TaxProf Blog

IRS Clears NAACP in Probe of Political Activities

The IRS has informed the NAACP that it has concluded its examination of NAACP activities and determined the association did not violate conditions of its tax exempt status.  From the NAACP Press Release:

“We have determined that you continue to qualify as an organization described in IRC section 501(c)(3),” the IRS wrote in a letter to the NAACP dated Aug. 9. IRS official Marsha A. Ramirez said that a review of video footage of the Bond speech and other information indicated “that political intervention did not occur.”

Press reports:

• Associated Press

Prior TaxProf Blog posts:

• NAACP Releases Documents Detailing Republican Requests for Audit of Civil Rights Group (5/20/06)
• Hill on Auditing the NAACP: Misadventures in Tax Administration (8/2/05)
• WSJ: An IRS Cover Up? (4/25/05)
• Did the IRS Shoot Itself in the Foot by Going After the NAACP? (3/22/05)
• NY Times: IRS Used To Punish Political Foes of Bush Administration (3/21/05)
• Intersection of Tax, Politics, and Religion (10/29/04)
• Intersection of Tax, Religion & Politics (10/26/04)

WSJ: IRS Is Winning the Tax Shelter War

Interesting front-page article in today's Wall Street Journal:  U.S. Scores a Win Against Tax-Shelter Abuse, by David Wessel:

The [Castle Harbour] ruling is the latest in a series of appellate-court wins in corporate tax-shelter cases for the IRS and Justice Department as they continue to battle corporate excesses of the 1990s. The government recently has prevailed over Dow Chemical, Coltec Industries and Black & Decker in decisions that are, or should be, scrutinized by executives pondering the wisdom of overly creative tax shelters.

With the perspective that comes from moving between representing the IRS and representing companies over a 30-year career as a tax lawyer, IRS Chief Counsel Donald Korb says the wind is shifting in the government's direction now, as it often does after a period in which taxpayers go too far.... "The widespread use of computers and the exotica of modern corporate finance, coupled with the desire of the Big Six public accounting firms, investment bankers and some law firms to generate revenues not based on traditional billable hours, but instead based on...fees, led to a new phenomenon, commonly called corporate tax shelters," Mr. Korb observed in a recent lecture. Tax cops were outmanned and outmaneuvered. Congress was beating up on the IRS in the 1990s as too tough on taxpayers. And, as we know now, an anything-goes attitude prevailed in many corporate boardrooms with too many lawyers and accountants becoming accomplices instead of obstacles....

William Nelson of McKee & Nelson, ... who did a stint in the 1980s as chief IRS counsel, says "The tax law is undergoing a recalibration. The courts are all over the lot. There is a lot of confusion...and lack of consistency."

But when the courts, for whatever reasons, come down on the side of the IRS repeatedly, a lot of corporate executives, tax lawyers and accountants grow wary -- at least for a while -- about tax shelters that stretch the laws beyond recognition. Some stories have happy endings.

Joulfaian on The Behavioral Response of Wealth Accumulation to Estate Taxation

David Joulfaian (Office of Tax Analysis, Treasury Department) has published The Behavioral Response of Wealth Accumulation to Estate Taxation: Time Series Evidence, 59 Nat'l Tax J. 253 (2006).  Here is the abstract:

This paper explores the behavioral response of taxable bequests to estate taxation. To gauge its effects, the estate tax is converted to an equivalent income tax. This highlights the importance of expected rates of return, and also makes it possible to compare effective tax rates on saving over time. Using data on federal revenues from the estate tax over the past 50 years, and employing the equivalent income tax rate measure, the findings suggest that estate taxes have a dampening effect on the reported size of taxable estates. Estate taxation seems to depress taxable bequests by almost ten percent.

WSJ: Can Bloggers Go on Vacation?

Interesting article for us bloggers in today's Wall Street Journal:  No Day at the Beach: Bloggers Struggle With What to Do About Vacation, by Elizabeth Holmes:

In the height of summer-holiday season, bloggers face the inevitable question: to blog on break or put the blog on a break? Fearing a decline in readership, some writers opt not to take vacations. Others keep posting while on location, to the chagrin of their families. Those brave enough to detach themselves from their keyboards for a few days must choose between leaving the site dormant or having someone blog-sit....

Yet for the sliver of people whose livelihood depends on the blog -- whether they are conservative, liberal or don't care -- stepping away from the keyboard can be difficult. Unlike other jobs, where co-workers can fill in for an absent employee, blogs are usually a one-person show. A blogger's personality carries the site. When the host isn't there, readers tend to stray. August is a slow time for all blogs, but having an absent host makes the problem worse. Lose enough readers, and advertisers are sure to join the exodus.

For those wondering, TaxProf Blog will be open for business throughout the Labor Day weekend!

IRS Publishes List of Attorneys and Accountants Suspended from Tax Practice

The IRS has published Announcement 2006-57, 2006-35 I.R.B. 343 (Aug. 28, 2006): Announcement of Disciplinary Actions Involving Attorneys, Certified Public Accountants, Enrolled Agents, and Enrolled Actuaries — Suspensions, Censures, Disbarments, and Resignations:

• Consent Suspensions From Practice Before the IRS
• Expedited Suspensions From Practice Before the IRS
• Suspensions From Practice Before the IRS After Notice and an Opportunity for a Proceeding
• Disbarments From Practice Before the IRS After Notice and an Opportunity for a Proceeding
• Censure Issued by Consent

LUI -- Litigating Under the Influence

Gripping video on YouTube:  A Nevada trial judge notices that a criminal defense lawyer representing a defendant facing life imprisonment on a kidnapping charge is slurring his words and orders him to take a breathalyzer test.  The lawyer blows a .075 and the judge declares a mistrial:

Part I of the video is here.  (Hat Tip: Dave Hoffman.)  Dan Filler outlines the criminal charges facing the lawyer here.

Update:  David Lat has more on the case here on his new Above the Law blog.  For press coverage, see the Las Vegas Review-Journal:  Kidnapping Case: Alcohol Test on Lawyer Stirs Mistrial; Breathalyzer Used in Court

Willis Criticizes IRS Outsourcing of Tax Collection

Lauren E. Willis (Loyola-L.A.) has published an op-ed in the L.A. Times:  The IRS' Biggest Tax Cheat: Itself; Why Is the Agency Outsourcing Overdue Debt Collection, When It Can Do the Job Cheaper?:

Unless Congress steps in to stop it, the IRS is set to begin implementing a wildly inefficient plan to outsource the collection of past-due taxes from those who owe $25,000 or less. IRS employees could collect these taxes for about three cents on the dollar, comparable to other federal programs' collection costs. But Congress has not allowed the IRS, which is eliminating some of its most efficient enforcement staff, to hire the personnel it would need to do the job. Instead, the agency has signed contracts with private debt collectors allowing them to keep about 23% of every taxpayer dollar they retrieve. Employing these firms is almost eight times more expensive than relying on the IRS, but, according to IRS Commissioner Mark Everson, it fits in with the Bush administration's efforts to reduce the size of government.

(Hat Tip:  Katie Pratt.)

Germain on Discharging Income Tax Liabilities in Bankruptcy

Gregory L. Germain (Syracuse) has posted Discharging Income Tax Liabilities in Bankruptcy: A Challenge to the New Theory of Strict Construction for Scriveners' Errors on SSRN.  Here is the abstract:

The Supreme Court has been closely split on whether judges may consider legislative history in determining if a statute contains scriveners' errors. With the recent appointment of Justices Alito and Roberts, the Supreme Court's balance has likely shifted toward the strict constructionists' view. If strict constructionism becomes the law of the land, courts will be powerless to correct drafting errors that do not, on the face of the statute alone, give rise to absurd results.

In 2005, Congress passed and the president signed the most significant changes to the Bankruptcy Code in more than twenty five years, including some technical changes to the provisions protecting governmental income tax claims.

Before the 2005 amendments, it was clear that all income tax claims incurred in the three or four calendar years before bankruptcy were entitled to special priority in distribution from the bankruptcy estate, and could not be discharged. In addition, older income tax claims were also entitled to priority and excepted from discharge if either (1) they happened to be assessed within 240 days before bankruptcy, or (2) they were not assessed before bankruptcy but could be assessed under applicable non-bankruptcy law after bankruptcy.

The 2005 Act changed the structure of these rules. In general, if the debtors tax returns were timely filed, the change would turn the government's priority and non-dischargeable tax claims for the two, three and sometimes four calendar years before bankruptcy into non-priority claims that could be discharged. The change would significantly impair the government's ability to collect recent income taxes, and would encourage bankruptcy filings by debtors who have significant income tax liabilities.

The legislative history of the 2005 Act shows that the structural changes were simply a drafting error. Congress did not intend to change the structure of the statute. However, the statute on its face does not create an absurd result. The line between priority/non-dischargeable and non-priority/dischargeable taxes has always been discretionary. Congress could rationally have intended to move the line in either direction. Therefore, under the scriveners' error standard proposed by the strict constructionists, which forbids judges from consulting legislative history to determine if a drafting error was made, the statute should be enforced as drafted. This is the wrong result if the judiciary's primary goal is to carry out the intent of Congress. Even if the world view underlying the strict constructionists' theory is correct - that the statutory language should stand on its own because judges will improperly pick and choose from ambiguous legislative history to carry out their own views rather than the legislature's will - there is no need to prohibit the consideration of unambiguous legislative history. The article shows the need for strict constructionists to temper their rule when the legislative history is not ambiguous if the primacy of legislative intent is to be respected.

SOI Releases Nonresident Alien Estate Tax Returns

The Statistics of Income Division has released Estate Tax Returns Filed for Nonresident Aliens:

Three tables presenting statistics for Filing Years 2003, 2004, and 2005 from Form 706-NA are now available. The tables include asset, deduction, and tax items detailed by tax status and size of gross estate.

More on Murphy

• National Review:  What Can the Government Tax? The Answer, Never Set in Stone, May be Changing, by Bruce Bartlett:

Last week, a federal appeals court in Washington handed down an important decision relating to the definition of income for tax purposes. What is important about the decision is that it is the first in decades to say the Constitution itself limits what the government may tax. If upheld by the Supreme Court, it could significantly alter tax policy and possibly open the door to radical reform....

Tax experts immediately recognized the far-reaching implications of this decision for other areas of tax law. Tax protesters have long argued that the 16th Amendment does not grant the federal government the power to tax every single receipt that it deems to be income. Yet, in practice, that is what the IRS does. The problem is that the very concept of income has never been defined in the tax law. It is pretty much whatever the IRS says it is. Tax analysts generally use a definition devised by two economists, Robert Haig and Henry Simons, which says that income consists of consumption plus the change in net worth between two points in time. But the Haig-Simons definition goes far beyond that of the tax law....

Given the logic of the Murphy decision, it is quite possible that the risk-free, inflation-adjusted rate of interest could also be excluded from taxation on constitutional grounds. Following through on this logic consistently would revolutionize taxation and eventually lead to a pure consumption tax, which most modern economists favor. I’m not predicting the Supreme Court will follow this logic. But for tax analysts, it does represent the opening of an interesting possibility.

• New York Sun Editorial:  Pleading the 16th:

No man, it has often been said, is above the law. Now, thanks to three judges on the federal appeals bench in Washington, no tax is above the law either. The judges have ruled that compensatory damages awarded in a lawsuit don't count as "income" even under the expansive language of the 16th Amendment. As a result, the government's attempts to tax such monies are unconstitutional. The success of what was once considered a quixotic case is likely to spur other litigation trying to whittle away at other nooks and crannies of the tax code. All of which is to the good....

The ruling does, however, set a precedent because the judges have shown that the tax code isn't a creature unto itself. As much as Congress might prefer otherwise, taxation is subject to some constitutional limitations. One wonders from the reaction to this ruling whether some people have been in denial on this point. One former commissioner of internal revenue, Donald C. Alexander, told Bloomberg News that "Tax protesters will love it because it's what they've been arguing for years. They will claim this destroys the income tax. A case like this does serious damage to the system even though it involves one provision."

Our guess is that tax protesters are going to have a hard time using this ruling against the income tax, as the people spoke, for better or worse, when, in the 16th amendment, they delegated to Congress the "power to lay and collect taxes on incomes, from whatever source derived." But the ruling underscores that the delegation is not unlimited; the Constitution still imposes limits on Congress's power to tax. This isn't a conservative issue, it's a constitutional issue. A judge appointed by President Clinton, after all, joined colleagues appointed by Presidents Reagan and George W.Bush on this ruling.

• Wall Street Journal:  Court Ruling in Damages Case Deals Big Setback to the IRS, by Tom Herman:

Some lawyers, including Donald Alexander, a former IRS commissioner, think the decision will be overturned. Meanwhile, the subject remains murky. "If Einstein was confused before Murphy, he'd be a whole lot more confused now," says Ms. Hevener of Baker & McKenzie.

• Wall Street Journal's Law Blog:  Tax Fun for Plaintiffs, by Ashby Jones:

The decision, while binding only on IRS cases involving taxpayers in D.C., is likely to have “immense implications” for many others around the nation who expect to receive damages for “nonphysical personal injuries” — or who have received damages in recent years, says Todd Kraft, a tax lawyer in Dallas at Meadows, Owens, Collier, Reed, Cousins & Blau.

• Begging the Question:  Murphy's Law, by Milbarge:

Like a lot of the commentators, I am curious to see what tax protesters do with this opinion, especially the restoration-of-human-capital idea.....I think they're likely to be buoyed by a couple of lines in the opinion. I expect to see these quotes taken out of context in scores of protester filings in the near future: (1) "[W]e reject the Government's breathtakingly expansive claim of congressional power under the Sixteenth Amendment....The Sixteenth Amendment simply does not authorize the Congress to tax as 'incomes' every sort of revenue a taxpayer may receive." (page 15 of the pdf) (alterations mine) (2) "Broad though the power granted in the Sixteenth Amendment is, the Supreme Court, as Murphy points out, has long recognized 'the principle that a restoration of capital [i]s not income; hence it [falls] outside the definition of "income" upon which the law impose[s] a tax.'" (page 10 of the pdf) (alterations in the opinion) I expect these quotes, and other similar lines from the panel opinion, to join the pantheon of misapplied legal statements, such as the famous line in Flora v. United States that "[o]ur system of taxation is based upon voluntary assessment and payment, not upon distraint." 362 U.S. 145, 176 (1960) (Warren, C.J.).

Charitable Contributions from IRAs

Interesting article in today's Reuters:  Tax Break for Charitable Retirees, by Linda Stern:

Here's another limited-time offer from the U.S. government: For the next two years, some older taxpayers will be able to donate money to charity directly from their individual retirement accounts (IRAs). That's because of one small provision in the recently enacted pension legislation. It enables anyone 70-1/2 or older to use as much as $100,000 a year from their tax-deferred IRA for charitable gifts, without paying income taxes on the amount they use. They won't be able to take a tax deduction for the amount they contribute, but this can still be a pretty good deal for some charitably inclined savers.

The Compliance Costs of Maintaining Tax Exempt Status

Marsha Blumenthal (University of St. Thomas, Department of Economics) & Laura Kalambokidis (University of Minnesota, Department of Applied Economics) have published The Compliance Costs of Maintaining Tax Exempt Status, 59 Nat'l Tax J. 235 (2006).  Here is the abstract:

Under U.S. federal and state tax laws, qualifying non–profit organizations receive several kinds of tax benefits. However,the benefits come with compliance costs, as eligible organizations must first apply for them and then file the annual reports necessary to maintain them. We use a national survey to measure the latter, estimating them at $3.2 billion for 2000. Additional results are: (1) evidence of scale economies; (2) choosing to file the federal Form 990 (over the shorter Form 990–EZ) raises expenditures on professional advisors; and (3) using a consolidated reporting form or electronic filing reduces state costs.

Mazza & Kaye on Restricting the Legislative Power to Tax in the United States

Stephen W. Mazza (Kansas) & Tracy A. Kaye (Seton Hall) have published Restricting the Legislative Power to Tax in the United States, 54 Am. J. Comp. L. 641 (2006).  Here is the Conclusion:

Upon close examination, many provisions of the U.S. Constitution could, theoretically, restrict the legislative power to tax. And taxpayers have, in fact, attempted to use almost every protection afforded by the Constitution to defeat tax legislation. These challenges, however, are rarely successful primarily because of the willingness of courts to defer to the legislature on tax issues. This has led to the observation that there may be two Constitutions, "one for taxes and one for all other matters."

Shlaes on Murphy

Interesting article in today's Bloomberg:  Court Redefines Murphy's Law -- And Gets It Wrong, by Amity Shlaes:

Most of us have heard of Murphy's Law, which says that if something can go wrong, it will. Now, the U.S. Court of Appeals in Washington has given the axiom a literal meaning with a wrong decision called -- what else? -- Murphy....

Defining Income.  Tax protesters on the far right will love this one. If you have ever listened to their radio tax talk, you know they are constantly trying to narrow or annihilate the 16th Amendment. On the legal side, too, there is a basis for this opinion -- maybe. The 16th Amendment, ratified in 1913, says Congress may ``lay and collect taxes on incomes, from whatever source derived.'' Ever since then, economists have been fighting about the definition of the concept of income. In Murphy's case, the judges decided that the award was given to her ``to make Murphy emotionally and reputationally `whole.''' The judges are saying that all Murphy got back was what she had had before she tangled with her employers.

Right, Left Attacks. This reasoning will appeal to legal experts across the political spectrum. We can speculate that Judge Douglas Ginsburg, the conservative who wrote the opinion, may have wanted to attack the income tax from the right, and found his vehicle in Murphy. Judge Judith Rogers, who signed off on the opinion, is an appointee of President Bill Clinton's. She may approve of the redistributive aspect of the opinion -- Democrats tend to believe redistribution is highly constitutional.

When you try applying Murphy to other areas, as the tax bloggers have been doing nonstop in the week or so since the Murphy finding, you run into trouble. Take the argument to its humorous extreme: Both windfall wealth and gambling proceeds are currently taxable. The Murphy principle suggests that they shouldn't be. Plaintiffs could argue that their casino winnings were only restoring to them the luck they were born with. There are also potential consequences for financial markets. As Paul Caron of the University of Cincinnati College of Law points out, "The buyer of a zero-coupon bond that does not pay interest currently is nevertheless taxed each year on the increased value of the bond as it nears maturity. Yet because such imputed interest was not considered income back in 1913, the Murphy court's approach could impose a constitutional barrier to taxing such items."

"Almost anything is up for grabs here,'' concludes Caron.

NY Times on Decline of Women Supreme Court Clerks

Interesting article in today's New York Times:  Women Suddenly Scarce Among Justices’ Clerks, by Linda Greenhouse:

Everyone knows that with the retirement of Justice Sandra Day O’Connor, the number of female Supreme Court justices fell by half. The talk of the court this summer, with the arrival of the new crop of law clerks, is that the number of female clerks has fallen even more sharply.

Just under 50 percent of new law school graduates in 2005 were women. Yet women account for only 7 of the 37 law clerkships for the new term, the first time the number has been in the single digits since 1994, when there were 4,000 fewer women among the country’s new law school graduates than there are today.

Last year at this time, there were 14 female clerks.

(Hat Tip:  Ann Hubbard.)

Galle on Interpretative Theory and Tax Shelter Regulation

Brian Galle (Florida State) has posted Interpretative Theory and Tax Shelter Regulation, 26 Va. Tax Rev. ___ (2006), on SSRN.  Here is the abstract:

This Article responds to an important recent essay in the Columbia Law Review by Marvin Chirelstein and Larry Zelenak. Chirelstein and Zelenak propose a dramatic change in tactics in the way that the government attempts to combat tax shelters - that is, efforts by corporations and high-earning individuals to avoid tax by clever manipulations of the technical terms of the Tax Code. For the past seventy years or so, the IRS has responded to these manipulations by urging courts to read the tax statutes purposively, rather than literally, and thus to deny favorable tax treatment to business transactions entered into with no real business purpose or economic substance. However, as textualism has grown in influence, the IRS's purposivist entreaties have diminished in effectiveness. Chirelstein and Zelenak propose to respond to this problem by doing away with the notion of business purpose and economic substance and instead enacting a pair of bright-line rules that would make rather more difficult some of the most popular shelters.

My claim in this Article is that the Chirelstein/Zelenak approach reaches a bit farther than it needs to, but that it contains some very important elements that are worth preserving. In particular, I argue that Chirelstein and Zelenak seem to assume that there is no principled argument we could present to textualist judges to convince them to analyze a transaction for economic substance. I respond by analyzing various strands of textualist theory to demonstrate that, in fact, Congress could likely resolve many textualist objections with a carefully crafted statute. However, I also respond to other commentators who have assumed that there are no constitutional limits on Congress's power to command textualists to apply economic substance analysis. That argument overlooks the constitutional roots of many textualist theories. I thus offer, I believe for the first time, an analysis of whether Congress can constitutionally displace certain textualist interpretative methods by statute.

The Article then applies these insights to suggest a fairly radical re-shaping of the meaning of economic substance, although one that is in some senses similar to the version employed recently by the Federal Circuit. I argue that Congress ought to enact a statute that would prohibit favorable tax treatment of all tax-motivated transactions, except where, as Chirelstein and Zelenak suggest, expressly authorized by Congress or the IRS. This arrangement, I argue, would reduce waste not only in the private sector but also in government, forcing Congress to make plain when it has agreed to treat its lobbyists generously.

ABA Tax Section Offers Teleconference & Webcast Today on Ethical Issues in Property Taxes

The ABA Tax Section is offering a teleconference and webcast today on Ethical Issues in Property Taxes from 1:00 - 2:30 p.m. EST:

This program, presented at the ABA/IPT Advanced Property Tax Seminar in March 2006, will discuss particular applications of the ABA Rules of Professional Conduct. The teleconference will also address the Institute for Professionals in Taxation Code of Ethics and Standards of Professional Conduct in selected settings of property taxation matters.

Faculty:

• Anthony R. Thompson (Law Offices of Anthony R. Thompson, Allentown, PA)
• Stewart M. Weintraub (Schnader Harrison Segal & Lewis, Philadelpha, PA)

Podcast on Implications of Murphy

Section 104 guru Robert W. Wood (Wood & Porter, San Francisco) has recorded a two-part podcast on the impact of last week's decision in Murphy v. United States, No. 03cv02414 (D.C. Cir. 8/22/06).  The podcast is available on The Settlement Channel:

Part one is approximately 15 minutes long and goes into the foundation of the case, why it was brought, the ruling and what some of the early fall out is in the legal and tax world. You can access it by clicking here. Part two is ... 22 minutes [and] goes into more detail about the case, but also discusses the immediate impact on several different groups, such as trial lawyers, employment lawyers, life insurance markets and structured settlement professionals. It also gives Rob's views on whether or not the case is likely to be appealed, the risks to the government and what various professionals need to consider now that the ruling is the law of the land for that particular district.

Buffett's Tax-Unwise Giving

Interesting article in today's Washington Post:  A Donation Without Calculation, by Allan Sloan:

I'd like to revisit one of this summer's biggest financial stories: Warren Buffett's decision to donate $38 billion of his Berkshire Hathaway stock to charity, most of it to the Bill & Melinda Gates Foundation. A fascinating aspect of this gift is that the folksy Buffett, usually a cold-eyed tax whiz, isn't being at all tax-efficient. He's saving a relative pittance in income taxes, he told me last week, and expects his estate to pay an eight-digit tax -- even though he'll have given all of his Berkshire stock away....

In 2008, he estimated, he'll save $500,000 to $1 million. Call it one-twentieth of 1 percent. "I can get the same benefit by donating $4 million" as by giving almost $2 billion, he said. His savings are so small (by billionaire standards) because he's donating so-called appreciated property -- stock worth more than he paid for it -- to private foundations. You can offset only 20 percent of your income with this kind of donation, as opposed to the 50 percent you can save by writing checks to public charities....

To be sure, Buffett is being tax-efficient by donating Berkshire stock on which he has huge gains and will pay no capital-gains tax. But anyone with paper profits on a stock portfolio can do this and get a bigger break than Buffett is getting. So if you want to go after Buffett for his tax opinions (which I share), go right ahead. But don't accuse him of giving away his fortune to duck taxes. At a rate of 0.05 percent, his tax savings aren't even a rounding error.

The Implicit Tax on Work at Older Ages

Barbara A. Butrica, Richard W. Johnson, Karen E. Smith & C. Eugene Steuerle (all of the Urban Institute) have published The Implicit Tax on Work at Older Ages, 59 Nat'l Tax J. 211 (2006).  Here is the abstract:

Encouraging work at older ages is a crucial policy goal for an aging society, but many features of the benefits and tax system discourage work. This study computes the implicit tax rate on work at older ages, broadly defined to include standard income and payroll taxes as well as changes in future Social Security benefits, employer–provided pension benefits, and health benefits associated with an additional year of employment. The results show that the implicit tax rate on work increases rapidly with age, rising from 14 percent at age 55 for a typical man to nearly 50 percent at age 70.

TIGTA Releases Report on Examination Procedures for Donations of Artwork

The Treasury Inspector General for Tax Administration has released A Formal Program to Identify Artwork Donations Reported on Tax Returns Is Not Necessary, but Examination Procedures Need to Be Strengthened:

This report presents the results of our review of the Internal Revenue Service’s (IRS) examination coverage of returns that report the value of transferred artwork. The overall objective of this review was to determine whether transferred artwork as reported on tax returns was properly identified and referred to the Office of Art Appraisal Services (AAS) for review by the Art Advisory Panel of the Commissioner of Internal Revenue (the Panel)[1] and whether the Panel’s appraisals were properly used in completing examinations of returns. The Chairman of the Senate Committee on Finance requested that the Treasury Inspector General for Tax Administration assess whether the IRS provides sufficient audit coverage of returns that involve a transfer of artwork and ensures appropriate cases are referred to the Panel.

Kaye on Tax Discrimination: A Comparative Analysis of U.S. and EU Approaches

Tracy A. Kaye (Seton Hall) has published Tax Discrimination: A Comparative Analysis of U.S. and EU Approaches, 7 Fla. Tax Rev. 47 (2005).  Here is the Conclusion:

The judgments of the European Court of Justice have caused some coordination of various individual and corporate tax laws through negative integration. Pure tax harmonization has not resulted, in that a finding of incompatibility of a tax law with a Treaty provision does not guarantee that all Member States will resolve the problem in the same way legislatively. Arguably, this judicial action was necessary during the infancy stage of the Internal Market. However, given the progress made towards the Internal Market, it is time for a more balanced approach that takes into account a Member State's need to finance its government. This could be accomplished through a more judicious use of the rule of reason, on occasion exercising, like the Supreme Court, an extra dose of judicial sympathy for the Member State's taxing power. Alternatively, a European scholar suggests reliance on Article 4 of the EC Treaty. Because this treaty provision obligates the Member States to avoid excessive public deficits, sound tax policies that combat anti-avoidance conduct would need to be accepted as justifications for infringements of the Treaty freedoms.

On the legislative side, the Council is designed to safeguard the economic interests of the Member States. The Finance Minister's acknowledged responsibility is to look after the Member State's interests in tax matters before the Council. The Commission should refocus its energies on formulating Community tax policy, making proposals to the Council, and drafting the detailed measures needed for their implementation. The Commission should continue to push for a move to qualified majority voting for certain tax issues. Hopefully, the Member States will soften their opposition as they experience the frustration that EU enlargement has only exacerbated the inability to have agreement on any new Community tax legislation. At a bare minimum, the Commission can issue recommendations, which although not legally binding, would be persuasive in pushing Member States towards more tax coordination.

In contrast to my EU recommendation, with respect to the United States, I advocate less congressional involvement. The recent U.S. experience with federal intervention in state tax legislation demonstrates that Congress is being too generous with the states' money. Unlike the Council of Ministers, Congress does not represent the states and there is increasing temptation to enact legislation that benefits a select constituency at a revenue cost to the states. At present, the United States is better off with increased judicial oversight, because in the name of reducing complexity, the congressional answer seems to be that no one should pay taxes. I conclude with a recommendation that the Supreme Court should give priority to state tax conflicts and additional restraints should be placed on the ability of Congress to tamper with state tax laws. I recommend the creation of a Committee of Treasurers patterned after the EU's Economic and Social Committee or the Committee of the Regions but in this case comprised of the treasurers of the fifty states. This Committee of Treasurers would have to be consulted with respect to any federal intervention in state tax legislation.

LexisNexis Publishes Employee Benefits Law, Third Book in Graduate Tax Series

On behalf of LexisNexis and the Graduate Tax Series Board of Editors (Ellen Aprill (Loyola-L.A.), Elliott Manning (Miami), Philip Postlewaite (Northwestern) & David Richardson (Florida)), I am delighted to announced the publication of the third book in our Series, Employee Benefits Law:  Qualification Rules and ERISA Requirements, by Kathryn Kennedy (John Marshall) & Paul Shultz (Director, Employee Plans Rulings & Agreement, IRS).

The Graduate Tax Series is the first series of course materials designed for use in tax LL.M. programs. Like all books in the Series, Employee Benefits Law was designed from the ground-up with the needs of graduate tax faculty and students in mind:

• More focus on Internal Revenue Code and regulations, less on case law
• Analysis of complex, practice-oriented problems of increasing sophistication
• Teacher’s manual with solutions to problems and other guidance
• Web site with real-time digital supplementation for faculty (PowerPoint slides and discussion forum with authors) and students (full text of all cases and rulings)
• On-line access to the comprehensive and current Code and regulations, designed to complement the book

Two other books in the Series also are available for adoption now:

• Civil Tax Procedure, by David Richardson (Florida), Jerome Borison (Denver) & Steve Johnson (UNLV)
• Federal Tax Accounting, by Michael B. Lang (Chapman), Elliott Manning (Miami) & Steven J. WIllis (Florida).

  The fourth book in the Series will be published shortly:

• Partnership Taxation, by Richard Lipton (Baker & McKenzie, Chicago), Paul Carman (Chapman & Cutler, Chicago), Charles Fassler (Greenebaum, Doll & McDonald, Louisville) & Walter Schwidetzky (University of Baltimore School of Law)

Other forthcoming books in the Series are:

• Bankruptcy Taxation, by Frances Hill (Miami) & William Lyons (Nebraska)
• Federal Taxation of Property Transactions, by Elliott Manning (Miami) & David Cameron (Northwestern)
• Tax Practice Ethics, by Linda Galler (Hofstra) & Michael Lang (Chapman)
• U.S. International Taxation, by Philip Postlewaite (Northwestern), Samuel Donaldson (Washington) & Allison Christians (Wisconsin)

Other information:

• For more details about the Series, see here
• Click on these links to purchase a copy of Civil Tax Procedure, Federal Tax Accounting, or Employee Benefits Law
• Faculty can request a complimentary review copy by emailing here (in the body of your email, note the title of the book you are requesting and your contact information)
• Email me if you would like more information or if you would like to submit a book proposal.

Txt Msg Tax = :-(

Interesting article on TCS Daily, Txt Msg Tax = :-(, by Constantin Gurdgiev:

In May, a senior centre-right French MEP named Alain Lamassoure suggested that the EU should levy a tax on text messages (SMS) and email messages to shore up the future financing of EU programs. The suggestion came at the joint European Parliament and national parliament conference on the future of Europe in Brussels and was later debated in the Committee on Budgets. It now appears increasingly likely that the proposal will be considered at the next committee meeting in September despite widespread opposition to the measure that eventually prompted even Lamassoure to distance himself it.

Tax Cut Revenue Rewards

Interesting op-ed in the Washington Times:  Tax Cut Revenue Rewards, by Richard W. Rahn (Center for Global Economic Growth, FreedomWorks Foundation):

Many in the Washington establishment were shocked Aug. 17, when the Congressional Budget Office reported a surge of "unanticipated tax receipts" that will sharply push down this year's deficit. Those who had been proclaiming the Bush tax rate cuts would result in a big reduction in tax revenues tried to hide their disappointment. It was tough being proved wrong again after having said the same thing when Ronald Reagan cut tax rates in the early 1980s.

We have now had three major experiments with tax rate reduction in the last half-century, and each time both economic growth and tax revenues have surged, despite the fears and cries of the anti-tax-cut crowd. How much more evidence will they need to understand the difference between tax rates and tax revenues? Most everyone, including most members of Congress, can understand that properly structured tax rate reduction, by decreasing the impediments to working, saving and investing, will lead to a higher rate of economic growth. Why then is it so difficult to understand that a bigger economic pie can lead to more tax revenue rather than less?

GAO Releases Report on Donor-Advised Funds and Supporting Organizations

The Government Accountability Office has released Tax-Exempt Organizations: Collecting More Data on Donor-Advised Funds and Supporting Organizations Could Help Address Compliance Challenges (GAO-06-799):

• Report
• 1-Page Highlights

ABA Forms Task Force to Take "Fresh Look" at Law School Accreditation Process

The ABA Section of Legal Education and Admission to the Bar today charged an 11-person task force with taking a "fresh look" at the law school accreditation process:

You are asked to consider the relevant concepts and broad issues of accreditation. Your focus should be on what is a sound program of legal education and measure against that. I think the goal of accreditation should be to provide for a system based on standards which provide for the least possible amount of intrusion on the schools, recognize that one size does not fit all, and provide for maximum flexibility on the part of the schools. I would not want the Task Force to get bogged down in the details of the Standards or in drafting. Policy analysis and recommendations are what is desired.

I ask that you a) review the standards for accreditation used by other accrediting groups, b) determine what the Department of Education requires of accrediting bodies, and c) formulate an agenda which wil address those issues that raise concerns as to whether it is appropriate and necessary for our accreditation standards to prescribe conduct on the part of law schools which tend to limit innovation and impose requirements which are not basic to the goals of accreditation. It has been suggested that the standards should focus more on measurement and assessment of outputs and less on inputs.

In other words, you are asked to take a fresh look at accreditation from a policy perspective. Please provide status reports of your progress as you see fit and submit your report in time for the Council to consider it at its June 2007 meeting.

Tax at the Emmy Awards

The IRS's new enforcement of the tax rules on Hollywood swag was a major topic of conversation at last night's Emmy awards:

Last night's most popular subject was the sumptuous gift bags given to Emmy presenters, valued at $30,000 or more, which the federal government now intends to tax as income.

• Conan O'Brien: "The Bush administration keeps sticking it to the working man."
• Greg Garcia:  "[I have] no opinion on [the tax treatment of the gift bags] whatsoever. I agree they should go to some sort of charitable organization."
• Jeremy Irons:  "You shouldn't have to pay taxes on anything. That's my stand."
• Jeremy Piven:  "I think the goody bags should be sent to New Orleans. Wouldn't that be great, don't tax them, just give it to them (people of New Orleans)."

For more, see:

• Boston Globe:  Presenters May Find Their Role More Taxing
• ContactMusic.com:  Government Tax on Gift Bags Causes Controversy
• Reuters:  Taxable Loot Awaits Emmy Presenters
• San Diego Union-Tribune:  Gift bags Had Tongues Aflutter
• U.S. News & World Report:  When is a Gift Taxable?

Recent TaxProf Blog coverage:

• USA Today on IRS-Hollywood Swag Accord (8/24/06)
• IRS and Hollywood Reach Accord on Gift Bags (8/18/06)
• Tax Consequences of Hollywood Swag (8/14/06)

New Issue of Atax's eJournal of Tax Research

Volume 4, Issue 1 (August 2006) of the eJournal of Tax Research, published by Atax (Australian Taxation Studies Program), University of New South Wales, Sydney, Australia, and edited by Binh Tran-Nam & Michael Walpole, is available (with a free subscription) on its web site with these articles:   

• Ewen McCann & Tim Edgar, The International Income Taxation of Portfolio Debt in the Presence of Bi-Directional Capital Flows (pp. 5-24)
• Nicole Wilson-Rogers, Coming out of the Dark? The Uncertainties that Remain in Respect of Part IVA: How doesRecent Tax Office Guidance Help? (pp. 25-60)
• Jacqui McManus & Neil Warren, The Case for Measuring Tax Gap (pp. 61-70)
• Ann Hansford, Andrew Lymer & Catherine Pilkington, IT Adoption Strategies and their Application to e-filing Self-Assessment Tax Returns: The Case of the UK (pp. 80-96)

Pfau on Comparing the Impacts of Social Security Benefit Reductions on the Income Distribution of the Elderly

Wade D. Pfau (National Graduate Institute for Policy Studies) has published Comparing the Impacts of Social Security Benefit Reductions on the Income Distribution of the Elderly, 59 Nat'l Tax J. 195 (2006).  Here is the abstract:

Benefit reductions will likely be a part of the eventual Social Security reform in the United States. This research attempts to quantify the intragenerational and intergenerational impacts of different benefit reduction proposals on the incomes of the elderly. Reforms include across–the-board benefit cuts, price indexing, and reductions to the cost–of–living adjustment. Restoring the projected 75–year balance for the Trust Fund through benefit reductions will significantly lower benefits, though the impacts vary by type of reform. Nonetheless, the savings for the Social Security Trust Fund will exceed the accompanying increases in the poverty gap, leaving room to provide minimal income guarantees.

In-Kind Guaranteed Payments

The Florida Tax Review has published two articles on in-kind guaranteed payments:

• David L. Cameron (Northwestern) & Philip F. Postlewaite (Northwestern), The Lazarus Effect: A Commentary on In-Kind Guaranteed Payments, 7 Fla. Tax Rev. 339 (2006)
• Douglas A. Kahn (Michigan), Is the Report of Lazarus's Death Premature? A Reply to Cameron and Postlewaite, 7 Fla. Tax Rev. 411 (2006)

Dep't of Education Releases Student Financing of Undergraduate Education and Federal Education Tax Benefits

The Department of Education's Institute of Education Sciences, National Center for Education Statistics has released Student Financing of Undergraduate Education: 2003–04, With a Special Analysis of the Net Price of Attendance and Federal Education Tax Benefits.  Here is the abstract:

This report, based on data from the 2003-04 National Postsecondary Student Aid Study (NPSAS:04), provides detailed information about undergraduate tuition and total price of attendance at various types of institutions, the percentage of students receiving various types of financial aid, and the average amounts that they received. In 2003-04, three-quarters of all full-time undergraduates received some type of financial aid ($9,900 average). One-half took out student loans ($6,200 average), and 62 percent received grants ($5,600 average). Forty percent received both grants and loans (combined average $13,600). The average tuition and fees for full-time undergraduates in 2003-04 were $2,000 at public 2-year, $5,400 at public 4-year, and $18,400 at private not-for-profit 4-year institutions. About one-fourth of full-time undergraduates did not pay any tuition, because the entire tuition amount was covered by grants. Nearly one-half of full-time low-income dependent undergraduates had their entire tuition amount covered by grant aid. The total price of attendance (tuition plus room and board and other expenses) for full-time undergraduates in 2003-04 was $10,500 at public 2-year, $15,200 at public 4-year, and $28,300 at private not-for-profit 4-year institutions. After subtracting all financial aid (including loans), the average out-of-pocket net price of attendance for full-time low-income dependent undergraduates was $6,000 at public 2-year, $5,600 at public 4-year and $9,200 at private nonprofit 4-year institutions. In addition, this report presents estimates of the federal education tax benefits for students (Hope and Lifetime Learning tax credits, and tuition deductions): nearly one-half (49 percent) of all undergraduates or their parents had their taxes reduced by an average of $600 by claiming these benefits. Middle-income students were the most likely to receive these tax benefits. Among the families of upper-middle-income students, more than two-thirds (69 percent) received an average reduction in federal taxes of $1,100.

Press coverage:

• Associated Press:  College Tax Credit Aids Rich Most, Feds Say
• Bloomberg:  College Tax Credits Aid Rich Most, Study Says
• WebCPA:  Study: Poor Better Off with Grants than Tuition Tax Breaks

Update:  Tax Policy Blog has more here.

Taxes Aren't Good Reason to Flee Britain

Interesting article today on The Guardian:  There Are Good Reasons to Leave Britain, But Tax Isn't One, by Max Hastings:

An astonishing number of us profess to think that we might live more happily somewhere else. A prominent weekend poll asserted that one in five British people is thinking of emigrating, because taxes are too high and our political leadership is allegedly bankrupt....

Taxation plays a part in some decisions to emigrate. However, weather, job opportunities and despair at high house prices and poor state schooling seem more significant. There are two other factors. Globalisation makes it easier than it has ever been to join another society. It is unnecessary to sever home and family ties, which are easily sustained through telephone, internet and cheap air fares. Meanwhile, a declining sense of national identity here in Britain causes the disgruntled to shrug: "It's not our country any more."

Seto: Bank of America As an Alternative to Originalism in Murphy

Theodore P. Seto (Loyola-L.A.) offers his views on Murphy v. United States, No. 03cv02414 (D.C. Cir. 8/22/06):

The single most problematic aspect of constitutionalizing the definition of income is that doing so threatens to deprive Congress of the flexibility needed to make a tax system work. Originalism, of Ginsburg's or any other stripe, can't provide that kind of flexibility. See, e.g., Seto, Originalism vs. Precedent: An Evolutionary Perspective, 38 Loy. L.A. L. Rev. 2001 (2005). An originalist approach to the Sixteenth Amendment would ultimately undermine the purposes of the amendment itself -- which may be Ginsburg's purpose in Murphy.

An alternative and perhaps workable approach is suggested by the body of rules that define "income tax" for foreign tax credit purposes. Under the Bank of America doctrine, "A direct tax is creditable [as an income tax], even though imposed on gross income, if it is very highly likely, or was reasonably intended, always to reach some net gain in the normal circumstances in which it applies." Bank of America v. United States, 459 F.2d 513 (Ct. Cl. 1972), incorporated in Treas. Reg. § 1.910-2(a)(3)(i). For a long time now, we have used the Bank of America doctrine to determine whether a foreign tax should be treated as an "income tax" for foreign tax credit purposes, and it seems to work moderately well in that context -- drawing an enforceable line while permitting foreign governments lots of flexibility in defining their "income tax" bases.

Bank of America, in turn, was intended to implement the Supreme Court's dictum in Biddle: "'Income taxes paid,' as used in our own revenue laws, has for most practical purposes a well understood meaning to be derived from an examination of the statutes which provide for the laying and collection of income taxes. It is that meaning which must be attributed to it." Biddle v. Commissioner, 302 U.S. 573 (1938). It would not be too great a stretch to conclude that "income" taxation, for Sixteenth Amendment purposes, similarly has a "well understood meaning" and to view Bank of America as a standard articulation of that meaning.

The Bank of America doctrine is normally applied to a foreign tax system as a whole, but it would also not be too great a stretch to apply the same test to specific components for Sixteenth Amendment purposes. Doing so, one might well conclude that Sec. 104(a)(2), as amended by the Small Business Job Protection Act of 1996, was never "very highly likely, or ... reasonably intended, always to reach some net gain in the normal circumstances in which it applies." By contrast, many of the other provisions of the Code that members of this listserve have speculated might fall to Murphy might well pass constitutional muster under such a test. Congress would retain the flexibility it needs to make the system work, but would not be permitted to tax, as "income," items which fall outside the "well understood meaning" of income incorporated in the Sixteenth Amendment.

NY Times Criticizes Private Tax Collection & Estate Tax Auditor Cutbacks

Interesting New York Times editorial, Strange Priorities:

In coming weeks, the IRS plans to start siccing private debt collectors on people with up to $25,000 in unpaid income taxes — and laying off nearly half of the auditors who examine estate tax returns of the wealthiest taxpayers. Concern for appearances should, on its own, impel the agency to scuttle its plans. A perception of unfairness is bad for the tax system, and this pair of policies virtually screams “only little people pay taxes.” But appearances are not the only reason to rethink these initiatives.

Private tax collection costs more than it would cost to give the IRS the resources to pursue the debts. Federal budgeting oddities only make it seem less costly. Private collection also raises serious concerns about fraud and privacy. Mark Everson, the IRS commissioner, should fight hard for the resources the agency needs to do the job it clearly does best. Instead, he supports private collection, allowing the administration and Congress to indulge the fiction that they are saving money.

The rationale for laying off estate tax auditors is also unconvincing. To allay suspicions the cutbacks are a way to shield wealthy heirs from taxes, two Democrats on the House Ways and Means Committee, John Lewis of Georgia and Earl Pomeroy of North Dakota, sent a letter recently to Mr. Everson, asking for facts and figures to justify the job cuts. Mr. Everson responded with a “trust me” letter.

(Hat Tip:  Ann Murphy & Richard Winchester.)

NYSBA on Prohibited Tax Shelter Activity Under § 4965

The New York State Bar Association Tax Section has sent a letter and report to the Treasury Department and IRS on Prohibited Tax Shelter Activity Under § 4965.  Here is the Summary:

This report is submitted in response to Notice 2006-65's request for comments on the new tax shelter provisions.... The first of this report gives an overview of the new law. The report then discusses the background leading up to the new law and what Congress intends to accomplish through the new provisions.  Next, the report discusses the anti-tax shelter provisions of pre-TIPRA law that continue to apply to tax exempts (that reduce the need, from a tax administration point of view, for an expansive reading of the new provisions), as well as some concerns of the tax-exempt community over an expansive interpretation of the law.  Finally, the report addresses specific questions and concerns and gives comments and recommendations on how the new law should be interpreted.  The Appendix to this report briefly summarizes certain listed transactions and other transactions involving exempt organizations which the IRS has determined are abusive.

Saturday:

• Tax Prof Profile: Dennis A. Calfee
• Senate to Consider Tax Changes in Response to Option Backdating
• A 14-Year Old Girl in Today's World
• WSJ: The Taxman Goes to Church
• Kysar on The Political Economy of Sunset Provisions in the Tax Code

Sunday:

• Top 5 Tax Paper Downloads
• How CBO Forecasts Income
• Feeder Law Schools for Supreme Court Clerkships
• WSJ: Estate Tax Plans Get Trickier
• Raskolnikov on Crime and Punishment in Taxation

Top 5 Tax Paper Downloads

There is a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads on SSRN, with a new paper returning to the list at #1:      

1.  [261 Downloads]  Remapping the Charitable Deduction, by David Pozen (Yale J.D. 2007) [blogged here]

2.  [204 Downloads]  Family Limited Partnership Formation: Dueling Dicta, by Mitchell Gans (Hofstra) & Jonathan G. Blattmachr (Milbank, Tweed, Hadley & McCloy, New York)  [blogged here]

3.  [175 Downloads]  A New Model for Identifying Basis in Life Insurance Policies: Implementation and Deference, by Jay A. Soled (Rutgers Business School) & Mitchell Gans (Hofstra)  [blogged here]

4.  [130 Downloads]  Reforming the Taxation of Deferred Compensation, by Ethan Yale (Georgetown) & Gregg D. Polsky (Minnesota)  [blogged here]

5.  [76 Downloads]  Tax Expenditures, Principal Agent Problems, and Redundancy, by David A. Weisbach (Chicago)  [blogged here]

How CBO Forecasts Income

The Congressional Budget Office has released How CBO Forecasts Income.  Here is part of the Preface:

The CBO's reports on the federal budget and the outlook for the overall economy give the Congress a baseline against which to measure the effects of proposed changes in spending and tax laws. To generate projections of the federal budget under current law, CBO must make projections of federal receipts as well as outlays. Federal receipts are determined largely by taxes collected on individual and business income, including the payroll taxes collected for Social Security and Medicare. This paper explains how CBO projects various categories of income. As with other CBO background papers, it is designed to make the agency’s analyses more transparent by explaining CBO’s methodologies and assumptions.

Feeder Law Schools for Supreme Court Clerkships

At our Leiter's Law School Rankings site, Brian Leiter has updated his data on the law schools attended by Supreme Court clerks during the 1996-2006 Terms.  In all, thirty law schools had at least one graduate serve as a Supreme Court clerk during this period.  Here are the Top 10 feeder schools: 

• 1. Harvard (95 clerks)
• 2. Yale (70)
• 3. Chicago (45)
• 4. Columbia (27)
• 5. Stanford (26)
• 6. NYU (16)
• 6. Virginia (16)
• 8. Michigan (14)
• 9. Berkeley (10)
• 10. Texas (9)

Non-elite law schools (defined, for this purpose, as schools outside the U.S. News Top 25) with at least one Supreme Court clerk during this period:

• BYU (3)
• Georgia (2)
• Illinois (2)
• Kansas (2)
• North Carolina (2)
• Arizona (1)
• Boston College (1)
• Missouri-Columbia (1)
• Ohio State (1)
• Rutgers-Newark (1)

WSJ: Estate Tax Plans Get Trickier

Interesting article in the Weekend Wall Street Journal:  Estate-Tax Plans Get Trickier, by Tara Siegel Bernard:

Despite a full-throttle effort, Congress has so far failed to kill the estate tax -- or even enact a compromise that would permanently reduce the hit. Though there's still time for a compromise deal, the tax is currently scheduled to disappear in 2010 and then bounce back again, at higher rates, in 2011. That's making it trickier than ever to formulate an estate-tax plan, which often includes buying a life-insurance policy. Such a policy often plays a central role in estate planning, whether it is used to pay off a big estate-tax bill after you die or to leave something to a child who didn't get a piece of the family business. Choosing the right policy is especially complicated, notably for families with more modest estates that may escape taxation depending on what Congress does. Another twist: Many states have begun imposing their own estate tax, making matters even more complicated.

Raskolnikov on Crime and Punishment in Taxation

Alex Raskolnikov (Columbia) has published Crime and Punishment in Taxation: Deceit, Deterrence, and the Self-Adjusting Penalty, 106 Colum. L. Rev. 569 (2006).  Here is the abstract:

Avoidance and evasion continue to frustrate the government's efforts to collect much needed tax revenues. This article articulates one of the reasons for this lack of success and proposes a new type of penalty that would strengthen tax enforcement while improving efficiency. The economic analysis of deterrence suggests that rational taxpayers choose among various avoidance or evasion strategies that are subject to identical statutory sanctions those that are more difficult for the government to find. I argue that many taxpayers do just that. Because probability of detection varies dramatically among different items on a tax return while nominal penalties do not take likelihood of detection into account, expected penalties for inconspicuous noncompliance are particularly low. Adjusting existing penalties will not solve the problem because what is (and is not) inconspicuous depends on a given tax return and, therefore, is not susceptible to the type of generalization on which the current penalties rely. I propose to complement the existing sanctions with a new penalty equal to a fraction of the legitimate subtraction item (such as a deduction, credit, or loss) reported on the same line of a return that contains the illegitimate one. With this penalty in place, the harder it is for the government to find a given avoidance transaction, the higher is the statutory sanction if the transaction is detected. The proposed penalty adjusts itself. As a result, the differences in expected penalties for many forms of avoidance and, to a lesser extent, evasion are reduced, the inefficient incentive to hide noncompliance is diminished, and the overall deterrence is improved.

For over 30 years, the University of Florida Graduate Tax Program has been one of the nation's leading programs for the advanced study of tax law. Among the country's 30 graduate tax programs, Florida has by far the largest number of full-time faculty and is the only school to offer three advanced tax degrees:

• General Tax LL.M.
• International Tax LL.M.
• Tax S.J.D. 

 

Graduate tax students assist in the publication of the Florida Tax Review, one of the most prestigious peer-reviewed tax journals in the country.  In this 12-part series, TaxProf Blog will profile the Florida Graduate Tax Faculty.

Dennis A. Calfee grew up in a small town in southeastern Washington State, Connell, where his father was the town’s sole pharmacist and sole Republican.  He picks up the story:

My interest in tax was first perked by Professor Daniel Brajcich and advanced by Professor Gary Randall at Gonzaga University. Both of these professors were superb classroom teachers and exemplary individuals both personally and professionally who had a positive influence on countless students, including yours truly. After a clerkship on the Washington State Court of Appeals and some time with Uncle Sam I decided to get a graduate degree in taxation. While working for the Old National Bank in their trust department during law school I relied heavily on two books: Federal Income Taxation of Estates and Beneficiaries, which had three co-authors two of whom were Professors at Florida:  Richard B. Stephens and James J. Freeland; and Federal Estate and Gift Taxation, which had three co-authors, two of whom again were Florida professors: Richard B. Stephens and Steven A. Lind.

The year I had the opportunity to further my education and apply to a Graduate Tax Program I discovered that the College of Law at the University of Florida was beginning an LL.M. in Taxation program. It was my lucky day, for thereafter I had the opportunity to learn tax from Stephens, Freeland, Lind, Lokken and Miller. Each was a gifted classroom teacher with his own unique style. Looking back on that initial experience I think that one of the best things about my LL.M. education was the opportunity to interact with each of these individuals and observe how each approached the internal revenue code and the education of students. I was in tax heaven!

As my LL.M. year closed I was asked if I would like to teach one year as an interim tax professor. I was elated at the prospect of teaching at the College of Law. I worked all summer preparing my notes for one of the classes I was to teach in the fall quarter. I went to class the first day and promptly fell down the last three steps into a pit classroom. Once at the podium, I discovered that I could not speak because my mouth was full of cotton, at least that is how it felt. Then in the first 45 minutes of my first hour of class I consumed all the notes for the semester. I remember thinking that if this is what it takes to teach, I could not do it. Needless to say, I spent the rest of the semester reviewing the material covered in the first 45 minutes of class. After the first year, I was afforded the opportunity to teach for one more year. Thirty-one years later I am looking forward to my 32nd year of teaching tax courses at the Levin College of Law at the University of Florida. There has never been a dull moment.

Just imagine each day going to "work" to interact with Brauner, Dilley, Friel, Gutting, Hudson, Lokken, McMahon, McDaniel, Miller, Oberst, Polsky, Richardson and Willis, and that is without even getting on the phone where Professor Lind is always willing to take my questions. Imagine the intellectual stimulation and satisfaction achieved by working with Steve Lind and Dick Stephens on the Federal Estate and Gift Taxation treatise. Imagine the pride in representing Florida, accompanied by your wife and your three children, throughout the world in places like Taipei, Leiden, Montpellier and Beijing. Imagine being the Faculty Advisor to the Florida Law Review. Imagine service with the Athletic Association at the University of Florida and seeing first hand the management of an athletic program by Jeremy Foley and his staff. Imagine the opportunity to meet, learn from and make friends with talented students and alums each an every day. WOW! Pinch me, am I living a dream? I am.

For prior Florida Graduate Tax Faculty Profiles, see:

• Yariv Brauner

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.

Senate to Consider Tax Changes in Response to Option Backdating

The Senate Finance Committee will hold a hearing on September 6 to consider tax law changes in response to the flurry of stock option backdating investigations.  From the press release:

There have been a number of recent newspaper stories about corporate executives finding ways to compensate themselves to skirt the federal tax on compensation that is not performancebased. The most well-publicized of these methods is the backdating of stock options, in which executives wait until after the fact to pick a date for their stock options, then pick the low point of the stock during the year to maximize their profit. The tax code governs certain aspects of executive compensation and imposes a tax unless the pay (more than $1 million) is performance-based compensation. In response to the tax, there has been a big upswing in stock options to compensate corporate executives. In June, [the Senate Finance Committee] ... convened a hearing to explore various compliance concerns in the corporate tax arena and asked the Justice Department’s witness to explain the agency’s investigation of stock options backdating.

[The Committee will hold a hearing on September 6 on] . . . Executive Compensation: Backdating to the Future/Oversight of Current Issues Regarding Executive Compensation Including Backdating of Stock Options; and Tax Treatment of Executive Compensation, Retirement and Benefits.” The first panel will ... focus on the government’s response to stock options backdating and other issues regarding executive compensation, including 162(m) -- the million-dollar deduction rule – as well as transparency issues. The second panel will consist of academics and interested groups, giving additional perspective on backdating and 162(m) as well as providing an overview of executive compensation, retirement and benefits, and how they are treated under the tax code. Chairman Grassley is exploring the extent of abuse of executive compensation tax restrictions with an eye toward possible legislation.

Press coverage:

• BBC
• Reuters
• Wall Street Journal

A 14-Year Old Girl in Today's World

Please indulge a proud father as I share the wonderful poem my 14-year old daughter read last night at our church's art show:

Dance of Love?

We dance under black blankets of sky

Hands on big hips full of potential

That bruise soft flesh

Far too close for comfort

And I know this is not my dream

We are a living in a fantasy

A lie all the same

Too caught up to notice just how far under I'm slipping

It's not like you care anyone

Don't we both know it's all a publicity stunt

Advertising the latest and greatest attraction

Though the script is flimsy,

The plot all-together see through

It deserves an Oscar just for the acting

Pretending is not something I or you will ever be new to

In cafeteria girls giggle over forget-me-nots, summer days and lazy boy dreams

Trying to forget the fact that boys with hungry eyes is not what they desire

They stare at us with hormone induced lust

Across miles of food-scattered floors

They still find a way to make me feel violated

Shorts that could have easily been found

In Chris Browns newest and nudist music video pique their interest

We like to pretend they stare at our eyes

Not our bodies with longing

But it is the hour glass figure

Not the contour of our smile

That gets them every time

Our passionate lip-lock is not really true love

But we make it all too easy for them

Our school has caught the love bug

Or so they say

The infectious disease of perfumed notes

And staying out far past curfew

I'm beginning to lose hope in the cure

I can't help but miss the days of wide-eyed smile and toothless grins

When I would chase boys across the playground with puckered up lips

It was a game then but now it's a battleground

Tactics and warfare to win over an unwilling heart

I am not some prize

I refuse to be won

I remember when holding hands seemed like enough of a scandal

And going way too far was not even a plausible option

So is this love?

They way he sticks his tongue down her throat

After she finishes HIS algebra homework

She longs for his affections

And he knows that all too well

Wondering why church on Sundays won't sooth that guilty conscience

It's not a quick fix

But don't we all wish it was

Her high heels click on the floor

Along with a perpetually receding hemline

And shirts that seem to shrink in the wash

She can tear at my soul for hours

But my solutions never seem realistic

But still I will dance with the new him in my life

To a song that he claims will belong to us forever

Although forever seems to depend on where I'll let his hands touch

Because charming personalities

Lose interest all too fast

In a quick pace world of physical attraction

I'm finding that the me in myself had no place

Pretending that it fills the empty chasm

Where the part of me that made me whole used to lie

Because I am hungry for more than just food

Stomach rumbling in discontent

But I will choose to ignore it

Because this is how I've been told it should be

Because this dance is my new always

WSJ: The Taxman Goes to Church

Interesting article in the Wall Street Journal:  The Taxman Goes to Church: Why Is the IRS in the Business of Reading Sermons?:

The new crackdown, which the IRS calls the Political Activity Compliance Initiative, has so far put some 15,000 nonprofits--mostly churches--on notice that preaching politics puts them at risk of audits, fines or, in some cases, the loss of tax-exempt status. The IRS has also announced it will no longer wait for complaints to come in, but will instead take action "to prevent violations." It will be reviewing the content of sermons, it says, as well as the financial books of religious organizations. The free exercise of religion could now come with a hefty bill....

North Carolina Republican Rep. Walter Jones wants to get the IRS out of the business of policing religious speech. His proposed legislation to do just that has been stalled for six years, but he hopes that the federal agency's latest initiative--and the experience of Mr. Regas in Pasadena and thousands like him on both sides of the political spectrum--will break the political logjam. He told us that he considers efforts to control what is said from the pulpit to be "antidemocratic." Amen to that.

Kysar on The Political Economy of Sunset Provisions in the Tax Code

Rebecca M. Kysar (Cravath, Swaine & Moore, New York) has published The Sun Also Rises: The Political Economy of Sunset Provisions in the Tax Code, 40 Ga. L. Rev. 335 (2006).  Here is the abstract:

This Article provides an overview and critical analysis of sunset provisions in the tax code, and through examination of the political pressures that led to their striking transformation, also reveals disturbing points of vulnerability in the legislative process. It concludes that, contrary to one of the primary justifications for the enactment of sunset provisions - that these provisions reduce the influence exerted on lawmakers by interest groups - sunsets may instead further politicize the legislative process and, due to their mechanics, increase the likelihood of inefficient social outcomes. The history of sunset provisions in tax legislation also illuminates the complex, multidirectional, and often dramatic interaction between the budgetary process and other political ends. Additionally, it suggests that, when budgetary and tax legislative processes intersect, budgetary concerns supplant debate over and achievement of traditional tax policy goals.

First, this Article explores how sunset provisions in recent tax legislation serve to avoid checks on legislative behavior in the budget process and, post-enactment, further affect the budget process in myriad ways. Next, it demonstrates that the continual termination of certain tax benefits and burdens creates opportunities for politicians to extract votes and campaign contributions from those parties who are affected by the threatened provision. And, because lobbying on behalf of legislation requires significant resources, sunset provisions reward well-connected and well-resourced players, an advantage which increases across time, in the competition for the extension of sunsetted legislation. Accordingly, the availability of sunset provisions may shape tax legislation to benefit only those groups that have the concentration of interests sufficient to motivate such long-term rent extraction. Finally, through analysis of the “kill the code” proposals advocating the sunset of the entire tax code and of the fallout from the use of sunsets in recent tax acts, this Article revisits the democratic rationales for sunsets. Concluding that the inherent attributes of these provisions do not impart legislative flexibility or ensure efficient, restrained lawmaking - and that they instead lend themselves to all the aforementioned pathologies - this Article casts doubt upon the legitimacy of sunset provisions as legislative tools.

Murphy: Wrong on Law, Right on Policy?

Stephen Cohen (Georgetown) previously argued in this space:

There may be doubtful authority to declare an income tax provision unconstitutional on policy grounds as did the D.C. Circuit in Murphy v. United States, No. 03cv02414 (D.C. Cir. 8/22/06). However, there is a strong argument that in principle, for policy reasons, the damages in Murphy should not constitute income. My co-author and I, Laura Sager of NYU, fleshed out that argument in Discrimination Against Damages for Unlawful Discrimination, 35 Harv. J. Legis. 447 (1998). Thus, the Murphy court may have been wrong on the law, but I think they are right on the policy issue.

Stephen has graciously agreed to share with the broader tax community the relevant portions of the article here.

Stoker & Rich on Tax Incentives and Rebuilding the Gulf Coast after Katrina

Robert P. Stoker (George Washington University, School of Public Policy & Public Administration) & Michael J. Rich (Emory University, Department of Political Science & Director of Office of University-Community Partnerships) have posted Lessons and Limits: Tax Incentives and Rebuilding the Gulf Coast after Katrina on The Brookings Institution web site.  Here is the abstract:

In the wake of the devastation wrought by Hurricane Katrina, Congress enacted legislation creating Gulf Opportunity Zones (GO Zones) in localities in Alabama, Louisiana, and Mississippi that suffered the most extensive storm damage. Special tax incentives created in these areas are designed to encourage investment, job creation, and economic growth. While many studies have been done to evaluate the effectiveness of federal and state tax-based efforts to redevelop distressed areas, none of the learning has been reflected in policy debates about the Katrina recovery effort. The evidence suggests that tax incentives alone are not enough—they work better when combined with good planning, local capacity-building, and good governance across sectors. This paper will summarize the purpose of the Gulf Opportunity Zone tax program and explain how this latest endeavor reflects the 25-year evolution of federal efforts to use tax incentives as a core tool for revitalizing distressed areas.

Georgetown Publishes Symposium on DaimlerChrysler v. Cuno and the Constitutionality of State Tax Incentives for Economic Development

The Georgetown Journal of Law & Public Policy has published a symposium on Cuno and the Constitutionality of State Tax Incentives for Economic Development:

• Kristin E. Hickman (Minnesota) & Sarah L. Bunce, Foreword: DaimlerChrysler v. Cuno. 4 Geo. J.L. & Pub. Pol'y 15 (2006)
• Brannon P. Denning (Cumberland), Cuno and the Court: The Case for Minimalism, 4 Geo. J.L. & Pub. Pol'y 33 (2006)
• Kristin E. Hickman (Minnesota), How Did We Get Here Anyway?: Considering the Standing Question in DaimlerChrysler v. Cuno, 4 Geo. J.L. & Pub. Pol'y 47 (2006)
• Walter Hellerstein (Georgia), Cuno and Congress: An Analysis of Proposed Federal Legislation Authorizing State Economic Development Incentives, 4 Geo. J.L. & Pub. Pol'y 73 (2006)
• James R. Rogers (Texas A&M, Department of Political Science), The Law and Policy of State Tax Competition: Much Ado About Nothing?, 4 Geo. J.L. & Pub. Pol'y 101 (2006)
• Edward A. Zelinsky (Cardozo), Cuno: The Property Tax Issue, 4 Geo. J.L. & Pub. Pol'y 119 (2006)
• Kirk J. Stark (UCLA) & Daniel J. Wilson (Federal reserve Bank of Minnesota), What Do We Know About the Interstate Economic Effects of State Tax Incentives?, 4 Geo. J.L. & Pub. Pol'y 133 (2006)