June 30, 2008
Effect of Obama's Tax Plan on Tiger Woods
When Tiger Woods collected his $1,350,000 check for winning the U.S. Open golf championship this month, his federal and California taxes approximated $586,000. So, Tiger got to keep about $764,000, or 57 percent of his winnings. ...
It was fortunate for Tiger that his most-recent U.S. Open win occurred in 2008. Under twin tax proposals from Obama to 1) remove the "cap" from Social Security taxes for individuals earning over $250,000, a plateau Tiger has long since surpassed in 2008, and 2) eliminate the "Bush" tax cuts, thereby raising the top marginal federal income tax rate to 39.6%, Tiger's taxes on his winner's check would have increased to approximately $776,000, a boost of almost $190,000. Instead of Tiger keeping 57% of his earnings and the government taking 43%, under the twin Obama tax proposals, Tiger's federal and California taxes would have amounted to 57% of his winnings, leaving Tiger with just 43%. ...
The New York Yankees have a 2008 payroll of approximately $208 million. Under the twin Obama tax proposals, the 24 Yankee players would be hit with an aggregate increase in federal income taxes of just over $22 million, with slugger Alex Rodriguez single-handedly getting dunned with $2.6 million in additional federal taxes. ...
The twin Obama tax proposals would result in an increase in federal income taxes for self-employed people earning over $250,000 of about 39% and would take the top federal tax rate on self-employment income to its highest level since 1971. It would also take the top marginal tax rate (federal and state taxes combined) in some states to over 57% on self-employment income. For employees, the top federal tax rates would increase by about 30%.
Only once since 1917 has there been a tax-rate increase equal to or greater than the two twin tax proposals being made by Obama. That tax increase, the Revenue Act of 1932, was proposed by Herbert Hoover. The result was an even greater budget deficit, plummeting tax revenue and a lengthier Great Depression.
IRS Agent Pleads Guilty to Soliciting a Bribe to Stop an Audit -- $5,000 and a Free Lunch
The U.S. Attorney for the Southern District of New York has announced that former IRS agent Robert Rosner has pleaded guilty today to soliciting a bribe from a taxpayer:
On July 25, 2006, Rosner initiated an audit of a small business based in New York, New York (the "Company"). On November 28, 2006, Rosner contacted the head of the Company (the "Victim") to discuss the audit. Rosner requested that the Victim treat Rosner to lunch. During the lunch, Rosner told the Victim that he would terminate the IRS audit of the Company if the Victim paid Rosner $5,000. The Victim agreed to pay the bribe.
On December 1, 2006, Rosner submitted internal paperwork at the IRS recommending that no change be made to the Company's tax returns. This step effectively ended the IRS audit of the Company. Two days later, the Victim had a conversation with Rosner, which, unbeknownst to Rosner, was recorded. The Victim told Rosner that the Victim did not feel comfortable with the agreement to pay the bribe. Rosner responded that he had already relied on the Victim's acceptance of the offer and taken steps within the IRS to conclude the audit. The Victim agreed to discuss the issue with Rosner further the next day. Two days later, the Victim received a telephone call from Rosner during which Rosner stated that he had closed the audit of the Company.
Press and blogosphere coverage:
Winchester: The Employment Tax Gap
Richard Winchester (Thomas Jefferson) has posted The Gap in the Tax Gap: What Congress Should Do About It on SSRN. Here is the abstract:
According to the most recent official estimates, $54 billion in taxes go uncollected each year because individuals underreport their employment tax liabilities. That portion of the tax gap is largely the result of self-employed individuals who underreport what they truly owe. The government's official report on the tax gap gives substantial attention to only one reason why this is the case: the fact that sole proprietors simply do not report amounts they receive from third parties who are not required to either report the transaction to the government or withhold tax on the payment. However, self-employed persons understate their employment tax liabilities in other ways that are not reflected in the official tax gap estimates. The law permits them to artificially understate their employment tax liabilities when they do not operate their businesses as sole proprietors. This is possible because the employment tax laws operate in an inconsistent way across business forms. This article describes the defects in the law, estimates the magnitude of lost employment tax revenue, and offers a legislative proposal for reform.
Forman & Chen: Optimal Retirement Age
What is the optimal retirement age? This paper looks at the optimal retirement age from various perspectives. Most of the current pension laws relating to retirement age were codified decades ago, and they have become badly out of date given what we now know about longevity, about health and work in old age, and about how pension policies influence retirement decisions. This paper provides some background about demography, health, and retirement; summarizes how current pension laws influence the design of pension plans and the timing of retirement; and looks at the optimal retirement age from the perspective of employers, government, and workers. This paper then offers some new perspectives on the relationship between demography and retirement age; discusses the implications for public policy; and offers recommendations about how to reform our pension laws so that pension plans comport with our ideas about optimal retirement age.
This article is less about answering the question When should I retire? and more about answering the question At what age should we as a society encourage/discourage people from retiring?
Newsweek: Cindy McCain's Tax Troubles
This week's Newsweek reports that Cindy McCain has been late paying property taxes on a condo in La Jolla, California for the past four years. Apparently, an elderly aunt of Mrs. McCain lives in the condo, and Mrs. McCain is the trustee of the trust that owns the condo. For more, see:
New Issue of Atax's eJournal of Tax Research
Volume 6, Issue 1 (June 2008) of the eJournal of Tax Research, published by Atax (Australian Taxation Studies Program), University of New South Wales, Sydney, Australia, and edited by Binh Tran-Nam & Michael Walpole, is available on its web site:
- Margaret McKerchar, Philosophical Paradigms, Inquiry Strategies and Knowledge Claims: Applying the Principles of Research Design and Conduct to Taxation (pp. 5-22)
- Marco Greggi, Avoidance and abus de droit: The European Approach in Tax Law (pp. 23-44)
- Nolan Cormac Sharkey, The Economic Benefits of the Use of Guanxi and Business Networks in a Jurisdiction with Strong Formal Institutions: Minimisation of Taxation (pp. 45-66)
- Leif Appelgren, The Effect of Audit Strategy Information on Tax Compliance - An Empirical Study (pp. 67-81)
Black: Fringe Benefits and the Company Car: Aligning Tax and Environmental Policy
Celeste Black (University of Sydney, Faculty of Law) has posted Fringe Benefits Tax and the Company Car: Aligning the Tax with Environmental Policy, 25 Envtl & Plan. L.J. 182 (2008), on SSRN. Here is the abstract:
Increasingly, environmental taxes have been seen as a legitimate means to address environmental issues, specifically global warming, but opportunities also exist to reform current tax frameworks to align them more closely with environmental objectives. The current regime for the taxation of the company car as a fringe benefit is a clear target for such reform. This article sets out in some detail the operation of the fringe benefits tax with respect to the company car and then identifies the numerous calls for the reform of this regime, coming from both tax and environmental perspectives. The article then describes recent reform initiatives in the United Kingdom and Canada which have incorporated reductions in greenhouse gas emissions as an objective of the taxation regime. The article concludes with suggestions of a way forward in the reform of the Australian regime.
TaxProf Blog Weekend Roundup
- Congratulations, Suja Thomas & Scott Bahr
- 2d Circuit Rejects Retroactivity Challenge to § 469 Passive Loss Rules
- Fear Factor: 30% of Lawyers Are Worried About Losing Their Jobs
- IRS Electronic Advisory Committee Delivers Report to Congress
- Snipes Seeks Permission to Travel Overseas to Work on Two Movies Pending Appeal of Tax Evasion Conviction
- Top 5 Tax Paper Downloads
- Bogdanski: The "Quid" and the "Quo" of Charitable Contributions
- Vallario: Living Trusts in the Unauthorized Practice of Law
June 29, 2008
Snipes Seeks Permission to Travel Overseas to Work on Two Movies Pending Appeal of Tax Evasion Conviction
Actor Wesley Snipes, who is free on bail pending the appeal of his conviction on three misdemeanor tax fraud counts, has filed a motion seeking permission to leave the country to go to (1) London help edit his new movie, Gallowwalker; and (2) then to Bangkok to film the movie Chasing the Dragon:
The appeal and cross-appeal in this case will not be completed in the ordinary course before the end of the shooting schedule for Chasing the Dragon and the completion of the post-production work in Gallowalker. ...
He has never presented and does not currently present a risk of flight. Further, the circumstances of the work, surrounded by a cast of other actors and film and production professionals as well as Mr. Snipes’ contractual obligations to complete these films provide additional assurances that he does not present a risk of flight; were he to abscond under these circumstances, it would destroy his ability to earn a living for the rest if his life. Mr. Snipes will of course voluntarily return after his work on this film, as he has done each time he has been granted permission by this Court.
It is essential that Mr. Snipes complete these two projects to satisfy his civil tax liabilities and provide for his family.
Top 5 Tax Paper Downloads
There is a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with a new paper debuting on the list at #5:
1. [348 Downloads] Recent Developments in Federal Income Taxation: The Year 2007, by Martin J. McMahon, Jr. (Florida), Ira B. Shepard (Houston) & Daniel L. Simmons (UC-Davis) [blogged here]
2. [185 Downloads] Tax Shelters and Statutory Interpretation: A Much Needed Purposive Approach, by Shannon Weeks McCormack (UC-Davis) [blogged here]
4. [123 Downloads] Samuel Zell, the Chicago Tribune, and the Emergence of the S ESOP: Understanding the Tax Advantages and Disadvantages of S ESOPs, by Michael S. Knoll (Penn) [blogged here]
5. [95 Downloads] Save the Economic Substance Doctrine from Congress, by Dennis J. Ventry (UC-Davis) [blogged here]
Bogdanski: The "Quid" and the "Quo" of Charitable Contributions
Jack Bogdanski (Lewis & Clark) has published The "Quid" and the "Quo": Valuing Firm Goodwill and Executive Perks, 35 Est. Plan. 37 (June 2008). Here is the Introduction:
As the headlines remind one from time to time, the U.S. tax system holds out its rewards for charitable contributions. The amount of the tax deduction, however, is limited to the net amount transferred to charity -- the difference between the value of what the taxpayer parted with and the value of anything he or she received in return. If the return benefit is great enough, the deduction is disallowed entirely. Valuing such a benefit can be a tricky business, as the recent Tax Court decision in Derby [v. Commissioner, T.C. Memo. 2008-45 (2/28/08)] illustrates.
Vallario: Living Trusts in the Unauthorized Practice of Law
Angela M. Vallario (Baltimore) has posted Living Trusts in the Unauthorized Practice of Law: A Good Thing Gone Bad, 59 Md. L. Rev. 101 (2000), on SSRN. Here is the abstract:
An elderly man recently lost his wife and visits the lawyer's office for assistance in the administration of her estate. After the attorney expresses her condolences, she asks if his wife had a will. The client reaches into a brown shopping bag and retrieves a two-and-a-half inch black binder containing several trusts. The elderly gentleman and his deceased wife were told this would eliminate the expensive legal nightmare of probate. Unfortunately, like many others, this couple was victimized by a trust mill.
June 28, 2008
Congratulations, Suja Thomas & Scott Bahr
Congratulations to Suja Thomas and Scott Bahr, who tied the knot today. Suja has been a dear friend and colleague since joining the Cincinnati faculty eight years ago. She is that rare person who embodies incredible generosity, service to others, and commitment to the truth. She has challenged me in many ways over the years and, although it has not always been comfortable, I have grown as a result of knowing her. It has been a joy watching her flower these past few years, on both a professional and personal level.
It is no accident that Suja met her soulmate Scott serving on a mission trip with our church in South Africa. It was moving when Suja and Scott jointly read Mark 10:17-27 as their marriage pact:
As Jesus started on his way, a man ran up to him and fell on his knees before him. "Good teacher," he asked, "what must I do to inherit eternal life?" "Why do you call me good?" Jesus answered. "No one is good—except God alone. You know the commandments: 'Do not murder, do not commit adultery, do not steal, do not give false testimony, do not defraud, honor your father and mother.' "Teacher," he declared, "all these I have kept since I was a boy." Jesus looked at him and loved him. "One thing you lack," he said. "Go, sell everything you have and give to the poor, and you will have treasure in heaven. Then come, follow me." At this the man's face fell. He went away sad, because he had great wealth. Jesus looked around and said to his disciples, "How hard it is for the rich to enter the kingdom of God!" The disciples were amazed at his words. But Jesus said again, "Children, how hard it is to enter the kingdom of God! It is easier for a camel to go through the eye of a needle than for a rich man to enter the kingdom of God." The disciples were even more amazed, and said to each other, "Who then can be saved?" Jesus looked at them and said, "With man this is impossible, but not with God; all things are possible with God."
It was a joyful yet bittersweet day, as Suja and Scott are leaving Cincinnati next month to begin their new lives at the University of lllinois. We will miss them both greatly.
2d Circuit Rejects Retroactivity Challenge to § 469 Passive Loss Rules
The Second Circuit on Thursday rejected a taxpayer's constitutional challenge to the § 469 passive loss rules on retroactivity grounds. Ziegler v. Commissioner, No. 07-4206-ag (2d Cir. 6/26/08):
We find no constitutional violation here. We agree with the Tax Court that the application of § 469 was not impermissibly retroactive. [Ziegler v. Commissioner, T.C. Memo. 2007-166 (6/27/07).] By its express terms, § 469’s limitations on passive loss deductions applies to losses incurred in the years following its enactment. The fact that Ziegler made the investment associated with the passive activity losses prior to the enactment is of no consequence to the applicability of § 469 here. As we have previously noted, “[e]ach [passive activity loss] which takes place after the passage of the statute is subject to its terms. Therefore, after the effective date of the taxing statute, this [loss] was subject to taxation under its requirements. The taxing statute is not retroactive.” See Corliss v. Bowers, 34 F.2d 656, 658 (2d Cir. 1929). Nor does this change in the Internal Revenue Code violate the Due Process Clause of the Fifth Amendment as an unconstitutional taking because Ziegler did not have a property right to the tax benefits affected by the enactment of § 469. See Story v. Green, 978 F.2d 60, 63 (2d Cir. 1992) (rejecting a Takings challenge to a change in the tax code).
Fear Factor: 30% of Lawyers Are Worried About Losing Their Jobs
- ABA Journal, Nearly 30% of Lawyers Surveyed Fear Firing
- Above the Law, Associate Life Survey: Feeling Sluggish?
IRS Electronic Advisory Committee Delivers Report to Congress
The IRS announced yesterday (IR-2008-83) that the Electronic Tax Administration Advisory Committee has delivered its 2008 Annual Report to Congress. The report includes 21 recommendations on a wide range of issues that pertain to individual filers and business, such as modernized e-File and web services.
June 27, 2008
More Analysis of McCain & Obama Tax Plans
- Heritage Foundation, European Levels of Taxation: Barack Obama's Tax Plan
- National Review, Taxing Issues: An Opening for Republicans in November
- Tax Foundation, First Hard Numbers on Obama Tax Plan Show Dramatic Tax Redistribution
- Think Progress, McCain Would Give America’s 200 Largest Corporations $45 Billion In Tax Breaks
Brennan: Cash Flow and Market Response to Repatriation
The American Jobs Creation Act of 2004 (AJCA) provided a limited-time tax deduction for U.S. firms repatriating accumulated foreign earnings as cash dividends, and I study this natural experiment in corporate cash shocks. Consistent with theories of imperfect capital markets, firms did not use newly freed cash to return value to shareholders but instead increased acquisitions. Firms with strong management also increased executive compensation. In addition, firms raised debt and sold property to fund repatriations. Markets anticipated firm behavior, and firms ultimately choosing to repatriate were penalized in advance by a significant drop in value when the AJCA was enacted.
Minnesota's U.S. News Rankings Gaffe
A University of Minnesota fundraiser sent an urgent e-mail this week to law school alumni: Please give even $1 by week's end.
Why? Even 100 pennies from 200 new donors might boost the law school's alumni giving rate and help its ranking in U.S. News & World Report.
Just one problem: The U.S. News law school rankings don't count alumni participation. ...
It's a small transgression, for sure. But it comes as the school seeks to restore its top 20 ranking on the influential U.S. News list. The U promoted its law school as a "top 20" destination and "consistently ranked in the top 20." But in March, it slipped to No. 22 among national law schools, out of the U.S. News top 20 for the first time in years. ...
So given the recent rankings slip, it made sense on the surface when Anita Foster on Monday sent some alumni a memo titled, "U of MN Law School Support & Rankings." The good news, she wrote, was the school "appears poised to meet this year's fundraising goal of $750,000." The bad news: It needed more than 200 additional alumni to meets its fiscal year participation goal.
More good news: "Because we're already set to hit our fundraising goal, we're looking for just $1 from 200 additional alumni this week! This will improve participation percentages, a factor used to determine the Law School's place in the well-known U.S. News & World Report rankings."
Marty-Nelson: Taxing Offshore Asset Protection Trusts
Elena Marty-Nelson (Nova) has posted Taxing Offshore Asset Protection Trusts: Icing on the Cake?, 15 Va. Tax Rev. 399 (1996), on SSRN. Here is the abstract:
Income and transfer tax considerations that favor overseas asset protection trusts (OAPTs) compared to domestic asset protection trusts are contrary to sound tax policy. Tax laws should not operate to encourage taxpayers to move assets overseas to be beyond the reach of US creditors because doing so may undermine the tort system. To the extent asset protection is allowed, OAPTs should not be governed by rules more lenient than those faced by domestic trusts. Estate tax laws regarding creditor access should be interpreted to apply equally to domestic and foreign trusts.
U.S News Considers Two Changes to Law School Rankings Methodology
Robert Morse, Director of Data Research at U.S. News & World Report, notes that the magazine is "seriously studying" two changes to its law school rankings methodology that would affect 24.5% of the overall ranking:
- Counting both full-time and part-time entering student admission data for the median LSAT score (12.5% of ranking) and median undergraduate GPA (10%) ranking categories.
- Compute the bar passage rate (2%) (school's bar pass rate/jurisdiction's bar passage rate) using only the data of first-time takers who are graduates of ABA-accredited schools.
Update: For more, see Conglomerate.
Colloquium on Jurisprudential Perspectives of Taxation Law
The Universidad Computense de Madrid and Gomez-Acebo & Pombo, Abogados, Madrid, are hosting a colloquium on Jurisprudential Perspectives of Taxation Law on September 11 and 12, 2008. The two-day colloquium of six seminars will focus on analytical and descriptive legal philosophy as applied to income tax law, examining judicial reasoning in income tax cases. Seminars will examine such questions as:
- Is income tax law qualitatively different from other law?
- Are conventional explanations of the complexity and incoherence of income tax law persuasive?
- Do legal philosophers’ expositions of the nature of law adequately explain the nature of income tax law?
- What light do theories of jurisprudence that have not traditionally examined income tax law shed on these questions?
The proposed six seminars are:
- Ectopia of income tax law
- Fictions of income tax law
- Form and substance in income tax law
- Autopoiesis and income tax law
- The general anti-avoidance rule and the rule of law
- Avoidance and morality
For more information, contact Professor Maria Amparo Grau Ruiz.
Diversity Meets Data at George Mason Law
Inside Higher Ed: Diversity Meets Data at George Mason Law, by Andy Guess:
The ABA considers, as part of its accreditation requirements, a law school’s commitment to a diverse student population. For top-ranking institutions, that usually means some combination of aggressive outreach, race-conscious affirmative action and on-campus support services to help recruit and retain underrepresented minorities.
But what if the ABA’s diversity standard led some students on the path to failure?
Since 2005, when The Stanford Law Review published a controversial and highly publicized study concluding that there would be more black lawyers if law schools did not use affirmative action in admissions, opponents of such policies have argued that race-based preferences actually harm those whom it is intended to help. Yet there is also evidence that concerted outreach and support efforts can, if applied properly, prevent the potential negative effects of race-conscious admissions practices.
The "mismatch" theory, as it’s been called, posits that some African-American students have struggled and at times dropped out of highly competitive law schools even though they might have thrived at lower-ranked or less rigorous institutions, and gone on to pass the bar exam. The article concluded that without affirmative action, black students would be better “matched” with institutions that meet their qualifications, and that disparities in failure rates would disappear.
Now, an organization that opposes race-conscious admissions policies asserts that it has found data from one particular institution illustrating the sort of dynamic the study would predict. According to data obtained through a public records request, from 2003 to 2005 some 45% of African-American students at George Mason University School of Law, outside of Washington, had grade-point averages below 2.15, defined as “academic failure.” For the rest of the student body, however, the figure was 4%.
For more, see Gail Heriot (San Diego), Further Information on the ABA's Improper Conduct in Enforcing Diversity Standards
June 26, 2008
McCouch: The Empty Promise of Estate Tax Repeal
The terms of the debate over the estate tax have been framed largely by abolitionists who have propounded an antitax message that portrays the estate tax as unambiguously harmful and threatening to ordinary families and small businesses. The attack on the estate tax is linked to a larger agenda of eliminating taxes on capital and capital income and dismantling the progressive elements of the federal tax system. The slogan of estate tax repeal, while effective in mobilizing antitax sentiment, makes no sense as a matter of tax policy because it downplays revenue costs, distributional effects, administrative concerns, and consequences for the rest of the tax system. The 2001 Act illustrates the gap between the abolitionists' simplistic antitax agenda and the complex reality of tradeoffs among competing tax and spending priorities. The estate tax cuts enacted in 2001 imply large revenue losses as well as a shift in tax burdens from the very rich to the middle class and from current taxpayers to future taxpayers. This appears to be a step in precisely the wrong direction, given growing inequalities of income and wealth and a looming fiscal gap.
Evangelist Challenges IRS Investigation
Internet evangelist Bill Keller is challenging an IRS probe of his organization’s tax-exempt status. Keller, whose Web site Liveprayer.com claims to have over 2.4 million subscribers, is under investigation for possibly violating his group's tax-exempt status last year when Keller criticized then-presidential candidate Mitt Romney by saying, “A vote for Romney is a vote for Satan.” More recently, Keller has been claiming that Barack Obama is not a Christian.
However, he insists that his statements should not endanger his organization’s status with the IRS. “We did nothing to violate our tax-exempt status at all,” he said. “I have every right to educate people on spiritual matters and I have every right to deal with issues from a spiritual point of view. I never endorsed a candidate and I never told people who to vote for and who not to vote for.”
Tax Teaching Materials Network
Tax Profs are invited to join the Teaching Materials Network: a database of contact information for faculty members in all subject areas willing to share syllabi, teaching notes, PowerPoints, etc. with other Tax Profs.
Borden & Hamrick: Like-Kind Exchanges of Personal-Use Residences
The law governing section 1031 exchanges of personal-use residences ranges from very explicit, in the case of principal residences, to very vague, in the case of mixed-use second homes. The law excludes from section 1031 nonrecognition exchanges of property used solely for personal use. The IRS has provided guidance regarding exchanges of mixed-use principal residences and has provided an all-or-nothing safe harbor with limited applicability for exchanges of mixed-use second homes. To complete the body of law governing exchanges of personal-use residences, this article suggests that the IRS should provide broader guidance for exchanges of mixed-use second homes.
Nguyen & Maine: Acquiring Innovation
A robust innovation acquisition market fosters desirable innovation development at the lower strata, comprised mostly of small entities and research universities. Accordingly, it is important to have sound tax rules that encourage acquisitions of innovation for societal good and, at the same time, achieve important tax policy goals such as efficiency and administrability. There are several ways in which to incentivize desirable acquisitions. Tax breaks are currently offered to inventors and other transferors of innovation. Adequate economic tax incentives also could be offered to innovation purchasers to achieve optimal innovation outcomes and enhanced economic growth. Any incentives, however, should not apply to acquisitions of innovation for offensive use purposes, because they would only serve to hinder further innovation.
Tax Profs Fault Amazon's "Audacious" State Tax Strategy
Wall Street Journal: Will Amazon Get a Visit From the Tax Man?, by Lee Gomes:
New questions are being raised about an audacious legal strategy Amazon.com has used to avoid collecting sales tax in eight states where it has warehouses or distribution centers, including populous ones such as Pennsylvania and Virginia. Texas has been examining the issue since May.
As an online retailer, Amazon can avoid collecting sales tax in states where it has no presence, at least until Congress changes the law. But in states where a company has actual facilities, such as warehouses, states tax officials can require the company to collect sales tax.
Despite operating hundreds of thousands of square feet of distribution facilities in the eight states, Amazon says it doesn't have any presence in them. The company argues that it doesn't operate the plants, its wholly owned subsidiaries do. ...
Tax experts say Amazon's case is weak in two ways. First, it's questionable whether the subsidiaries Amazon has set up are really the independent units envisioned by the tax law. ... Second, the U.S. Supreme Court has ruled several times that a "presence" in state doesn't have to be a physical one before a company has a sales-tax collection responsibility. ... Amazon's relationship with its subsidiaries thus could be held to be sufficiently close, even if the companies are found to be independent of each other. ...
Walter Hellerstein, of the University of Georgia law school and the author of tax-related law-school textbooks, says the facts in the case are "very strong for the states.""I would say that is high-risk behavior for Amazon not to collect the tax," he adds. "I would think they are going to lose."
John A. Swain, a University of Arizona law professor who has extensively researched this set of tax issues, adds that companies typically lose these sorts of "entity isolation" cases, except where the state hasn't done its homework
Joint Tax Committee: Revenue Estimates of Tax Policies Relating to 2001 & 2003 Tax Acts
The Joint Committee on Taxation yesterday released Revenue Estimates of Selected Tax Policies Relating to the 2001 and 2003 Tax Acts (JCX-54-08):
The CBO projects that total revenues for the Federal government will increase from $2.7 trillion in fiscal year 2008 to $4.5 trillion in fiscal year 2018. To get a better sense of what these figures mean for American taxpayers, some analysts find it useful to convert these nominal dollar amounts into a fraction of U.S. GDP. As a percentage of GDP, CBO’s projection of Federal revenues rises from 18.7%for FY2008 to 20.3% for FY2018.
This brief looks at how several widely discussed tax policy options would affect total Federal government revenues as a fraction of GDP. In particular, this brief estimates the revenue consequences of extending the tax reductions adopted by the Economic Growth and Tax Relief Reconciliation Act of 2001 (“EGTRRA”) and the Jobs and Growth Tax Relief Reconciliation Act of 2003 (“JGTRRA”) that expire at the end of 2010, either with or without also amending the individual AMT, The EGTRRA and JGTRRA temporary income tax reductions included reductions in individual tax rates, the introduction of a new 10% tax bracket for individuals, expensing of certain capital investments for small businesses, and reduced tax rates on certain dividend income and capital gains.
Senate Hosts Hearing Today on The Foundation of International Tax Reform: Worldwide, Territorial, and Something in Between
The Senate Finance Committee hosts a hearing today on The Foundation of International Tax Reform: Worldwide, Territorial, and Something in Between. From the press release:
Currently, U.S. businesses can postpone paying taxes on active business income earned overseas through a feature of the tax code called deferral. However, income from interest, rent, royalties and dividends from unrelated corporations, known as passive income, is exempt from deferral under Subpart F of U.S. Tax Code. Subpart F became part of the U.S. Tax Code in 1962. In light of the changes to the U.S. and global economy since 1962, the Committee will review Subpart F and examine how it relates to a global economy. The Committee, which has jurisdiction over the income tax, will also look at methods to reform the way the United States taxes foreign income of US taxpayers.
Here are the witnesses scheduled to testify:
- Professor James R. Hines, Jr. (University of Michigan Law School)
- Stephen E. Shay (Partner, Ropes & Gray, Boston, MA)
- Professor Roseanne Altshuler (Rutgers University)
- Robert H. Dilworth (Partner, McDermott Will & Emery LLP, Washington, D.C.)
In connection with the hearing, the Joint Committee on Taxation has released Economic Efficiency And Structural Analyses Of Alternative U.S. Tax Policies For Foreign Direct Investment (JCX-55-08).
The hearing takes place this morning at 10:00 a.m. in 215 Dirksen Senate Office Building. For more, see here.
House Holds Hearing Today on IRAs and Their Role in Our Retirement System
The Select Revenue Measures Subcommittee of the House Ways & Means Committee holds a hearing today on Individual Retirement Accounts (IRAs) and Their Role in Our Retirement System. From the hearing announcement:
The hearing will focus on the recently issued report by the GAO, Individual Retirement Accounts: Government Actions Could Encourage More Employers to Offer IRAs to Employees (GAO 08-590) (6/4/08); the role of IRAs in our retirement system; and legislative proposals for automatic IRA enrollment. ...
In announcing the hearing, Chairman Neal stated, "I have always been a strong advocate for creating retirement savings opportunities for every American. That is why I have introduced legislation, along with several co-sponsors, to create automatic payroll deposit IRAs for workers who do not have access to employer-sponsored pension plans. [H.R. 2167.] The bill would require employers to automatically enroll employees in a payroll deduction IRA unless the employee opts out. Our proposal could raise the national savings rate by nearly $8 billion annually. This hearing will explore these ideas along with other issues related to IRAs.”
In connection with the hearing, the Joint Committee on Taxation has released Present Law And Analysis Relating To Individual Retirement Arrangements (JCX-53-08).
The hearing takes place this morning at 10:00 a.m. in the main Committee hearing room, 1100 Longworth House Office Building.
June 25, 2008
House Approves One-Year AMT Patch, 233-189
The House today ignored a threatened veto by President Bush and voted 233-189 to approve H.R. 6275, the Alternative Minimum Tax Relief Act of 2008. The bill would extend for one year the current AMT patch, funded with $60 billion of revenue increases:
- Press Release
- Summary of Bill
- Text of Bill
- Chairman's Substitute Amendment
- Joint Tax Committee Description (JCX-50-08)
- Joint Tax Committee Estimated Revenue Effects (JCX-51-08)
- Joint Tax Committee Description of Substitute Amendment (JCX-52-08)
- Associated Press
Tax Treatment of Settlement Agreements with Confidentiality Provisions
Interesting discussion on the Drug and Device Law Blog on the tax treatment of settlement agreements with confidentiality provisions. Mark Herrmann (Jones Day) blogged the famous Amos case (T.C. Memo. 2003-329), which involved the tax treatment of damages paid by Dennis Rodman to a courtside camerman he kicked, and cited this piece in suggesting that Amos might be limited to its facts and might not indicate a general effort by the IRS to tax payments made for confidentiality agreements in other settlement contexts, such as products liability cases. Tax Prof Jim Maule (Villanova), however, responded that "the IRS might well take the position that the portion of a settlement received in return for confidentiality is taxable" in all contexts, including products liability cases. As Jim notes, there is a good article on the subject: Randall O. Sorrels & Neel Choudhury, Plaintiffs’ Attorneys Beware: Little Known Tax Consequences Associated With Confidentiality Provisions, 6 Hous. Bus. & Tax L.J. 258 (2006).
Treasury & IRS Provide FAQs on HSAs
The Treasury Department and IRS today released Notice 2008-59, which provides employers and employees with more than forty questions and answers on health savings accounts on a wide range of topics, including:
- Who is an Eligible Individual
- Issues related to High Deductible Health Plans
- Contributions to HSAs
- Distributions from HSAs
- Establishing an HSA.
WSJ: Obama's Social Security Fine Print
Wall Street Journal: Obama's Social Security Fine Print, by Donald L. Luskin:
Last week, Barack Obama revealed his plan to shore up Social Security's shaky finances by raising the income level on which the payroll tax is applied. Currently, incomes above $102,000 are exempt, with that threshold rising every year indexed to wage inflation. Mr. Obama would keep that limit in place, but then assess payroll taxes on incomes above $250,000, which his campaign claims would apply to only the richest 3% of Americans. ...
Combined with Mr. Obama's other tax-hike initiatives, "the total tax on labor would be close to 60%. In high-tax states like California and New York, the top rate would be even higher."
Would it help Social Security's financing problems? Mr. Obama has no idea. One of his senior economic advisers admitted to me that no one on the campaign has run any detailed models or performed any rigorous analysis. When one proposes an enormous tax increase, shouldn't there at least be a spreadsheet somewhere? ...
But the most alarming thing about Mr. Obama's proposal is that the $250,000 threshold, above which the payroll tax would be applied, refers to household income, not individual income. ...
But that tax bill could be higher still. While the payroll tax has always been calculated just on wages from labor, Mr. Obama hasn't decided yet what forms of income will be included in the $250,000 threshold. It's an open question whether it might include interest on savings and capital gains income.
And neither has Mr. Obama said whether the rich – and, truth be told, the middle class – paying his new higher taxes will get correspondingly higher Social Security benefits when they retire. Throughout the history of the Social Security program, there has always been a connection between what you contribute in taxes and what you get back in benefits. If Mr. Obama uncaps the wages subject to tax, but doesn't uncap benefits, then he has severed the link between them. Social Security would stand revealed not as a work-related contributory retirement system, but simply as a tax-funded welfare and income-redistribution program.
And for all that, Mr. Obama's proposal won't help Social Security's long-run solvency problems.
NY Times: One-Time Tax Break Saved 843 U.S. Corps $265 Billion
New York Times: A One-Time Tax Break Saved 843 U.S. Corporations $265 Billion, by Lynnley Browning:
More than 840 of the largest American corporations reaped a $265 billion windfall thanks to a one-time tax break aimed at bringing home profits stashed overseas, according to recent government data. The windfall resulted from a temporary tax deduction for big corporations, which were keeping billions of dollars in profits in overseas subsidiaries and out of the hands of the IRS. The total amount brought back to the United States was far above some estimates ...
American companies can typically defer paying taxes on foreign profits as long as they keep that money outside the U.S. When companies bring the money back, they usually pay the top corporate tax rate of 35%. In recent years, the biggest and wealthiest companies in the U.S. have increasingly set up foreign subsidiaries and used them either as foreign operations or offshore repositories. The subsidiaries, many in offshore tax havens like the Netherlands, Ireland and the Cayman Islands, collectively held about $804 billion in foreign profits on which their American corporate parents had yet to pay any U.S.taxes, according to the IRS A one-time tax holiday enacted by Congress in 2004 offered companies the chance to bring that money back at a reduced tax rate of 5.25%.
In all, 843 corporations took advantage of the offer, according to recent IRS statistics of income data, bringing back $362 billion in foreign profits, paid to the parent corporations as dividends. Of that amount, $312 billion qualified for the tax break, giving those companies total tax deductions of $265 billion claimed from 2004 through 2006. ...
Supporters of the tax break say it was a success because it brought about $18 billion into Treasury coffers that otherwise would have stayed overseas. The nonpartisan Joint Committee on Taxation, a Congressional agency, had estimated that the tax break would bring in only $2.8 billion, a sixth the actual amount.
Ventry: Gay Marriage and the Marriage Tax Penalty
- In states that recognize gay marriage, does state tax law likewise impose a marriage penalty? If so, will it be applied to gay marriages? Presumably, yes. If so, will gays be less likely to marry in states with a marriage penalty?
- If the federal government recognizes gay marriage, and the marriage penalty applies to such marriages, how much tax revenue would be generated?
- Would application of the federal marriage penalty affect the rate of gay marriage?
- Some believe that there are some hetero couples who do not marry specifically so as to avoid the marriage penalty. If gays were subject to the marriage penalty, would the deterrent effect of the penalty on gays be greater or lesser than it is on heterosexuals? And why?
Law School to Keep Fen-Phen Lawyer's $1 Million Gift
I previously blogged the controversy at Florida A&M Law School over Fen-Phen lawyer Shirley Cunningham's $1 million gift to the school:
- Law School Dean Names Donor to Fill Endowed Chair (6/9/05)
- Feds to Try Donor Who Gave $1m to Law School for Chair He Filled at $100,000/Year (10/31/07)
ABA Tax Section Offers Teleconference & Webcast Today on Review of Regs on Capitalization of Tangible Assets
The ABA Tax Section offers a teleconference and webcast today on Review of Regulations on Capitalization of Tangible Assets from 1:00 - 2:30 p.m. EST:
In 2006, proposed regulations under § 263(a) were issued relating to amounts paid to acquire, produce, or improve tangible property and clarifying what amounts must be capitalized rather than deducted currently. The proposed regulations provide (i) tests for determining whether amounts paid are to be capitalized or deducted as repair and maintenance expenditures, (ii) operating rules for applying the tests, and (iii) guidance for determining the unit of property with respect to which the tests apply.
On March 7th, the Treasury Department released re-proposed regulations under § 263(a), relating to the treatment of expenditures with respect to tangible property. With these re-proposed rules, the government has made an important effort to respond to the myriad of comments that were received. The IRS and Treasury have offered a number of simplifying measures and safe harbors. For example, these new proposed regulations provide a book conformity de minimis rule for acquisitions of units of property, a safe harbor for routine maintenance, and an optional simplified method for regulated taxpayers. The regulations attempt more objective measures and standards so that companies can evaluate whether particular repair expenses may be deducted or should be capitalized. Additionally, these new proposed regulations provide significant changes to the rules relating to unit property, restorations, and allow for industry-specific repair allowance methods in the future. Further, this new package makes efforts to ensure that the repair regulations can be read consistently with other existing rules, including for example, § 263A and regulations involving materials and supplies. The program will review the recently released regulations, including consideration of how the regulatory tests and operating rules are different from the earlier proposed regulations.
- Kimberly Koch (IRS Office of Chief Counsel)
- Ellen McElroy (Pepper Hamilton, Washington, D.C.)
Using Inputs to Rank Schools Is Like Evaluating Chef Based on Ingredients of Meal
Nancy Rapoport (UNLV) alerted me to this article by Thomas Sowell (Hoover Institution), Is Prestige Worth It? Elite Schools Don't Necessarily Deliver the Product You Pay For, in National Review:
A key role is often played by the various annual rankings of colleges and universities, especially the rankings by U.S. News & World Report. These rankings typically measure all sorts of inputs — but not outputs.
The official academic accrediting agencies do the same thing. They measure how much money is spent on this or that, how many professors have tenure and other kinds of inputs. What they don’t measure is the output — what kind of education the students end up with.
A new think tank in Washington is trying to shift the emphasis from inputs to outputs. The Center for College Affordability and Productivity is headed by Professor Richard Vedder, who gives the U.S. News rankings a grade of D. Measuring the inputs, he says, is “roughly equivalent to evaluating a chef based on the ingredients he or she uses.” His approach is to “review the meal”— that is, the outcome of the education itself.
June 24, 2008
Continued Growth of Tax Scholarship at Law & Society Meetings
From Neil H. Buchanan (George Washington):
Beginning in 2005 at the annual meetings of the Law & Society Association, an ad hoc group of tax scholars has held a growing number of tax-oriented panels. Starting from a solid base of 3 panels in 2005, we put together 6 panels in 2006 and 7 panels in 2007 (the latter number being especially surprising given that the annual meeting that year was held in Berlin, Germany). Building on that success, we obtained official recognition in late 2007 from the Law & Society Association as a "Collaborative Research Network" (CRN), a section-like group within the association. Our CRN goes by the title "Law, Society, and Taxation."
At the 2008 annual meeting in Montreal, we sponsored an incredible 13 panels. There were actually 14 panels scheduled, but a panel on critical tax scholarship unfortunately had to be canceled at the last minute because of the withdrawal of some panelists. On the other hand, we also co-sponsored a panel with the Labor CRN about the privatization of government work.) The ever-rising quantity has been matched by ever-rising quality and ever-increasing subject matter diversity. While some panels' papers easily fall into the traditional areas of tax analysis (with, for example, two full panels on international tax issues), the papers themselves have been anything but narrowly traditional, expanding the scholarly inquiry in promising and often surprising directions. Even with such a large number of panels, moreover, the range of subjects covered by the papers often defied categorization -- which, as a nontrivial matter from the organizer's point of view, made it quite a challenge to group papers into thematic panels. Any such organizational shortcomings were, however, more than overcome by the participants, as they and the audience found commonalities among the presentations that even they did not expect.
Building on this surprising level of immediate success, the CRN will again this Fall issue a call for papers for next year's Law & Society annual meeting, which will be held in Denver from May 28-31, 2009. In addition, we are now looking for opportunities to cosponsor conferences, colloquia, on-line interactions, or any other scholarly endeavors that advance interdisciplinary, diverse, and policy-oriented tax scholarship. We also host a very low-traffic informational email list which any tax scholar may join. We are especially interested in developing links to scholars and organizations outside of the United States.
If you have any suggestions or thoughts, please feel free to email me.
What Can Brown Do To You: UPS Tax Lawyer Drops Dime on FedEx, Prompts Ohio to Reclassify Drivers as Employees, Resulting in $654k Tax Liability
Bloomberg News: UPS Lobbyist Secretly Spurred Ohio to Demand Taxes From FedEx, by John Hughes:
A secret report from a lobbyist who represents United Parcel Service Inc. prompted an Ohio state investigation into employment practices of FedEx Corp., leading to a finding that FedEx owed back taxes and interest.
Kenneth Kies, a Washington tax lawyer and lobbyist whose firm has been paid $540,000 by UPS since 2002, sent Ohio officials a 562-page report in December 2006 alleging that FedEx misclassified truck drivers as contractors. A copy of the report, including a cover letter in which Kies asked for confidentiality, was released to Bloomberg News by Ohio officials.
"We took it and opened our own investigation," said Judi Cicatiello, Ohio's unemployment compensation deputy director. She said it was "very" unusual to get such detailed allegations. Her agency determined in May 2007 that the drivers were employees and FedEx owed $654,000 in taxes and interest. The company is appealing. The report is the first disclosure indicating that UPS may have played a role in prompting an investigation of FedEx's employment of 15,000 drivers as independent contractors. The strategy gives FedEx a cost advantage over UPS, whose 91,800 drivers are covered by a contract with the Teamsters Union. ...
Kies didn't return telephone calls to his Washington office. At the time of the report, Kies's Federal Policy Group, where he still works, was a part of Clark Consulting. UPS was one of about 50 clients including General Motors Corp. and General Electric Co. Some paid more than $1 million a year, compared with UPS's $80,000 fee for 2006, based on federal filings. UPS is the only package-delivery business among the firm's clients. ``We have seen an increase in the number of state investigations and have been trying to better understand what prompted these inquiries,'' FedEx spokesman Maury Lane said in a statement. ``We are surprised by today's report of UPS's apparently concealed involvement in this activity.'' ...
Kies [is] the former chief of staff for the Congressional Joint Committee on Taxation. ...
Companies reporting to authorities about rivals' practices "probably happens more often than you think," said Charles Elson, director of the John Weinberg Center for Corporate Governance at the University of Delaware in Newark.
Linda Beale Named Director of Graduate Studies at Wayne State
As Director of Graduate Studies, Professor Beale is now responsible for overseeing a significant resource for practicing lawyers in Michigan - a program that provides advanced study in three popular fields of specialization including corporate and finance law, labor and employment law, and taxation. She will also continue in the classroom, teaching courses in partnership and income taxation.
Professor Beale succeeds Professor Peter Henning, who graciously filled in as Director since Professor Stephen Calkins' departure for the Provost's Office in January 2008.
Crimm: Online Training for Charitable Trustees
Nina J. Crimm (St. John's) has published a letter to the editor in this week's Chronicle of Philanthropy, How to Avoid Scandals: Online Training for Trustees:
The Chronicle of Philanthropy and other news organizations repeatedly report stories involving conflicts of interest, financial scandals, and other abuses of fiduciary duties by charities' board members. ... [A] considerable proportion of these breaches of fiduciary duties are by inexperienced or untrained board members who have admirable intentions.
Because many charities are small, have little money for legal advice, and often have novice, volunteer board members, their board members are particularly susceptible to inadvertently violating their fiduciary responsibilities. More often than not, those board members lack a comprehensive appreciation of their fiduciary duties, relevant state (nontax and tax) and federal (tax) laws, and these laws' application in the everyday scenarios encountered. ... I have a modest proposal.
State attorneys general, knowledgeable charity leaders, academics, and practicing lawyers should join together to develop a Web-based training course providing a comprehensive package of useful lessons that board members of charities need to master to properly fulfill their fiduciary functions throughout charities' life cycles. (Where state laws differ, a portion of the material could be tailored to account for the variation.) Development of the training course might be underwritten financially by insurance companies that provide director and officer liability policies and that stand to benefit economically in the future if more-knowledgeable board members translate into lower payouts.
Tax Court: Damages for Sexual Harassment Constitute Taxable Income
The EEOC found that an employee of the U.S. Postal Service was sexually harassed by a coworker and that the USPS failed to take appropriate corrective action. The EEOC awarded her $33,695 in damages for the sexual harassment. The Tax Court yesterday held that the damages were not excludible from the employee's income because they were not received "on account of personal physical injury or physical sickness" within the meaning of § 104(a)(2). Sanford v. Commissioner, T.C. Memo. 2008-158 (6/23/08).
Which Statute Does the Supreme Court Interpret the Most?
Foundation Press Publishes Civil Procedure Stories, 2d Edition
This book is a collaborative effort by fourteen law-school professors to provide a deeper understanding of the great civil procedure cases. The professors each wrote a short chapter on one of the cases, retelling the cases in their own voice and by their own method. See the companion website.
Other titles in the Law Stories Series (for which I serve as Series Editor) are:
- Administrative Law Stories (2006), edited by Peter L. Strauss (Columbia)
- Antitrust Stories (2007), by Eleanor M. Fox (NYU) & Daniel A. Crane (Cardozo)
- Bankruptcy Law Stories (2007), edited by Robert Rasmussen (Dean, USC)
- Business Tax Stories (2005), edited by Steven A. Bank (UCLA) & Kirk J. Stark (UCLA)
- Civil Rights Stories (2008), edited by Myriam Gilles (Cardozo) & Risa Goluboff (Virginia):
- Constitutional Law Stories (2004), edited by Michael C. Dorf (Columbia)
- Contracts Stories (2006), edited by Douglas G. Baird (Chicago)
- Criminal Procedure Stories (2006), edited by Carol S. Steiker (Harvard)
- Education Law Stories (2008), edited by Michael A. Olivas (Houston) & Ronna Greff Schneider (Cincinnati)
- Employment Discrimination Stories (2006), edited by Joel William Friedman (Tulane)
- Employment Law Stories (2007), edited by Samuel Estreicher (NYU) & Gillian Lester (UC-Berkeley)
- Environmental Law Stories (2005), edited by Richard J. Lazarus (Georgetown) & Oliver A. Houck (Tulane)
- Evidence Stories (2006), edited by Richard O. Lempert (Michigan)
- Family Law Stories (2008), edited by Carol Sanger (Columbia):
- Immigration Stories (2005), edited by David A. Martin (Virginia) & Peter H. Schuck (Yale)
- Intellectual Property Stories (2005), edited by Jane C. Ginsburg (Columbia) & Rochelle Cooper Dreyfuss (NYU)
- International Law Stories (2007), edited by John Noyes (California Western), Mark Janis (Connecticut) & Laura Dickinson (Connecticut)
- Labor Law Stories (2005), edited by Laura J. Cooper (Minnesota) & Catherine L. Fisk (Duke)
- Legal Ethics Stories (2005), edited by Deborah L. Rhode (Stanford) & David Luban (Georgetown)
- Property Stories (2004), edited by Gerald Korngold (Case Western) & Andrew P. Morriss (Illinois)
- Race Law Stories, by Rachel F. Moran (UC-Berkeley) & Devon Carbado (UCLA)
- Tax Stories (2003), edited by Paul L. Caron (Cincinnati)
- Torts Stories (2003), edited by Robert L. Rabin (Stanford) & Stephen D. Sugarman (UC-Berkeley)
- Trial Stories (2008), edited by Michael E. Tigar (American) & Angela J. Davis (American)
- Corn Products Press Release
- Associated Press
- Bloomberg News
- New York Times
- Wall Street Journal
(Hat Tip: David Shakow.)
New America Foundation Hosts Change We Can Afford: Paying for a 21st Century Social Contract Today in D.C.
The New America Foundation hosts a program today on Change We Can Afford: Paying for a 21st Century Social Contract:
[N]either candidate is proposing tax reform anywhere near as sweeping or bold. The panel will discuss what might be done to adapt the tax code to the fundamental changes brought on by a globalized, high-tech economy as well as the opportunity that a reevaluation of fiscal policy offers to align revenues with the evolving rights and responsibilities that people assign to government, individuals, business and civil society. Finally, it will offer a historical perspective on previous efforts in this regard and prospects for reform in 2009 and beyond.
- Michael Graetz (Yale; moving to Columbia)
- Michael Lind (New America Foundation)
- Maya MacGuineas (Committee for a Responsible Federal Budget; New America Foundation)
- Moderator: Howard Gleckman (The Urban Institute/Tax Policy Center; Editor, TaxVox blog)
The program takes place today from 12:00 - 1:30 p.m. at the New America Foundation, 1630 Connecticut Ave., NW, 7th Floor, Washington, D.C.