Monday, February 28, 2005
Michael J. Graetz (Yale) & Ian Shapiro (Yale) have published Death by a Thousand Cuts: The Fight over Taxing Inherited Wealth (Princeton University Press, 2005). Here is the publisher's description:
This fast-paced book by Yale professors Michael Graetz and Ian Shapiro unravels the mystery: How is it that the estate tax, which has been on the books continuously since 1916 and is paid by only the wealthiest two percent of Americans, was repealed in 2001 with broad bipartisan support? The mystery is all the more striking because the repeal was not done in the dead of night, like a congressional pay raise. It came at the end of a multiyear populist campaign launched by a few individuals, and was heralded by its supporters as a signal achievement for Americans who are committed to the work ethic and the American Dream.
Graetz and Shapiro conducted wide-ranging interviews with the relevant players: members of Congress, senators, staffers from the key committees and the Bush White House, civil servants, think tank and interest group representatives, and many others. The result is a unique portrait of American politics as viewed through the lens of the death tax repeal saga. Graetz and Shapiro brilliantly illuminate the repeal campaign’s many fascinating and unexpected turns—particularly the odd end result whereby the repeal is slated to self-destruct a decade after its passage. They show that the stakes in this fight are exceedingly high; the very survival of the long standing American consensus on progressive taxation is being threatened.
Graetz and Shapiro’s rich narrative reads more like a political drama than a conventional work of scholarship. Yet every page is suffused by their intimate knowledge of the history of the tax code, the transformation of American conservatism over the past three decades, and the wider political implications of battles over tax policy.
Joe Bankman (Stanford) gives the book an enthusiastic thumb's up:
Death By a Thousand Cuts is a marvelous book. I think of it as sort of a Moneyball for politics, with the role of Billy Bean played by Grover Norquist. The story of how Norquist and company pulled one over on the Democrats (and perhaps centrists of all stripes) is a great read. The book is certain to become a bible for inside-the-beltway readers, but it should be read by a very wide audience. The book changed the way I think about the politics of the estate tax debate. In fact, the book has changed my views about the politics of a number of related issues.
The Treasury Department and IRS today finalized a regulation that limits the use of life insurance and annuity contracts to avoid current taxation of investment earnings. The regulation prevents taxpayers from turning otherwise taxable investments in hedge funds and other entities into tax-deferred or tax-free investments by purchasing the investments through a life insurance or annuity contract:
Life insurance and annuity contracts receive favorable tax treatment in recognition of the importance of protecting loved ones against the potentially devastating financial consequences of death or the risk of exhausting savings while in retirement. The regulation finalized today, together with other guidance previously issued, provides guidance that will help taxpayers purchasing a life insurance or annuity contract to be secure in the knowledge that the contract complies with the tax laws. This regulation is part of the effort to modernize the rules for these contracts in recognition of the developments that have occurred in the financial markets in recent years.
The regulation finalized today was originally proposed in 2003. In response to comments from the public, the transition period for existing contracts that are affected by the regulation is four calendar quarters, which is two calendar quarters longer than the period originally proposed. The preamble to the regulation also acknowledges valuable input from commentators that may serve as the basis for additional guidance in the future.
Stuart Lazar (Thomas Cooley) has published Lessinger, Peracchi, and the Emperor’s New Clothes: Covering a Section 357(c) Deficit with Invisible (or Nonexistent) Property, 58 Tax Law. 41 (2004). Here is part of the Overview:
Although Lessinger was decided in 1989 and Peracchi was decided in 1998, the law in this area remains extremely unclear. While these cases come to the same conclusion—that the contribution by a shareholder of its own note to a controlled corporation can provide that shareholder with sufficient basis to prevent the application of § 357(c)—the courts’ reasonings are so different that, depending on the facts of a particular case, a taxpayer in the Second Circuit could wind up with a different result than one whose case is tried in the Ninth Circuit. Moreover, an analysis of these cases provides little guidance as to the appropriate outcome outside of the jurisdiction of these circuit courts. Finally, this Article argues that these cases were incorrectly decided and that legislative intervention is currently needed to resolve a problem created by the Second and Ninth Circuits.
Charles Davenport (Rutgers-Newark) presents How Secure Is Social Security? Is There Really a Crisis? today at the University of Washington from 3:30 - 5:00 pm PST as part of its Distinguished Scholars Series Showcasing Prominent Tax Academics and Commentators:
Social Security and its ability to provide for future retirees has become the most hotly contested domestic political issue. President Bush’s proposed reform of the Social Security system, which dates back to the 1930s, elicits passionate responses on both sides of the debate. Join us for a timely and informative presentation on the status of Social Security by Charles Davenport. Find out whether Social Security is really in crisis, merely presents some kind of fiscal problem in the future, or is fiscally and economically sound. Professor Davenport will also address the many “fixes” being proposed right now, with special emphasis on Bush’s private accounts suggestion.
Dwight Drake (Washington) will provide commentary.
Following up on our recent article, What Law Schools Can Learn from Billy Beane and the Oakland Athletics, 82 Texas L. Rev. 1483 (2004), Rafael Gely and I are organizing a symposium on The Next Generation of Law School Rankings to be held at Indiana-Bloomington on April 15, 2005. Here is the lineup of the paper presenters and their topics, as well as the commentators:
Framing the Rankings Debate
- Richard A. Posner (Chicago; 7th Circuit): Evaluating Law School Rankings
- Cass R. Sunstein (Chicago): Rethinking Law Schools: A Market Test?
- Scott A. Baker (North Carolina), Stephen Choi (NYU) & Gaurang Mitu Gulati (Georgetown): “Information Forcing” Rationale for Rat Races in Law School Rankings
- Bernard S. Black (Texas) & Paul L. Caron (Cincinnati): The Uses and Limits of SSRN in Measuring Scholarly Impact
- Wendy Espeland (Northwestern) & Michael Sauder (Northwestern): The Benefits of Multiple Evaluations: A Comparison of Law and Business School Rankings
- Tracey E. George (Vanderbilt): Law Schools and the New Legal Science
- William Henderson (Indiana-Bloomington) & Andrew P. Morriss (Case): The Influence of Population Migration on U.S. News Rankings
- Jeffrey E. Stake (Indiana-Bloomington): The Interplay of Rankings Criteria and Their Effects
Other Voices in the Rankings Debate
- Alex M. Johnson, Jr. (Dean, Minnesota): Destruction of the Holistic Approach to Admissions: The Pernicious Effect of Rankings
- Gene R. Nichol (Dean, North Carolina): Law Schools, Rankings, and Public Mission
- Nancy B. Rapoport (Dean, Houston): Eating Our Cake and Having It, Too: Why Real Change Is So Difficult in Law Schools
This morning's Tax Notes Today asks: Does IRS Want to End Justice Dept. Review of Tax Cases?, also available on the Tax Analysts web page as Doc 2005-3740, 2005 TNT 38-1. Here is the opening:
Tax Analysts has learned that a movement may be afoot to cut Justice Department lawyers out of the process of selecting criminal tax cases for prosecution Eliminating the layer of review performed by the Justice Department's Tax Division before sending criminal cases out to the U.S. attorneys' offices is not a new idea -- it has been raised by the U.S. attorneys several times before. What's new is that the moving force this time appears to be the IRS.
Nancy J. Jardini, chief of the IRS Criminal Investigation (CI) Division, is said to have appeared before the U.S. attorney general's advisory committee on tax with a recommendation that the Tax Division review process be abolished, according to sources with links to the Justice Department. Because Jardini reports to the IRS deputy commissioner of services and enforcement, Mark Matthews, people are sure that IRS Commissioner Mark Everson would have to have signed off on the controversial proposal. A spokesperson for the Justice Department declined to comment on the existence of any proposal...
Reuven Avi-Yonah (Michigan) presents Risk, Rents and Regressivity: Why The United States Needs Both an Income Tax and a VAT today at Tel Aviv University's Tax Policy Colloquium. Here is part of the Introduction:
The article is divided into four parts. Part 1 briefly surveys the legal academic debate about fundamental tax reform from 1974 onward, and shows how that debate has been skewed by the assumption that a consumption tax must replace the income tax. Part 2 addresses three of the major issues in recent writings on the income/consumption tax debate, and shows how none of the arguments in favor of the consumption tax are conclusive. Part 3 addresses the various consumption tax proposals that have been made and shows that they are all deficient in comparison with a VAT, as well as failing to achieve the goals of an income tax. Finally, Part 4 develops the proposal made above, that the US should adopt a VAT in addition to the existing income tax, and addresses some of its implications (e.g., for the state and local sales tax). It then distinguishes the proposal from one made by Prof. Michael Graetz to substitute a VAT for the income tax on middle-class taxpayers, and argues that while the Graetz proposal is sensible, we cannot afford it.
- Top 5 Tax Paper Downloads
- TaxProf Blog Named "Best of Breed"
- Tax Analysts: Sheppard on Administrative Repeal of § 265
- Tax Foundation Publishes Facts and Figures on Government Finance
- NYSBA Tax Section Submits Report to IRS on REMIC IO Interests
Sunday, February 27, 2005
3. Comparative Income Taxation: A Structural Analysis, by Hugh J. Ault (Boston College) & Brian J. Arnold (Goodmans LLP, Toronto)
Lee A. Sheppard has published Administrative Repeal of Disallowance for Carrying Tax-Exempts, 106 Tax Notes 894 (2005), also available on the Tax Analysts web site as Doc 2005-3305, 2005 TNT 35-5. Here is part of the opening:
Grover Norquist is agnostic about tax reform. How's that again? Isn't Grover Norquist a right-wing antitax crusader who runs Americans for Tax Reform, a lobbying group? Don't he and his group want to send the hated income tax straight to heck?
All that is true, but Norquist figures that what with Congress having passed four tax reduction bills during the Bush administration, we're already most of the way toward taxing only labor income. A few further tax cut bills would make tax reform a wholly unnecessary formality. The income tax is already well on its way to oblivion. "Bush's cuts have brought the United States tax code closer to a system under which income from savings and investments aren't taxed at all and revenues would be raised exclusively from taxes on labor," The New York Times Magazine observed....
Norquist is certainly correct about the long-term effect of the Bush tax cuts, and he may be more correct than he knows. When the Bush administration's failure to enforce the law is added into the mix, it is a wonder that the government is collecting any tax on income from capital. (And we want to meet that mythical little old lady with the share certificates in her mattress who is paying a double tax on corporate income.)
We've been regularly accusing the Bush administration of making a show of tax shelters while failing to enforce taxes on business. Most of the examples of that are too complicated for a general- interest newspaper. It's tough to explain a deferred subscription agreement even to practitioners.
But this article is about an example of administrative negligence that even a supply-side economist could understand. The Bush Treasury has administratively repealed section 265, which disallows deduction of expenses to carry tax-exempt bonds, for nonfinancial corporations operating as groups. (That would be all large corporations.) The good news is that Congress has been advised that the underlying statute should be tightened.
It answers every question on the income tax, and thousands more:
- Which states might tax me the least?
- How much income tax do wealthy Americans pay?
- Which states get the most in federal spending?
Sample chapters are available for free download here.
The New York State Bar Association Tax Section has submitted a report to the IRS on REMIC IO Interests (dealing with the proper timing and character of income, gain, loss, and deduction for holders and issuers of “interest only” interests subject to prepayment risk issued by a REMIC):
Saturday, February 26, 2005
Ira Mark Bloom (Albany)
- B.B.A. 1966, City College of New York
- J.D. 1969, Syracuse
My interest in tax began during my 1968 summer internship at the Tax Division of the U.S. Department of Justice and developed during my ensuing five years in the Tax Division’s Court of Claims Section, where I did trial and appellate work. Fortunately, tax refund litigation was apolitical so it wasn’t critical that Justice’s leadership went from Bobby Kennedy to John Mitchell.
Trial work, in particular a reasonable comp case involving the dress manufacturing business, taught me how much more fun it would be to teach law. Not that learning about dress manufacturing wasn’t fun in itself but I grew weary deposing the president of the company in Kansas City for five days, then traveling to Cleveland to depose the CEO of a NYSE-listed company for comparability, trying the case, and writing pre-trial and post-trial briefs.
So, in 1974, Richard Nixon and I left Washington. I began my teaching career at Loyola in New Orleans, which included intro to tax where I taught reasonable comp in no more than a class period. New Orleans was a great place to experience Mardi Gras, mystic wills and naked ownership (remainders in the common law world) but they couldn’t hold the Yankee in me.
In 1978, I visited at Albany and returned in 1979 where I have been ever since. My 1981 tenure piece on the interaction between perpetuities and transfer taxation reflects my teaching and scholarship areas of highest interest: the wealth transmission process, which at one time I taught in nine credits over three semesters.
John Gaubatz and I did a massive integrated casebook in 1983 but we discovered that most professors were either tax or property oriented so beginning in 1989 we separated the book into two: a trusts and estates book and the federal taxation of trusts, estates and gifts. I’ve continued with several editions of both books, most recently teaming up with Roger Andersen on a trusts and estates coursebook-we’re working on the third edition of Fundamentals of Trusts and Estates (LexisNexis).
So I can keep off the streets, I’ve been the principal author of a 2 volume treatise on drafting New York Wills for over 15 years. Fortunately, Bill LaPiana (New York Law School) now helps out as LexisNexis insists on two 300-page releases a year. But in my spare time, apart from law reform interests through ALI, ACTEC, and the New York State bar and legal aid work, I like to travel, dance, draw, play tennis, and sleep. I work out at the gym most reluctantly.
One constant has been my love of teaching. Everything I do always finds its way into the classroom, with the concomitant benefit of reduced class prep time.
[Editor's Note: In 2002, Ira was named the Justice David Josiah Brewer Distinguished Professor of Law.]
Each Saturday, TaxProf Blog shines the spotlight on one of the 700+ tax professors in America's law schools. We hope to help bring the many individual stories of scholarly achievements, teaching innovations, public service, and career moves within the tax professorate to the attention of the broader tax community. Please email me suggestions for future Tax Prof Profiles. For prior Tax Prof Profiles, see here.
Gary Hecimovich, Michael Danilack, Thomas Mahoney, Jan Skelton & Mark Garay (all of the Washington Tax Office of Deloitte Tax LLP) have published Producing Results: An Analysis of the New Production Activities Deduction, 106 Tax Notes 961 (2005), also available on the Tax Analysts web site as Doc 2005-2228, 2005 TNT 35-35. Here is the abstract:
The American Jobs Creation Act of 2004 established new § 199, which permits taxpayers to claim a deduction from taxable income attributable to domestic production activities. This special report provides an overview of § 199, which is effective for tax years beginning after December 31, 2004, and recent Treasury guidance on the same issue. It provides observations that: (1) put in context the meaning of many of the new law's complex and often novel tax concepts; (2) identify common issues and opportunities that business taxpayers may encounter; and (3) suggest actions taxpayers should take to improve their ability to take full and appropriate advantage of the new deduction.
The General Accounting Office on Thursday released a 26-page report, Tax Shelters: Services Provided by External Auditors (GAO-05-171). Here is the summary:
IRS data available on tax shelter services sometimes predate legislative and regulatory changes reflecting a heightened focus on auditor independence. However, both during this earlier period covered by some of the data and also following the recent changes, auditors were allowed to provide tax services, including tax shelter services, to firms they audited. According to IRS data, 61 Fortune 500 companies obtained tax shelter services from their external auditor during 1998 through 2003 for transactions generally reportable on tax returns sent to IRS. IRS considered some reportable transactions abusive, with tax benefits subject to disallowance under existing law, and other transactions to possibly have some traits of abuse. Estimated multi-year potential tax revenue lost to the federal government from the 61 companies' auditor-related transactions was about $3.4 billion (about $1.8 billion in categories IRS considered abusive). In 17 companies, at least one officer or director used the company's auditor to obtain individual tax shelter services. These numbers are imprecise because they have important limitations. These limitations, such as some transactions in IRS's database without tax shelter providers listed, are fully discussed in this report. Commenting on a draft of this report, IRS said that ongoing changes and recent legislation will enable it to address the data limitations noted.
According to their representatives, all eight case study companies adopted or refined policies or practices in 2002 or 2003 for pre-approving tax services or governing the tax services provided, such as who would provide them. All eight reported using their auditor for tax services during 2000 through 2003. Two told us of obtaining tax shelter services from their auditor, but one of them obtained the services before this period. Six of the eight reported officers or directors obtaining individual tax services from the auditor at some time since 2000, with four disallowing the practice later. None reported officers or directors using the auditor for individual tax shelter services.
This study looks at possible changes to address those problems. It identifies three goals for tax reform: simplification, efficiency, and limited government. The latter goal focuses on tax code features such as visibility and equal treatment that cultivate an understanding of the high cost of government. This study examines reform options including a flat tax, a national retail sales tax, and a savings-exempt tax in reference to those goals. It also proposes a new option: a "dual-rate income tax." This revenue-neutral option would convert the individual income tax to a two-rate system that eliminates most deductions and credits and allows nearly all families to pay tax at a low 15% rate. A 27% rate would kick in for earnings above $90,000 (single) and $180,000 (married).
To promote growth, the maximum individual rate on dividends, interest, and capital gains would be 15%. The corporate tax rate would be dropped to 15% and interest made non-deductible. These changes would equalize and cut the combined top income and payroll tax rates on wages, dividends, interest, and small business income to just under 30%, compared with between 35% and 45% under current law.
The dual-rate tax plan would retain the standard deduction, an expanded personal exemption, and the earned income tax credit. The plan would create a simpler and more efficient taxcode within the structure of today's system and may be just the type of tax plan that the president's advisory panel is looking for.
The NYU Graduate Tax Program concludes the Second Annual Gerald L. Wallace - Charles S. Lyon National Tax Worshop today at The Hilton on The Walt Disney World Resort in Orlando.
Taxation of Subchapter S Corporations
- Jerald David August (August, Kulunas & Dawson, West Palm Beach, FL)
- Rudolph R. Ramelli (Jones Walker, New Orleans, LA)
Recent Developments in Income Taxation and Tax Accounting Matters
- John E. Davidian (St. John's)
- Laurie Malman (NYU)
Friday, February 25, 2005
The NYU Graduate Tax Program is sponsoring the Second Annual Gerald L. Wallace - Charles S. Lyon National Tax Worshop at The Hilton on The Walt Disney World Resort in Orlando.
- Noel B. Cunningham (Director, NYU Graduate Tax Program)
- Terrence F. Cuff (Loeb & Loeb, Los Angeles, CA)
- Phillip J. Gall (Kronish Lieb Weiner & Hellman, New York, NY)
Tax Planning for Troubled Companies and Workouts
- Paul H. Asofsky (Weil, Gotshal & Manges, Houston, TX)
- William G. Cavanagh (Chadbourne & Parke, New York, NY)
- Louis S. Freeman (Skadden, Arps, Slate, Meagher & Flom, Chicago IL)
- Eric Solomon (Deputy Assistant Secretary (Regulatory Affairs), Treasury Department)
- Matthew A. Rosen (Skadden Arps, Slate, Meagher & Flom, New York, NY)
Following is a review of some general principles of tax reform, some suggestions for specific tax changes, and a discussion of the political and economic circumstances under which the debate on this issue is likely to occur.
The Tax Foundation sent us an op-ed, More Gambling for the Children, which argues that a Texas bill to permit video lottery terminals to raise education revenues is poor tax policy. The op-ed is by Alicia Hansen, a policy analyst at the Tax Foundation and the author of Lotteries and State Fiscal Policy.
Burgess J.W. Raby & William L. Raby have published No Penalty for Failure to Comply With IRS Summons, But . . ., also available on the Tax Analysts web site as Doc 2005-3505, 2005 TNT 36-87. Here is the opening:
Not often have we seen a press release trumpeting a taxpayer's court defeat as a "historic and courageous first step in restoring constitutional order to the administration and enforcement of our nation's tax laws." Even less often have we seen one that hails a per curiam rejection of the taxpayer's appeal as a "dramatic development" that "effectively puts the IRS and DOJ on notice that violations of taxpayer's Due Process Rights will no longer be tolerated." That, however, is how We the People Foundation for Constitutional Education described the opinion of the appeals court affirming the dismissal of Robert L. Schulz v. IRS, (Dkt. No. 04-0196-cv, Jan. 25, 2005). Schulz, chairman of the foundation, had sought an order from the district court quashing administrative summonses the IRS had served on him.
The Roth & Company Blog has an entertaining blow-by-blow dissection of the spat that erupted in Tax Notes as David Cay Johnston took issue with Sheldon Pollack's review of Johnston's book, Perfectly Legal.
As suggested by the title, Perfectly Legal Isn't Perfect, But It's Well Worth Reading, Pollack's review was generally quite favorable but made some specific criticisms of the book.
Johnston's response, published as a Letter to the Editor, How Off-Base Was That Review? Let us Count the Ways, takes issue with several aspects of Pollack's review. Roth & Company calls the response "an extraordinary, bitter document" and also links to a "calmer dissent from Mr. Pollack's review" by Paul Streckfus, In Defense of Perfectly Legal.
Thursday, February 24, 2005
The NYU Graduate Tax Program is sponsoring the Second Annual Gerald L. Wallace - Charles S. Lyon National Tax Worshop today through Saturday at The Hilton on The Walt Disney World Resort in Orlando.
- Hal Hicks (Associate Chief Counsel (International), Treasury Department)
- H. David Rosenbloom (Caplin & Drysdale (Washington, D.C.) & Director, NYU's International Tax Program)
- John P. Steines ((NYU) & Counsel, Kronish Lieb Weiner & Hellman (New York, NY))
- Robert J. Peroni (Texas)
- Charles I. Kingson (NYU Adjunct)
Tax Procedure and Litigation
- Michael L. Saltzman (White & Case, New York, NY)
- George E. Zeitlin (Chadbourne & Parke, New York, NY)
Estate Planning and Transfer Taxation
- T. Randolph Harris (McLaughlin & Stern, New York, NY)
- Guy B. Maxfield (NYU Emeritus)
- Miranda Perry (NYU)
Ethical Considerations in Tax Practice
- Gersham Goldstein (Stoel Rives, Portland, OR)
See here for the full brochure
This paper considers the relevance of negative time preferences or “hyperopia” for public finance. The cognitive literature on such preferences has been relativelyneglected in public finance discussions. Incorporating it can enrich our understanding of financial behavior over time. However, it must be adapted with care. Examination of hyperopia opens up important questions about the extent to which time preferences can offer a useful theoretical construct or basis for policy. Time preferences should, I conclude, be included on a public policy checklist, along with other complex preferences. Rather than providing final explanations of behavior, apparent temporal anomalies hold diagnostic potential. Only by examining the heterogeneous determinants of temporal choices can we make meaningful headway in enriching positive accounts or informing normative policy judgments.
The workshop is from 3:00 - 5:00 pm PST in Room 2448 at UCLA.
A substantial literature addresses the design of transfer programs and policies, including the negative income tax, other means-tested transfers, the earned-income tax credit, categorical assistance, and work inducements. This work is largely independent of that on the optimal nonlinear income tax, yet formulations of such a tax necessarily address how low-income individuals should be treated. This paper draws on the optimal income taxation literature and modest extensions thereof to illuminate analysis of transfer programs, including the level and shape of marginal tax (including phase-out) rates, the structure of categorical assistance, and the role of work inducements in an optimal income transfer scheme.
The Colloquium will be held in Room 202 of Vanderbilt Hall from 4:00 - 6:00 p.m. EST. Although the public is invited to attend, due to heightened security throughout NYU Law, please contact Haydee Torres so she can provide the Guard's desk with your name.
See David Bradford's New York Times obituary. We all share Martin Feldstein's view:
"David's creative ideas have profoundly shaped tax reform," said Martin Feldstein, the Harvard economics professor and president of the National Bureau of Economic Research.
Michael J. Feder & David H. Shapiro (both of PriceWaterhouseCoopers, Washington, D.C.) have published Hoover Hedging With Dual-Currency Debt Instruments, 106 Tax Notes 949 (2005), also available on the Tax Analysts web site as Doc 2005-2264, 2005 TNT 35-34. Here is the Introduction:
Corporate treasurers routinely execute transactions to manage currency risk exposure arising from equity investments in foreign subsidiaries. Those transactions are typically entered into to protect a company's balance sheet from the risk that fluctuations in foreign currency exchange rates will affect, either positively or negatively, the translated value of a company's foreign equity investment. Those transactions are frequently referred to by tax professionals as "Hoover hedges" (named for the case in which the Tax Court concluded that they are not appropriately characterized as "hedging transactions" for U.S. tax purposes). Hoover hedging does not give rise to the typical character issues ordinarily associated with transactions failing to achieve status as a hedging transaction for tax purposes because those transactions are generally § 988 transactions that give rise to ordinary income or expense. As a result, tax considerations do not often play a significant role in the manner is which these transactions are structured.
The thesis of this article is that new Treas. reg. § 1.988-63 may provide a tax-efficient means of structuring currency hedges of net equity investments in foreign subsidiaries which, under certain circumstances, is preferable to more traditional techniques for hedging such currency risks. This article is divided into four parts. Part I contains an overview of the economics and tax treatment of typical Hoover hedges. Part II contains a description of the mechanics of Treas. reg. § 1.988-6. Part III contains two comprehensive examples that analyze the U.S. Federal income tax treatment of dual-currency debt instruments (hereinafter sometimes referred to as DCDs) used as Hoover hedges under Treas. reg. § 1.988-6.
Karen C. Burke (San Diego) presents Black & Decker's Contingent Liability Shelter: "A Thing of Grace and Beauty"? today at Northwestern as part of its Tax Policy Colloquium. Here is the abstract:
The recent district court decision in Black & Decker v. United States has been heralded as a major setback for the government's litigation of contingent liability shelters. This article seeks to explain what happened in Black & Decker based on a close reading of the parties' briefs and other publicly available documents. A fuller understanding of the case suggests that the district court's October summary judgment for the taxpayer should be reversed by the Fourth Circuit on appeal, and that the government has persuasive statutory arguments that have yet to be decided on the merits. The Black & Decker decision also sheds light on the challenges faced by generalist district courts in attempting to deal with tax shelter transactions that are purposefully designed to exploit ambiguous statutory language. The article flows from the author's study of the Supreme Court's Hendler decision, which will appear in a forthcoming book, Business Tax Stories (Foundation Press, Bank and Stark, eds.).
Try as I might, I could not find a tax angle to this, but as a long-time fan of the "Boss" I was drawn to this conference today at Widener: The Lawyer as Poet Advocate: Bruce Springsteen and the American Lawyer:
Widener University invites you to reflect with us as we combine the great tradition of the American lawyer as poet advocate with the work of one of the most celebrated poet advocates of our time, Bruce Springsteen.
The American lawyer can draw much from the life and work of such poets. As the American lawyer encounters his world, like the poet, words are his only weapon, and his blade can cut only as deeply as the truth contained in those words. Also like the poet, the American lawyer is called to discern what is real and what matters, certainly for his client, but also in his own life and work. The American lawyer even can resemble that poet from Bruce Springsteen's Jungleland who reaches "to make an honest stand" haunted by the fear that ultimately he may "wind up wounded, not even dead."
See the full program here.
Wednesday, February 23, 2005
- Jon Ackerman, Senior Counsel (on leave from the Treasury Department's Office of Tax Policy)
- Rosanne Altshuler, Senior Economist (on leave from Rutgers University, Department of Economics; former Special Advisor to Joint Committee on Taxation)
- Tara Bradshaw, Communications Director (former Associate Director, Americas Public Relations Group, Ernst & Young)
March 3: Washington, D.C. (George Washington University's Jack Morton Auditorium): The Panel will hear additional perspectives on tax reform, as well as a description of the problems presented by complexity in the tax system.
March 8: Tampa, FL: The Panel will discuss how the tax system affects businesses and entrepreneurs.
- March 16: Chicago, IL: The Panel will focus on how the tax code influences important taxpayer decisions.
As noted on Monday here, the Panel also is seeking public comments on four issues. Information on how to submit comments as well as details on the required format for comments are available here. Comments submitted in connection with this first request must be received by the Panel no later than 5:00 p.m. on March 18. All comments submitted will be made available to the public.
Back in September, we blogged the interesting tax issues involving a newspaper deliveryman man for the Chicago Tribune-owned Hartford Courant who received direct deposits of $301,000 in his bank account in 2003 that were intended for the Mark Guthrie who pitched for the Tribune-owned Chicago Cubs. When the Tribune discovered the error later in 2003, they retrieved 275,000 from Guthrie's bank account before he froze the account because he feared he may suffer adverse tax consequences from the misdirected deposit.
This month's "Shop Talk" column in the Journal of Taxation by Sheldon I. Banoff (Katten, Muchin Zavis Rosenman, Chicago) & Richard L. Lipton (Baker & McKenzie, Chicago) has an extended discussion of the tax consequences of the misdirected direct deposit, including:
- Application of the dominion and control test
- Application of the claim of right doctrine
- Must Guthrie report the net $26,000 of income in 2003?
- Must Guthrie report $301,000 of income and a $275,000 deduction in 2003?
- Is the $275,000 an above-the-line deduction for regular tax and AMT purposes?
- Application of the withholding requirements on the payments
- Application of the tax benefit rule upon Guthrie's subsequent repayment in 2004
- The tax effect of any indemnification offered by the Cubs to Guthrie for the adverse tax consequences caused by its gaffe
The Business Planning Group of the ABA Section on Real Property, Probate & Trust Law is sponsoring a survey on the effectiveness of § 6166, which allows closely-held businesses to defer payment of estate tax. The Section will use the results of the survey in formulating recommendations for reform. For the preliminary survey results on various reform alternatives, see here.
Robert W. Wood (Robert W. Wood, P.C., San Francisco) has published Defendants in Litigation Should Worry About Nondeductible Settlement Payments, also available on the Tax Analysts web site as Doc 2005-3447, 2005 TNT 35-33. Here is part of the opening:
Whether a case is concluded by settlement or by judgment, after verdict and appeal, or before the complaint is even filed, some thought should always be given to the tax consequences of the payment. Those are not small points, either, but are fundamental questions that should be asked on any payment.
Is it income to the plaintiff, and if so, is it capital, ordinary, or wages? Is it deductible to the defendant, or must it be capitalized? Is it subject to withholding? For both plaintiff and defendant, how should the inevitable attorney fees be treated?
Today this analysis increasingly involves tax reporting issues as well. Apart from more traditional Form W-2 and Form 1099 rules requiring information returns to the plaintiff, the prevalence of gross receipts reporting to attorneys (as well as their clients) raises compliance issues that often must be addressed before cutting the checks. Failing to address those issues upfront can mean horrifying surprises and can cause settlements to sometimes unravel. When the defendant is trying to pay a judgment, its tax treatment (withholding, for example), can prompt renewed litigation between the parties. A defendant who has been battered in litigation and who is prepared to pay the judgment will be none too happy to be caught up in subsequent litigation with the same plaintiff over a failure to agree on tax issues. Trying to join the IRS in the suit to have it resolve it is futile, because the Service refuses to join any private litigation.
Despite all of the reasons a defendant should be concerned with these rules, the fact remains that plaintiffs are far more likely than defendants to raise tax issues. Plaintiffs are also far more likely than defendants to hire tax counsel to assist in the process. Part of that phenomenon may be attributable to the fact that many defendants are businesses and already have tax advisers. However, in my experience, the tax advisers are rarely brought into the litigation process, or even consulted, until after the settlement or judgment has been paid, when it comes time to address tax reporting issues.
William N. Gentry (Williams College, Department of Economics) presents The Character and Determinants of Corporate Capital Gains today at Michigan as part of its Tax Policy Workshop Series. Here is the abstract:
This paper analyzes how corporate capital gains taxes affect the capital gain realization decisions of firms. The paper outlines the tax treatment of corporate capital gains, the consequent incentives for firms with gains and losses, the efficiency consequences of these taxes in the context of other taxes and capital market distortions, and the response of firms to these incentives. Despite receiving limited attention, corporate capital gain realizations have averaged 30 percent of individual capital gain realizations over the last fifty years and have increased dramatically in importance over the last decade. By 1999, the ratio of net long-term capital gains to income subject to tax was 21 percent and was distributed across a variety of industries suggesting the importance of realization behavior to corporate financing decisions. Time-series analysis of aggregate realization behavior demonstrates that corporate capital gains taxes impact realization behavior significantly. Similarly, an analysis of firm-level investment and property, plant, and equipment (PPE) disposal decisions and gain recognition behavior similarly suggests an important role for these taxes in determining when firms raise money by disposing of assets and realizing gains.
The IRS yesterday announced (IR-2005-17) a settlement initiative for executives and companies that participated in an abusive tax avoidance transaction involving the transfer of stock options or restricted stock to family controlled entities:
Under this scheme, executives, often facilitated by their corporate employers, transferred stock options to family controlled partnerships and other related entities typically created for the sole purpose of receiving the options and avoiding taxes on compensation income normally taxed to the executive. The tax objective was to defer for up to 30 years taxes on the compensation and, in many cases, resulted in the corporation deferring a legitimate deduction for the same compensation.
The plan requires executives to pay all of the taxes on the options, but only a 10% penalty (rather than the usual 20% penalty).
Tuesday, February 22, 2005
I am sorry to report that David Bradford (Princeton) died today at Temple University Hospital in Philadelphia from extensive injuries sustained in a fire in his home two weeks ago (previously reported here). From the Princeton web site:
"All members of the University community are immensely saddened at the loss of our beloved colleague and teacher David Bradford. He was a fine scholar and a man of intelligence and integrity," said Anne-Marie Slaughter, dean of the Woodrow Wilson School of Public and International Affairs. "In all his dealings, both personal and professional, he took care to do the right thing and took time to do it right. We will miss him greatly and remember him with affection and respect."
- When It's Tax Time, Call In the Professionals (2/22)
- Case of Vanishing Deductions: Alternative Tax Called Culprit (2/21)
- California Tests Tax Filing Program (2/20) (quoting Joe Bankman (Stanford))
- Focus on Indiana's Governor, a Tax Cutter Who Has Become a Tax Raiser (2/20)
Wall Street Journal:
- Some Republicans Debate Stance on Taxes (2/22)
- Tax Reform: Eliminate All Business Deductions (2/22)
- California Tries Tax Experiment (2/21) (quoting Joe Bankman (Stanford))
- Looking at Identity Theft, Deducting Plastic Surgery (2/20) (Tom Herman)
- Tax Cap Fever (2/18)
- White House Puts Cost of Fixing AMT at $1 Trillion (2/18)
- Editorial Page [of NY Times] Has No Say in Tax Breaks Won by Parent Company (2/22)
- A Matter of Trusts (2/20)
- No Political Motives Found in IRS Probes (2/18)
The monthly update of the 121-page directory of attorneys in the IRS Chief Counsel's Office, arranged by Internal Revenue Code Section and Subject Matter, for February 2005, is available on the Tax Analysts' web site.
Nancy C. Staudt (Washington Univ.) has published Agenda Setting in Supreme Court Tax Cases: Lessons from the Blackmun Papers, 52 Buff. L. Rev. 889 (2004). Here is the Conclusion:
The Library of Congress recently opened Justice Blackmun's personal papers for public viewing. The papers are unique in that Justice Blackmun retained a number of documents pertaining to the certiorari decision that most other Justices discard. This data may offer exciting new insights into the Court's decision making procedures. For purposes of this essay, I reviewed forty-one case files on taxation disputes decided between 1986 and 1993. I found data suggesting that the Justices (and their law clerks) privilege inter-court conflict, the Solicitor General's support for certiorari, and the fiscal costs of not hearing a case when considering the arguments for and against plenary review. These findings are preliminary, given that I looked only to the cases the Court decided on the merits; further research is necessary for understanding fully how these factors impact judicial decisions. At this early stage of my research, however, the Blackmun files suggest that while the Justices detest tax cases, they are willing to put them on their discretionary docket in an effort to protect the federal budget. Moreover, this fact may undermine the calls for curtailing Supreme Court jurisdiction -- it may take judicial intervention to save the budget from irresponsible public spending in the legislative context.
The Congressional Research Service has released Political Organizations Under Section 527 of the Internal Revenue Code (RS21716), also available on the Tax Analysts web site as Doc 2005-3455, 2005 TNT 34-44. Here is the Summary:
Political organizations have the primary purpose of influencing federal, state, or local elections and conducting similar activities. Those that qualify under section 527 of the Internal Revenue Code are taxed only on certain income. Under the Code, 527 organizations are subject to reporting requirements that involve registration, the periodic disclosure of contributions and expenditures, and the annual filing of tax returns. Section 527 organizations must also comply with applicable campaign finance laws. This report will briefly describe these organizations and the reporting requirements they face under the Code. The report will be updated as events warrant.
To enter, submit an essay on a current topic dealing with real property, probate, or trust law. “Real property, probate and trust law” is a broad category containing numerous practice disciplines. Without attempting to define the area precisely, the subject is intended to include matters within law school curricula in courses entitled:
- Estate and Gift Tax
- Wills and Decedents’ Estates
- Real Estate Development
- Environmental Law
- Land Use Planning
- Federal Taxation
- Real Estate Finance
- Secured Transactions
- Debtors and Creditors
- Employee Benefit Plans
- Planning, Drafting and Negotiating Commercial Transactions
- Taxation and Regulation of Non-Profit Organizations
- Business Succession Planning
- Life Insurance and Other Insurance Products
- Trusts and Trust Law
- Wealth Management
- Fiduciary Income Taxation
- Estate Planning
- Probate and Estate Administration
- First Place: $2,000, plus free round-trip airfare and weekend accommodations to attend the Section’s Fall Council Meeting Dinner and possible publication in the Real Property, Probate & Trust Law Journal
- Second Place: $500
- Third Place: $250
Entries must be received by the Section no later than June 15, 2005. The contest rules are available here.
Mercer Law School is looking for a one semester visitor to teach Estate & Gift Tax and Corporate Tax next year. The preference is for a Spring 2006 visit, but Mercer can offer the courses in Fall 2005 if necessary. Contact Appointments Committee Chair Tony Baldwin for more information.
Monday, February 21, 2005
Business Tax Stories is part of Foundation Press's Law Stories Series of books patterned after the Tax Stories book (and accompanying web site) edited by Paul L. Caron (Cincinnati). Unlike many of the other volumes in the Law Stories Series, however, Business Tax Stories does not deal solely with judicial opinions. In the field of business taxation, many of the most significant developments are not cases, and certainly not Supreme Court cases, but rather legislative and administrative changes and transactional innovations. Business Tax Stories includes chapters on several landmark cases; however, it also surveys many of the critical developments in the history of U.S. corporate and partnership taxation. Taken as a whole, Business Tax Stories is organized to serve as a history of business taxation over the last century:
- Introduction, by Steven A. Bank (UCLA) & Kirk J. Stark (UCLA)
- Chapter 1. The Story of the Separate Corporate Income Tax: A Vehicle for Regulating Corporate Managers, by Reuven S. Avi-Yonah (Michigan)
- Chapter 2. The Story of the Corporate Reorganization Provisions: From "Purely Paper" to Corporate Welfare, by Ajay K. Mehrotra (Indiana-Bloomington)
- Chapter 3. The Story of Gregory: How are Tax Avoidance Cases Decided?, by Assaf Likhovski (Tel Aviv)
- Chapter 4. The Story of General Utilities and its Repeal: Much Ado about Nothing?, by Herwig J. Schlunk (Vanderbilt)
- Chapter 5. The Story of Double Taxation: A Clash over the Control of Corporate Earnings, by Steven A. Bank (UCLA)
- Chapter 6. The Story of Hendler: From Pyrrhic Victory to Modern Section 357, by Karen C. Burke (San Diego)
- Chapter 7. The Story of Subchapter K: Mark H. Johnson's Quest, by Mark P. Gergen (Texas)
- Chapter 8. The Story of Tufts: The "Logic" of Taxing Nonrecourse Loan Transactions, by Laura Cunningham (Cardozo) & Noel Cunningham (NYU)
- Chapter 9. The Story of Seagram: The Step Transaction Doctrine on the Rocks, by Lawrence Zelenak (Duke)
- Chapter 10. The Story of the Limited Liability Company: Combining the Best Features of a Flawed Business Tax Structure, by Susan Pace Hamill (Alabama)
Business Tax Stories will be published this summer and will be available for fall 2005 classes. Copies will be sent to all law school professors teaching Corporate Tax, Partnership Tax, and Taxation of Business Enterprises. Non-law school professors may obtain a copy by contacting Foundation Press here.
- Headaches, unnecessary complexity, and burdens that taxpayers -- both individuals and businesses -- face because of the existing system
- Aspects of the tax system that are unfair
- Specific examples of how the tax code distorts important business or personal decisions
- Goals that the Panel should try to achieve as it evaluates the existing tax system and recommends options for reform
At this point, the Panel is not asking for specific proposals.
Information on how to submit comments as well as details on the required format for comments are available here. Comments submitted in connection with this first request must be received by the Panel no later than 5:00 p.m. on March 18. All comments submitted will be made available to the public.
The second meeting of the Panel is scheduled for March 3 at 9:30 a.m. at the Jack Morton Auditorium, Media and Public Affairs Building, The George Washington University, 805 21st Street, NW., Washington, DC 20052:
See here for very helpful speadsheets prepared by a reader of tax data from the IRS web site and Statistics of Income Bulletins. The spreadsheets provide 2003 data for both the U.S. and the individual 50 states (illustrated below with the data for the U.S. and California):
2003 Tax Data
Returns by Income
Number (% of Total)
Number (% of Total)
Returns by AGI
50k - 75k
75k - 100k
100k - 200k
200k - 500k
Social Security Benefits in AGI
Total Itemized Deductions
State & Local Income Taxes
Child Tax Credit
Deborah Walker, Elizabeth Drigotas, Bart Massey & Laura Edwards (all of Deloitte's National Tax Office, Washington, D.C.) have published Nonqualified Deferred Compensation: The Effect of the New Rules Now and in the Future, 106 Tax Notes 813 (2005), also available on the Tax Analysts web site as Doc 2005-1720, 2005 TNT 30-20. Here is the abstract:
The American Jobs Creation Act of 2004 established new § 409A, providing dramatic changes to the tax rules for nonqualified deferred compensation. This article explains the new law as well as recent IRS guidance. The authors believe that it will also help readers understand what considerations and actions employers should take to ensure that their compensation programs remain effective and competitive, while complying with the new requirements.