Sunday, December 31, 2006
1. [256 Downloads] Options Backdating, Tax Shelters, and Corporate Culture, by Victor Fleischer (Colorado) [blogged here]
2. [154 Downloads] Efficiency and Tax Incentives: The Case for Refundable Tax Credits, by Lily Batchelder (NYU), Fred T. Goldberg (Skadden) & Peter Orszag (Brookings Institution) [blogged here]
3. [148 Downloads] The Constitutionality of Federal Taxes and Federal Tax Provisions, by Joseph M. Dodge (Florida State) [blogged here]
The Sunday Washington Post has a wonderful article about Michael J. Karlan, tax lawyer turned party "bon vivant":
- 1992: J.D. Columbia
- 1993: LL.M. (Tax) NYU
- 1993-95: Law Clerk, U.S. Tax Court Judge Julian I. Jacobs
- 1995-98: Tax Associate, Covington & Burling
- 1998-99: Attorney, IRS Office of Chief Counsel
- 1999-: Attorney, Private Practice
Michael Karlan is throwing not one, but two glitzy New Year's bashes tonight. For 1,700 people.
At the French Embassy, guests in glittering gowns and dapper tuxes will sip bottomless glasses of champagne, take mini-lessons in French and dance the New Year in while mimes stroll.
Downtown at the Washington Plaza hotel, hundreds of young professionals will venture into "A Social Experience" -- a Madonna impersonator, massage seminars, speed-dating, a caricaturist....
Karlan, 38, is an expert party guy, founder of the social network Professionals in the City. He takes partying to an exponential degree, hosting about 1,000 mixers and social seminars each year. He has about 40 employees in six cities and an e-mail list 140,000 names long.
Who is this bon vivant? ... He is a former IRS tax lawyer who has published articles with such titles as "Cash or Deferred Arrangements, Matching Contributions, and Employee Contributions." Yes, Washington, the tax man is throwing your parties. And his key to a good party, of course, involves crunching numbers. He has partygoers rate every event's features and then ruthlessly axes all but the best-rated....
Karlan prefers subjects where there is one right answer, so he majored in accounting at the University of Colorado, where he had, "like, a 3.95, if you're curious," graduating as valedictorian. After that was law school at Columbia....
After graduating, he clerked at the U.S. Tax Court in Washington. He had no friends in the area, so he began organizing happy hours for the court crew. Then his bosses asked him to plan the office holiday party, to be held at the ever-festive tax court. He enjoyed being the planner.
Later came a job at a large District law firm. It was cutthroat, so he decided to boost his value by specializing in the Employment Retirement Income Security Act, a field he calls "very marketable." It meant he would work alone, on his own schedule, allowing him to go out at night....
Karlan quit the law firm for the IRS, but after a year of drafting tax regulations, he was antsy. "I thought of the idea of starting a sense of community," he said. His parties had shown him that young singles had busy lives and few outlets. In Washington, where people were often transplants, he sensed a widespread feeling of rootlessness. So in 1999, he started a law practice and on the side, he and a friend, Greg Bland, launched the D.C. Society of Young Professionals and began charging for museum outings, paintball trips, wine tastings and singles dinners....
Karlan's law practice has mostly fallen by the wayside. Pros in the City is making him a living, although he won't say how much.
Interesting article in the Sunday New York Times: The Condo and Co-op Tax Bargain, by Josh Barbanel:
It takes a rare touch of whimsy to imagine selling a 14-room apartment with 5 maids’ rooms and a 37-foot gallery in one of the great Park Avenue co-ops for $750,000, the going price for some studios. But that is the remarkable value that city tax assessors have placed this year on the huge prewar apartments at 720 Park Avenue, under the seemingly illogical collection of state laws that govern property taxes in New York City.
In the last year, while property tax assessments across the city rose by more than 9%, the assessors reviewed 720 Park. But rather than raising taxes on the building, they reduced them. City records show the official market value of the building and the tax burden on it were cut by 12%. The market value of the 17-story building, which has 34 apartments and was designed by Rosario Candela, was put at $22.5 million this year, down from $28.7 million a year ago, even though sale prices on Park Avenue have been rising to record highs. The total tax bill was just over $1 million.
Last December, John E. Beerbower, a partner in Cravath, Swaine & Moore who was then the co-op board’s president, said that the board routinely appealed its tax assessment on the advice of the building’s professional managers. Then in June, riding the wave of rising Park Avenue property values, Mr. Beerbower and wife, Cynthia, decided it was time to downsize. They sold their 14-room apartment on the seventh floor for $20 million, nearly the same value placed on the entire building by the city’s Finance Department. ...
The sale price works out to about $3,400 a square foot. But based on figures from the Finance Department, the apartment was valued at a tiny fraction of that, under $130 per square foot, less than a tenth of the recent average selling prices per square foot of three- or four-bedroom apartments in Manhattan. The Beerbowers spent close to $5.1 million for a smaller apartment on East 72nd Street....
Francine J. Lipman (Chapman) has posted Bearing Witness to Economic Injustices of Undocumented Immigrant Families: A New Class of "Undeserving" Working Poor on SSRN. Here is the abstract:
Undocumented immigrants have little or no recourse for economic injustices they suffer through the U.S. tax system. Despite America's historically strong opposition to taxation without representation, undocumented immigrants have not enjoyed the right to vote on any local, state or federal tax for almost eighty years, except in rare and unusual cases. Furthermore, because of their precarious immigration and economic status undocumented immigrants are vulnerable to deportation and exploitation and are chilled from protesting any injustice. As a result they suffer economic injustices daily, which translate into lower prices for countless goods and services that are an everyday part of privileged life in America. The burden of speaking out loudly and clearly about these injustices therefore is ours.
Saturday, December 30, 2006
The Boston University Graduate Tax Program, established in 1959 as one of the first graduate tax programs in the nation, continues to be one of the best. It consistently ranks among the Top 10 tax programs. The program offers a broad and diverse curriculum, with five required courses and 33 electives and concentrations in three areas:
- Business Tax
- Estate Planning
- International Tax
In this five-part series, TaxProf Blog will profile Boston University's full-time Graduate Tax Faculty.
William W. Park (known as Rusty) joined the B.U. Faculty in 1979 after five years of corporate practice in Paris and two years teaching at Cambridge lecturing on public international and “company” law. In addition to international tax, he teaches arbitration and international business transactions, and served for three years as Director of the Law School’s Center for Banking and Financial Law. He also has an interest in the interaction of law and religion.
Visiting appointments permitted him to teach tax in Dijon, Hong Kong, Geneva, and the Fletcher School. On several occasions he took leaves from the Law School to serve as counsel to a commercial banking group based in Switzerland.
- Roger: I don't think that law blogs are really that important. They are not genuinely creating community are they? ... Sure, sometimes law blogs can be quite substantive .... But often law blogs offer no more than the latest news clip for people who care about a particular subject. We're not an army of Davids trying to slay Goliath. Sounds inspiring, but I rather doubt it. More like a gardener sowing a neglected patch of ground who, after a season, discovers to his delight that he has a nice little garden.
- Peter: I tend to agree with Roger's sober assessment of the value of blogging — if we can till a small patch of otherwise unplowed soil, that's something accomplished, but we shouldn't assume much more value than that. One sign that the blogging phenomenon may have peaked is the number of abandoned blogs one comes across these days — blogs that are still up, but on which nothing's been posted for months. ... There's something a little saddening about these sites, like a nice house that's gone vacant or a favorite restaurant that is closed "for renovations." (A related development: individuals who sign up as contributors to group blogs and then never make even a single post ...) The number of abandoned blogs shows at least that the medium is still a fluid and unstable one.
Dave Hoffman (Temple) and Peter had this interesting exchange in the comments:
- Dave: I wonder whether the number of abandoned blogs is a good proxy for "enthusiasm" (or faddishness, or popularity, or whatever the blog-academic-metric is). Restaurants fail all the time: that doesn't mean that eating out is passe. That said, it seems unlikely that law professors (the audience and participants I care about) will continue to blog at high numbers for much longer if (a) institutions don't commit to reward the activity; or (b) it doesn't pay. Since I think both of these possibilities are long-shots (and the first possibly normatively undesirable) I too see a downward trend in total bloggers. That doesn't mean that the ones left will die on the vine, just that the gold rush time is at a conclusion.
- Peter: Nicely put -- the gold-rush days are ending. Advantage to the first movers (the Instapundits and Volokhs) and, now, to those who really put some work into panning. To what end? Even if blogging doesn't help the tenure and merit files much (or fatten many wallets), one has to assume that quality blogging enhances reputation in a way that complements reputation established through traditional scholarship. But I think it only works that way where someone blogs on a regular basis (episodic stuff just doesn't stick), and that requires a serious commitment - hence again the high rate of receivership.
(Hat Tip: Brian Leiter.)
Jacob Nussim (Bar-Ilan University, Faculty of Law) has posted On a Passé Defense: Unjust Enrichment and the Refund of Overpaid on SSRN. Here is the abstract:
A producer pays commodity taxes on sold goods, realizing only later that the tax was unlawful. Yet, his claim for refund is denied. Tax authorities in the U.S. and elsewhere use the passing on defense to deny refunds of unlawfully levied taxes. The defense states that some or all of the unlawful tax the producer paid was passed on to consumers through goods' price, and thus the producer would be enriched if refunded fully. The passing on defense is largely perceived in legal scholarship as a choice between unjustly enriching the producer by a full refund and unjustly enriching government by denying it. A balance is thus called for, e.g. by applying equity considerations. Accordingly, the application of the defense is vague and inconsistent. This paper shows, based on an economic reasoning, that a full refund of overpaid taxes does not enrich the producer-taxpayer. Since the defense does not serve to prevent producers' enrichment, it should be rejected. Further, the paper demonstrates that, in fact, the passing on defense generates an additional tax in the market.
Friday, December 29, 2006
The IRS announced today that there will be no extension of the Tuesday, Jan. 2, 2007 federal tax deposit due date, and that the Electronic Federal Tax Payment System (EFTPS) will conduct normal business operations on Tuesday, Jan. 2, despite the closing of federal offices as part of the national day of mourning for former President Ford:
Federal tax deposits due on Jan. 2, are expected to made as scheduled. However, the IRS will waive late federal tax deposit penalties for deposits due on Tuesday if the following conditions are met:
- The employer is not required to use EFTPS;
- The employer must not have been able to make a federal tax deposit because the bank through which the employer makes its deposits was closed on Jan. 2; and
- The employer’s federal tax deposit was posted on or before Jan. 3.
Michael S. Knoll (Penn) has posted Compaq Redux: Implicit Taxes and the Question of Pre-Tax Profit on SSRN. Here is the abstract:
This paper takes a new look at the cross-border dividend-stripping transactions that gave rise to the Fifth Circuit's opinion in Compaq v. Commissioner and the Eighth Circuit's opinion in IES Industries v. Commissioner. In both cases, the circuit courts held for the taxpayers and rejected the Commissioner's claim that the transactions lacked economic substance because the taxpayers were sure to lose money on the transactions before taxes. These cases generated extensive commentary that was split into two diametrically opposed camps. One group argued that the decisions were correct because the transactions were economically profitable business transactions. The other group argued that the transactions were blatant, abusive tax shelters; and that the courts should have struck them down. Because the commentators in the second group conceded that the transactions generated a pre-tax profit, these commentators also offered a range of proposals to modify or replace the pre-tax profit test. Although the tax benefit of crossborder dividend-stripping was sharply reduced by subsequent Congressional enactments, that action hid rather than resolved the issue whether the tax shelter jurisprudence is fundamentally flawed because there is a class of abusive transactions that produce a guaranteed profit before tax, but do not run afoul of the anti-abuse provisions in the tax law.
Interesting article in today's Inside Higher Ed, Rallying and Quibbling on Tenure Plan, by Scott Jaschik:
The MLA report is a sweeping reconsideration of how professors are evaluated. It argues, among other things, for a broader definition of research, moving away from ... “fetishization of the monograph” as the best way to demonstrate competence; for a full embrace of electronic scholarship; for better mentoring of junior faculty members; and for considering how these changes may suggest an overhaul for graduate education as well.
Prior TaxProf Blog coverage:
The IRS yesterday issued Notice 2007-11, 2007-4 I.R.B. 1, which provides comprehensive guidance on how individuals and businesses can obtain refunds and credits on their 2006 returns of the long-distance telephone excise tax imposed by § 4251:
- Individuals can either claim a standard amount ($30 (single) - $60 (married with two or more children) on Form 1040, or file a claim for the actual excise taxes paid between 3/1/03 - 7/31/06 on Form 8913, Credit for Federal Telephone Excise Tax Paid.
- Businesses, Tax-Exempt Organizations, and Individuals Filing Schedules C, E, or F with Gross Receipts in Excess of $25,000 either may file a claim based on the actual excise tax paid for the past 41 months or may use a special formula to figure their refund based on two months of bills.
The IRS agreed to stop collecting the tax after several cases held the continued collection of the tax to be illegal:
- Am. Bankers Ins. Group v. United States, 408 F.3d 1328 (11th Cir. 2005)
- OfficeMax, Inc. v. United States, 428 F.3d 583 (6th Cir. 2005)
- Nat’l R.R. Passenger Corp. v. United States, 431 F.3d 374 (D.C. Cir. 2005)
- Fortis v. United States, 2006 U.S. App. LEXIS 10749 (2d Cir. Apr. 27, 2006)
- Reese Bros. v. United States, 2006 U.S. App. LEXIS 11468 (3d Cir. May 9, 2006)
For more information on the IRS web site, see:
- Telephone Excise Tax Refund
- IR-2006-179, Businesses and Tax-Exempts Can Use Formula for Telephone Tax Refund
- IR-2006-137, IRS Announces Standard Amounts for Telephone Tax Refunds
- IR-2006-82, Government to Stop Collecting Long-Distance Telephone Tax
- JS-4287, Treasury Announces End to Long-Distance Telephone Excise Tax
- Notice 2006-50, 2006-25 I.R.B. 1141
Dhammika Dharmapala (University of Connecticut, Department of Economics) & James R. Hines Jr. (University of Michigan, Office of Tax Policy and Research) have posted Which Countries Become Tax Havens? on SSRN. Here is the abstract:
This paper analyzes the factors influencing whether countries become tax havens. Roughly 15 percent of countries are tax havens; as has been widely observed, these countries tend to be small and affluent. This paper documents another robust empirical regularity: better-governed countries are much more likely than others to become tax havens. Using a variety of empirical approaches, and controlling for other relevant factors, governance quality has a statistically significant and quantitatively large impact on the probability of being a tax haven. For a typical country with a population under one million, the likelihood of a becoming a tax haven rises from 24 percent to 63 percent as governance quality improves from the level of Brazil to that of Portugal. The effect of governance on tax haven status persists when the origin of a country's legal system is used as an instrument for its quality of its governance. Low tax rates offer much more powerful inducements to foreign investment in well-governed countries than elsewhere, which may explain why poorly governed countries do not generally attempt to become tax havens – and suggests that the range of sensible tax policy options is constrained by the quality of governance.
The Statistics of Income Division has released ten papers presented at the 2006 IRS Research Conference held on June 14-15, 2006 in Washington, D.C. These materials are included in the proceedings of the conference -- IRS Research Bulletin: Recent Research on Tax Administration and Compliance (Publication 1500):
- Complete Document of All Papers
- Foreword, Acknowledgments, and Table of Contents
- Attendance List
Session 1: Corporate Tax Administration and Compliance:
- Is the Tax Expense Estimate Improved or Biased in the Presence of Using the Same Tax and Audit Firm?, by Cristi A. Gleason (University of Iowa) & Lillian F. Mills (University of Texas)
- A First Look at the 2004 Schedule M-3 Reporting by Large Corporations, by Charles Boynton (IRS), Ellen Legel (IRS) & Portia DeFilippes (Office of Tax Analysis)
Session 2: Individual Compliance Analysis and Modeling
- Understanding Taxpayer Behavior and Assessing Potential IRS Interventions Using Multiagent Dynamic-Network Simulation, by Kathleen M. Carley (Carnegie Mellon University) & Daniel T. Maxwell (Innovative Decisions, Inc.)
- Longitudinal Study of EITC Claimants, by Karen Masken (IRS, Statistics of Income)
Session 3: Uses of Tax Data
- Calibrating Macroeconomic and Microsimulation Models to CBO's Baseline Projections, by Tracy L. Foertsch & Ralph A. Rector (both of The Heritage Foundation)
- Tax Variable Imputation in the Current Population Survey, by Amy O’Hara (U.S. Census Bureau)
Session 4: The Role of Third Parties in Tax Administration and Compliance
- Instance-Based Classifiers for Tax Agent Modelling, by Fuchun Luan (Australian Taxation Office), Warwick Graco (Australian Taxation Office) & Mark Norrie (YiSi Technologies, Canberra, Australia)
- Tax Filing Experiences and Withholding Preferences of Low- and Moderate-Income Households: Preliminary Evidence from a New Survey, by Michael S. Barr (University of Michigan Law School) & Jane K. Dokko (Economist, Board of Governors of the Federal Reserve System)
Session 5: New Approaches to Compliance and Administration
- The Effect of Targeted Outreach on Compliance, by Peter D. Adelsheim & James L. Zanetti (both of IRS, Small Business/Self-Employed)
- A New Era of Tax Enforcement: From "Big Stick" to Reponsive Regulation, by Sagit Leviner (S.J.D. Candidate, University of Michigan Law School)
Thursday, December 28, 2006
Freakonomics: A Rogue Economist Explores the Hidden Side of Everything contains this tax example concerning § 151(e):
Consider what happened one spring evening at midnight in 1987: seven million American children suddenly disappeared. The worst kidnapping wave in history? Hardly. It was the night of April 15, and the IRS had just changed a rule. Instead of merely listing each dependent child, tax filers were now required to provide a Social Security number for each child. Suddenly, seven million children -- children who had existed only as phantom exemptions on the previous year's 1040 forms -- vanished, representing one in ten dependent children in the United States.
It is not surprising that some people invented children in order to receive income tax credits, and that these parents of fictitious children were deterred when they noticed that the tax authorities had stopped ignoring this. But is it conceivable that “one of every ten children” in the U.S. was only conceived by the pen of taxpayers? With some effort, after private correspondence with IRS personnel, I obtained the “exact” numbers. Two million children resurfaced immediately, because they never disappeared. From the start, the number of children drops by five million and not by seven million. To find some of the rest, you have to know that a child in the U.S. does not receive a social security number unless his parents request one. One can imagine that on the spring night when income tax forms were submitted, many parents realized that they had forgotten to visit the social security offices. Supportive evidence: another two million children returned to the lists on April 15, 1988.
Interesting op-ed, The Taxman Cometh to Virtual Worlds, by Terri Wells:
He’s probably more feared and hated than any nasty giant or orc horde to meet the might of a player character or guild. Like a dragon, he’s attracted to treasure; like a vampire, he’s been accused of sucking the life’s blood out of his victims. He’s the tax man, he’s real, and he just might be the unavoidable addition to MMORPGs that no player can defeat.
I'm not talking about a monster; I'm talking about the IRS. If you think the IRS can't tax virtual assets because they have no inherent value, think again. The situation is a lot more tangled than you might suppose at first glance.
(Hat Tip: Kreig Mitchell.) Prior TaxProf Blog coverage:
- NY Times on Taxing Virtual Economies (12/10/06)
- Taxation of Virtual Assets in Online Gaming Is "Inevitable" (12/4/06)
- JEC Warns IRS: Do Not Tax Virtual Economies (10/19/06)
- Bankman: On-Line Gamers Not Taxable Until They Sell Virtual Assets in the Real World (1/18/06)
- Can the IRS Tax Virtual Profits in On-Line Gaming? (1/10/06)
- Virtual Games, Real Taxes (6/1/05)
- Virtual Taxes: The Next Frontier in Virtual Property Rights in On-Line Gaming? (12/6/04)
Recent tax posts on The Angry Bear, which bills itself as offering "slightly left of center economic commentary on news, politics, and the economy":
- Is the IRS Enforcing the Arm’s Length Standard More Effectively? (12/23/06)
- Motivations and Constraints the IRS Provides Large Corporations (12/22/06)
- Giving... Estates v. Gifts (12/19/06)
- In Defense of High Estate Taxes (12/18/06)
- Taxing Capital v. Taxing Labor (12/18/06)
- Wages, Inflation, and the 2003 Tax Cut (12/16/06)
- In Defense of a Progressive Tax System (12/15/06)
- Is Wealth Inequality Increasing? (12/15/06)
- When Is a Tax on Income Not an Income Tax? (12/13/06)
- A Tax Some Conservative Economists Would Support (12/09/06)
Ellen P. Aprill (Loyola-L.A.) has posted What Critiques of Sarbanes-Oxley Can Teach about Regulation of Nonprofit Governance, 75 Fordham L. Rev. ___ (2007), on SSRN. Here is the abstract:
With limited exceptions, Congress applied the American Competitiveness and Corporate Accountability Act of 2002, commonly known as the Sarbanes-Oxley Act, only to American publicly traded companies. Nonetheless invocation of SOX quickly reverberated across the nonprofit landscape, and nonprofits have been voluntarily adopting provisions like those in SOX. At the same time, however, SOX itself has been the subject of withering criticism. Some of these criticisms accept the purpose of SOX, but question the efficacy of particular provisions. Much of the criticism, however, is far more fundamental, that SOX's governance provisions represent a misplaced and unwarranted federalization, upsetting the proper balance between state and federal regulation by intruding into matters of corporate governance that have been and should remain the province of the states.
Greg Germain (Syracuse) responds to Howard Bashman's comment yesterday on the decision by the panel in Murphy v. Internal Revenue Service, 460 F.3d 79 (D.C. Cir. 8/22/06), to vacate the judgment and rehear the case:
What seems especially strange to me is that the panel did not grant a motion for re-hearing, as Professor Bashman suggests. The panel made the order on its own motion (it says so right in the order). The government only asked for a re-hearing en banc (it could have asked for both a panel re-hearing and an en banc re-hearing, but it didn’t). I seem to recall that a court loses jurisdiction once the time period for requesting a rehearing passes. If I’m right, for this to be procedurally proper, the en banc petition would have to extend the panel’s jurisdiction over the case.
Has anyone ever heard of an appellate panel doing this on its own motion long after the deadline for requesting a re-hearing?
Update: For more, see:
- Linda Beale (ataxingmatter)
- Kay Bell (Don't Mess with Taxes)
- Russ Fox (Taxable Talk)
- Joe Kristan (Roth & Co.)
- Robert Loblaw (Decision of the Day)
- Christopher Tozzo (A Stitch in Haste)
Eric M. Leeper (Indiana University at Bloomington, Department of Economics) & Shu-Chun Susan Yang (Joint Committee on Taxation) have posted Dynamic Scoring: Alternative Financing Schemes on SSRN. Here is the abstract:
Neoclassical growth models predict that reductions in capital or labor tax rates are expansionary when lump-sum transfers are used to balance the government budget. This paper explores the consequences of bond-financed tax reductions that bring forth a range of possible offsetting policies, including future government consumption, capital tax rates, or labor tax rates. Through the resulting intertemporal distortions, current tax cuts can be contractionary. The paper also finds that more aggressive responses of offsetting policies to debt engender less debt accumulation and less costly tax cuts.
Richard T. Ainsworth (Adjunct Professor, Boston University; Tax Counsel, Taxware Inc.) offers his views on MTIC Fraud – A Billion Dollar Assault on the E.U. VAT:
In 2006 it became apparent to most observers that missing trader intra-community fraud or MTIC fraud was threatening the structure and the stability of the European value added tax (VAT). Also known as carousel fraud, MTIC fraud became so serious in 2006 that the U.K. National Accounts were restated. Both Germany and the United Kingdom have provided empirical measures of the fiscal impact. Good figures for the whole E.U. are merely extrapolations from these country-specific studies. The U.K. VAT losses are estimated between 2.98 billion and 4.47 billion euros for 2006. Extrapolated “best estimates” of the annual VAT loss in the E.U. as a whole is about 23 billion euro, or $30 billion.
Wednesday, December 27, 2006
- What are Microsoft's tax reporting obligations?
- Is there any way for the bloggers to avoid reporting the fmv of the laptops on their 2006 tax returns?
- What are the ethical constraints on the blogger in reviewing Vista after accepting the free laptop?
- What about me?
(Hat Tip: George Mundstock.)
Former IRS Attorney (and Current Law Prof) Proceeds to Trial in $20m Suit v. Former Girlfriend for Revealing Details of Their Sex Life on Blog
The Associated Press reports today that former Deputy Senior Counselor to the Commissioner of the IRS, and current Arkansas-Little Rock Law Prof, Robert Steinbuch's "cyberspace sex scandal" case is going to trial. Steinbuch's $20 million lawsuit against Jessica Cutler claims that she revealed details of their sex life on her Washingtonienne blog while both were staffers in the U.S. Senate:
Steinbuch's case over the embarrassing, sexually charged blog appears headed for an embarrassing, sexually charged trial. Lurid testimony about spanking, handcuffs and prostitution aside, the Washingtonienne case could help establish whether people who keep online diaries are obligated to protect the privacy of the people they interact with offline. ...
Steinbuch says he was publicly humiliated. He went to court seeking more than $20 million in damages. The case is embroiled in thorny pretrial issues, with each side demanding personal information from the other. Steinbuch wants to know how much money Cutler received from the man she called her "sugar daddy." Cutler demanded Steinbuch's student evaluations from the University of Arkansas at Little Rock Law School, where he teaches....
Jonathan Rosen said Steinbuch wants to restore his good name. Students in his legal ethics class all search the Internet and learn about the blog, Rosen said.
SB/SE is the largest Chief Counsel division, with 440 attorneys assigned to 49 field offices. These attorneys generally work directly with IRS field agents, providing legal advice on tax cases involving individuals and small businesses, and on all cases involving collection and bankruptcy issues. When these cases go to trial, SB/SE attorneys are usually the IRS litigators, with direct responsibility for identifying the desired legal theories, developing the trial strategies, and representing the IRS in court.
Major Duties: SBSE attorneys typically spend most of their time handling Tax Court and bankruptcy cases. Over 95% of the 20,000 Tax Court cases filed last year were assigned to SB/SE attorneys. In most field offices, bankruptcy cases are assigned to attorneys who are designated Special Assistant United States Attorneys. Attorneys may also be assigned to assist the Department of Justice in the handling of collection, refund and other cases in the U.S. District Courts. Through client support and litigation, SB/SE attorneys have an opportunity to further their knowledge of tax law and to develop expertise on a wide variety of complex technical, procedural, and tax issues.
Salary: 77,793.00 to $101,130.
Application Deadline: January 3, 2007.
For more details, or to apply, see here.
Federal appellate procedure guru Howard Bashman offers his thoughts (via the WSJ Law Blog) on yesterday's decision by the panel in Murphy v. Internal Revenue Service, 460 F.3d 79 (D.C. Cir. 8/22/06), to vacate the judgment and rehear the case:
What the grant of panel rehearing suggests to me is that at least a majority on the original three-judge panel now has serious doubts about the soundness of the panel’s original holding. If the original three-judge panel did not have such doubts, the panel could have denied panel rehearing, and then the en banc petition would have come before all active judges for a vote. As a procedural matter, it is less embarrassing for the original panel, and less work for the other active judges not on the original panel, for a three-judge panel to fix its own mistakes than to require the full en banc court to do it. Of course, the three-judge panel is still empowered to reach whatever result it deems lawful in the case, so it remains possible, albeit far less likely, that the three-judge panel could ultimately reinstate the same result that the panel originally reached.
- How Taxing Is Figuring Deductions, by Tom Herman
- Snatch Tax Win From Stock Loss, by James B. Stewart
- Tax Breaks for Skyboxes: Suite Fees at College Stadiums Are Charitable Gifts, Sparking Building Boom -- and Scrutiny, by Daniel Golden
- Tax Haven Wants Its Welcome Mat Back: U.S. Virgin Islands Says Crackdown Deals Blow to Local Economy, Government Revenue, by Robert Guy Matthews
- The Payroll Tax Trap, Editorial
The new dean will succeed Katharine Bartlett.
Interesting front-page story in today's Wall Street Journal: Bosses' Pay: How Stock Options Became Part of the Problem; Once Seen as a Reform, They Grew Into Font of Riches And System to Be Gamed, by Mark Maremont & Charles Forelle:
First, it passed a law, pushed by President Clinton, seeking to rein in executive pay by limiting the tax break for it. The 1993 law said companies couldn't deduct yearly compensation of more than $1 million for any one of their top five officers. But it exempted certain kinds of pay linked to performance, which included stock options. Companies rushed to restructure pay plans to grant more options. In 1994, the first year the law was in effect, the value of option grants to CEOs at S&P 500 firms leapt by 45% on average, according to Mr. Murphy, and nearly doubled again over the next two years. The 1993 law "deserves pride of place in the Museum of Unintended Consequences," said Christopher Cox, chairman of the Securities and Exchange Commission, this fall.
Then in 1994, Congress helped beat back a proposed rule requiring companies to treat a stock-option grant as an expense and deduct it from profits. The plan, backed by the SEC and accounting rule makers, sparked intense corporate opposition. Congress stepped in to fight it, and after a long battle, the accounting rule makers caved. They issued a watered-down rule saying all that companies had to do was disclose in a footnote what options would have done to their profits, had the proposal passed.
Meanwhile, Congress left alone an older law that gave companies a tax deduction whenever stock options were exercised. Under that rule, which applied to the most common type of option given to executives, the employer can deduct a dollar from its income for tax purposes for every dollar of option gains pocketed by employees.
With rules like these, "what wasn't there to like about a stock option?" says Paula Todd, a compensation expert at consulting firm Towers Perrin. "You could grant them in unlimited amounts, with no expense, and claim a tax deduction. [Companies] would pay their dry cleaners if they could with stock options."
The Fall 2006 ABA Tax Section News Quarterly is now available. Tax Profs appearing in the issue include:
- Charles I. Kingson (NYU & Penn) (pp.5-8)
- Points to Remember
- David Brennen (Georgia), Congress Finally Adopts New UBIT Standard in 512(b)(13) for Controlled Entities (pp.9-10)
- Toni Robinson (Quinnipiac), Problems with the Uniform Definition of a Qualifying Child (pp.11-12)
- Francine Lipman (Chapman), Celebrating Life (Chai) and Taxes (pp. 13-14, 19)
- Spotlight on Committees
- Bryan Camp (Texas Tech), Individual and Family Taxation (p.18)
- Tax Bites
- Gail L. Richmond (Nova), Dresses for Success (p.20)
Volume 11 (2006) of the State & Local Tax Lawyer is now available, with these articles:
- The Ohio CAT: New Breed or Endangered Species, by Edward J. Bernert & Andrew M. Ferris
- The Continuing Evolution of Gross Receipts Taxes, by Giles Sutton, Nicholas E. Ford, Jamie C. Yesnowitz & Chris Hopkins
- Federal and State Constitutional Challenges to State Tax Amnesty Programs, by Brandee A. Tilman
- State Implementation of SUTA Dumping Prevention Act of 2004, by Charles C. Kearns
- Should Taxpayers Disregard States' Guidance on Electronics Transfers of Prewritten Computer Software?, by Kevin Thompson & Diann L. Smith
- Rewarding Inefficiency: Pennsylvania's Sales and Use Taxes Manufacturing Exemption in the Age of Technology, by Jennifer S. Berndt
- Covenants Not to Compete and the Problem of Taxing at the Place of Abstince: Milhouse v. Franchise Tax Board, by Larissa Chernock
- Public Enemy Number One: Business Privilege Taxes and the Courts' Flawed Reasoning in Applied Tech Products Corporation v. Radnor Township, by Pamela Millard
Tuesday, December 26, 2006
The D.C. Circuit panel in Murphy v. United States, 460 F.3d 79 (D.C. Cir. 8/22/06), on Friday vacated the judgment and agreed to rehear the case. The panel had held that § 104(a)(2) is unconstitutional under the 16th Amendment as applied to a recovery for a non-physical personal injury unrelated to lost wages or earnings. The panel set the following briefing schedule for the rehearing:
- Brief and Appendix for Appellant: January 22, 2007
- Brief for Amicus for Appellant: January 22, 2007
- Brief for Appellee: February 21, 2007
- Reply Brief for Appellant: March 7, 2007
For three excellent articles on Murphy, see:
- Geier on Murphy and the Evolution of "Basis", 113 Tax Notes 576 (Nov. 6, 2006)
- Germain on Taxing Emotional Injury Recoveries: A Critical Analysis of Murphy (11/21/06)
- Dodge on Murphy and the Constitutionality of Federal Taxes (11/17/06)
For prior TaxProf Blog coverage of Murphy, see
- Supreme Court Receives First Petition Based on Murphy (11/10/06)
- Murphy Files Response to Government's Petition for Rehearing En Banc (11/10/06)
- D.C. Circuit Grants Extension of Time for Murphy to Respond to Government's Petition for Rehearing En Banc (10/30/06)
- NLJ on Murphy (10/30/06)
- Is D.C. Circuit Leaning Toward Granting Rehearing En Banc in Murphy? (10/19/06)
- Aprill Op-Ed on Murphy (10/6/06)
- Government Petitions for Rehearing En Banc in Murphy (10/5/06)
- Murphy: "Textbook Example of Why Blogs Beat Textbooks" (9/7/06)
- Tax Profs Weigh in on Murphy in Tax Notes (9/5/06)
- More on Murphy (9/1/06)
- Shlaes on Murphy (8/30/06)
- Podcast on Implications of Murphy (8/29/06)
- Seto: Bank of America As an Alternative to Originalism in Murphy (8/28/06)
- Murphy: Wrong on Law, Right on Policy? (8/25/06)
- Geier: Murphy and the Role of Basis in the Tax Law (8/25/06)
- More Blogosphere Reactions to Murphy (8/25/06)
- Lederman on Murphy: Are All Non-Income Based Taxes Unconstitutional? (8/24/06)
- MSM Finally Picks Up Murphy Story (8/24/06)
- Tax Protester Cases After Murphy (8/24/06)
- Tax Prof Commentary on Murphy (8/23/06)
- Blogosphere Commentary on Murphy (8/23/06)
- MSM Commentary on Murphy (8/23/06)
- D.C. Circuit Holds § 104(a)(2) Unconstitutional Under 16th Amendment; Not All Receipts Constitute "Income" Under Glenshaw Glass (8/22/06)
Interesting article in today's Wall Street Journal: Hedge-Fund Tax Break Raises Flags; Come April 15, the Difference Between "Trader," "Investor" Can Be a Substantial Sum, by Arden Dale:
Hedge funds could face increased scrutiny over a tax break that lets their investors take generous expense deductions and write off fees they pay for fund management. Changes in the way hedge funds are investing, and an IRS proposal on investments known as swaps, have prompted some fund advisers to review how the tax break, known as trader status, might be affected. ...
Each investor in a "trader" hedge fund may deduct a proportionate share of fund expenses, including management fees but excluding interest expense, as a business expense under Section 162 of the tax code. Management fees are typically 1% to 2% of assets. A performance fee, which usually amounts to 20% of profit, is fully deductible in some cases. But individuals in "investor" hedge funds must treat such expenses as investment expenses. They are deductible only to the extent that the investor's share, combined with other miscellaneous itemized deductions, exceeds 2% of his adjusted gross income.
For the average hedge-fund investor, the difference between "trader" and "investor" status can be thousands of dollars.
Interesting article in the Wall Street Journal: How Christmas Brings Out the Grinch in Economists; Holiday Is Highly Inefficient, Some Dismal Scientists Say, by Mark Whitehouse:
Given the fanfare and billions of dollars in spending it generates, you might think Christmas is the best thing to happen to the economy all year. But some economists say we would be better off without it. In the cold, hard analysis of the dismal science, Christmas is a highly inefficient way of connecting consumers with goods. Squeezing a big chunk of people's spending into a year-end frenzy of gift-buying generates an abundance of ill-considered presents -- millions of unwanted ties, picture frames and toe socks that, had they found the right owners, could have brought a lot more satisfaction. Economists call that foregone benefit the holiday's "deadweight loss." ...
Economists aren't suggesting Christmas be abolished. Still, in the latest Wall Street Journal forecasting survey, more than two of three economists opined that if Christmas ceased to exist as a holiday, consumers would either spend more on themselves or spread their gift purchases more evenly across other events such as birthdays. That, in the view of some academics, would put more goods into the hands of people who truly value them and improve social welfare as a result.
Interesting editorial in today's Wall Street Journal: The Wages of Growth: To Lift Worker Incomes, Cut the Corporate Tax Rate:
Over the past year, the real average wage for non-supervisory employees has risen 2.8%. That equates to about a $1,200 increase in purchasing power for the typical household this year. Last year, real median household income was also up 1.1% after inflation. ...
It is true that income and wages are still about 2% below the peak they hit in 2000 before the dot-com bust and recession. But a new Treasury Department analysis finds that, measuring from the start of the peak of each expansion, wages so far in this decade's cycle are running ahead of the recovery pace during the 1990s. ...
We certainly agree with those who'd like to do more to lift worker paychecks, so here are two ideas.
First, make the Bush tax cuts permanent. If Congress lets them expire in 2010, as many Democrats are urging, the average family will suffer the equivalent of a $2,000 a year pay cut.
Second, slash the corporate income tax. A recent study for the American Enterprise Institute by economists Kevin Hassett and Aparna Mathur [see below] examined 72 nations over 22 years and found that "wages are significantly responsive to corporate taxation." In today's global economy, capital migrates across national borders away from high-tax nations to places where tax systems are less punitive. Workers suffer when capital flees, and job and wage growth slow.
For prior commentary, see:
- Kevin Hassett & Aparna Mathur, Taxes and Wages (3/15/06)
- Kevin Hassett & Aparna Mathur, Conspicuous Consumption: How to Measure Economic Well Being, National Review (10/9/06)
- New York Times Editorial, Consumption Gap (12/12/06)
- Kevin Hassett & Aparna Mathur, Of Growth and Gaps: The Growth of Consumption by the Middle Class Is More Significant Than the Relation of This Growth to That of the Rich, National Review (12/13/06)
- Angry Bear, Income Inequality and the Consumption Gap (12/14/06)
Francine J. Lipman (Chapman) has posted Celebrating Life (Chai) and Taxes: Lessons Learned, ABA Tax Section News Quarterly 13 (Fall 2006), on SSRN. Here is the abstract:
There is nothing certain about taxes or death. I beg your pardon Ben Franklin, but hear me out . . . . A glance at my resume presents a life journey including at least three different careers: tax accountant, tax lawyer and tax professor. While I have had different titles, in substance I have been doing the same thing for decades (albeit in a different form). And as we know substance rules over form, except when form rules over substance. Same daily excitement only different locations, I digress, which is what law professors do best.
As a law professor, I teach, but this summer I learned some valuable life lessons about death and taxes that I share in this Essay. While tax professionals deal with death and taxes on a routine basis in the abstract, few people really come to terms with a family member's terminal illness or even their own mortality. This Essay describes critical financial and estate planning steps that, while commonsense, are often neglected even by the most informed professionals. These numerous simple recommendations are certain to help you and your family and your clients to celebrate life (chai), rather than death, and taxes.
Interesting article out of Napes, Florida: Naples CPA Accused of Preparing Fraudulent Tax Returns; Suit Charges Scheme Shorted Government Up to $7.6 Million, by Chris W. Colby:
The U.S. Justice Department filed a lawsuit Friday alleging a Naples certified public accountant shorted the federal government as much as $7.6 million by preparing fraudulent tax returns that far understated the amount of income taxes his customers owed.
The lawsuit, filed in U.S. District Court in Fort Myers, asks a judge to bar Max Holcher ... from preparing any more federal income tax returns. The suit also seeks to bar Holcher "from promoting an alleged tax-fraud scheme that he calls Tax Engineering." The tax program helps customers claim improper tax deductions for nondeductible personal expenses such as home maintenance, swimming pools, vacations and personal vehicles, according to the complaint. "Holcher allegedly also prepares tax returns for customers that falsely report employment income as a royalty in order to evade Social Security taxes," according to a press release issued by the Justice Department.
- Tax Prof Profile: Ern Haddad
- Year-End Law School Check-Up
- Christmas Gifts for that Special Tax Person
- Wells on Holding Charities Accountable: Some Thoughts from an Ex-Regulator
- Top 5 Tax Paper Downloads
- Christmas Gifts for that Special Tax Person
- IRS Announces Processing Delays in Accommodating New Tax Law Changes
- Illinois' Response to Rising Residential Property Values: An Assessment Growth Cap in Cook County
- The Role of Taxes in the Birth of Christ
- Christmas Gifts for that Special Tax Person: A Recap
- NY Times: 2006: A Boom Year for Tax Lawyers
- WaPo: Two New Housing Tax Breaks
Monday, December 25, 2006
And it came to pass in those days, that there went out a decree from Caesar Augustus that all the world should be taxed. (And this taxing was first made when Cyrenius was governor of Syria.) And all went to be taxed, every one into his own city. And Joseph also went up from Galilee, out of the city of Nazareth, into Judaea, unto the city of David, which is called Bethlehem; (because he was of the house and lineage of David:) To be taxed with Mary his espoused wife, being great with child. And so it was, that, while they were there, the days were accomplished that she should be delivered. And she brought forth her firstborn son, and wrapped him in swaddling clothes, and laid him in a manger; because there was no room for them in the inn.
Luke 2:1-7 (KJV).
- 16th Amendment Christmas Tree Ornament
- 1913 Tax Form
- Business Tax Stories Book
- iPod Pre-loaded with Tax CLE
- IRS Action Figure
- IRS Chocolates
- IRS Notecards
- IRS Pottery
- "Screw the IRS" Card Game
- Tax Coffee Mugs
- Tax Greeting Cards
- Tax Stories Book
- Tax Tee-Shirts
- Tax Ties
- Treasury Building Lithographs
- Treasury Building Postcards
Interesting article in the New York Times: A Boom Year for Mergers and a Furious Pace for Law Firms, by Ellen Rosen:
Over the first weekend of November, lawyers at Ropes & Gray in Manhattan were busy working on a bid by the private equity firms Thomas H. Lee Partners and Bain Capital for the radio station giant Clear Channel Communications. But one of the lawyers, Leo P. Arnaboldi, finally had to tell his partners that he needed to duck out for a few hours: he was running in his third consecutive New York City marathon. Despite the long hours he had put in on the deal, Mr. Arnaboldi, a tax lawyer, ran his personal best. And by 3 p.m., he was home and back on the job, checking his BlackBerry for updates on what ultimately became a winning bid....
The staggering number of mergers and acquisitions this year has kept many lawyers running long and hard. Those in mergers and acquisitions, private equity or ancillary specialties like tax or employee benefits are experiencing a pace unlike any since the 1980s.
Interesting article in the Washington Post: New Tax Law Gives Home Buyers a Break or Two, by Benny L. Kass:
President Bush this week signed a law that includes almost 200 tax changes, at least two of which are potential money savers for home buyers.
- First-time D.C. home buyers: If you are buying your first home in the District, and it will be your principal residence, you may be eligible for a credit against your federal taxes of up to $5,000. [See Form 8859, District of Columbia First-Time Homebuyer Credit.] ...The new law -- as least for mortgage insurance issued next year -- allows such deductions.
- Deducting private mortgage insurance premium payments: ... The new law -- as least for mortgage insurance issued next year -- allows such deductions.
Sunday, December 24, 2006
1. [239 Downloads] Options Backdating, Tax Shelters, and Corporate Culture, by Victor Fleischer (Colorado) [blogged here]
3. [130 Downloads] Efficiency and Tax Incentives: The Case for Refundable Tax Credits, by Lily Batchelder (NYU), Fred T. Goldberg (Skadden) & Peter Orszag (Brookings Institution) [blogged here]
4. [125 Downloads] The Constitutionality of Federal Taxes and Federal Tax Provisions, by Joseph M. Dodge (Florida State) [blogged here]
Last-minute gift ideas for that special tax person in your life:
THA's fifth annual ornament depicts the first Form 1040 as a commemorative of the 80th Anniversary of the authorization to collect tax on income. The ornament measures approximately 3-1/4 by 3-1/2 inches....On January 5, 1914, the Department of the Treasury unveiled the new Form 1040 for tax year 1913.
THA's Internal Revenue Service Building notecards depict six works of art displayed in the IRS National Office Building, each showing various architectural features of the New Deal-era IRS headquarters. The top-fold cards measure about 4-1/2 by 6 inches and arde packaged 12 to a box, 2 of each of the 6 prints, with envelopes.
Other items include:
(Hat Tip: Marie Byrne.)
A gift your teenager is sure to enjoy: an Apple iPod nano (4GB/Silver), preloaded with ABA Estate Planning CLE programs:
Take the experience of leading legal experts when you're on the move with an iPod preloaded with CLE in your practice area. With the next generation of CLE in your pocket, you can learn when and where it is best for you.
The IRS announced on Friday (IR-2006-195) new guidance to help tax filers claim the extended deductions and other tax advantages in the Tax Relief and Health Care Act of 2006 signed by the President on Wednesday:
The start of the 2007 filing season will begin on time. However, the recent changes in the law mean the IRS will not be able to process a small percentage of individual tax returns until early February, primarily involving three tax deductions – the state and local sales tax, higher education tuition and fees, and educator expenses....
The IRS will conduct a special mailing of Publication 600, which will include the state and local sales tax tables and instructions for claiming the sales tax deduction on Schedule A (Form 1040), to 6 million taxpayers. Publication 600, State and Local General Sales Taxes, will be sent to taxpayers who will receive the 2006 Form 1040 package in early January. Publication 600 was posted to IRS.gov today, with the special mailing for taxpayers arriving in mid-January.
Richard F. Dye (Department of Economics and Business, Lake Forest College), Daniel P. McMillen (Department of Economics, University of Illinois-Chicago) & David F. Merriman (College of Business, Loyola University-Chicago) have published Illinois' Response to Rising Residential Property Values: An Assessment Growth Cap in Cook County, 59 Nat'l Tax J. 599 (2006). Here is the abstract:
A recent policy change caps the annual percentage increase in the assessed value of owner–occupied homes in Cook County, Illinois. Assuming that total revenue would remain constant, the result is relief for some financed by higher taxes on others. We estimate these tax burden shifts using data on all individual parcels and individual units of government in the county. We examine other aspects of the policy. In particular, we look at some of the difficulties in using changes in aggregate tax shares for residential versus non–residential property over time to justify or analyze a policy like this.
Saturday, December 23, 2006
The Boston University Graduate Tax Program, established in 1959 as one of the first graduate tax programs in the nation, continues to be one of the best. It consistently ranks among the Top 10 tax programs. The program offers a broad and diverse curriculum, with five required courses and 33 electives and concentrations in three areas:
- Business Tax
- Estate Planning
- International Tax
In this five part series, TaxProf Blog will profile Boston University's full-time Graduate Tax Faculty.
As Associate Dean for Graduate Programs, Ernest M. Haddad is responsible BU's Graduate Tax Program, Morin Center for Banking and Financial Law, and Office of Foreign Programs. These departments offer a number of academic programs and services, including LL.M. degrees in American Law, Banking and Financial Law, Intellectual Property Law and Taxation.
Dean Haddad graduated from Trinity College in 1960 and BU in 1964. After two years of law firm practice, he returned to BU Law to serve as assistant dean.
My MoneyLaw colleague Jeff Harrison (Florida) offers a year-end 10-point check-up to assess the health of your law school. You must answer a 5 or a 0 to each question, with the total score determining your law school's health:
- 40-50 points. Go to the Law School ER immediately. Not for your school. It left the world of the living some time ago. You, however, have a pulse. Save yourself by writing and teaching your very best and finding a hobby.
- 30-39 points. Your School is in critical condition but there is a chance of survival. It will be very tricky. Retirements, hiring stealth candidates, and a courageous dean are needed. Guerilla action maybe in order.
- 20-29 points. You have an elevated risk of law school death but it can be controlled by diet and exercise. Do not let the opportunity slip away.
- 10-19 points. Enjoy your law school’s good health.
- 0-9 points. See a physician immediately. You are delusional.
Catharine P. Wells (Boston College) has posted Holding Charities Accountable: Some Thoughts from an Ex-Regulator on SSRN. Here is the abstract:
This paper recounts a number of lessons learned in the course of serving as the Director of Public Charities for the Commonwealth of Massachusetts. It incorporates these lessons into a discussion of the proper analysis of charitable organizations. Should charities be analogized to for-profit firms or are they something that is essentially different? The paper argues that they lack many of the attributes of Coasian firms and that they should be considered as "consumption groups" that have different methods of accountability.
Friday, December 22, 2006