Friday, August 31, 2007
Last week, I blogged the tax aspect of the sub-prime mortgage problem: taxpayers often have discharge of indebtedness income upon foreclosure of their homes. The post included detailed commentary by Tax Profs Bryan Camp (Texas Tech), Sheldon Cohen (Farr, Miller & Washington; former IRS Commissioner), Linda Galler (Hofstra), Stuart Lazar (Tulane), Jim Maule (Villanova), Marty McMahon (Florida), and David Shakow (Penn).
President Bush today announced his suppport for a proposed amendment to § 108 to provide relief from discharge of indebtedness income for taxpayers who lose their primary residences to foreclosure. The Mortgage Cancellation Relief Act pf 2007 (H.R. 1876; S. 1394). From the White House Fact Sheet: New Steps to Help Homeowners Avoid Foreclosure:
The President Calls On Congress To Change A Key Housing Provision Of The Federal Tax Code So It Does Not Punish Families Who Are Forced To Sell Their Homes For Less Than Their Mortgage Is Worth. Current tax law counts cancelled mortgage debt on primary residences as taxable income. For example, if the value of a home declines and $20,000 of the homeowner's loan is forgiven, the tax code treats that $20,000 as taxable income. The President proposes temporary relief to ensure that cancelled mortgage debt on a primary residence is not counted as income.
- The President Is Working With Congress In A Bipartisan Fashion To Make This Important Change. Senator Debbie Stabenow (D-MI), along with Senator George Voinovich (R-OH) and others, has introduced a bipartisan bill that would protect homeowners from having to pay taxes on cancelled mortgage debt. In the House, Representatives Rob Andrews (D-NJ) and Ron Lewis (R-KY), along with several of their colleagues, have introduced similar legislation. The President looks forward to working with Congress to reach agreement on a bill, so we can deliver this vital tax relief to American homeowners.
A Designer Handbag Amid the Briefcases on the Tax Beat, by Lynnley Browning:
Lee Sheppard, who was wearing her standard black and sporting punky streaked blonde hair, strolled into a recent tax conference at Columbia University in Manhattan and waded through a sea of tailored suits. Silver jewelry sparkling, Ms. Sheppard resembled a nostalgic, if high-end, punk-rock groupie — think of Jean Paul Gaultier and Vivienne Westwood, two of her favorite designers — who had blundered into a convention hall filled with tax lawyers and IRS officials.
But she was hardly lost. Ms. Sheppard, who is a tax lawyer and now 51, was there to cover a conference on questionable tax shelters for Tax Analysts, a trade publication, where her writings over the last two decades have become a must-read for tax practitioners. Amid growing interest in the increasingly sophisticated use — and abuse — of tax laws by corporations and individuals, the field of tax commentators has grown in recent years. Within that universe, Ms. Sheppard has tried to carve a niche. Many people in the tax world — lawyers, government officials, policy analysts — disagree with her interpretations of the Internal Revenue Code, whose regulations and pronouncements can be as murky as a Cajun swamp brimming with slippery, unknown things. But few argue with her style. ...
She performs an important public service for the tax community, and in quite entertaining fashion,” said Professor Victor Fleischer, a tax specialist at the University of Illinois College of Law. “Where else can you catch both the latest on a tax shelter and hear some cultural commentary about the Hamptons?” Ms. Sheppard, who grew up in the suburbs of Cleveland and earned her law degree at Northwestern University, has not practiced tax law since the late 1970s, when she spent what she described as several miserable “Kafka-esque” years with Cravath, Swaine & Moore, a blue-chip law firm, in Chicago.
Reaganomics 2.0 (op-ed), by Stephen Moore:
Earlier this year the cover of Time Magazine depicted Ronald Reagan with a tear running down his cheek -- the message being that the political class has abandoned the Reagan legacy. There's no doubt Reagan's pro-growth, tax cutting philosophy is in full-scale retreat: This Congress has proposed higher tax rates on personal income, capital gains and dividends. Ironically, the Reagan economic philosophy of lower taxes, less regulation and free trade has never been more in vogue abroad -- so much so that it has become the global economic operating system. ...
[T]here's only about one place on the planet where politicians hold Reaganomics in outright disrepute today -- and that is here. The Democratic leadership in Congress believes that tax rates don't matter much if at all, and that the Bush tax cuts were a giveaway to the rich. Presidential candidate John Edwards has even suggested a near doubling of the U.S. capital gains tax rate as part of his economic program, and his rivals all have schemes to soak the wealthy as well. All of this threatens to move America from leader to laggard in the global race for job creation, capital investment and prosperity. Maybe that explains the tear rolling down the Gipper's cheek.
Those of us in the education biz hear a lot of graduation speeches. Conan O'Brien's speech to the Stuyvesant High School graduates is the best I have ever seen:
Legal Scholarship: It Should Be Relevant Again, by Aaron D. Twerski (Brooklyn):
The infusion into the legal academy of professors with doctorates in economics, philosophy, psychology and sociology has brought perspectives into the law school curriculum that have enriched the academy and brought new insights into the law. But the idea that the legal academy is a closed club that speaks only to each other and not to the bench and bar is decidedly not healthy. If interdisciplinary work is to have an impact on the changing face of the law, it must be made accessible to lawyers and judges who are not schooled in other disciplines. And the scholars must demonstrate that the theories they set forth have real-world relevance that make a difference.
Leah M. Christensen (St. Thomas (Minnesota)) & Julie A. Oseid (St. Thomas (Minnesota)) have posted Navigating the Law Review Article Selection Process: An Empirical Study of Those With All the Power - Student Editors, 59 S.C. L. Rev. 465 (2008), on SSRN. Here is the abstract:
Anyone who enters the legal academy knows the pressure for new law professors to publish or perish. The use of student editors as the "gatekeepers" of legal scholarship is a distinctive feature of the legal academy. Yet, even with student editors holding the keys to academic success, few empirical studies have explored what factors student editors consider most important when making article selection decisions. The study reported in this Article attempts to shed light on this process and provide suggestions for new law professors as they navigate the law review article submission process.
The present study examines how law review editors at all levels of the law school "tier" system (e.g., Top 15, Top 25, Top 50, Top 100, Third Tier, Fourth Tier and Specialty Journals) weigh the importance of author credentials, topic, format, and timing of an article submission in making their selection decisions. Although most editors consider each of these factors, the data also suggests that the higher-ranked journals rely more heavily on author credentials than lower-ranked journals. Editors at higher-tiered law schools were highly influenced by where an author has previously published. Further, while not a single editor at a Top 15 school considered an author's practice experience in making a publication decision, a majority of the editors at lower-tiered journals rated practice experience as an important factor in article selection. In addition, the study participants almost unanimously agreed that they were influenced by the topic of an article yet there were important differences among the law schools concerning the actual topics about which they would be most or least likely to publish. In addition to describing the survey results in more detail, this article will offer specific commentary from the student editors about their process of selecting law review articles.
We study the effects of abolishing estate taxation in a quantitative and realistic framework that includes the key features that policy makers are worried about: business investment, borrowing constraints, estate transmission, and wealth inequality. We use our model to estimate effective estate taxation. We consider various tax instruments to reestablish fiscal balance when abolishing estate taxation. We find that abolishing estate taxation would not generate large increases in inequality, and would, in some cases, generate increases in aggregate output and capital accumulation. If, however, the resulting revenue shortfall were financed through increased income or consumption taxation, the immensely rich, and the old among those in particular, would experience a welfare gain, at the cost of welfare losses for the vast majority of the population.
(Hat Tip: Elliott Manning.)
The tax-free treatment of like-kind exchanges presents one of tax law's most compelling equity conundrums. Tax law generally does not tax property holders on the appreciation in the property's value, but it does tax gain or loss recognized by property sellers and exchangers of non-like-kind property. In its basic Aristotelian form, equity requires that likes be treated alike, but it does not provide criteria for determining what is alike. Depending upon the criteria selected, exchangers of like-kind property can be similar to holders, or similar to sellers and exchangers of non-like-kind property. The equity conundrum is whether tax law should treat exchangers of like-kind property the same as holders of property or the same as sellers and exchangers of non-like-kind property. This Article solves the conundrum using Rawlsian and Hohfeldian concepts, which suggest that holders should not be taxed on property's appreciation. Second, it explains that once law exempts holders' appreciation from taxation, comparative equity dictates that it should also exempt from taxation exchanges of like-kind property.
The Senate Finance Committee has called a hearing on Carried Interest Part III: Pension Issues for Thursday, September 6 at 10:00 a.m. in 215 Dirksen Senate Office Building. For the previous two carried interest hearings (including witness statements), see:
Thursday, August 30, 2007
The 2008 presidential race is likely to produce a sharp debate over tax policy and its effects on individuals, estates, investments and corporations. But voters may have to wait for the general election to hear it. That is because there is substantial agreement on the biggest policy questions within each party's field of primary candidates. For now, those broad areas of consensus have left intraparty rivals to bicker at the margins.
IRS Is Denied Work Papers Of Textron in Pivotal Case, by Jesse Drucker:
The IRS lost a closely watched legal battle when a federal judge in Rhode Island ruled yesterday that the government didn't have a right to internal tax documents belonging to aerospace and defense contractor Textron Inc. The IRS and Justice Department had been trying to obtain tax-accrual work papers belonging to Textron. Such papers generally include legal analysis of transactions that could be challenged by the IRS. If companies think there is a chance the IRS might disallow a tax benefit, they set aside -- or accrue -- a portion of the expected savings. Those papers also could include analysis by lawyers of the transaction's legal weaknesses, and have been called the blueprint for complicated tax transactions. ...
Communications between lawyers and their clients generally are exempt from scrutiny by adversaries. The IRS had argued it had legal precedent on its side, stemming from a 1984 Supreme Court case that ruled the IRS had a right to tax-accrual documents. However, U.S. District Court Judge Ernest C. Torres denied the government's petition to enforce an IRS summons, writing that papers were protected by "work product" privilege, as "the work papers were prepared 'because of' anticipated litigation with the IRS."
He wrote: "[F]orced disclosure of those opinions would put Textron at an unfair disadvantage in any dispute that might arise with the IRS, just as requiring the IRS to disclose the opinions of its counsel regarding areas of uncertainty in the law or the likely outcome of any litigation with Textron would place the IRS at an unfair disadvantage."
United States v. Textron, Inc. & Subsidiaries, No. 06-198T (D.C. R.I. 8/29/07).
Judge Orders Web Site Selling Tax-Evasion Advice to Close, by David Cay Johnston:
A Web site that sells materials stating that individuals can legally stop paying taxes has been shut on the order of a federal judge. [United States v. Schulz, No. 1:07-cv-0352 (N.D.N.Y. (8/9/07)). Judge Thomas J. McAvoy, a senior judge in the Northern District of New York who issued the order on Aug. 9, wrote that the First Amendment did not protect the two organizations that operate the Web site, or their founder, because the site incited criminal conduct. Judge McAvoy ruled that some people who went to the Web site stopped paying taxes, causing the government harm.
Judge McAvoy also ordered that the names, addresses, telephone numbers, e-mail addresses and Social Security numbers of every person who received materials on how to stop paying taxes be turned over to the government. ...
Robert L. Schulz of Queensbury, N.Y., the founder of both organizations behind the Web site — the We The People Foundation for Constitutional Education and the We The People Congress — posted the court order at the Web site givemeliberty.org, and closed the rest of the site even though he said yesterday that the order did not specify that he do so. He also said he had filed an appeal with the United States Court of Appeals for the Second Circuit. His organization rose to prominence with a series of full-page newspaper ads, starting in 2001, asserting that the government tricks people into paying taxes. The ads solicited donations, which it said were fully tax-deductible.
House Ways & Means Committee Chairman Charles B. Rangel today announced that the Committee will hold a hearing on fairness and equity in the tax code:
The hearing will focus on a number of tax fairness issues, including the tax treatment of investment fund managers and the impact of the alternative minimum tax on working families. It will also examine the reasons why investment funds are being organized offshore.
This hearing will focus on a comprehensive examination of Federal income tax fairness, with particular attention to investment fund manager compensation and the effects of the alternative minimum tax on tax rates.
In 2001, President Bush introduced an economic stimulus package that he said "erases inequities in the tax code or eases inequities in the tax code." At the time, there were divisions as to whether the tax cuts would provide the stimulus effect and relieve inequities in the tax code as suggested by the President. In addition to analyzing the effects of the President’s tax packages, there are other aspects of our tax laws that are worthy of examination, including provisions related to investment funds such as private equity funds and hedge funds. Concerns have been raised about the manner in which investment fund managers are able to structure their compensation. Others have observed that current tax rules force investment funds to form outside the United States. It is appropriate to perform a comprehensive examination of fairness in the Federal income tax system to ensure that our tax policy is working effectively and fairly for all of America’s working families. In announcing the hearing
The hearing will take place on Thursday, September 6, 2007, in 1100 Longworth House Office Building, beginning at 10:00 a.m.
Greg Mankiw (Harvard) notes that a professor's average annual salary and benefits today ($160,000) is roughly four times that of the average American worker, the same ratio as in 1905 (when the average professor earned $2,000). For average law professor salaries, see here, here, here, here, and here.
Scott Schumacher (Washington) has published Learning to Write in Code: The Value of Using Legal Writing Exercises to Teach Tax Law, 4 Pitt. Tax Rev. 103 (2007). Here is the abstract:
Traditionally, law school tax courses have been taught using a mix of problems, class discussion, the Socratic method, and one end-of-term exam. The goal of these courses is to introduce students to key concepts of tax law and to teach them the essential skill of reading and interpreting the Internal Revenue Code and Treasury Regulations. This traditional method of instruction is an efficient and cost-effective way of transmitting a great deal of complex information to a large number of students. It is also a good vehicle to teach the essential skill of reading and interpreting the Code. However, the time limitations inherent in the traditional methods of teaching do not require, or indeed permit, students to engage in the depth and quality of analysis that they will be asked to perform when they enter practice. In addition, students, while learning the Internal Revenue Code, are not instructed as to how they will use or apply the Code in their daily tax practices.
CurrencyTrading.net has named TaxProf Blog one of Top 100 blogs dealing with economics:
TaxProf is an extremely comprehensive look at all issues concerning tax law. It is updated frequently and is a great source of current tax related events, discussion, and analysis.
- Acquisition of Property for War Purposes (U.S. Dep't of Justice, Lands Division, 1944)
- Federal Income Taxation of Corporations and Shareholders, by Boris I. Bittker (Federal Tax Press, 1959)
- Law of Taxation, by Francis Hilliard (Little Brown, 1875)
- Seidman's Legislative History of Excess Profits Tax Laws, by J.S. Seidman (Prentice-Hall, 1947)
- Seidman's Legislative History of Federal Income and Excess Profits Tax Laws 1953-1939, by J.S. Seidman (Prentice-Hall, 1954)
- Seidman's Legislative History of Federal Income Tax Laws, 1938-1961, by J.S. Seidman (Prentice-Hall, 1938)
(Hat Tip: David Shakow.]
Can Republicans Explain Why Higher Taxes Are Bad?, by James Pethokoukis:
The Republican presidential candidates seem to be assuming that their Democratic rivals are going to push for repeal of all the Bush tax cuts. That's why they are always talking about a potential $2 trillion-plus tax hike when those reductions expire at the end of 2010. More likely, Democrats will call for only the tax cuts on wealthier Americans to be repealed—such as raising the top rate from 35% to 40%—and for keeping most of the middle-class tax cuts, including rate reductions and a higher child tax credit.
So Republicans will have to explain why a tax hike on "the rich" is a bad idea that will hurt average Americans. Making that task more difficult is the fact that many Americans probably associate the 1990s with an economic boom despite—maybe even because of—the Clinton tax hike in 1993. I have yet to hear any GOP contender really address this issue.
Update: Linda Beale (Wayne State) has more here.
Robert S. Chirinko (Emory University, Department of Economics) & Daniel J. Wilson (Federal Reserve Bank of San Francisco) have posted State Investment Tax Incentives: What Are the Facts? Here is the abstract:
There is an ongoing debate in the U.S. among policymakers and the courts concerning the practical effects of state investment tax incentives. However, this debate often suffers from a lack of clear information on the extent of such incentives among states and how these incentives have evolved over time. This paper takes a first step toward addressing this shortcoming. Compiling information from all 50 states and the District of Columbia over the past 40 years, we are able to paint a picture of the variation in state investment tax incentives across states and over time. In particular, we document three stylized facts: (1) Over the last 40 years, state investment tax incentives have become increasingly large and increasingly common among states; (2) these incentives, as well as the level of the overall after-tax price of capital, are to a large extent clustered in certain regions of the country; and (3) states that enact investment tax credits tend to do so around the same time as their neighboring states.
Wednesday, August 29, 2007
Gerry Beyer (Texas Tech) of our sister Wills, Trusts & Estates Prof Blog has an extensive post on Leona Helmsley's will. The $12 million bequest to her dog has gotten a lot of press attention. Here is Gerry's analysis of the will:
- Her dog, Trouble (a white Maltese shown in the photo) will benefit from a $12 million trust fund. Trusts for pet animals are valid under New York law (N.Y Est. Powers & Trusts Law § 7-8.1). However, the court may reduce the amount of the property if it determines that it substantially exceeds the amount required for Trouble. The excess would then pass as part of the residuary estate as described below (unless her will provides otherwise). It appears that her brother, Alvin Rosenthal, is the trustee of this trust.
- Two of her grandchildren will receive $5 million each conditioned on their visiting their father's grave site at least once each year. I am uncertain how compliance with this condition will be monitored.
- Two of her grandchildren will receive nothing for "reasons that are known the them."
- $3 million for the upkeep of her mausoleum (discussed earlier on this blog) which must be "washed or steam-cleaned at least once a year."
- When Trouble dies, she will be buried in the mausoleum.
- Nicholas Celea, her chauffeur, will receive $100,000. The remainder of her estate worth many billions of dollars, will pass to the Leona M. and Harry B. Helmsley Charitable Trust.
- Because the remainder is huge and goes to her charity, it is unlikely that Trouble's trust will be contested (in my opinion).
Press and bloogosphere coverage:
Produced with the cooperation of the ABA Tax Section, this useful magazine offers concise, practice-oriented articles to assist lawyers with all aspects of tax law. The articles are written by practitioners and are reviewed by an expert board of editorial advisors who are members of the ABA Tax Section and are appointed by the Section.
Published four times yearly, each issue of The Practical Tax Lawyer brings you pragmatic, nuts-and-bolts advice on how to solve your clients’ tax problems. The articles are prepared by practitioners like yourself who have tried numerous methods, found what works, and now want to share those solutions with you:
- Articles that are short and to the point; no theory or string cites — no "maybe this, maybe that"— just honest, pragmatic advice
- Sample forms to cut your drafting time
- Practical guidance on crucial issues
Ian Ayres (Yale has published an interesting new book, Super Crunchers: Why Thinking-By-Numbers Is the New Way to Think Smart (Bantam, 2007). The book argues that statistical analysis should be used more in corporate decision-making. Ian talks about the book in this interview:
The IRS's Office of Chief Counsel seeks to hire a Deputy Division Counsel/Deputy Associate Chief Counsel (Tax Exempt and Government Entities) (Fields Services):
- [T]he selectee of this position assists and acts for Division Counsel/Associate Chief Counsel (TEGE), as a full deputy in the overall executive direction of the legal work of some 140 professional and support staff in Washington, D.C., and 7 field locations nationwide (Washington, D.C.; Long Island, NY; Baltimore, MD; Chicago, IL; Denver, CO; Dallas, TX; Los Angeles, CA or Thousand Oaks, CA) with primary responsibility for the executive oversight of the Field Offices and field enforcement and litigation support.
- [The selectee acts] as a full deputy in the overall executive direction of the operations of all legal work involving the strategies, plans, designs, and delivery of a comprehensive and customer-oriented tax administration program to meet the needs of tax exempt and government entities, including employee plans, exempt organizations, and Federal, state, local and Indian tribal governments. In addition, the incumbent provides legal services in selected topics (e.g., employment tax and welfare/health) to all IRS Division Commissioners, and to other IRS and Treasury officials.
Salary: $111,676 to $168,000.
Application Deadline: September 13, 2007.
Senate Finance Committee Chair Max Baucus and Ranking Member Charles Grassley yesterday asked the GAO to investigate how tax fraud related to identity theft contributes to the "tax gap" and whether the IRS is taking sufficient steps to address the issue.
Texas Tech is looking to hire either an entry level or lateral Tax Prof to begin in Fall 2008. They are looking to cover courses in business entity taxation, tax exempt organizations, and international taxation, along with another upper level tax course of choice. For more information, contact Bryan Camp.
Linda Sugin (Fordham) has posted Resisting the Corporatization of Nonprofit Governance: Transforming Obedience into Fidelity, 76 Fordham L. Rev. ___ (2007), on SSRN. Here is the abstract:
This paper is part of a symposium on Nonprofit Organizations, Economic Challenges and the Future of Charities. The law of nonprofit governance is moving toward a more corporate model of accountability and borrowing from the law of business organizations. While applauding some of these developments, this essay expresses concern over the creeping corporatization of the law of charities, and argues that nonprofit corporations differ from business corporations in ways that the law must recognize. The market incentives that control business behavior are absent in nonprofit organizations, so regulatory mechanisms must act as substitutes. Nonprofit organizations, and charities in particular, are public/private organizations, so there must be greater government interest in their oversight than there is for purely private businesses.
ABA Tax Section Offers Teleconference & Webcast Today on The Economic Substance and Business Purpose Doctrine
The ABA Tax Section offers a teleconference and webcast today on Recent Developments in the Economic Substance and Business Purpose Doctrine from 1:00 - 2:30 p.m. EST:
The last few years have seen the occurrence of several important developments regarding the economic substance doctrine. This program discusses several of these recent developments and their potential future impact
Faculty: Yoram Keinan (Senior Manager, Ernst & Young's National Tax Department, Washington, D.C.)
Tuesday, August 28, 2007
The U.S. Commission on Civil Rights today released Affirmative Action in American Law Schools, a critical evaluation of the use of racial preferences in American law school admissions. From the press release:
This Commission finds that "admitting students into law schools for which they might not academically be prepared could harm their academic performance and hinder their ability to obtain secure and gainful employment..." Moreover, the Commission finds that racial preferences might also contribute to racial income and wealth disparities. The Commission expresses particular concern about the lack of transparency in law school admissions, urging legislation to require federally-funded law schools to publicly disclose their use of racial preferences.
The Commission admonished that the ABA's Council of the Section of Legal Education and Admissions of the Bar has adopted a diversity standard that tacitly prods law schools to use racial preferences in student admissions. The Commission criticizes the ABA standard because it "substitutes the judgment of the Council for that of the law schools in deciding whether diversity is essential to their educational mission."
Chairman Gerald A. Reynolds commented, "Race-based admissions have been found to harm minority law students by setting them up for failure. Law schools that continue to use racial preferences despite this evidence should at least disclose the risks of academic mismatch to minority student applicants." Continuing, Chairman Reynolds said, "A true civil rights strategy would focus on these students much earlier in their educational development, rather than providing them with inadequate training and then using preferential treatment to admit them into schools at which they are likely to fail."
For the full 220-page report, see here. For press and blogosphere coverage, see:
- Chronicle of Higher Education: Civil-Rights Panel Wants Law Schools Required to Disclose Key Affirmative-Action Data, by Peter Schmidt
- Discriminations, by John Rosenberg:
- National Law Journal: Commission Targets Affirmative-Action "Mismatch" in Law School Admissions, by Leigh Jones
- ProfessorBainbridge.com: Affirmative Action in Law Schools Critiqued by USCRC, by Stephen Bainbridge
- The Right Coast, by Gail Heriot (USD):
- The Volokh Conspiracy: More on Whether Affirmative Action in Law Schools Backfires on Prospective Black Lawyers, by David Bernstein (George Mason)
- Wall Street Journal: Affirmative Action Backfires, by Gail Heriot (USD)
David I. Walker (Boston University) has published Unpacking Backdating: Economic Analysis and Observations on the Stock Option Scandal, 87 B.U. L. Rev. 561 (2007). Here is the abstract:
The corporate stock option backdating scandal has dominated business page headlines since the summer of 2006. The SEC has launched investigations of more than one hundred companies with respect to the timing and pricing of stock options granted during the boom years of the late 1990s and early 2000s, and the number of firms caught up in the scandal continues to increase. This Article contributes to our understanding of the backdating phenomenon by analyzing the economics of backdating and the characteristics of the firms under investigation. Its main points are the following: First, given the high volatilities of the stocks of the technology companies that dominate the list of firms under investigation and the fact that options granted to executives and employees typically may not be exercised for several years, press reports that focus on the size of the strike price “discounts” achieved by backdating significantly overstate the impact on the value per share of backdated options. In some cases, reducing the strike price by a dollar per share by backdating increased the Black-Scholes value of the option by less than twenty cents per share. Second, backdating dramatically reduced the apparent value of options, which reduced the total level of executive compensation reported to shareholders. However, because the size of executive stock option grants often is determined by first establishing the value to be delivered and then “backing into” the number of shares to be covered by the option, reducing the apparent value of option shares may have substantially increased the size and economic value of some backdated executive option grants. Third, comparison of semiconductor firms under investigation for backdating with peer companies that are not suggests an association between backdating and the use of options in compensating non-executive employees. This Article considers the effects of and several possible explanations for backdating non-executive options, including reducing apparent rank and file compensation. Finally, this Article argues that the backdating phenomenon is not an accounting scandal. Backdating has accounting consequences, but it is unlikely to have been accounting driven.
The IRS today (IR-2007-148) warned taxpayers to be alert to an e-mail scam promising $80 to participate in an IRS customer satisfaction survey:
An unsuspecting taxpayer receives an unsolicited e-mail that appears to come from the IRS. The e-mail notifies the recipient that he or she has been randomly selected to participate in a survey. In return, the IRS will credit $80 to the taxpayer’s account. The taxpayer is asked to click on a URL linking to an online “Member Satisfaction Survey.” There are references to the IRS in the “from” line and the “subject” line of the e-mail. The link to the survey and a copyright statement at the bottom of the e-mail also reference the IRS. The survey form features the IRS logo. ...
In addition to standard customer satisfaction survey questions, the survey requests the name and phone number of the participant and also asks for credit card information. Once the fraudsters have a name and phone number, they will presumably call the participant and attempt to retrieve other financial information. The apparent objectives of this scam are to use the participant’s name and financial data to withdraw funds from the taxpayer’s bank account, run up charges on a credit card, or take out loans in the taxpayer’s name.
For more information on these kinds of scams, see:
Matthew A. Melone (Lehigh University) has published The Patenting of Tax Strategies: A Patently Unnecessary Development, 5 DePaul Bus. & Com. L.J. 437 (2007). Here is the Conclusion:
Tax strategy patents are subject to many of the criticisms directed toward business method patents in general. In certain respects, patents on tax strategies suffer less from the alleged infirmities applicable to business method patents as a class. However, tax strategy patents merit little, if any, of the utilitarian-based justifications that underpin the issuance of patents. Incentives for innovation in the tax field are plentiful and, in this respect, little is to be gained by the issuance of patents. The costs of such patents, however, are significant. Increased complexity, encouragement of abusive and aggressive tax positions, increased rent-seeking and rent extraction, and uneven enforcement are likely to contribute to the polity's sense that the tax system is unfair and arbitrary. In light of the dubious benefits to be obtained from such patents, these costs are unacceptably high, particularly when one considers the importance of the tax system and its heavy dependence on voluntary taxpayer compliance. Moreover, such patents, in effect, treat the law similarly to other impediments or obstacles faced by business, thereby ignoring the unique nature of the law. Discerning whether an invention merely facilitates the employment of tax strategies or monopolizes tax strategies may prove difficult. Line-drawing, however, is often difficult and, if such difficulty had regularly been used as a reason not to act, the statute books would be much less voluminous.
Newsweek and Equal Justice Works have have published the second edition of The E-Guide to Public Service at America's Law Schools. It is a wonderful online resource which provides a broad range of free information about public interest programs and curricula at law schools. From the press release:
The E-Guide is a free interactive online resource of public service opportunities, curricula and financial programs at more than 150 law schools in the United States.
The result of a unique collaboration between Equal Justice Works and participating schools, The E-Guide fills a void in existing commercial law school rankings. It compiles extensive data on the availability of clinical and externship programs, financial aid and loan repayment assistance programs, the number of staff members dedicated to public service programs, and other criteria essential to students who plan to pursue public service careers or who want to gain lawyering skills before they graduate. The resource allows users to look at individual school profiles or compare schools based on the criteria most relevant to them. ...
The First Edition of the E-Guide was launched in August 2006 ... The second edition features a 30% jump in the number of participating schools—from 116 in 2006 to more than 150 in 2007—and many enhancements, including:
- Multi-media content: Commemorating the second anniversary of the Katrina disaster and the response of public interest lawyers, educators and law students to the crisis in the Gulf Coast, the new site offers video clips of Equal Justice Works Lawyers and, on Aug. 29, a live talk with Professor Bill Quigley, director of the Law Clinic and the Gillis Long Poverty Law Center at Loyola University New Orleans.
- Intelligent search results: The E-Guide helps make users more sophisticated consumers of law school information. Rather than rankings, The E-Guide invites users to create their own set of criteria. Responses to user queries are provided with helpful context. For example, a user interested in loan repayment programs might also want to know overall tuition costs and average student debt.
- Complete school profiles: The 2007 site allows users to view or print comprehensive profiles of participating schools that include clinical programs, courses devoted to public service, scholarships, loan repayment assistance programs and employment statistics.
Fogel on The Completely Insane Law of Partial Insanity: The Impact of Monomania on Testamentary Capacity
Bradley E.S Fogel (St. Louis) has published The Completely Insane Law of Partial Insanity: The Impact of Monomania on Testamentary Capacity, 42 Real Prop. Prob. & Tr. J. 67 (2007). Here is the abstract:
In this Article, the author discusses the doctrine of monomania, which permits a court to invalidate a will based on the testator's insane delusion if that insane delusion caused the testator to dispose of his property in a way that he otherwise would not have. The author argues that the monomania doctrine is fatally flawed and that the doctrine should be abandoned in favor of using the general test for capacity to make all testamentary capacity decisions.
Monday, August 27, 2007
Last month, I blogged the article by Jay Brown (Denver), Blogs, Law School Rankings, and the Race to the Bottom, which examines the Top 200 law blogs as ranked by Justia (as of June 25, 2007). The ranking is based on the number of visits to law blogs from the law blog search engine on Justia. Of the Top 200 law blogs, 37 are run by law professors. TaxProf Blog was #1; five of the Top 10 and ten of the Top 25 were members of our Law Professor Blogs Network.
In a post today on The Race to the Bottom.org, Jay updates these rankings and also provide Justia's ranking of law professor blogs based on the number of visitors with an edu IP address ("edu visitors"). See the Excel spreadsheet here. TaxProf Blog remains the #1 law professor blog among all visitors, and is also #3 among edu visitors. Law Professor Blogs Network blogs (in bold in the chart below) comprise three of the Top 10 and seven of the Top 25 among all visitors, and three of the Top 10 and eight of the Top 25 among edu visitors:
Regulatory tax penalties are provisions of the federal income tax code that are targeted at and raise the effective cost of non-tax behavior. Generally, they are meant to shape behavior rather than raise revenue. This article considers regulatory tax penalties from both a descriptive and normative perspective. The descriptive section asks why we encounter these provisions in the Code – why tax penalties instead of non-tax regulation? The article offers two explanations – one constitutional, the other procedural. First, the taxing power, the powerful maxim that deductions are a matter of legislative grace, and confusion as to whether a denied deduction imposes a penalty or removes a subsidy, allow Congress to regulate activities through the tax code when equivalent direct regulation would be constitutionally barred. Second, even when equivalent non-tax regulation is feasible, these features and others assist in the enactment of disincentives that are structured as a disallowed tax deductions. These process advantages may dominate legislative strategy, particularly when symbolic rather than instrumental effects of legislating provide the primary motivation for the sponsors. However, the article goes on to argue that several of these process advantages are troublesome from a normative perspective and that ultimately the social welfare implications of regulatory tax penalties are indeterminate.
Inside the Countrywide Lending Spree, by Gretchen Morgenson:
Independent brokers who have worked with Countrywide also say the company does not provide records of their compensation to the IRS on a Form 1099, as the law requires. These brokers say that all other home lenders they have worked with submitted 1099s disclosing income earned from their associations. One broker who worked with Countrywide for seven years said she never got a 1099. “When I got ready to do my first year’s taxes I had received 1099s from everybody but Countrywide,” she said. “I called my rep and he said, ‘We’re too big. There’s too many. We don’t do it.’" A different broker supplied an e-mail message from a Countrywide official stating that it was not company practice to submit 1099s. It is unclear why Countrywide apparently chooses not to provide the documents.
The Athens Institute for Education and Research has issued a call for papers in a variety of areas (including tax) for its International Conference on Industrial Organization, Law & Economics to be held July 17-20, 2008 in Athens, Greece. 300-word abstracts of proposed papers are due via email by December 12, 2007. For more information, email here.
I blogged last month about the sudden death of my 82 year old father, Bernie Caron. In the picture, he is holding his award for winning the 2006 Tanner City Idol Competition for his rendition of Frank Sinatra's Young at Heart. The local newspaper profiled my father before the 2007 Competition last night.
Our family gathered from distant parts last night and watched 17 very talented performers (for the winners, see here). As I said in the eulogy I delivered at the funeral, the last year of my father's life was his happiest, as he absolutely loved everyone associated with the Idols. Last night, the Idols showed how much they loved my father:
- They dedicated the show in his honor, with a heartfelt tribute in the program
- The musical director sang You're Nobody 'Till Somebody Loves You, accompanied (through the magic of technology) by my father (like Nat King Cole and Natlie Cole's Unforgettable) .
- All 17 Idols sang an original song celebrating my father's life.
- They awarded the Bernie Caron Award to Robin Rossignoll, the Idol who "best exemplifies the marvelous qualities of our beloved friend -- consistently demonstrating dedication to the group, good humor, and encouragement to the performers."
We want to thank Stephanie McGeney, We Are America Productions, and the Idols for one of the most memorable nights of our lives and for all they did for my father. For their video tribute to my father, see here.
WaPo: Carbon Tax Bill Would Eliminate Mortgage Interest Deduction for "McMansions" -- Homes Over 3,000 Square Feet
Tax Deduction Under Fire for "McMansions," by Kenneth R. Harney:
To add to the mortgage meltdown miseries, the credit panic, the plunging home sales and the rising foreclosures, here's a new worry: a proposed cutoff of mortgage-interest tax deductions for houses with more than 3,000 square feet.
One of Capitol Hill's most experienced and most powerful legislators is drafting a "carbon tax" bill that would do precisely that. The chairman of the House Energy and Commerce Committee, John D. Dingell (D-Mich.), expects to introduce comprehensive climate-change legislation when Congress returns next month. Besides imposing hefty new federal taxes on gasoline, the forthcoming bill would, in Dingell's words, seek to "remove the mortgage interest deduction on McMansions -- homes over 3,000 square feet."
Dingell said he recognizes that such a proposal will spark much criticism, but he also said it is essential to reducing carbon emissions by 60% to 80% by 2050. "In order to address the issue of climate change, we must address the issue of consumption," Dingell said in talking points prepared for town-hall discussions of the legislation. "We do that by making consumption more expensive." ...
[R]eal estate and building groups were quick to offer critiques. Lawrence Yun, senior economist for the National Association of Realtors, produced preliminary estimates that ending mortgage-interest tax deductions for all single-family dwellings larger than 3,000 square feet would result in a national median-house-price decline of 4 percent on all homes, not just large houses. Yun said there are at least 10.4 million single-family houses with interior areas of 3,000 square feet or more, about 15% of the nation's owner-occupied housing stock. Dingell's plan could also push up foreclosures because every 1% decline in median price leads to an additional 70,000 foreclosures.
Scientific evidence suggests that man-made greenhouse gas (GHG) emissions, especially carbon dioxide emissions, are a contributing factor to global climate change. This global climate change negatively impacts our Earth and policymakers must implement climate change policies in an effort to decrease carbon emission and mitigate its negative impacts. This Article will analyze three options for regulating GHG emissions: traditional command-and-control regulation, tradable permit markets, and taxes. Following a detailed analysis of both the theoretical and practical arguments regarding carbon taxation and alternative emissions permit trading schemes, this Article concludes that carbon taxation is the superior method of reducing carbon emissions.
"Sometimes when you talk about tax policy, it tends to be a bit academic, but it isn’t," Giuliani said. "It’s no more academic than how much money you have in your pockets."
- Tie marginal rates to current levels and "perhaps" reduce them further
- Make permanent President Bush's tax cuts
- Eliminate the Estate Tax
- A permanent child tax credit
- Make inflation-adjustments to the AMT
FairTax, Flawed Tax (op-ed), by Bruce Bartlett:
[T]he FairTax rate is not 23%. [Supporters] get this figure by calculating the tax as if it were already incorporated into the price of goods and services. (This is known as the tax-inclusive rate.) Calculating it the conventional way that every other sales tax is calculated, with the tax on top of the price, yields a rate of 30%. (This is called the tax-exclusive rate.)
The distinction is confusing, but think of it this way. If a product costs $1 at retail, the FairTax adds 30%, for a total of $1.30. Since the 30-cent tax is 23% of $1.30, FairTax supporters say the rate is 23% rather than 30%. ...
In 2005, the U.S. Treasury Department calculated that a tax-exclusive rate of 34% would be needed just to replace the income tax, leaving the payroll tax in place. But if evasion were high then the rate might have to rise to 49%. If the FairTax were only able to cover the limited sales tax base of a typical state, then a rate of 64% would be required (89% with high evasion).
I've emphasized problems with the FairTax rate because public opinion polls have long shown that support for flat-rate tax reforms is extremely sensitive to the proposed rate, with support dropping off sharply at a rate higher than 23%.
But there are also massive technical and administrative problems with collecting all federal taxes at the checkout counter and relying entirely on state governments to collect the federal government's revenue...
In short, the FairTax is too good to be true, and voters should not take seriously any candidate who supports it.
- New Legal Scholarship Blog
- Tax Prof Profile: Glenn Coven
- Dean on Extraterritorial Tax Information: End the Barter System
- 500 Tax Charts
- Top 5 Tax Paper Downloads
- NY Times: Businessman Pleads Guilty to Engaging in Tax Fraud to Recoup Losses in Patent Case
- NY Times: CBS Agrees to Pick Up CEO's NY Taxes
- CTJ Publishes Weekly Tax Digest
- Cooper on The Australian Regime for Taxing Financial Arrangements
Sunday, August 26, 2007
1. [424 Downloads] The Taxation of Private Equity Carried Interests: Estimating the Revenue Effects of Taxing Profit Interests as Ordinary Income, by Michael S. Knoll (Penn) [blogged here]
2. [282 Downloads] The Tax Advantage to Paying Private Equity Fund Managers with Profit Shares: What is it? Why is it Bad?, by Chris William Sanchirico (Penn) [blogged here]
3. [265 Downloads] What Does Happiness Research Tell Us about Happiness?, by David A. Weisbach (Chicago) [blogged here]
4. [242 Downloads] Taxing Privilege More Effectively: Replacing the Estate Tax with an Inheritance Tax, by Lily L. Batchelder (NYU) [blogged here]
Guilty Plea Is Arranged in Tax Plot, by David Cay Johnston:
The owner of the nation’s largest maker of machine tools agreed yesterday to plead guilty to conspiracy in cheating the government out of $34.3 million in taxes through what the IRS called “deceptive and elaborate tax evasion schemes.” The businessman, Gene F. Haas, 55, of Camarillo, Calif., a coastal town 55 miles northwest of Los Angeles, will be the fourth and last defendant to admit guilt in the case, which involves his company, Haas Automation, as well as several others. He is to change his plea to guilty on Monday. The plea agreement is subject to approval by a Federal District Court judge in Los Angeles. ...
Back taxes, a $5 million fine, fraud penalties of 40 percent and interest will bring Mr. Haas’s total cost for cheating on his 2000 and 2001 taxes to more than $70 million. He also agreed to serve two years in prison. ...
The tax evasion apparently began with a patent infringement lawsuit against Mr. Haas. According to court papers, the schemes stemmed from Mr. Haas’s “dislike of the federal judicial system” and anger toward Leonie M. Brinkema, a federal judge who presided over the patent infringement suit, which Mr. Haas lost in August 2000. The indictment said that the primary purpose of the tax fraud was “to recoup the patent infringement settlement payment by defrauding” the government.
Getting Too Big for His Own Taxes?, by Patrick McGeehan:
Leona Helmsley may be dead but her oft-quoted sentiment that “only the little people pay taxes” lives on at CBS. In an amendment to his contract as C.E.O. of CBS, Leslie Moonves obtained the company’s promise to pay any state or local taxes he might incur in New York. The amendment states that Mr. Moonves, who lives in Southern California, cannot claim that having to work now and then in Manhattan is a “good reason” for quitting his job. But, it says, if New York authorities try to tax him for earning income in their territory, CBS will pick up the bill. In a statement, CBS said, “To avoid this double taxation, we have made this amendment to his employment agreement to reimburse him for the net incremental taxes as reviewed and validated by the compensation committee of the board.”
- Fallout Continues from Minnesota Bridge Collapse
- Border Conflict
- Tax Reform? No. Save an Antiquated Pastime that Can't Support Itself? Yes.
- How Not to Deal with the Property Tax Issue
- Film Tax Credit Corruption in the Pelican State
Graeme S. Cooper (University of Sydney) has published Trying to Make Sense of the Financial Arrangements Regime, 36 Australian Tax Rev. 160 (2007). Here is the abstract:
The proposed Australian regime for taxing financial arrangements (“TOFA”) is presented as a unified coherent regime, based upon, and executed by reference to certain principles. These principles leave much important detail to be inferred, with sometimes unpredictable consequences. Moreover, the drafters have chosen to construct TOFA as a parallel regime alongside existing rules, rather than as a substitute for them, where it is triggered. This deliberate duplication then requires adjustment rules to manage the overlap between existing law and TOFA. These design choices – to insert a duplicate regime and then manage the overlap by a subtraction process – is used elsewhere in tax legislation and creates well known difficulties. The decision to repeat this system for TOFA re-creates many of the same kinds of difficulties, for no obvious benefit.
Saturday, August 25, 2007
Check out the specacular new Legal Scholarship Blog from Pittsburgh and the University of Washington, which tracks calls for papers, colloquia/workshops, conferences, junior scholars, law research dean resources, and teaching resources. The permanent resources include links to the nine online law review companion sites, as well as over 100 law school workshop series. Bravo!