Should Foreign Pension Funds with U.S. Investments Pay U.S. Tax?

U.S. and foreign pension funds are investing heavily outside of their home countries. With the aging of the world’s population, this trend will likely intensify. Most countries, including the U.S., accord a tax exemption to certain qualified pension funds organized within their own country; however, when a foreign pension fund invests in the U.S., the U.S. tax code does not recognize its tax exemption. Responding to the need to attract greater investment in U.S. infrastructure, Congress in 2015 enacted a new provision ameliorating the tax treatment of foreign pension plans investing in U.S. real estate.

This Article examines whether the U.S. should recognize a foreign pension plan’s home country exemption so as to avoid claims of unequal treatment and disincentives to investment in the U.S. This Article concludes that these concerns are best dealt with through reciprocal provisions in tax treaties, and that the provisions of the 2015 legislation are not properly tailored toward achieving their stated goal.