外文翻译模板(1)

湖北知行学院

金融专业英语外文文献译文本

2014

届

原文出处

:____

Companies

Law

Commons,

Securities

Law Commons_____________________

译文题目：

______

调和税法和证券监管

____

院（系）

经济与管理学院

专业名称

金融专业

学生姓名

王倩

学生学号

1211340073

任课教师

张真

RECONCILING

REGULATION

Omri Marian*

Issuers

in

registered

securities

offerings

must

disclose

the

expected tax consequences

to investors investing in the offered securities (

“

nonfinancial tax

disclosure

”

). This

Article

advances

three

arguments

regarding

nonfinancial

tax

disclosures. First,

nonfinancial

tax

disclosure

practice,

as

the

Securities

and

Exchange Commission

(the

SEC)

has

sanctioned

it,

does

not

fulfill

its

intended

regulatory purposes. Cur-

rently,

nonfinancial

tax

disclosures

provide

irrelevant

information, sometimes fail

to provide

material information, create unnecessary transaction

costs, and divert

valuable

administrative

resources

to

the

enforcement

of

largely-meaningless require-

ments.

Second,

the

practical

reason

for

this

failure

is

the

SEC

TAX

LAW

AND

SECURITIES

and tax practitioners

’

unsuccessful

attempt

to

address

investors

’

heterogeneous

tax

preferences. Specifi-

cally, nonfinancial tax disclosure practice assumes the existence

of a

“

reasonable

investor

”

who

is

also

an

“

average

taxpayer,

”

and

tax

disclosures are drafted for the

benefit

of

this

average

taxpayer.

The

concept

of

an

“

average

taxpayer,

”

however, is

not

defensible.

Third,

the

theoretical

reason

for

the

regulatory

regime

’

s dysfunction-

ality

is

the

misapplication

of

mandatory

disclosure

theory

to

nonfinancial tax

disclosure

requirements.

Mandatory

disclosure

theory,

even

if

accepted at face

value, does not support the current regulatory framework, due to

the special nature

of

tax

laws.

To

remedy

this

failure,

this

Article

describes

the

types of tax-related

disclosures

that

mandatory

disclosure

theory

would

support.

Under the proposed

regulatory reform, nonfinancial tax disclosures will only include

issuer- level tax

items

(namely,

tax

items

imposed

on

the

issuing

entity)

that

affect how

“

reasonable

investors

”

calculate their own individual tax liabilities. Under

such a regime, there

is no need to rely on the

“

average taxpayer

”

construct.

INTRODUCTION:

APPLE

’

S

BOND

OFFERING

AS

AN

ALLEGORY

On May 1, 2013, Apple, Inc. (Apple) made financial history wi

its $$17 billion bond offering,

1 the largest-ever debt issuance by

*

Assistant

Professor

of

Law,

University

of

Florida

Levin

College of Law. For help

guidance,

comments

and

critique,

I

am

grateful

to

Jennifer

Bird-Pollan, Stu Cohen, Da

Gamage,

Joan

Heminway,

Michael

Knoll,

Leandra

Lederman,

Tom Lin, Randle Polla

Dexter

Samida,

Doug

Shackelford,

Danny

Sokol,

Emily

Satterthwaite, and participants

conferences

and

workshops

at

the

Northwestern

University

School of Law, the University

Tennessee College of Law, the 2013 SEALS Annual Conference,

the 2013 Law and Soc

Annual

Meeting,

and

the

8th

Annual

Junior

Tax

Scholars

Workshop. For invaluable resea

assistance, I am indebted to Gus Gari. Any errors or omissions

are my own.

1.

See

generally

Apple,

Inc.,

Prospectus

Supplement

(Form

424B2), at S-15 (May 1, 20

[hereinafter

Apple

’

s

Prospectus],

available

at

/?fil

id=1193125-13-184506&cik=320193.

12 University of Michigan Journal of Law Reform [VOL. 48:1

non-financial institution at the time.

2 On page S-15 of the offering

document is a section titled

“

Certain U.S. Federal Income Tax

Con-

siderations.

”

3 This section provides information concerning the

“

U.S. federal income tax considerations of the ownership and

dis-

position

”

of the bonds.

4

Issuers in registered securities offerings are required to disclose

all information that a reasonable investor would deem material

when making an informed investment decision.

5 Since investors

care about their after-tax returns on investments,

6 information

about

the

tax

costs

associated

with

an

investment

could

be

consid-

ered material.

7 Indeed, registrants are required to disclose to

investors

all

material

tax

consequences

and

to

qualify

the

tax

disclo-

sure with an opinion.

8 The tax opinion must address each material

tax issue discussed in the disclosure, express a legal conclusion

about

how

the

tax

law

applies

to

the

facts

of

the

particular

offering

and its effect on investors

’

tax consequences, and explain the

basis

2.

John

Balassi

&

Josie

Cox,

Apple

Wows

Market

With

Record $$17 Billion Bond Deal,

REUTERS

(Apr.

30,

2013),

/article/2013/04/30/us-apple-debt-idUS

BRE93T10B20130430. In September of the same year, Verizon

Communications smashed

this

record

with

a

$$49

billion

bond

offering.

John

Atkins,

Verizon Smashes Record with $$49B, 8-

Part

Bond

Offering,

(Sept.

11,

2013),

/sites/spleverage/

2013/09/11/verizon-smashes-records- with-49b-8-part-bond-offe

ring/ (last visited Aug. 21,

2014).

3. Apple Prospectus,

supra note 1, at S-15.

4. Id.

5.

See

Zohar

Goshen

&

Gideon

Parchomovsky,

The

Essential

Role of Securities Regulation,

55 DUKE L. J. 711, 741 (2006). The disclosure documents the

SEC regulates

“

disclose infor-

mation about the companies

’

financial condition and business

practices to help investors

make

informed

investment

decisions.

”

SEC,

The

Investor

’

s

Advocate: How the SEC Protects Inves-

tors,

Maintains

Market

Integrity,

and

Facilitates

Capital

Information, /about/

(last visited Aug. 1, 2014); see also Goshen &

Gideon, supra, at 740 (providing

SEC

disclosure

regulations

allow

for

greater

“

public

disclosure

”

and

“

leads to fewer instances

of asymmetric information between traders

”

and more informed

traders).

6.

See

MYRON

S.

SCHOLES

ET

AL.,

TAXES

AND

BUSINESS STRATEGY 2 (3d ed. 2004) (discuss-

ing why taxes influence investment decisions).

7. See, e.g., SEC Staff Legal Bulletin No. 19, 2011 WL 4957889

11

–

13 (Oct. 14, 2011),

available

at

/interps/legal/

(discussing when tax conse-

quences are

“

mate rial

”

to investors) [hereinafter SEC Legal

Bulletin];

see also William B.

Barker,

SEC

Registration

of

Public

Offerings

Under

the

Securities Act of 1933, 52 BUS. LAW. 65,

105

–

06

(1996)

(discussing

the

proper

disclosure

of

federal

income tax consequences in regis-

tered

offering

as

part

of

a

general

discussion

on

the

system

of

mandatory disclosure, which is

intended

to

deliver

investors

with

“

accurate

and

current

information

”

to support

“

fair and

honest securities market

”

). At the time of publication, Barker

was a Senior Counsel to the

SEC

’

s

Division

of

Corporate

Finance.

William

B.

Barker,

SEC Registration of Public Offerings

Under the Securities Act of 1933, 52 BUS. LAW 65, 65 (1996).

8. SEC Regulation S-K, 17 C.F.R.

§

229.601(b)(8) (requiring

issuers to disclose to inves-

tors

the

“

material

”

tax

consequences

associated

with

purchasing, holding and disposing of

the

offered

securitieFALL

2014]

Reconciling

Tax

Law

and

Securities Regulation 3

for such a conclusion.

9 Apple

’

s tax disclosure section responds to

this regulatory framework.

This Article suggests, however, that Apple

’

s tax disclosure in

the

offering

document

does

not

provide

any

information

that

a

“

rea-

sonable investor

”

would deem material. In fact, the disclosure

provides little information at all, notwithstanding that the disclo-

sure comprises four densely written pages. Specifically, the third

sentence in Apple

’

s tax disclosure makes it clear that any tax

conse-

quences discussed therein are only applicable to investors

purchasing the bonds in the initial offering.

10 Investors in the sec-

ondary market received no guidance concerning the tax

consequences of investing in the bonds.

In addition, Apple

’

s tax disclosure explicitly excludes certain

classes

of

investors,

including

—

among

others

—

dealers

in

securi-

ties, financial institutions, insurance companies, and other types

of

institutional investors.

11 It is well documented, however, that securi-

ties in initial offerings are mostly allocated to the classes of

institutional investors excepted from Apple

’

s tax disclosure.

12

The result is rather remarkable: Apple

’

s tax disclosure does not

describe

the

tax

consequences

to

the

investors

that

—

as

a

practical

matter

—

are

expected

to

purchase

the

bonds

in

the

initial

offering.

The tax disclosure also does not describe the tax consequences

to