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.

[[Page S11281]]

  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2535

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. HYBRID TRANSACTIONS UNDER SUBPART F.

       (a) Prohibition on Regulations.--The Secretary of the 
     Treasury (or his delegate)--
       (1) shall not issue temporary or final regulations relating 
     to the treatment of hybrid transactions under subpart F of 
     part III of subchapter N of chapter 1 of the Internal Revenue 
     Code of 1986 pursuant to Internal Revenue Service Notice 98-
     35 or any other regulations reaching the same or similar 
     result as such notice,
       (2) shall retroactively withdraw any regulations described 
     in paragraph (1) which were issued after the date of such 
     notice and before the date of the enactment of this Act, and
       (3) shall not modify or withdraw sections 301.7701-1 
     through 301.7701-3 of the Treasury Regulations (relating to 
     the classification of certain business entities) in a manner 
     which alters the treatment of hybrid transactions under such 
     subpart F.
       (b) Study and Report.--The Secretary of the Treasury (or 
     his delegate) shall study the tax treatment of hybrid 
     transactions under such subpart F and submit a report to the 
     Committee on Ways and Means of the House of Representatives 
     and the Committee on Finance of the Senate. The Secretary 
     shall hold at least one public hearing to receive comments 
     from any interested party prior to submitting such 
     report.

 Mr. MACK. Mr. President, today Senator Breaux and I introduce 
a bill reaffirming that the lawmaking power is the province of the 
Congress, not the executive branch. Our bill prohibits the Treasury 
Department from issuing regulations that would impose taxes on U.S. 
companies merely because one of their subsidiaries pays money to 
itself.
  As a general rule, U.S. corporations pay U.S. corporate income tax on 
the earnings of their foreign subsidiaries only when those earnings are 
actually distributed to the U.S. parent companies. An exception to this 
general rule is contained in subpart F of the Internal Revenue Code, 
which accelerates the income tax liability of U.S. parent companies 
under certain circumstances. The Treasury Department has announced, in 
Notice 98-35, an intention to issue regulations that will accelerate 
income tax liability for U.S. companies--not based on the specific 
circumstances enumerated in subpart F, but instead on a new 
``interpretation'' of the ``policies'' that Treasury infers from that 
36-year-old provision. This action crosses the line between 
administering the laws and making the laws, and cannot be allowed by 
Congress.
  Notice 98-35 concerns so-called ``hybrid arrangements.'' These 
involve business entities that are considered separate corporations for 
foreign tax purposes, but are viewed as one company with a branch 
office for U.S. purposes. U.S. companies organize their subsidiaries in 
this manner to reduce the amount of foreign taxes they owe. 
Transactions between a subsidiary and its branch have no impact on U.S. 
taxable income of the parent, as its subsidiary is merely paying money 
to itself. But the Treasury Department intends to impose a tax on the 
U.S. parent to penalize it for reducing the foreign taxes it owes.
  This effort is wrong for several reasons. First, the Treasury 
Department possesses only the power to issue regulations to administer 
the laws passed by Congress. New rules based on congressional purpose 
are known as laws, and under the Constitution laws are made by 
Congress.
  Second, the Treasury Department is elevating one policy underlying 
subpart F--taxing domestic and foreign operations in the same manner--
over the other policy of maintaining the competitiveness of U.S. 
companies in foreign markets. This proposed tax would put U.S.-owned 
subsidiaries at a competitive disadvantage.
  Finally, the Treasury Department should not impose a tax on U.S. 
companies to force these companies to reorganize in a way that 
increases the taxes they owe to foreign countries. The Treasury 
Department is not the tax collector for other nations. And by raising 
the foreign tax bills of U.S. companies, the Treasury Department is 
also increasing the size of foreign tax credits and thereby reducing 
U.S. tax revenues.
  The Treasury Department is not only making policy that it has no 
right to make, it is also making bad policy. Our bill places a 
moratorium on this lawmaking. It also directs the Treasury Secretary to 
study these issues and submit a report to the tax-writing committees of 
Congress. Many people and organizations, including the Treasury 
Department, desire changes in the tax laws. But only Congress has the 
power to make these changes, and this is a power we intend to 
keep.
                                 ______
                                 
      By Mr. HATCH:
  S. 2536. An original bill to protect the safety of United States 
nationals and the interests of the United States at home and abroad, to 
improve global cooperation and responsiveness to international crime 
and terrorism, and to more effectively deter international crime and 
acts of violence; from the Committee on the Judiciary; placed on the 
calendar.


 The Improvements to International Crime and Anti-Terrorism Amendments 
                                of 1998

  Mr. LEAHY. Mr. President, I am pleased with the Chairman in offering 
this important legislation, the Improvements to International Crime and 
Anti-Terrorism Amendments of 1998, to combat international crime.
  Crime and terrorism increasingly have an international face. The 
bombings of U.S. embassies in Kenya and Tanzania are just the most 
recent reminders of how vulnerable we are to terrorist attacks. In a 
shockingly brutal attack, more than 250 men, women and children, were 
murdered in cold blood. Among those 250 victims were 12 of our fellow 
citizens. And none of us can forget that it was only a short time ago 
that there was another assault right here at home, in the Capitol 
itself.
  With improvements in technology, criminals now can move about the 
world with ease. They can transfer funds with a push of a button, or 
use computers and credit card numbers to steal from American citizens 
from any spot on the globe. They can strike at Americans here and 
abroad. The playing field keeps changing, and we need to change with 
it.
  This bill does exactly that, not with sweeping changes but with 
thoughtful provisions carefully targeted at specific problems faced by 
law enforcement. The bill offers tools and protection to investigators 
and prosecutors, while narrowing the room for maneuver that 
international criminals and terrorists now enjoy.
  I initially introduced some of the provisions of this bill as early 
as April 30, 1998, in the Money Laundering Enforcement and Combating 
Drugs Act in Prisons of 1998 with Senators Daschle, Kohl, Feinstein, 
and Cleland. Again, on July 14, 1998, I introduced with Senator Biden 
many of these provisions set forth in the bill on behalf of the 
Administration in S. 2303, the International Crime Control Act of 1998. 
I again included almost all of the provisions in another major anti-
crime bill, the Safe Schools, Safe Streets, and Secure Borders Act of 
1998, on September 16, 1998, along with Senators Daschle, Biden, 
Moseley-Braun, Kennedy, Kerry, Lautenberg, Mikulski, Bingaman, Reid, 
Murray, Dorgan, and Torricelli.
  It is a particular pleasure now to be able to draw from these more 
comprehensive bills a set of discrete, very important improvements that 
can enjoy bipartisan support, and which I hope and trust can be enacted 
into law, even in the short time remaining in this session. All of 
these provisions enjoy the full support of the Administration, and each 
of them is a law enforcement priority.
  The bill would criminalize murder and other serious crimes committed 
by organized crime against U.S. nationals abroad, and against state and 
local officials who are working abroad with federal authorities on 
joint projects or operations.
  The bill also protects our maritime borders by providing realistic 
sanctions for vessels that fail to ``heave to'' or otherwise obstruct 
the Coast Guard. No longer will drug-runners be able to stall or resist 
Coast Guard commands with impunity.
  The bill also increases our authority to exclude from entry into our 
country international criminals and terrorists, including those engaged 
in flight to avoid prosecution, alien smuggling, or arms or drug 
trafficking under specific circumstances. At the same time, we ensure 
that the Attorney General has

[[Page S11282]]

full authority to make exceptions for humanitarian and similar reasons.
  The bill includes important money laundering provisions. At a recent 
Judiciary Committee hearing on anti-terrorism, FBI Director Louis Freeh 
noted the importance of money laundering laws as a tool in stopping not 
only international drug kingpins, but also international terrorists, 
such as Usama bin Laden, the multi-millionaire terrorist who has been 
linked to the recent embassy bombings.
  The bill has two important provisions aimed at computer crimes: it 
provides expanded wiretap authority, subject to court order, to cover 
computer crimes, and also gives us extraterritorial jurisdiction over 
access device fraud, such as stealing telephone credit card numbers, 
where the victim of the fraud is within the U.S.
  We cannot do it all alone, however. This bill facilitates 
international cooperation by allowing our country to share the proceeds 
of joint forfeiture operations, to encourage participation by those 
countries. It streamlines procedures for executing MLAT requests that 
apply to multiple judicial districts. Furthermore, the bill addresses 
the essential but often overlooked role of state and local law 
enforcement in combating international crime, and authorizes 
reimbursement of state and local authorities for their cooperation in 
international crime cases. The bill helps our prosecutors in 
international crime cases by facilitating the admission of foreign 
records in U.S. courts. Finally, the bill would speed the wheels of 
justice by prohibiting international criminals from being credited with 
any time they serve abroad while they fight extradition to face charges 
in our country.
  These are important provisions that I have advocated for some time. 
They are helpful, solid law enforcement provisions. I must close with a 
special thanks to my friend and colleague from Utah, Senator Hatch, for 
his help in making this bill a reality. It has been pleasure to work 
closely with him to craft a bipartisan bill that will accomplish what 
all of us want, to make America a safer and more secure place.
                                 ______
                                 
      By Mr. MURKOWSKI:
  S. 2537. A bill to amend the Export-Import Bank Act of 1945 to assure 
that the United States is consistent with other G-7 countries in 
evaluating environmental concerns relating to projects to be financed, 
and for other purposes; to the Committee on Banking, Housing, and Urban 
Affairs.


                   export-import bank act amendments

  Mr. MURKOWSKI. Mr. President, I rise to introduce legislation 
regarding the Export-Import Bank. This legislation is both pro-trade 
and pro-environment.
  Let me start by saying that I support U.S. international finance 
institutions like Ex-Im Bank, OPIC and TDA because they are necessary 
to level the playing field for American companies seeking to compete 
abroad. In a perfect world, such government assistance would be 
unnecessary, but we know that the other industrialized countries are 
using government financing to sweeten the pot for their companies' 
participation in international projects.
  My legislation addresses the well-meaning environmental policies of 
the Bank that are actually harming the environment while undermining 
American competitiveness. Specifically, my legislation does two things: 
First, it directs the Ex-Im Bank to negotiate a mulitlateral agreement 
with the export financing agencies of all G-7 countries to address 
environmentally sensitive development overseas. Second, until such 
agreement is reached, my legislation would allow U.S. companies to 
compete on equal footing with other international companies bidding on 
international projects. In other words, my legislation would ensure 
that American companies have access to Ex-Im Bank financing for 
overseas projects where other G-7 countries are providing or have 
indicated an intent to provide financing to the project in question 
without conditioning such assistance on environmental policies or 
procedures.
  Mr. President, under current law, the Ex-Im Bank can deny financing 
to U.S. companies seeking to participate in international projects when 
the Bank's environmental concerns have not been adequately addressed by 
foreign countries. But there is no mechanism in place to ensure that 
all G-7 countries abide by the same set of rules or environmental 
standards in competing for such projects. The net effect of this law is 
to impose unilateral sanctions on U.S. companies in the name of the 
environment.
  The lack of American participation in the largest hydroelectric 
project in the World, the $24.5 billion Three Gorges Dam Project in 
China, illustrates why this change in law is necessary. The mission of 
the Ex-Im Bank is to promote U.S. exports and U.S. jobs. Yet, the Bank 
refused to provide financial guarantees for this project because the 
Bank's environmental concerns had not been satisfactorily addressed by 
the Chinese government.
  There were two perverse outcomes from the Bank's decision. First, the 
project is going ahead anyway without the environmental technologies 
and practices our companies' participation would bring. And second, the 
only American participation is by companies that are large enough to 
use their foreign subsidiaries with another government's financing, and 
consequently the jobs are going to the Japanese, the Canadians and the 
Europeans.
  A letter that I received from the President of Rotec Industries, 
located in Elmhurst, Illinois, explains the detrimental effects of the 
Ex-Im Banks decision. Rotec submitted a bid to the Chinese government 
for $130 million of U.S.-made concrete placing and transporting 
equipment. Following the Ex-Im Bank's negative decision they received 
an order for only a fraction of their proposal. A Japanese-French 
consortium received an order for ``Rotec-equivalent'' equipment. But it 
gets worse. As Rotec's president explained:

       No Ex-Im financing meant no made-in-the-USA requirements 
     and no made-in-the-USA price premium . . . For the first time 
     in our 32-year history, Rotec subcontracted manufacturing to 
     companies in South Korea. The effect on U.S. jobs is easy to 
     quantify . . . Rotec will have spent over $13,000,000 in 
     South Korea. With Ex-Im's support, this work--and probably 
     more--would have stayed in the United States.

  But this was not the only bad news for Rotec. Before Ex-Im's 
decision, Rotec was the world's only manufacturer of this specialized 
equipment. But the Japanese-French consortium selected by the Chinese 
have now copied Rotec's product. As Rotec's president described it, Ex-
Im's decision helped open the door and they [the consortium] walked 
right in. Rotec will likely face foreign competition wherever this 
product is needed.''
  Other U.S. companies who sought to participate in the Three Gorges 
Dam project tell a similar story. Caterpillar estimates that it lost 
$200 million in sales. GE routed its bid through its Canadian 
subsidiary. Voight Hydro of Pennsylvania had to withdraw its bid in 
favor of its German parent, which won $85 million of contracts.
  Although my legislation cannot retroactively change the effect of the 
Ex-Im Bank's decision on U.S. participation in the Three Gorges Dam 
project, we will face this issue again. A recent New York Times story 
quoted Chinese officials who pledge to spend $1.2 trillion on a vast 
program of new infrastructure projects over the next three years. 
Included in those projects are plans to build five large hydroelectric 
power stations over the next 12 years, at a cost exceeding $7 billion. 
Although this is small compared to Three Gorges, it presents excellent 
opportunities for U.S. companies. In addition, the Chinese have plans 
to order a new nuclear plant each year for the next 20 years. This 
emerging Chinese market is estimated to be worth $1.65 billion per year 
in U.S. nuclear exports, supporting an equivalent of 25,400 full time 
American jobs.
  I am told that the environmental lobbyists are out in full force 
against this legislation. Environmental groups have circulated a letter 
stating that my legislation would mean that ``[t]he United States 
Government will likely support dangerous nuclear power plants, 
unsustainable logging of primary forests, and huge hydroelectric dams 
resettling millions of people in developing countries with no 
environmental safeguards allowed.''
  Mr. President, let me just respond to their claim that nuclear power 
plants and hydroelectric dams should not be funded on environmental 
grounds. China is a case in point. By 2015 China will surpass the 
United States as the largest emitter of greenhouse gases.

[[Page S11283]]

 According to the World Health Organization, 6 of the 10 most polluted 
cities in the world are in China. Coal supplies three-quarters of 
China's energy and is choking its cities. Already, hundreds of 
thousands of Chinese die premature deaths each year from chronic 
respiratory illness. Thousands more died this year from flooding of the 
Yangtze River and millions more were displaced.
  Mr. President, how can the environmentalists ignore the benefits to 
China's environment, indeed to the World's environment, of helping 
China turn to cleaner forms of energy such as hydro and nuclear? The 
18,200 megawatt Three Gorges Dam will replace the equivalent of thirty-
six 500 megawatt coal fossil plants. In a country suffocating on dirty 
air, how can any rational environmental policy promote coal and 
penalize clean burning hydro and nuclear power? Of course, hydro and 
nuclear plants have environmental consequences. Every form of energy 
production does. Even windmills become cuisinarts for birds. But 
countries such as China have the right to determine which consequences 
she can accept.
  Let's make sure that Ex-Im does not unilaterally rule out American 
participation in future projects. Support my legislation and vote to 
help American companies compete.
  Mr. President, I ask unanimous consent that a copy of the Rotec 
letter be printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                             Rotec Industries,

                                 Elmhurst, IL, September 23, 1998.
     Hon. Frank Murkowski,
     U.S. Senate,
     Washington, DC.
       Dear Senator Murkowski: As president of a company which has 
     been involved in the construction of China's Three Gorges 
     Dam, I read your September 16th Washington Post op-ed 
     article, ``Too Green'', with great interest.
       Rotec Industries, along with Caterpillar and Voith Hydro, 
     aggressively pursued Ex-Im Bank financing for Three Gorges 
     Dam. Of course, we were disappointed when Ex-Im denied 
     financing. It seemed like the wrong decision for economic, 
     environmental and common-sense reasons.
       Your legislation, which would prohibit Ex-Im from 
     withholding financing on environmental grounds where any 
     other G-7 country is providing financing, offers some hope 
     that U.S. businesses and workers will have the support of Ex-
     Im Bank in future, similar situations.
       During the two years since Ex-Im's decision, Rotec has 
     continued to pursue its business at Three Gorges with some 
     successes and with some disappointments. A brief history our 
     Three Gorges events:
       January 1996--Rotec submitted a proposal (before Ex-Im's 
     decision) to supply more than $130,000,000 of U.S.-made 
     equipment.
       November 1996--Following Ex-Im's negative decision, we 
     received an order for only $31,000,000 of equipment.
       December 1996--Japanese-French consortium received an order 
     for ``Rotec-equivalent'' equipment.
       May 1998--Rotec received an additional $22,000,000 order.
       We do not expect any additional major orders from Three 
     Gorges. Our total is approximately $53,000,000; about 40% of 
     what we had hoped to receive.
       It gets worse: Losses for American workers were even 
     greater. During negotiations following Ex-Im's decision, our 
     Chinese customer demanded a price discount because ``Rotec 
     can subcontract manufacturing in China or a third country.'' 
     No Ex-Im financing meant no made-in-the-USA requirements and 
     no made-in-the-USA price premiums. Rotec was literally 
     fighting for its existence; we were facing serious 
     competition from foreign suppliers and Ex-Im would not help. 
     For the first time in our 32-year history, Rotec 
     subcontracted manufacturing to companies in South Korea. The 
     effect on U.S. jobs is easy to quantify: when the last 
     shipment is made at the end of this year, Rotec will have 
     spent over $13,000,000 in South Korea. With Ex-Im's support, 
     this work--and probably more--would have stayed in the United 
     States.
       More bad news: Before Ex-Im's decision, Rotec was the 
     world's only manufacturer of this specialized equipment. The 
     Japanese-French consortium had copied our concepts on paper, 
     but had never designed, manufactured or sold any similar 
     product. Now they have and Rotec has a new competitor. Ex-
     Im's decision has helped open the door and they walked right 
     in. Rotec will likely face foreign competition wherever this 
     product is needed.
       My environmental ``feelings'': (I have made twelve trips to 
     China during the past three years so this comes mostly from 
     personal observation.) China is a huge country with a very 
     low standard of living--especially in the rural areas. Many 
     people live on mountainsides in hand-dug ``caves''. China's 
     people need energy, improved transportation and the ability 
     to control flooding in order to improve their standard of 
     living.
       It seems unfair for the United States or anyone else to 
     tell China they can not develop their rivers, especially when 
     so much can be gained. Building Three Gorges Dam means 
     producing clean electricity with hydro-power, mitigating the 
     effects of flooding and adding navigable stretches to a river 
     in an area with very poor roads. Not building the dam means 
     burning more fossil fuel, further polluting the already-
     terrible air; continuing floods which kill thousands, 
     violently displacing hundreds-of-thousands or even millions 
     and cause untold property damage for people who have so 
     little; and slowing economic development for people who 
     desperately need it. In this case, building a dam is ``the 
     green decision.''
       Your initiation of this measure is supported and 
     appreciated by Rotec. We wish you success.
           Sincerely,
                                                     Steve Ledger,
                                 President, Rotec Industries, Inc.
                                 ______
                                 
      By Mr. BREAUX:
  S. 2538. A bill to amend the Internal Revenue Code of 1986 to modify 
the active business definition relating to distributions of stock and 
securities of controlled corporations; to the Committee on Finance.


          amendment to Internal Revenue Code Section 355(b)(2)

 Mr. BREAUX. Mr. President, today I introduce a bill that would 
make a technical change in the Internal Revenue Code. We often talk 
about the need to simplify the Tax Code. The change I propose today 
would do that.
  This change is small but very important. It would not alter the 
substance of current law in any way. It would, however, greatly 
simplify a common corporate transaction. This small technical change 
will alone save corporations millions of dollars in unnecessary 
expenses and economic costs that are incurred when they divide their 
businesses.
  The Treasury Department agrees that there is a technical problem with 
the drafting of the Tax Code. It also agrees that a legislative change 
like the bill I introduce today is the best way to correct it.
  Corporations, and affiliated groups of corporations, often find it 
advantageous, or even necessary, to separate two or more businesses. 
The division of AT&T from its local telephone companies is an example 
of such a transaction. The reasons for these corporate divisions are 
many, but probably chief among them is the ability of management to 
focus on one core business.
  At the end of the day, when a corporation divides, the stockholders 
simply have the stock of two corporations, instead of one. The Tax Code 
recognizes this is not an event that should trigger tax, as it includes 
corporate divisions among the tax-free reorganization provisions.
  One requirement the Tax Code imposes on corporate divisions is very 
awkwardly drafted, however. As a result, an affiliated group of 
corporations that wishes to divide must often engage in complex and 
burdensome preliminary reorganizations in order to accomplish what, for 
a single corporate entity, would be a rather simple and straightforward 
spinoff of a business to its shareholders. The small technical change I 
propose today would eliminate the need for these unnecessary 
transactions, while keeping the statute true to Congress' original 
purpose.
  More specifically, section 355 (and related provisions of the Code) 
permits a corporation or an affiliated group of corporations to divide 
on a tax-free basis into two or more separate entities with separate 
businesses. There are numerous requirements for tax-free treatment of a 
corporate division, or ``spinoff,'' including continuity of historical 
shareholder interest, continuity of the business enterprises, business 
purpose, and absence of any device to distribute earnings and profits. 
In addition, section 355 requires that each of the divided corporate 
entities be engaged in the active conduct of a trade or business. The 
proposed change would alter none of these substantive requirements of 
the Code.
  Section 355(b)(2)(A) currently provides an attribution or 
``lookthrough'' rule for groups of corporations that operate active 
businesses under a holding company, which is necessary because a 
holding company, by definition, is not itself engaged in an active 
business. This lookthrough rule inexplicably requires, however, that 
``substantially

[[Page S11284]]

all'' of the assets of the holding company consist of stock of active 
controlled subsidiaries. The practical effect of this language is to 
prevent holding companies from engaging in spinoffs if they own almost 
any other assets. This is in sharp contrast to corporations that 
operate businesses directly, which can own substantial assets unrelated 
to the business and still engage in tax-free spinoff transactions.
  In the real world, of course, holding companies may, for many sound 
business reasons, hold other assets, such as noncontrolling (less than 
80 percent) interests in subsidiaries, controlled subsidiaries that 
have been owned for less than five years (which are not considered 
``active businesses'' under section 355), or a host of nonbusiness 
assets. Such holding companies routinely undertake spinoff 
transactions, but because of the awkward language used in section 
355(b)(2)A), they must first undertake one or more (often a series of) 
preliminary reorganizations solely for the purpose of complying with 
this inexplicable language of the Code.
  Such preliminary reorganizations are at best costly, burdensome, and 
without any business purpose, and at worst, they seriously interfere 
with business operations. In a few cases, they may be so costly as to 
be prohibitive, and cause the company to abandon an otherwise sound 
business transaction that is clearly in the best interest of the 
corporation and the businesses it operates.
  There is no tax policy reason, tax advisors agree, to require the 
reorganization of a consolidated group that is clearly engaged in the 
active conduct of a trade or business, as a condition to a spinoff. Nor 
is there any reason to treat affiliated groups differently than single 
operating companies. Indeed, no one has ever suggested one. The 
legislative history indicates Congress was concerned about 
noncontrolled subsidiaries, which is elsewhere adequately addressed, 
not consolidated groups.
  For many purposes, the Tax Code treats affiliated groups as a single 
corporation. Therefore, the simple remedy I am proposing today for the 
problem created by the awkward language of section 355(b)(2)(A) is to 
apply the active business test to an affiliated group as if it were a 
single entity.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2538

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. MODIFICATION OF ACTIVE BUSINESS DEFINITION.

       (a) In General.--Section 355(b)(2) of the Internal Revenue 
     Code of 1986 (defining active conduct of a trade or business) 
     is amended by adding at the end the following: ``For purposes 
     of subparagraph (A), all corporations that are members of the 
     same affiliated group (as defined in section 1504(a)) shall 
     be treated as a single corporation.''
       (b) Effective Date.--The amendment made by this section 
     shall apply to distributions or transfers after the date of 
     the enactment of this Act.
                                 ______
                                 
      By Mr. GRAMM:
  S.J. Res. 59. A joint resolution to provide for a Balanced Budget 
Constitutional Amendment that prohibits the use of Social Security 
surpluses to achieve compliance; read the first time.


                BALANCED BUDGET CONSTITUTIONAL AMENDMENT

  Mr. GRAMM. Mr. President, I rise today to introduce a Balanced Budget 
Constitutional Amendment which is designed to protect Social Security. 
Since we last considered a balanced budget amendment in the Senate, we 
have achieved balance in the unified federal budget for the first time 
in 30 years, and have made substantial progress toward achieving 
balance without relying on the surpluses currently accumulating in 
Social Security. For 1998, the most recent projections by the 
Congressional Budget Office show a unified budget surplus of $63 
billion, and an on-budget deficit of just $41 billion when the $104 
billion surplus in Social Security is not counted. This on-budget 
deficit is projected to disappear by 2002 under current budget 
policies.
  The Balanced Budget Constitutional Amendment I am introducing today 
is identical to S.J. Res. 1, which received 66 votes in the Senate on 
March 4, 1997, except that surplus revenues in Social Security are not 
counted in determining compliance. It is also identical to the Dorgan 
substitute and Reid perfecting amendments to S.J. Res. 1, which 
received 41 and 44 votes respectively, except that while Social 
Security surpluses are not counted, any deficit in Social Security must 
be offset by an equivalent on-budget surplus. This distinction is 
important because Social Security is projected to begin running cash-
flow deficits in the year 2013.
  The President and a majority of Congress have expressed support for 
balancing the budget without counting Social Security surpluses, and 
now that goal is within our reach. We should take this opportunity to 
approve this Constitutional amendment and send it to the States for 
ratification. This Constitutional amendment would provide the structure 
and enforcement mechanism to allow us to achieve this bipartisan goal.

                          ____________________