Congress should close the tax loophole letting foreign litigation funders avoid US taxes on lawsuit winnings

Source: "Foreign lawsuit funding loophole costs Americans and Congress is urged to act | Fox News." November 9, 2026. www.foxnews.com

The Gist

The author says foreign investment funds pay for American lawsuits and then collect a cut of the winnings taxed at little or nothing, while the American plaintiff pays higher taxes. He argues this unfairly harms Americans by raising costs and encouraging lawsuits, so Congress should close the loophole quickly and use the money for tax relief.

Conclusion

Congress should close the foreign litigation-funding tax loophole this year (or the executive branch should act if Congress fails) and direct the resulting revenue toward pro-growth tax relief for Americans.

Premises

  1. Foreign funds that finance US lawsuits receive their share of winnings as capital gains, which are taxed at a lower rate than the ordinary income tax paid by American plaintiffs, and foreign investors generally owe no US tax on US-sourced capital gains, so their effective rate is often zero.
  2. The capital gains preference exists to reward risk-taking investment that promotes production and economic growth, but foreign litigation funders profit from lawsuits that drain resources from American producers rather than from growth.
  3. Foreign litigation financing encourages litigiousness, drains money from the US economy, and raises costs for American businesses, which translates into higher consumer prices for goods like groceries and gas.
  4. Because of this preferential tax treatment, American taxpayers are effectively subsidizing a practice that harms them, a view endorsed by Treasury Secretary Scott Bessent, who called it a 'malignancy' on the judicial system.
  5. There is enough time for Congress to act this year, since it is in session for at least five more weeks, can add days, and could use a planned reconciliation bill as the vehicle.
  6. Closing the loophole would raise billions of dollars in revenue that could fund pro-growth tax relief.

Assumptions

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