Jim: On the surface of things, either Berkshire is indeed liable for this tax but it hasn't been invoked because it's a regulation that almost never is, or plainly a regulator *could* adjudicate that they were. (Especially if the company or its boss were ever deemed to be an enemy of the people, of course, but let's not go there). Indeed, from that brief article, it seems to me pretty cut and dried if some ambitious tax agent tried to levy it against Berkshire, and I doubt a tax appeal would work.

From the article:

Factors that could indicate evidence of a purpose to avoid income tax include, without limitation, the following:

An unreasonable accumulation of earnings by the corporation and nonpayment (or insufficient payment) of dividends;

Buffett has written often about Berkshire paying large amounts in taxes. I guess those statements could be taken as evidence by either side.

Buffett's large ownership stake could be a factor - they don't pay shareholder dividends because Buffett doesn't want to pay personal tax...that's a bad look.

What would be "unreasonable"? Berkshire has only had super-duper excessive cash for a couple of years. Berkshire would argue this is a trading strategy, which has been part of the Berkshire business for 60 years.

First, a corporation should determine how much cash (or working capital) it needs to operate its business.

Well documented: "Berkshire will not repurchase its common stock if the repurchases reduce the value of Berkshire’s consolidated cash, cash equivalents and U.S. Treasury
Bills holdings to less than $30 billion."

Oh dear.

I have an idea! Would a $1 per B share per quarter dividend help?