May 31, 2005
U.S. District Court Upholds Check-the-Box Regs
In a case of first impression, the U.S. District Court has upheld the validity of the check-the-box regulations (Reg. § 301.7701-1 through 3) in Littriello v. United States, No. 3:04CV-143-H (W.D. KY, May 18, 2005).
The court in Littriello noted that it could find "no appellate or district court opinions considering the validity of the check-the-box regulations. One Tax Court opinion, Dover Corp. v. Commissioner, 122 T.C. 324, 330-31 n.7 (2004), discusses the regulations and notes that 'some commentators' had questioned whether they constitute a valid exercise of regulatory authority." In Dover Corp., the Tax Court stated:
Some commentators have questioned whether the regulations constitute a valid exercise of the Treasury Secretary's authority under § 7805(a) to issue interpretive regulations. See, e.g., Staff of Joint Committee on Taxation, Review of Selected Entity Classification and Partnership Tax Issues, at 13-17 (J. Comm. Print Apr. 18, 1997); McKee et al., Federal Taxation of Partnerships and Partners, par. 3.08 at 3-102 (3d ed.1997); Dougan et al., "Check The Box"--Looking Under The Lid, 75 Tax Notes 1141, 1143-1144 (May 26, 1997); Mundstock, A Unified Approach To Subchapters K & S, 11 n. 35 (2002). Neither party has challenged the validity of all or any portion of the regulations. Therefore, for purposes of this case, we accept (without deciding) that the regulations are valid.
The district court in Littriello held that the check-the-box regulations satisfied the two-prong test of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1989):
Under step one of the Chevron analysis the Court looks to whether the intent of Congress is clear on the precise issue of business classification for federal tax purposes. The IRC defines "partnership" and "corporation" as being mutually exclusive. A business entity for tax purposes is defined either as a partnership or as a corporation. Littriello contends that the check-the-box regulations violate this manifest intent because two identical business entities may elect different classifications. The Commissioner responds that the term "association" in the statutory definition of a corporation is ambiguous.
Read together § 7701(a)(2) and § 7701(a)(3) do not seem to make a clear distinction between an "association" which is treated for tax purposes as a corporation and a "group pool or joint venture" which is treated for tax purposes as a partnership....[T]he Court concludes that the Commissioner's argument that the statute is ambiguous on this point is more persuasive than Littriello who seeks to impose clarity where the Court finds none....
Step two of the Chevron analysis requires the Court to decide "whether the agency's answer is based on a permissible construction of the statute." The Treasury promulgated the check-the-box regulations pursuant to its general authority to issue "needful rules and regulations for the enforcement of [the IRC]." § 7701(a)....
[T]he check-the-box regulations seem to be a reasonable response to the changes in the state law industry of business formation. The rise of the limited liability corporation presents a malleable corporate form incompatible with the definitions of the IRC. The newer regulations allow similar flexibility to the Kintner regulations, with more certainty of results and consequences. Considering the difficulty in defining for federal tax purposes the precise character of various state sanctioned business entities, the regulations also seem to provide a flexible permissible construction of the statute.
IRS Treats Expenses to Terminate Merger as Nondeductible Capital Expenditures
The IRS on Friday released Technical Advice Memorandum 2005-21-032, which ruled that expenses paid by a corporation to terminate a merger are nondeductible capital expenditures that must be capitalized under § 263. The IRS concluded that the costs could not be treated as an ordinary and necessary business expense under § 162 or as an abandonment loss under § 165.
Center for Freedom and Prosperity Foundation Calls for Expansion of § 911 Exclusion
The Center for Freedom and Prosperity Foundation has released a study, Territorial Taxation for Overseas Americans: Section 911 Should Be Unlimited, Not Curtailed. Here is the abstract:
The U.S. is among the tiny handful of nations that imposes double-taxation on the labor income that individuals earn in other nations – even if the U.S. citizen is a full-time resident of the foreign jurisdiction. Yet since the "foreign-source" income of U.S. citizens already is subject to all applicable taxes that exist in other jurisdictions, an additional layer of U.S. tax is double-taxation – thus violating one of the most important principles of good tax policy. Almost every other country in the world taxes only income earned inside national borders – the common-sense principle of "territorial taxation." American legislators have tried to mitigate the adverse impact of worldwide taxation by allowing workers to protect annual earnings up to $80,000 from double-taxation. This policy, known as the § 911 exclusion, is a small step in the right direction. Ideally, the U.S. government should not be taxing any income earned abroad – just as foreign governments should not be taxing any income earned in America. If policy makers created a level playing field by making § 911 universal, more Americans could find jobs in the global economy, U.S. companies would become more internationally competitive, and U.S. exports would substantially increase.
See the press release here.
Bird on A Look at Local Business Taxes
Richard M. Bird (Co-Director, International Tax Program, Rotman School of Management, University of Toronto, and PetroCanada Scholar, C.D. Howe Institute) has published A Look at Local Business Taxes, 36 State Tax Notes 685 (May 30, 2005), also available on the Tax Analysts web site as Doc 2005-11366, 2005 STT 103-17. Here is the Conclusion:
Local business taxes, like the weather, are always with us and always, it seems, a matter for discussion and, often, dissatisfaction. Unlike the weather, however, commentators and governments can do more than deplore unfortunate outcomes. Both the design and the implementation of local business taxation can be substantially improved in most countries. Two broad paths toward those improvements are suggested in section V -- toward a more strictly "benefit" system of business licenses and fees on one hand, and toward a more neutral and uniform variety of VAT (the BVT) on the other hand. As Table 1 suggests, neither of those approaches is without flaws, but together or separately they appear more likely to yield satisfactory results than most of the many forms of local and regional business taxation now found around the world.
Hanna on Magic and the Tax Law
Christopher H. Hanna (SMU) has published From Gregory to Enron: The Too Perfect Theory and Tax Law. 24 Va. Tax Rev. 737 (2005). Here is part of the Introduction:
The Too Perfect Theory has been interpreted to mean that a magic trick may be too perfect, in that not only does it not fool the audience, but the effect itself may lead the audience to discover how the trick is performed.... What is interesting about the Too Perfect Theory is that it seems to be applicable to the law, particularly the practice of transactional law, such as tax law. In other words, is it possible for a transaction to be structured in which the results are too perfect under the tax law? Most judges, law academics, lawyers, and law students would immediately respond, "Absolutely not." They would claim that transactional lawyers strive for perfection and anything less may lead to malpractice claims. But, as this Article will show, a transaction may have results that are too perfect under the tax law, and, as a result, the transaction may be subject to recharacterization by the government and the courts.
Alesina & Angeletos on Corruption, Inequality and Fairness
Alberto F. Alesina (Harvard, Department of Economics; NBER) & George-Marios Angeletos (MIT, Department of Economics; NBER) have posted Corruption, Inequality and Fairness on SSRN. Here is the abstract:
Bigger governments raise the possibilities for corruption; more corruption may in turn raise the support for redistributive policies that intend to correct the inequality and injustice generated by corruption. We formalize these insights in a simple dynamic model. A positive feedback from past to current levels of taxation and corruption arises either when wealth originating in corruption and rent seeking is considered unfair, or when the ability to engage in corruption is unevenly distributed in the population. This feedback introduces persistence in the size of the government and the levels of corruption and inequality. Multiple steady states exist in some cases.
- Top 5 Tax Paper Downloads
- Tax Consequences of Sale of Baby Advertising Space on Ebay
- Tax Analysts: Sheppard on Dividend Repatriation Merger Notice
- IRS Expands Charity Web Site to Include Links to State Government Sites
- Memorial Day Tax Info for U.S. Armed Forces and Their Families & Employers Back Home
- Maule on Circuit Split Over Definition of Alimony
- Cockfield on What Canada's Conservative Party Must Do To Win
- Tax Analysts: CRS Releases Report on Economic Issues Surrounding the Estate & Gift Tax
- Beyer Named Regents Professor at Texas Tech
- Duff on Private Property and Tax Policy in a Libertarian World
May 30, 2005
Memorial Day Tax Info for U.S. Armed Forces and Their Families & Employers Back Home
On this Memorial Day, I want to pass along links to the Tax Information for Members of the U.S. Armed Forces material maintained on the IRS web site:
The tax laws provide some special benefits for active members of the U.S. Armed Forces, including those serving in combat zones. For federal tax purposes, the U.S. Armed Forces includes officers and enlisted personnel in all regular and reserve units controlled by the Secretaries of Defense, the Army, Navy and Air Force. The Coast Guard is also included, but not the U.S. Merchant Marine or the American Red Cross. However, these and other support personnel may qualify for certain tax deadline extensions because of their service in a combat zone.
- Questions & Answers on Combat Zone Tax Provisions
- A Combat Zone E-mail Address for members of the Armed Forces or their families worldwide to alert the IRS that they are serving in a combat zone
- Publication 3, Armed Forces' Tax Guide (html or pdf)
- Tax Tip 2005-40: Reservists, Enlistees May Get Deferral for Back Taxes
- Military Family Tax Relief Act of 2003: Tax breaks related to military service, including two provisions that may require amended returns
- IR-2003-132: IRS Helps Military Personnel Get New Law's Tax Breaks
- IR-2003-63: New Tax Scam Targets Families of Armed Forces Members
- Notice 2003-21: Tax Relief for Those Involved in Operation Iraqi Freedom
- IR-2003-43: Tax Assistance for Military Families; New Web Site for Armed Forces
- Fact Sheet 2003-11: Information for Taxpayers Serving in the Armed Forces
- News Release IR-2002-18: Tax Relief for Troops in the Afghanistan Combat Zone
- Notice 2002-17: Tax Relief for Those Involved in Operation Enduring Freedom
- White House Commission on Remembrance, National Moment of Remembrance
Maule on Circuit Split Over Definition of Alimony
Jim Maule has a typically thoughtful discussion of the split in the circuits over the definition of alimony for § 71 purposes:
- Kean v. Commissioner, Nos. 04-2931 & 04-3018 (3d Cir., 5/10/05) (payments made by husband pursuant to support order issued during divorce proceeding constitute alimony and thus were deductible by husband and income to wife)
- Lovejoy v. Commissioner, 293 F.3d 1208 (10th Cir. 2002) (payments made by husband pursuant to support order issued during divorce proceeding did not constitue alimony and thus were not deductible by husband or income to wife)
Here is part of Jim's analysis of the two cases:
The Third Circuit rejected Lovejoy ... because it "believe[d] that the decision rel[ies] too heavily on the intricacies of family law and fail[s] to take into account the overall purpose of § 71." Whoa! Isn't the overall purpose of § 71 to limit the deduction/inclusion treatment to spousal support, in contrast to child support and property or equity transfers? The Third Circuit's decision has the effect of making child support deductible to the payor spouse and includible as income by the payee spouse. That result is flat-out contrary to the "overall purpose of § 71." Worse, the Third Circuit brushed off Lovejoy ... becauset [it] relied "too heavily" on the "intricacies of family law." Whoa again! Isn't that the real, though unfortunate, characteristic of law? Intricacy abounds. Is it brushed aside because it is too difficult? My students surely would like that approach, though I doubt their future clients would! The fact that the Tax Court concluded New Jersey law WOULD require continuation of the payments demands that the Third Circuit explore more carefully New Jersey law to determine whether, in fact, the fifth and sixth requirements of the "tax alimony" definition had been satisfied.
Read Jim's entire post here.
Cockfield on What Canada's Conservative Party Must Do To Win
To stand a chance of forming a majority government, the Conservatives need to move to the centre on social issues while sticking to their guns on fiscal and economic issues. Inspired by the work of a group of University of Calgary economists, Tory proposals on economic policy make sense. Harper's government would reduce government regulation to encourage entrepreneurial efforts that drive the economy forward. The Conservative party also advocates sensible tax policy that would cut tax rates and eliminate tax subsidies, which would also promote a vibrant economy.
CRS Releases Report on Economic Issues Surrounding the Estate & Gift Tax
The Congressional Research Service has released Economic Issues Surrounding the Estate and Gift Tax: A Brief Summary (RS20609), also available on the Tax Analysts web site as Doc 2005-11653, 2005 TNT 102-48. Here is the Summary:
Supporters of the estate and gift tax argue that it provides progressivity in the federal tax system, provides a backstop to the individual income tax and appropriately targets assets that are bestowed on heirs rather than assets earned through their hard work and effort. However, progressivity can be obtained through the income tax and the estate and gift tax is an imperfect backstop to the income tax. Critics argue that the tax discourages savings, harms small businesses and farms, taxes resources already subject to income taxes, and adds to the complexity of the tax system. Critics also suggest death is an inappropriate time to impose a tax. However, the effect on savings is uncertain, most farms and small businesses do not pay the tax, and complexity could be reduced through reform of the tax. This report will be updated as legislative developments warrant.
Beyer Named Regents Professor at Texas Tech
Gerry W. Beyer (St. Mary's), author of the popular casebook Teaching Materials on Estate Planning (West, 3rd ed. 2005) (and the Editor of Wills, Trusts & Estates Blog as part of our Law Professor Blogs Network), has accepted a position as the Governor Preston E. Smith Regent's Professor of Law at Texas Tech (as of June 1), "one of the largest endowed professorships in the history of the Texas Tech University School of Law....Governor Preston Smith, now deceased, was the person who both championed and signed the legislation creating the Texas Tech University School of Law."
Duff on Private Property and Tax Policy in a Libertarian World
David G. Duff (Toronto) has posted Private Property and Tax Policy in a Libertarian World: A Critical Response on SSRN. Here is the abstract:
The idea that taxes involve the confiscation of private property is widely held in popular thinking and scholarly writing. This article challenges the libertarian foundations of this assumption by critically examining libertarian theories of private property and their implications for tax policy. Part II summarizes the leading libertarian theories of private property, reviewing John Locke's argument in the Second Treatise of Government and Robert Nozick's account in "Anarchy, State, and Utopia." Part III examines the implications of these libertarian theories for tax policy, considering libertarian prescriptions for substantive tax measures as well as institutional arrangements that affect tax policy outcomes. Part IV criticizes libertarian theories of private property, casting doubt on tax thinking that relies on these libertarian foundations. Part V considers the implications of this critique for tax policy and tax scholarship.
May 29, 2005
Top 5 Tax Paper Downloads
There is not much movement in this week's list of the Top 5 Tax Paper Downloads on SSRN; the same papers remain in the Top 5, with the #2 and #3 papers switching spots:
1. Jurisdictional Competition for Trust Funds: An Empirical Analysis of Perpetuities and Taxes, by Robert H. Sitkoff (Northwestern) & Max M. Schanzenbach (Northwestern)
2. Sheltering Lawyers: The Organized Tax Bar and the Tax Shelter Industry, by Tanina Rostain (New York Law School)
5. The Taxation of Individual Retirement Plans: Increasing Choice for Seniors, by Jason J. Fichtner (Joint Economic Committee)
Tax Consequences of Sale of Baby Advertising Space on Ebay
Check out this current listing on ebay: Advertising/Ad Space On Our Newborn Baby for One Month--Babies Get Noticed and Looked at Wherever They Go!
Starting Bid: $9.99
Current Bid: $999.99
Ends Monday, May-30-05 07:55 PDT
Item location: Pennsylvania
- Are the amounts received for the advertising gross income?
- If so, whose gross income -- the parents or the child's?
- Is the gross income rental income?
Sheppard on Dividend Repatriation Merger Notice
Lee A. Sheppard has published Officials Answer Questions Raised by Dividend Repatriation Merger Notice, also available on the Tax Analysts web site as Doc 2005-11474, 2005 TNT 100-4. The article reports on an International Tax Institute session at which government officials answered practitioners' questions raised by Notice 2005-38, the new § 965 merger guidance.
IRS Expands Charity Web Site to Include Links to State Government Sites
The IRS has expanded its Web Site for Charities and Nonprofit Organizations to include state government web sites with useful information for exempt organizations, including:
- State Charities Regulation
- State Tax Filings
- SBSE Business Filing Information
Here are some examples of the 50 state links:
May 28, 2005
Stephanie J. Willbanks (Vermont)
- A.B. 1972, Minnesota
- J.D. 1978, Minnesota
I was destined to be a math professor. Math was my favorite class in high school, and I even began college as a math major. Somewhere along the way, however, I took a detour. I ended up majoring in psychology at the University of Minnesota. While working at the University after graduation, I took two classes in criminal justice taught by Professor Barry Feld of the law faculty. I was hooked. One morning I woke up and discovered that I had applied to, and been accepted by, the University of Minnesota Law School. So off I went.
The most courageous, or perhaps foolhardy, thing I did in law school was taking Corporate Tax in my final quarter. I had no accounting, economics, or even business background, and the professor had failed graduating seniors the year before. Every time I asked a question in class, the professor would preface his response with, "You don't have any accounting background, do you?" Each time I would answer, "No, I don't," and he would then proceed to enlighten my ignorance. Needless to say, I passed the course.
Even then, I had no thought of a career in tax. After law school, I clerked for Rosalie E. Wahl, Associate Justice of the Minnesota Supreme Court. I then joined a law firm whose practice focused on divorce, estate planning, and general business matters. I spent most of my first six months working on a trust case where our clients claimed that their mother conspired with their step-father to murder their grandmother. The case ended up in the Minnesota Supreme Court on issues of jurisdiction, collateral estoppel, and double jeopardy, and it provided the impetus for my first law review article, Does It Pay to Kill Your Mother? During the remainder of my two years with the firm, I focused on divorce and estate planning.
When I joined the faculty of the Vermont Law School in 1981, then Dean Thomas M. Debevoise asked me to teach Tax and Torts. Although I did not quite see the connection between Tax and Torts, other than the fact that they both began with the letter "T," I agreed. Over the years, I have taught the entire tax curriculum at Vermont Law School -- Income Tax, Business Tax, Corporate Tax, Estate Tax, Estate Planning, and Tax Policy -- as well as Appellate Advocacy, Torts, and Estates. I am currently teaching Estates, Estate & Gift Tax, and Income Tax. And after 24 years of teaching, I still believe that teaching Tax is much easier than teaching Torts.
My passion is teaching; I thrive on the interactions with students, both in the classroom and in my office. Helping them unravel the mysteries of the Internal Revenue Code is tremendously satisfying. One of my students who seemed particularly challenged by the material sent me the following message this spring: "I did my taxes all by myself for the first time yesterday. It took about 20 minutes total and I'm getting a nice refund. I am no longer afraid of taxes, thank you."
My research interests focus on the transmission of property between generations and the taxation of those transfers. I recently published a casebook Federal Taxation of Wealth Transfers: Cases and Problems (Aspen, 2004), and the third edition of a student guide, Federal Estate and Gift Taxation: An Analysis and Critique (West, 2004).
The same sense of adventure that led me to take Corporate Tax in my third year of law school has prompted me to seek another term as Vice Dean for Academic Affairs. I served in that capacity from 1989 to 1994 and again from 1997 to 2002. It has always seemed to me that an inordinate number of tax professors end up serving their law schools in this capacity. Perhaps it is our ability to never lose sight of the big picture while at the same time tending to the smallest detail.
I live on a hobby farm, with a small flock of sheep, a border collie, my husband, Stephen, and two children, all of whom play feature roles in the hypotheticals in my classes. When time permits, I read mystery stories, work crossword puzzles, and dance with the Four Corners Morris team.
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.
Stamper on Who Gains from Estate Tax Repeal?
Dustin Stamper (Tax Analysts) has published Estate Tax Repeal: Who Stands to Gain?, 107 Tax Notes 948 (May 23, 2005), also available on the Tax Analysts web site as Doc 2005-11126, 2005 TNT 100-8. Here is the opening:
What do Paris Hilton and the National Potato Council have in common? They'll both be cheering if the estate tax is rolled back later this year. And they'll be joined by a large and eclectic coalition that includes lobbying heavyweights like the U.S. Chamber of Commerce and lesser-knowns like the Western Peanut Growers Association. It no longer appears to be a question of whether the estate tax is rolled back, but only how far the rollback goes.
Johnson Presents The Role of Taxes in Restructuring Financially Distressed Firms Today at Stanford/Yale Junior Faculty Forum
Lorie Johnson (Georgia) presents The Role of Taxes in Restructuring Financially Distressed Firms today at the 6th Annual Stanford/Yale Junior Faculty Forum at Stanford Law School. The commentators for Lorie's paper are:
- Barry E. Adler (NYU)
- G. Marcus Cole (Stanford)
NYSBA Tax Section Submits Reports to IRS
The New York State Bar Association Tax Section has submitted several reports to the IRS:
- Disguised Sales of Partnership Interests (No. 1085) (4/22)
- Reg. §1.367(a)-3(c) (No. 1086) (4/26)
- Section 965 and Notices 2005-10 and 2005-38 (No. 1087) (5/25)
May 27, 2005
IRS To Close 68 Taxpayer Assistance Centers
In typical government fashion, the IRS announced this afternoon (the Friday before the Memorial Day weekend) that it is closing 68 of 400 Taxpayer Assistance Centers (TACs) that provide walk-in service for taxpayers. The decision of which cneters to close was based on a consideration of five criteria (explained in detail here): workload, geography, demographics, employee costs, and facility costs.
Out of 2,300 employees who operate the TACs nationwide, fewer than 450 employees are located in the affected centers. These employees may be offered early retirements and buyouts. Most employees should be entitled to priority placement for other jobs within the IRS and other Treasury bureaus.
For further information, see:
- List of the 68 TACs To Be Closed
- IRS Press Release
- TAC Closure Methodology
- Statement of IRS Commissioner Mark W. Everson
Congressional Tax Committees Examine Tax-Exempt Hospitals
The House Ways & Means Committee on Thursday held a hearing on The Tax-Exempt Hospital Sector. Here is the witness list:
- Mark Everson (Commissioner, Internal Revenue Service)
- David M. Walker (Comptroller General, U.S. Government Accountability Office)
- Mark McClellan (Administrator, Centers for Medicare and Medicaid Services)
- John Colombo (Professor, University of Illinois College of Law)
- Stan Jenkins (Chairman, Champaign County Board of Review)
- John T. Thomas (Senior Vice President and General Counsel, Baylor Health Care System)
- Sister Carol Keehan (Board Chair, Sacred Heart Health System & Chairperson, Board of Trustees, U.S. Catholic Health Association)
- Jill R. Horwitz (Professor, University of Michigan Law School, and Faculty Research Fellow, National Bureau of Economic Research)
- Nancy M. Kane (Professor, Department of Health Policy and Management, Harvard School of Public Health)
Sen. Charles Grassley (R-Iowa), Chairman of the Senate Finance Committee, on Wednesday sent a letter to ten hospitals asking 46 questions on issues including charitable activities, patient billing, and ventures with for-profit companies and hospitals.
IRS Releases Tax Shelter Examination Guide
The IRS yesterday released on its web site Examination Guide -- Abusive Tax Shelters and Transactions:
This guide was developed to support IRS field personnel in the identification and the consistent development of abusive tax shelter and transaction issues. The guuide covers transactions engaged in by all types of taxpayers, including "listed transactions" (known abusive), identified transactions that have not been listed, and emerging transactions.
Of particular interest is Part II: Judicial Doctrines Used to Combat Abusive Tax Shelters
- A. Introduction
- B. Judicial Doctrines
- C. Case Analysis
- Gregory v. Helvering
- C.M. Holdings, Inc
- American Electric Power, Inc
- Rice’s Toyota World
For the full table of contents, see here.
IRS Comings and Goings
The Sperm Tax: Taxation Before Conception
The BBC reports that the world's largest sperm bank is threatening to close its doors if the Danish government follows through on plans to tax the 500 kroners ($85) donors get paid for their deposits. In a letter to Taxation Minister Kristian Jensen, the sperm bank defend the donors' right not to pay tax:
It is a special kind of work and the fees paid cannot be compared to normal working income.
The Tax Foundation supports the Danish government's sperm tax reform efforts:
Until recently fees earned by sperm donors have been tax exempt. So the so-called "sperm tax" is in fact the removal of a distortionary tax preference from the Danish tax code. For better or worse, that's usually good tax policy since it simplifies tax rules and treats income from different sources more equally.
Although Reuters reports that "the source of the world's biggest sperm bank may soon run dry if Danish authorities decide to tax donors," the Tax Foundation notes that the cause is not the tax itself but rather the loss of anonymity to the donors caused by the tax (Form 1099-SPERM?). (Thanks to reader Ben Cunningham for the tip.)
Yale Presents The Cary Brown Theorem and the Income Taxation of Risk Today at Stanford/Yale Junior Faculty Forum
Ethan Yale (Georgetown) presents The Cary Brown Theorem and the Income Taxation of Risk: A Reappraisal today at the 6th Annual Stanford/Yale Junior Faculty Forum at Stanford Law School. The commentators for Ethan's paper are:
- Joseph Bankman (Stanford)
- Daniel N. Shaviro (NYU)
Raby & Raby on Life Insurance Without an "Insurable Interest"
Burgess J.W. Raby & William L. Raby have published Life Insurance Without an "Insurable Interest", also available on the Tax Analysts web site as Doc 2005-11521, 2005 TNT 101-91. Here is part of the Conclusion:
Regulation of the life insurance business is primarily a matter of state law, and the determination of whether A has an insurable interest in B is also a matter of state law. Federal courts do get involved however, either because of diversity of citizenship, as in Tillman, or because of federal tax issues, as in Winn- Dixie and several other COLI cases. The tax law gets modified from time to time in the process, to prevent what Congress views as abuses of provisions that are being used in ways it concludes (with hindsight) were never intended. Life insurance, however, is apt to be a staging ground for tax avoidance schemes so long as the tax law continues to exclude most life insurance proceeds paid by reason of death from income while allowing borrowing against life policies without tax consequences, even when the loans exceed the tax basis of the policies. The imperfections of actuarial tables and other actuarial assumptions will mean that from time to time promoters will view some types of policies as underpriced. Those then become fertile ground for pools of capital that will take advantage of that underpricing, as has existed recently with no-lapse guarantee universal life products. For example, policy pricing has assumptions about policies that are allowed to lapse. Those assume individual decisions by individual insureds. Those assumptions lower the premium cost but are invalid to when pools of capital are being invested in large numbers of policies that are being managed as a unit.
European Tax Professors Meet in Naples
The Eurpean Association of Tax Law Professors meets today in Naples. Today's panels are:
- The Concept of Tax in Europe
- The Concept of Tax in EC Law
- The Concept of Tax in Treaty Law
Here are the U.S. Tax Prof members of the EATLP:
- William B. Barker (Penn State)
- Lawrence Lokken (Florida)
- John K. McNulty (Boalt Hall)
- Walter D. Schwidetzky (Baltimore)
- William P. Streng (Houston)
- Victor T. Thuronyi (International Monetary Fund)
- Alvin Warren (Harvard)
We are pleased to be able to offer some on-site reports through the generosity of the U.S. attendees.
May 26, 2005
Avi-Yonah Establishes Michigan-China Faculty Exchange
Reuven Avi-Yonah (Michigan) has helped establish a Michigan Law School–China faculty exchange program. Reuven and seven Michigan colleagues recently traveled to China to visit Tsinghua Law School to help celebrate the school’s 10 anniversary. Michigan hopes to continue to send two or more faculty to China each year and, in turn, host yearly visits by at least two Chinese legal scholars. For more information, see the Michigan press release here.
Witness Statements at Senate Finance Committee Hearing on Social Security: Achieving Sustainable Solvency
- Douglas Holtz-Eakin (Director, Congressional Budget Office), Options for Social Security: Budgetary and Distributional Impacts
- Eugene C. Steuerle (Senior Fellow, Urban Institute), Social Security
- Stanford G. Ross (former Commissioner of the Social Security Administration), Statement
- George K. Yin (Chief of Staff, Joint Committee on Taxation), Testimony
- Russell George (Office of the Treasury Inspector General for Tax Administration, Treasury Department):
For member statements, see:
IRS Seeks Grant Applications for Low Income Taxpayer Clinics
The IRS announced today that it is accepting grant applications for Low Income Taxpayer Clinics for the 2006 grant cycle (1/1/06 - 12/31/06):
The Low Income Taxpayer Clinic grant program is entering its eighth year and continues to expand. Under the program, IRS awards matching grants up to $100,000 a year to develop, expand or continue low income taxpayer clinics. To date in 2005, the LITC Program Office has awarded LITC grants to 145 organizations in 48 states, the District of Columbia and Puerto Rico.
The application period for the 2006 LITC grant program began May 23 and applications for grants must be electronically filed or received by 4 p.m. on July 25, 2005.
For more information, see:
In the 2005 grant cycle, 28 law schools received funding for Low Income Tax Clinics:
2005 IRS Funding of Law School Tax Clinics
Lewis & Clark
Univ. of Washington
For more details about the 2005 grant cycle, see here.
Polito Reviews New Edition of Wolfman & Ring's Corporate Tax Casebook
Anthony P. Polito (Suffolk) shares with the TaxProf Blog community this review of the new edition of Federal Income Taxation of Corporate Enterprise (Foundation Press, 4th ed. 2005) by Bernard Wolfman (Harvard) & Diane M. Ring (Boston College):
Given the many casebooks available in any area of the law school curriculum, a new edition of even a tried and true corporate tax casebook faces the inevitable question of what benefit it provides. This new edition of Professor Bernard Wolfman’s well-known casebook, now including Professor Diane Ring as co-author, presents two noteworthy contributions. The first is the not-unexpected update for developments since the last edition. Many of these developments are in the nature of further layers of responsive action to taxpayer attempts to plan their way around the double tax burden of a non-integrated corporate tax regime.
An area that might have received greater coverage is the potential long-term effect of Congress’s 2003 decision to tax most dividends at capital gains rates. Large portions of subchapter C serve to prevent the self-help partial tax integration of converting dividends into sales that are taxed at capital gains rates. The 2003 tax act significantly reduces the significance of the dividend vs. sale distinction, although not entirely. Nevertheless, one might naturally ask how much of the existing baroque structure of subchapter C remains desirable if the new equilibrium is to be partial tax integration via the shareholder tax rate.
There are numerous points in the coverage of subchapter C at which this point could be usefully addressed. If capital gains rates for dividends are allowed to lapse in the next few years as currently scheduled, this issue will become less pressing. If the 2003 tax act is made permanent, there is ample time to consider it in the next edition.
The second important contribution is the very structure of the book. Wolfman & Ring structure their book in a manner that differs notably from the way many teach the course. They devote a substantial chapter to issues related to the determination of the corporate level taxable income. Many casebooks treat these points as ancillary to other topics, and systemizing them into a single chapter is a valuable pedagogical suggestion, at very least. They turn next to the taxation at the shareholder level of earnings departing corporate solution, by dividend, stock redemption, or liquidation. This differs significantly from the more common approach of following the “life story” of the corporation in which incorporations precede dividends. Wolfman & Ring have instead chosen to group § 351 with reorganizations; making a block of ownership continuity, non-recognition transactions.
These are interesting choices that, at a minimum, invite instructors to reconsider the logic of their syllabi. At the end of this exercise, even if one chooses the more traditional order, this casebook works quite well, as the material is organized into chapters designed to facilitate the re-ordering of the material to suit the instructor’s needs. The Wolfman & Ring book is clearly designed for a four credit course, but the structure of its chapters is here again designed for flexibility, allowing simple omissions to fit a three credit course. There may be many books out there, but this new edition of Wolfman & Ring is a welcome one to those who want to reexamine their pedagogy at regular intervals.
For more information:
Muntean on The Relation-Back Election for Section 468B Trusts
Mark A. Muntean (Robert W. Wood, P.C., San Francisco) has published Retroactive Cures: The Relation-Back Election for Section 468B Trusts, also available on the Tax Analysts web site as Doc 2005-11318, 2005 TNT 99-48. The article discusses the benefits to be obtained by using the relation-back rule in Reg. § 1.468B-1(j)(2)(i) to treat a structured settlement fund as a qualified settlement fund before the § 468B trust is formed.
Hjorth Receives Washington Bar Tax Award
Roland L. Hjorth, Garvey Schubert Professor of Law and dean emeritus at the University of Washington, received the 2005 Roger Stouder Award at the Washington State Bar Association Tax Section Luncheon on May 17.
Hjorth is the fourth recipient of the award, which is named in honor of a well-known Seattle tax lawyer who died of cancer. The award recognizes and honors outstanding service to the WSBA Tax Section, and is not presented every year. Previous recipients include Professor Meade Emory, the former director of the law school’s tax program.
Hjorth has been on the UW School of Law faculty since 1964 and served as its dean from 1995 to 2001. (See the press release here.)
May 25, 2005
Hellerstein & Zelinsky Testify on State Taxation After Cuno v. Daimler Chrysler
The House Judiciary Committee yesterday held a joint hearing on Economic Development and the Dormant Commerce Clause: The Lessons of Cuno v. Daimler Chrysler and Its Effect on State Taxation Affecting Interstate Commerce. Here is a list of the witnesses (with links to their testimony):
McDaniel, Ault & Repetti Publish New Edition of International Tax Student Guide
Paul R. McDaniel (Florida), Hugh J. Ault (Boston College) & James R. Repetti (Boston College) have published a new edition of Introduction to United States International Taxation (Aspen, 5th ed. 2005). Here is part of Aspen's press release:
Drawing on their collective experience as highly respected scholars and teachers, this author team has produced a major new revision of a popular text that examines the basic principles and rules of the United States international tax system in a brief and manageable form. Including all of the major administrative and legislative developments in United States international taxation through 2004, the Fifth Edition can contribute an international tax perspective to any general tax course.
Chodorow on Judge Posner's Tax Decisions
Adam Chodorow (Arizona State) has posted Economic Analysis in Judicial Decision Making - An Assessment Based on Judge Posner's Tax Decisions (forthcoming, Virginia Tax Review) on SSRN. Here is the abstract:
In recent years, many of the most vocal proponents of law and economics have been appointed to the bench, including Richard Posner, Guido Calabresi, and Frank Easterbrook. They have been strong advocates of the judicial use of economic analysis as a tool to help decide cases. This paper explores the ways in which Judge Posner has used economic analysis in his tax decisions, with the goal of identifying the ways in which he has used such analysis and then assessing its effectiveness.
I focus on Judge Posner's tax jurisprudence for three reasons. First, he is a leading proponent of the law and economics approach. Second, he has authored over 60 opinions in tax cases. Finally, few question the appropriateness of applying economic reasoning to tax questions. Accordingly, these cases provide a rich and substantial body of material with which to work. In highlighting and evaluating the ways in which Judge Posner has used economic analysis to decide tax cases, I hope to provide insights and guidance on the strengths and limitations of this approach to others who may be urged or tempted to follow suit.
IRS Issues Tax Publication for Domestic Abuse Victims
The IRS has released Publication 3865, Tax Information for Survivors of Domestic Abuse:
Domestic abuse is not just physical abuse. It often includes economic control. As a survivor of domestic abuse, you can take control of your finances. An important part of managing your finances is understanding your tax rights and responsibilities.
Williams on Special Trial Judges After Ballard
Norman R. Williams (Willamette) has published Special Trial Judges After Ballard: A Call for Reform, 107 Tax Notes 1033 (May 23, 2005), also available on the Tax Analysts web site as Doc 2005-9983, 2005 TNT 99-49:
In early March, the U.S. Supreme Court issued its decision in Ballard v. Commissioner, wreaking havoc on the Tax Court and its use of special trial judges (STJs). In certain, high-value tax cases, STJs serve a function akin to that performed by magistrate judges in the U.S. district courts -- STJs conduct the trial and prepare a report, which is reviewed by a Tax Court judge who has ultimate decisional authority to render judgment. In Ballard, the Supreme Court invalidated the Tax Court's clandestine adjudicatory process in which the STJ's report was concealed from both parties and appellate courts alike and held that Tax Court Rule 183 requires the Tax Court to include the STJ's report in the record. The Court, however, stopped short of expressly requiring the Tax Court to distribute the STJ's report to the parties and to allow them to file objections to the STJ's report. In so doing, the Supreme Court created a novel and confusing hybrid adjudicatory process that is sure to dissatisfy both the Tax Court and counsel alike. Indeed, while the Supreme Court was surely right to reject the Tax Court's secretive process, it left the job only half-done, necessitating further changes to Rule 183 to make the Tax Court adjudicatory process fully transparent, fair, and efficient.
Brooks Posts Book Review of Tax Stories on SSRN
This piece is a book review of Tax Stories, a book edited by Paul L. Caron. It reviews the contributions of Tax Stories, and provides a summary of each of the book's ten chapters, comparing the American tax cases discussed to the Canadian treatment of the same issues.
Virginia Tax Study Group Meeting
The Virginia Tax Study Group met last month to discuss:
Recent Tax Legislation, Outlook for Tax Legislation in 2005, and IRS Developments:
- Mort Caplin
- Rod DeArment
- Christy Mistr
- Cary Pugh
- Cecily Rock
Michael Graetz: Estate Tax
- Pam Olson
- Karen Burke
- Grayson McCouch
George Yin: Matters of Current Interest with Joint Tax Committee
Implementation of § 199 Deduction for Domestic Production Activities
- Helen Hubbard
- Heather Malloy
- James Atkinson.
Current Issues Involving Retirement Income Policy
- Stuart Lewis
- William Sweetnam, Jr.
- Amy Moore
May 24, 2005
Student Evaluations Hinge on "Course Easiness and Professor Sexiness"
A study provides food for thought as we Tax Profs partake in our semi-annual ritual of reading student evaluations:
[The study] examines the relationships between students' assessments of course quality, course easiness, and professor sexiness. Guess what? Sexy professors get higher course quality rankings than less-sexy professors. Together, sexiness and easiness explain about half of the variance in course quality. [from Pub Sociology]
Yikes -- tax obviously ranks low on the "course easiness" meter. As for how individual Tax Profs rank in "professor sexiness," long-time TaxProf Blog readers may recall last summer's Law Prof Hunk Contest (see here and here.) Other relevant evidence may be found here, here, here, and here.
(The paper in question, Web-Based Student Evaluations of Professors: The Relations Between Perceived Quality, Easiness, and Sexiness, is posted on SSRN.) Thanks to PrawfsBlawg for the tip. For more, see The Volokh Conspiracy and Congomerate.
Brauner Presents Integration in an Integrating World at Tel Aviv University
During the second half of the last century many countries gradually replaced their so-called classical corporate tax regimes, under which corporate earnings were taxed twice - once in the hands of the corporation, and again when distributed to corporate shareholders as dividends - with an integrated regime (imputation), which taxed such earnings only once. The driving force behind this trend was the expectation of significant efficiency gains. This clear and gradual trend has been abruptly reversed with the turn of the century. The phenomenon we call globalization, and in particular the proliferation of cross-border business and investment, has materially contributed to this dramatic sea change in the corporate tax world. The conventional wisdom was that imputation is unsustainable in a world whose markets integrate. This article argues that the abandonment of imputation is partly a consequence of our essentially non-cooperative world in terms of tax policy coordination. It concludes that imputation does not have to be the victim of globalization - it can be retained to the benefit of many countries, but only through enhanced international cooperation and coordination of tax policies.
IRS Publishes FAQs on Innocent Spouse Litigation
The IRS has published Frequently Asked Questions Regarding Litigation of Section 6015 Cases in Tax Court (Chief Counsel Notice CC-2005-011) (May 20, 2005) (17 pages):
This Notice answers many of the most frequently asked questions received from attorneys regarding relief from joint and several liability under § 6015. The questions relate to five topics:
- the nonpetitioning spouse (9 questions)
- the suspension of the collection statute when a taxpayer files a § 6015 claim (10 questions)
- the effect of agreements between the Service and the requesting spouse (3 questions)
- the actual knowledge defense to a petitioner’s claim under § 6015(c) (7 questions)
- procedures under Chief Counsel Notice CC-2004-026 (4 questions)
The IRS also published on the same day Guidance for Handling Section 6015 Cases When a Claim for Relief is Filed More than Two Years After the Service Applied a Refund to a Joint (Chief Counsel Notice CC-2005-010) (May 20, 2005) (5 pages).
Text of Agreement on Judges and Filibusters by 14 Moderate Senators
MEMORANDUM OF UNDERSTANDING ON JUDICIAL NOMINATIONS
We respect the diligent, conscientious efforts, to date, rendered to the Senate by Majority Leader Frist and Democratic Leader Ried. This memorandum confirms an understanding among the signatories, based upon mutual trust and confidence, related to pending and future judicial nominations in the 109th Congress.
This memorandum is in two parts. Part I relates to the currently pending judicial nominees; Part II relates to subsequent individual nominations to be made by the President and to be acted upon by the Senate's Judiciary Committee.
We have agreed to the following:
Part I: Commitment on Pending Nominations
A. Votes for Certain Nominees: We will vote to invoke cloture on the following judicial nominees: Janice Rogers Brown (D.C. Circuit), William Pryor (11th Circuit), and Prisiclla Owen (5th Circuit).
B. Status of Other Nominees: Signatories make no commitment vote for or against cloture on the following judicial nominees: William Meyers (9th Circuit) and Henry Saad (6th Circuit).
Part II: Commitments for Future Nominations
A. Future Nominations: Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith. Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.
B. Rules Changes: In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII. We Believe that, under Article II, Section 2, of the United States Constitution, the word "Advice" speaks to consultation between the Senate and the President with regard to the use of the President's power to make nominations. We encourage the Executive Branch of government to consult with member of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.
Such a return to the early practice of our government may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate.
We firmly believe this agreement is consistent with the traditions of the United States Senate seek to uphold.
Camp on Replacing CDP
This column concludes my series on collection due process with some thoughts on how CDP should be reformed -- out of existence. More importantly, I address what should replace it. Part I of this column summarizes my previous arguments about why CDP fails both taxpayers and the government ... Part II suggests what should replace CDP, for I agree with much of what the thoughtful CDP proponents ... say is wrong about IRS collection; I just disagree on how to fix it. Part III explores the flaws in various recent proposals for reforming CDP... The fundamental problem with CDP is simply that the adversarial process paradigm used by courts conflicts with the inquisitorial process paradigm used to collect taxes. Court review is just the wrong process to oversee the IRS's collection of delinquent tax liabilities....CDP review is not just unneeded, but actually hurts the peaceful coexistence of taxpayer rights and increased tax compliance.
Foundation Press to Publish Immigration Stories
Foundation Press has announced the forthcoming publication of Immigration Stories, edited by David A. Martin (Virginia) & Peter H. Schuck (Yale). The book is part of the Law Stories Series patterned after Tax Stories. Here are the cases and authors featured in Immigration Stories:
- Fong Yue Ting v. U.S., by Gabriel J. Chin (Arizona)
- Wong Wing v. U.S., by Gerald L. Neuman (Columbia)
- U.S. v. Wong Kim Ark, by Lucy Salyer (University of New Hampshire)
- Harisiades v. Shaughnessy, by Burt Neuborne (NYU)
- The Carols Marcello Cases, by Daniel Kanstroom (Boston College)
- Afroyim v. Rusk, by Peter Spiro (Hofstra)
- Kleindienst v. Mandel, by Peter Schuck (Yale)
- Plyler v. Doe, by Michael Olivas (Houston)
- Landon v. Plasencia, by Kevin Johnson (UC-Davis)
- Abankwah v. INS and Matter of Kasinga, by David A. Martin (Virginia)
- INS v. St. Cyr, by Nancy Morawetz (NYU)
- Hoffman Plastic Compounds, Inc. v. NLRB, by Catherine L. Fisk (Duke) & Michael M. Wishnie (NYU)
- Demore v. Kim, by Margaret H. Taylor (Wake Forest)
ABA Tax Section Submits Comments to IRS
The ABA Tax Section has submitted four sets of comments to the IRS:
- Application of § 409A to Transactions Involving Partnerships (26 pages) (5/20)
- Transition Rule and Effective Date Under § 409A (20 pages) (5/20)
- Deferral Elections Under § 409A (25 pages) (5/20)
- Proposed Regulations Regarding the Effect of Pre-Closing Changes in Acquiring Corporation Stock Value on Continuity of Interest (13 pages) (5/13)
May 23, 2005
WSJ on Battle Over Access to Scholarship Between Print Journals and Open-Source Web Sites
Fascinating front page story in today's Wall Street Journal: Peer Pressure: Scholarly Journals' Premier Status Is Diluted by Web; More Research Is Free Online Amid Spurt of Start-Ups; Publishers' Profits at Risk:
[A] raging Internet-era debate about who should control information and what it should cost. For decades, traditional scholarly journals have held an exalted and lucrative position as arbiters of academic excellence, controlling what's published and made available to the wider community. These days, research is increasingly available on free university Web sites and through start-up outfits. Scholarly journals are finding their privileged position under attack.