TaxProf Blog

Daschle's Nomination for HHS Secretary Threatened by Failure to Pay $140k Taxes on Free Use of Limo and Chauffeur

Secretary of Health and Human Services nominee Tom Daschle has an even bigger tax problem than Treasury Secretary Timothy Geithner:  Daschle paid more than $140,000 in taxes and interest on January 2, 2009 for three tax mistakes he made on his 2005-2007 tax returns comprising over $350,000 of omitted income and overstated deductions that were uncovered in the vetting process:

• Failing to report over $255,000 of income from the free use of a car and chauffer provided to him in 2005-2007 by InterMedia Partners, a private equity fund and its managing partner, Leo Hindery, Jr., a prominent Democratic fund-raiser.
• Failing to report over $80,000 of consulting income from the same source in 2007.
• Failing to properly substantiate $15,000 of charitable deductions in 2005-2007.

The Senate Finance Committee staff also notes that there are two unresolved tax issues:

• Free travel and entertainment services provided to the Daschles by EduCap, Inc., Catherine B. Reynolds Foundation, Academy Achievement, and Loan to Learn.
• Additional unsubstantiated charitable contributions for 2005-2007.

Documents and media and blogosphere coverage:

• Senate Finance Commitee Statement
• Senate Finance Committee Ranking Member Charles Grassley Statement
• ABC News
• Bloomberg
• CNN
• The Hill
• New York Times
• Politico
• Wall Street Journal
• Washington Post

Update #1:  Several commenters have questioned why Mr. Daschle did not have to pay any penalties for his tax transgression.  Perhaps he used the Steve Martin defense or he merely anticipated enactment of the Rangel Rule.

Update #2:  Scrappleface (via InstaPundit) notes that this is part of President Obama's strategy to close the tax gap:

In office less than two weeks, President Barack Obama has already increased tax receipts at the U.S. Treasury with an innovative plan to get tax-dodgers to pay up, in full, immediately.

“The president’s plan is simple but ingenious,” said White House spokesman Robert Gibbs, “He targets wealthy individuals who filed inaccurate tax forms, cheating the government out of tens of thousands of dollars. Then he just nominates them for cabinet positions. They suddenly see the error of their ways, and they cut checks for the full amount owed, plus interest.”

Stombock: Economic Nexus and Nonresident Corporate Taxpayers

Megan A. Stombock (Cadwalader, Wickersham & Taft, New York) has published Economic Nexus and Nonresident Corporate Taxpayers: How Far Will It Go?, 61 Tax Law. 1225 (2008).  Here is the Introduction:

Article I, Section 8, Clause 3 of the U.S. Constitution, known more commonly as the Commerce Clause, grants Congress the power to regulate interstate commerce. The U.S. Supreme Court held in Complete Auto Transit v. Brady that, for a state tax to be considered valid under the Commerce Clause, it must (1) be applied to an activity that has a substantial nexus with the taxing state (the “substantial nexus requirement”), (2) be fairly apportioned to the activities carried on by a taxpayer in the state, (3) not discriminate against interstate commerce, and (4) be fairly related to the services and benefits provided by the state.

States, courts, Congress, taxpayers, and practitioners continue to debate whether a taxpayer’s physical presence or economic presence satisfies the substantial nexus requirement. A nonresident corporation is generally physically present in a state if it has a tangible investment, e.g., real property, employees, or equipment, located in that state. In contrast, a nonresident corporation is generally economically present in a state if it derives income from a state’s local market, e.g., from customers or intangible property, located in that state.

Quill v. North Dakota held that, to satisfy the substantial nexus requirement, a nonresident corporation must have physical presence in a statebefore that state may impose a use tax collection obligation on the corporation. Some states and courts have strictly interpreted this holding to require a nonresident corporation’s physical presence in the taxing state only as a prerequisite to impose a sales and use tax, and do not extend the physical presence requirement to corporate income, franchise, excise, or gross receipts taxes (each, a “Business Activity Tax”). For example, the West Virginia Supreme Court of Appeals delivered a controversial decision permitting West Virginia to impose corporate and franchise taxes on nonresident corporations that have no in-state physical presence, but rather derive only economic benefits from their West Virginia customers. Other states and courts interpret Quill’s holding to require physical presence before a state may impose a Activity Tax and therefore prevent a state from imposing any type of tax based solely on a nonresident corporation’s economic presence. Since many states limit Quill’s application to sales and use taxes and others adopt a physical presence standard for Business Activity Taxes, a lack of uniformity has developed among states’ nexus standards. Several commentators agree that the current landscape burdens interstate commerce because states’ varying nexus standards prevent corporations from determining with any certainty where they are liable for Activity Taxes.

This Article discusses the current Business Activity Tax nexus debate. Part II provides an overview of the substantial nexus requirement. Part III examines physical presence case law. Part IV examines economic presence case law. Part V considers the arguments supporting an economic presence standard and arguments supporting a physical presence standard. Finally, Part VI recommends adopting a uniform physical presence standard for Business Activity Taxes or a “hybrid” nexus standard that incorporates elements of physical presence with some minimum economic presence threshold.

Cui Posts Tax Papers on SSRN

Wei Cui (China University of Political Science and Law) has posted two tax papers on SSRN:

• "Establishment":  An Analysis of a Core Concept in Chinese Inbound Income Taxation
• The Prospect of New Partnership Taxation in China

WSJ: Hollywood Tax Goodie in Stimulus Bill

Editorial in today's Wall Street Journal: Raiders of the Lost Taxpayer; A Tax Break for Tinseltown:

The House version of the stimulus already includes a bonus depreciation that lets businesses immediately write off 50% of their 2009 capital expenditures. But the Senate bill expands the definition of "qualifying property" -- specifically to include "certain motion picture film or videotape." Hollywood moguls like Steven Spielberg, David Geffen and George Lucas were among the biggest backers of President Obama's candidacy, and it looks as though Democrats have found a way to return the favor.

So let's see: Democrats object to cutting the U.S. 35% corporate tax rate -- which is higher than in all of Europe, undermines economic growth and discourages job creation -- for all companies on grounds that it favors the rich and powerful. But Democrats will carve out tax loopholes for businesses they like and that write them campaign checks.

Tax Lawyer Strikes Back at "Girls Gone Wild" Founder Joe Francis

Yesterday I blogged the brouhaha over the decision by Joe Francis, founder of the Girls Gone Wild video series, to fire yet another tax lawyer in his tax evasion case -- calling The Bernhoft Law Firm "the Paris Hilton of lawyers -- just to be famous, not to do anything."  The American Lawyer reports today that the lawyers fired back in a three-page declaration filed on Thursday before U.S. District Court Judge S. James Otero in Los Angeles:

Counsel and Mr. Francis have reached an irreconcilable conflict concerning issues that, at the time, were reposed within the attorney-client privilege. As a result of this irreconcilable conflict, counsel was obligated to inform Mr. Francis on November 18, 2008, of the necessity of terminating the legal relationship and withdrawing as counsel of record from the case.

Thereafter, via email transmission, Mr. Francis communicated one of several threats to counsel that if counsel did not perform certain acts: “As for a practice in LA. It is highly unlikely if you piss me off. I KNOW EVERYONE AND THEY WILL DO WHAT I SAY!” Counsel has previously withheld this information out of an overabundance of caution and to protect Mr. Francis’ interests. However, Mr. Francis recently waived the privilege as to some communications with Mr. Francis’ recent public statements to the press.

Prior TaxProf Blog posts:

• Taxes Gone Wild: Joe Francis Indicted on Tax Charges (4/12/07)
• Founder of "Girls Gone Wild" Pleads Not Guilty to Tax Evasion Charges, Says "IRS Gone Wild" (7/23/08)
• "Girls Gone Wild" Founder Fires "The Paris Hilton of Tax Lawyers," Seeks New Counsel in Tax Evasion Case (1/28/09)

Borden Presents Open Tenancies in Common Today at Florida

Bradley T. Borden (Washburn) presents Open Tenancies in Common, 38 Seton Hall L. Rev. ___ (2009), at Florida today as part of its Faculty Enrichment Series.  Here is the abstract:

Tax law (section 1031 in particular) has spawned a new investment vehicle-open tenancies in common. Tax law allows property owners to exchange into like-kind real property tax free, but finding suitable replacement property can be difficult. Real estate syndicators, recognizing a demand for ready-access replacement property, began offering undivided interests in large multi-million-dollar properties to individual investors exchanging out of smaller properties. Those offerings were the first open tenancies in common. Open tenancies in common are distinguished from traditional or close tenancies in common by the size of coowned property, the coowners' mutual lack of acquaintance, and the separation of ownership and management of the property. Open tenancies in common raise issues from several disciplines, including tax; property, business, contract, and, securities law; and economics. To provide the tax benefits investors seek, interests in open tenancies in common must be real property for federal tax purposes. That implicates the tax entity classification rules, which the IRS has addressed with published guidance. Numerous investors coowning a single property raises property law issues, such as rights of possession, rights to revenue, obligations for expenses, and rights to partition. The coowners' lack of acquaintance and disparate background raise business law issues. For example, the coowners may wish to restrict transferability of interests, have governance agreements, and create standards for third-parties who manage the property. Finally, open tenancies in common raise economic concerns and appear to come within the jurisdiction of the securities laws. This Article introduces open tenancies in common to the academic literature, analyzes them, and recommends modifications to the IRS guidance based on property law, business law, and economic and tax theory.

Glickman & Calhoun: The "States" of the Federal Common Law Tax Doctrines

Jeffrey C. Glickman & Clark R. Calhoun (both of Alston & Bird, Atlanta have published  The "States" of the Federal Common Law Tax Doctrines, 61 Tax Law. 1181 (2008).  Here is part of the Introduction:

This Article focuses on states’ attempts to apply the federal anti-avoidance doctrines to state tax transactions. Since 2000, there has been considerably more activity in this area at the federal level; thus, it should not be surprising that states have similarly become more aggressive in their attempts to apply these doctrines to undo the state tax benefits of business transactions. ...  Peter Faber, a partner with McDermott Will & Emery, predicted an increased use of these doctrines at the state and local tax level. ...

There is no question that, in the last several years, states have aggressively attempted to eliminate a taxpayer’s ability to minimize or to eliminate its state tax burden in ways viewed by the states as frustrating the intent of their tax statutes, including applying these federal common law tax doctrines to various types of business transactions. As one might suspect, this has become another area where states have created inconsistencies among themselves. Not surprisingly, individual states have been guilty of inconsistent application within their own jurisprudence.

The goal of this Article is to provide tax professionals with a better understanding of the application of these federal tax doctrines at the state level. Part II provides a brief overview of the doctrines at the federal level. Part III.A summarizes recent congressional attempts to codify the economic substance doctrine and several successful efforts by states to address these doctrines in their statutes and regulations. Part III.B examines state administrative guidance and judicial opinions with regard to these doctrines in the corporate income tax, transaction tax (that is, sales-use and real estate transfer taxes), and property tax areas. Particular emphasis is given to the context in which the doctrines were and were not applied. Finally, Part IV provides some concluding thoughts for professionals who regularly find themselves providing transactional tax advice or who are called upon to issue legal opinions (whether or not for purposes of satisfying the financial reporting requirements for income tax reserves pursuant to FASB Interpretation or other financial accounting purposes) on the ability of a taxpayer to achieve a desired state tax result from a particular business transaction.

Government's Brief in Wesley Snipes' Appeal

The Government has filed its brief in the Eleventh Circuit in Wesley Snipes' appeal of his conviction and sentence on three misdemeanor tax fraud counts.

The Top 400 Taxpayers, 1992-2006: Income Up, Tax Rate Down

The IRS yesterday released data on the Top 400 tax returns for 1992-2006, which show a marked increase in the average amount of AGI and investment income (taxable interest, dividends, and net capital gains) reported by the Top 400 taxpayers over this 15-year period, along with a startling decrease in their average tax rate:

Here are the figures in constant 2008 dollars:

Press and blogosphere coverage:

• Bloomberg
• Forbes
• New York Times
• Roth & Co.
• Tax Foundation
• Wall Street Journal

UCLA Hosts Conference Today on Tax Policy in the Obama Era

UCLA School of Law and the Tax Policy Center are sponsoring a conference today at UCLA on Tax Policy in the Obama Era (live webcast available here):

• 9:15 a.m. - 10:45 a.m.:  Tax Policy in an Era of Growing Inequality
  • Emmanuel Saez (UC-Berkeley Economics Department), Income Tax Reform and Inequality
  • Leonard Burman (Tax Policy Center), The Rising Tide Tax System: Indexing the Tax System for Changes in Inequality
  • Eric Zolt (UCLA School of Law) & Leah Boustan (UCLA Economics Department), Income Inequality and Local Government
  • Commentator: Elizabeth Garrett (USC School of Law)
• 11:00 a.m. - 12:30 p.m.:  Dimensions of Fiscal Policy in the Post-Bush Era
  • George Yin (University of Virginia School of Law), Temporary-Effect Legislation, Political Accountability, and Fiscal Restraint
  • Hillary Hoynes (UC-Davis Economics Department), Tax Policy for Low-Income Families: The EITC
  • Kirk Stark (UCLA School of Law), In Search of a Post-Partisan Fiscal Federalism
  • Commentator: Pamela Olson (Skadden Arps)
• 12:30 p.m. - 2:00 p.m.:  Lunch Speaker: The Honorable Xavier Becerra (U.S. House of Representatives; Member, Ways & Means Committee)
• 2:00 p.m. - 3:30 p.m.:  Policy Options Amid Economic Crisis
  • Steve Bank (UCLA School of Law), Tax Policy During the Great Depression
  • Dan Halperin (Harvard Law School & Tax Policy Center), Retirement Income Security After the Fall
  • Daniel J. B. Mitchell (UCLA Anderson School of Management), When Luck Runs Out: California’s Budget Crisis
  • Commentator:  Joseph Bankman (Stanford Law School)
• 3:45 p.m. - 5:15 p.m.:  Politics, Public Opinion & the Possibility of Tax Reform
  • Larry Bartels (Princeton University), Public Opinion and the Politics of Tax Policy: From Bush to Obama
  • Ed McCaffery (USC School of Law & California Institute of Technology), Behavioral Dimensions of Tax Reform
  • Rosanne Altshuler (Tax Policy Center), Lessons from the President's Advisory Panel on Federal Tax Reform
  • Commentator:  Ellen Aprill (Loyola-L.A. Law School)     

Kleinbard Presents A Reconsideration of Tax Expenditure Analysis Today at NYU

Edward D. Kleinbard (Chief of Staff, Joint Committee on Taxation) presents A Reconsideration of Tax Expenditure Analysis at NYU today as part of its Colloquium Series on Tax Policy and Public Finance.  The co-convenors are Daniel Shaviro (NYU) & Alan Auerbach (UC-Berkeley, Department of Economics).  Here is the summary:

This document ... reconsiders the utility of the JCT Staff’s current implementation of tax expenditure analysis. Tax expenditure analysis can and should serve as an effective and neutral analytical tool for policymakers in their consideration of individual tax proposals or larger tax reforms. Its efficacy has been undercut substantially, however, by the depth and breadth of the criticisms leveled against it. Tax expenditure analysis no longer provides policymakers with credible insights into the equity, efficiency, and ease of administration issues raised by a new proposal or by present law, because the premise of the analysis (the validity of the “normal” tax base) is not universally accepted. Driven off track by seemingly endless debates about what should and should not be included in the “normal” tax base, tax expenditure analysis today does not advance either of the two goals that inspired its original proponents: clarifying the aggregate size and application of government expenditures, and improving the Internal Revenue Code. The JCT Staff therefore has begun a project to rethink how best to articulate the principles of tax expenditure analysis, in order to improve the doctrine’s utility to policymakers, reemphasize its neutrality, and address the concerns raised by many commentators.

This pamphlet introduces a new paradigm for classifying tax provisions as tax expenditures. Our revised classification divides the universe of such provisions into two main categories: tax expenditures that can be identified by reference to the general rules of the existing Internal Revenue Code (not, as is the current practice, by reference to a hypothetical “normal” tax), which we label “Tax Subsidies,” and a new category that we have termed “Tax-Induced Structural Distortions.” The two categories together cover much the same ground as does the current definition of tax expenditures, and in some cases extend the application of the concept further. The revised approach does so, however, without relying on a hypothetical “normal” tax to determine what constitutes a tax expenditure, and without holding up that “normal” tax as an implicit criticism of present law. The result should be a more principled and neutral approach to the issues.

Section I of this pamphlet presents an overview. It briefly reviews the concept of tax expenditure analysis, explains the reasons for revisiting it now, and introduces the new paradigm for categorizing tax expenditures. Section II outlines the development of tax expenditure analysis and describes how that doctrine is used today by the JCT Staff and by the Treasury Department. Section III summarizes commentators’ principal objections to how tax expenditure analysis is currently implemented. Section IV responds to those criticisms by describing in detail our new taxonomy of tax expenditures. Section V explains the economic considerations that underlie tax expenditures and applies that economic thinking to our new paradigm. Finally, Section VI reviews some of the issues associated with quantifying tax expenditures under the revised definitions.

Hasen Presents Legal Transitions -- Reliance Redux Today at Northwestern

David Hasen (Michigan) presents Legal Transitions -- Reliance Redux at Northwestern today as part of its Advanced Topics in Taxation Series organized by Tom Brennan and Charlotte Crane.  Here is the abstract:

The recent literature on legal transitions is noted for its welfarist approach to the analysis of legal change. This approach tends to efface, and purports to debunk, a number of distinctions that are salient to conventional understandings of legal transitions. According to a welfarist analysis, these distinctions have no significant role to play in the analysis of legal change.

This article examines the theoretical apparatus on which these criticisms are based, with a principal focus on taxation. The examination demonstrates that the apparatus suffers from significant conceptual shortcomings. They include the unwarranted assimilation of legal to factual change, the naturalization of conventional arrangements, and the unfounded disregard of the distinction between making law and finding it. The result is an account of legal transitions that is unable either to explain actual transitions or to provide a novel normative theory of how legal change should take place. In the end, the older view of legal transitions is more capable than the welfarist approach of providing an adequate normative and positive framework for understanding legal transitions.

Walker Presents Are Tax and Accounting Rules Discriminating Against Discounted Employee Stock Options Justified? Today at Indiana

David I. Walker (Boston University) presents Are Tax and Accounting Rules Discriminating Against Discounted Employee Stock Options Justified? at Indiana today as part of its Tax Policy Coloquium Series hosted by Leandra Lederman.  Here is the abstract:

Contemporaneous grants of both stock and at-the-money options to individual employees of U.S. public companies indicates demand for equity compensation packages that are in the money, i.e., packages of equity pay instruments that in aggregate have payoff profiles and incentive properties that are similar to explicit in-the-money employee stock options. However, several tax rules (and formerly accounting rules) strongly discourage grants of explicit in-the-money options, including recently enacted § 409A, which essentially precludes the use of explicitly discounted options by taxing these instruments at vesting, rather than at exercise, and adding a 20% penalty tax. This article explores whether the tax and accounting distinction between discounted and non-discounted options makes sense.

The stated legislative rationales for rules discriminating against explicit in-the-money options are weak, reflecting a dichotomous view of equity compensation divided between discounted and non-discounted options, when, in fact, option design is a continuum. However, this article sets forth a novel tax policy rationale for forcing firms to bifurcate in-the-money pay packages into discrete grants of stock and non-discounted options, a combination that I refer to as a synthetic in-the-money option. In short, doing so precludes the unwarranted expansion of preferential option tax treatment to instruments resembling restricted stock.

"Rangel Rule" Would Exempt All Taxpayers From IRS Penalties and Interest

Congressman John Carter (R-TX) yesterday introduced H.R. 735, The Rangel Rule Act of 2009, which would add new Code § 7529 to prohibit the IRS from charging penalties and interest on back taxes.  From the press release:

Under the proposed law, any taxpayer who wrote “Rangel Rule” on their return when paying back taxes would be immune from penalties and interest.

“We must show the American people that Congress is following the same law, and the same legal process as we expect them to follow,” says Carter. “That has not been done in the ongoing case against Chairman Rangel, nor in the instance of our new Treasury Secretary Timothy Geithner. If we don’t hold our highest elected officials to the same standards as regular working folks, we owe it to our constituents to change those standards so everyone is abiding by the same law. Americans believe in blind justice, which shows no favoritism to the wealthy or powerful.”

Carter also said the tax law change will provide good economic stimulus benefits, as it would free many taxpayers from massive debts to the IRS, restoring those funds to the free market to help create jobs.

Here is the text of proposed new § 7529:

Any individual who is a citizen of the United States and who writes 'Rangel Rule' on the top of the first page of the return of tax imposed by chapter 1 for any taxable year shall be exempt from any requirement to pay interest, and from any penalty, addition to tax, or additional amount, with respect to such return.

Wright: Using Retroactive Taxes to Cure Budget Shortfalls

Kathleen K. Wright (California State University-Fullerton, Mihaylo College of Business and Economics) has published Using Retroactive Taxes to Cure Budget Shortfalls, 61 Tax Law. 1153 (2008).  Here is the Introduction:

New legislation limiting the amount of refunds available for LLCs who have qualified to do business in California and have paid the fee based on unapportioned gross receipts is being questioned by both the taxpayers who paid the unconstitutional fee and by their practitioners. The reason is that A.B. 198 was signed into law by the Governor and includes a new California Code section 19394 which retroactively limits the amount of refund of LLC fees previously paid on worldwide gross receipts to only the portion that relates to the receipts that had been unfairly apportioned to the state.

California is not alone in its refusal to issue full refunds when a state statute has been declared unconstitutional. Cases discussed in this Article will show a tendency of both the state tax administrative agencies and the courts to actively defend the fiscal stability of the states. In the case of California’s unconstitutional LLC fee, the revenue estimates of a full refund of the unconstitutional fees paid for prior years could not be ignored in a year where the state is already facing a $14 billion deficit for the upcoming fiscal year budget. The Franchise Tax Board (FTB) estimates that the aggregate refunds of total LLC fees paid would total $1.3 billion. Under California Code section 19394 the refund would be limited to $280 million, resulting in a potential General Fund savings of $1.1 billion.

The problem started when California’s fee based on worldwide gross receipts of an LLC without apportionment was struck down as an unconstitutional tax by the court of appeal in Northwest Energetic Services (NES II). In addition to NES II, there are two more cases pending in the courts on the same issue. The legislature was compelled to act to mitigate further losses from refund claims adding to the already bleak financial scenario forecast for the 2008 fiscal year, and act they did. In what has come to be known as a “midnight special” (or a bill enacted at midnight of the last day of the legislative session), A.B. 198 was passed to address the issue. A.B. 198 limits refund claims to only the unconstitutional portion of the LLC fee payment and provides sourcing rules to determine gross receipts sourced to California going forward.

This Article discusses the historical background of significant state and local cases which discuss remedies that offer acceptable compromises for taxpayers who have paid unconstitutional taxes. The Article specifically analyzes A.B. 198, the legislature’s response to the LLC fee-tax dilemma and evaluates whether or not the steps taken by the legislature fall within the scope of constitutional remedies.

Arizona State Faculty Face 12% Pay Cut by June 30

Scary news from the Arizona Republic:

Arizona's public universities on Tuesday unveiled their offers to make cuts in their budgets this year, saying they would strip thousands of employees of weeks of pay and eliminate jobs and some programs. ...

[T]he proposal would require employees, including tenured professors, to take time off as unpaid leave. ... ASU's portion of the proposed $100 million cut is $45.3 million. Much of it would come from employees, who could lose 12% percent of their remaining pay before July.

A memo from ASU's President provides further details of the furlough/pay reduction for faculty.

Tax Differences in House, Senate Stimulus Bills

The House yesterday approved the $819 billion economic stimulus plan 244-188, with not a single Republican voting in favor of the bill (11 Democrats voted for the bill).  Among the differences to be reconciled in the tax provisions in the House ($304 billion; summary; bill) and Senate ($342 billion; summary) bills are:

• Business:
  • Bonus Depreciation
  • Broadband Incentives
  • Contractor Withholding
  • Debt Restructuring
  • Net Operating Losses
• Energy:
  • Energy Manufacturing Credit
  • Renewable Energy Investment
• Individuals:
  • AMT
  • Child Tax Credit
  • College Education Credit
  • First-time Homebuyer Credit
  • Taxing Jobless Benefits

Press and blogosphere coverage:

• ataxingmatter
• Dow Jones
• New York Times
• Roth & Co.
• TaxVox
• Wall Street Journal
• WebCPA

Video on Bank Bailout Notice 2008-83

American News Project has this six-minute video on Notice 2008-83 (the Wells Fargo bank bailout ruling):

Prior TaxProf Blog coverage:

• What Is the IRS's Authority for Expanding Bailout Tax Breaks? (10/19/08)
• Bailout Tax Break Worth $5.1 Billion to PNC Bank in Purchase of National City (10/30/08)
• Tax Lawyers Decry Financial Bailout NOL Tax Break for Banks (11/10/08)
• Financial Bailout NOL Tax Break to Cost CA $2b (11/12/08)
• Grassley Seeks Investigation of IRS's Issuance of Notice 2008-83 (11/15/08)
• Fleischer: NOLs and the Rule of Law (11/23/08)
• Democrats Oppose Expanding Bank Loss Ruling (12/5/08)
• Jones Day Defends Bank Bailout Notice 2008-83 (1/8/09)

6th Circuit Fuels Circuit Split Over Use of Tables to Value Lottery Winnings

The Sixth Circuit yesterday (Negron v. United States, No. 07-4460 (6th Cir. Jan. 28, 2009)) added more fuel to the split in the circuits over whether the § 7520 valuation tables should be used to value lottery payments, joining the Fifth Circuit (Cook v. Commissioner, 349 F.3d 850 (5th Cir. 2003)) in upholding the use of the tables, contrary to the position of the Second and Ninth Circuits (Estate of Gribauskas v. Commissioner, 342 F.3d 85 (2d Cir. 2003); Shackleford v. United States, 262 F.3d 1028 (9th Cir. 2001)). For further discussion of this issue, see the series of articles by Wendy C. Gerzog (Baltimore):

• Anthony: Absolute Actuarial Tables, 121 Tax Notes 485 (Oct. 27, 2008).
• Donovan and Davis: Two More Lottery Cases, 110 Tax Notes 543 (Jan. 30, 2006).
• Annuity Tables Versus Factually Based Estate Tax Valuation: Ithaca Trust Re-visited, 38 Real Prop., Prob., & Tr. J. 745 (2004).

Milot: The Case Against Tax Incentives for Organ Transfers

Lisa Milot (Georgia) has published The Case Against Tax Incentives for Organ Transfers, 45 Willamette L. Rev. 67 (2008).  Here is the Conclusion:

Upon initial consideration, providing tax incentives for organ donations might seem to reflect a sound legislative and ideological approach, consistent with the current tax code. In addition, such an approach avoids economic coercion of individuals who, absent financial incentives, would prefer not to transfer their organs but who may feel that they have no option once financial incentives are possible by taking advantage of the progressive nature of our tax system. Moreover, by routing payments through our tax system and casting transfers as donations, concerns about commodification of our bodies are allayed.

On closer analysis it becomes evident that such incentives conflict with the goals of maintaining vertical equity, transparency, and administrability/simplicity within our tax system. Such incentives would convert what is otherwise currently a non-tax event into a tax item, increasing complexity without providing an unequivocal reason for doing so. In addition, use of the tax system to provide financial incentives for organ transfers provides differential returns to taxpayers based upon a completely unrelated event: their tax bracket. Finally, use of tax incentives instead of direct payments obscures the underlying financial reality of the proposals, preventing meaningful reflection on implications for our understanding of ourselves. While we could simply decide to use the tax system this way, any such decision should be carefully considered.

Sinai: Dividend Repatriation Tax Cut Would Be Ideal Stimulus

Op-ed in today's Wall Street Journal:  A $545 Billion Private Stimulus Plan; Let's Bring Home Foreign Earnings Without Tax Penalty, by Allen Sinai:

[T]he Obama team should implement a private-sector funded stimulus and allow a temporary reduction in the 35% tax rate that U.S. companies pay to repatriate foreign subsidiary earnings. Doing so could inject more than $545 billion into the U.S. economy without expanding the deficit.

Driven by previously strong foreign economies and a low dollar, the foreign subsidiaries of many successful U.S.-based companies have generated substantial earnings that could be invested in the U.S. economy at virtually no cost to the federal government. These earnings reside overseas, however, because of U.S. tax laws that many foreign competitors do not face.

Under the current system, U.S. corporations are charged 35 cents for each foreign-earned dollar they bring back home to the U.S. If they keep that income overseas, it is taxed at lower rates. As a result, those dollars tend to stay overseas permanently, since companies know they will automatically lose more money by bringing that income home than they can reasonably expect to make by reinvesting it once it is here. ...

In order to motivate businesses to bring this money back to the U.S., the new administration and Congress should consider legislation similar to a bipartisan 2004 law, The American Jobs Creation Act. This law incentivized U.S. businesses to bring $360 billion of foreign subsidiary earnings back into the U.S. at a reduced corporate tax rate of 5.25% for one year. A survey of several hundred of these companies found that they used, on average, 25% of those funds for U.S. capital investment, 23% for hiring and training of U.S. employees, 14% for U.S.-based R&D, and 13% for U.S. debt reduction.

A similar opportunity exists now as then, with an even greater need today. A new study by Decision Economics Inc., concludes that lowering the tax on repatriating foreign-earned income would inject $545 billion into our economy. ... The study also indicates that the U.S. Treasury would receive tax revenue it would not otherwise get: an average of $28 billion per year for five years. The resulting increase in aggregate economic activity -- higher personal income, corporate profits, capital gains, Social Security and excise taxes paid -- would generate even more tax receipts. State governments would also see some increase in revenues.

For a contrary view, see Center on Budget & Policy Priorities, Repeating Dividend Repatriation Tax Holiday Would be Poor Stimulus.  See also

• Morgan Stanley, GE Seek Tax Waiver on Offshore Loans (Jan. 13, 2009).
• Edward D. Kleinbard (Chief of Staff, Joint Committee on Taxation) & Patrick Driessen (Senior Economist, Joint Committee on Taxation) have published A Revenue Estimate Case Study: The Repatriation Holiday Revisited, 120 Tax Notes 1191 (Sept. 22, 2008).
• Corporate Tax Cut Winfdall (July 1, 2008)
• Thomas J. Brennan (Drexel), Cash Flow and Market Response to Repatriation (May 24, 2008)

CTJ: Republican Tax Cuts Skewed Toward Rich

Citizens for Tax Justice today published Less than a Quarter of the House GOP’s Tax Rate Reduction Proposal Would Go to the Poorest 60 Percent of Taxpayers:

 

"Girls Gone Wild" Founder Seeks New Counsel in Tax Evasion Case

Am Law Daily reports that Joe Francis, founder of the Girls Gone Wild video series, has changed tax lawyers yet again in his tax evasion case:

Pillsbury Winthrop Shaw Pittman. Howrey. San Francisco litigation boutique Sideman & Bancroft. And now, the Daily Journal in Los Angeles reports ... that Munger, Tolles & Olson may be in line to replace Francis's current counsel at The Bernhoft Law Firm, who the mail-order video peddler is slamming as "swindlers" as they exit from a federal tax case slated for trial in March. ...

Francis [hired] The Bernhoft Firm, whose Milwaukee-based partners Robert Bernhoft and Robert Barnes were profiled in Portfolio magazine last November, with a special focus on their push to build up their celebrity client list after getting action film star Wesley Snipes acquitted on felony tax charges in February 2008. But the honeymoon for Bernhoft, Barnes, and Francis didn't last long. ...

Francis lashed out at his former lawyers, who filed a motion to withdraw from the tax case in mid-December. "The only reason they wanted me [as a client] was to mooch off me and open up an L.A. office," Francis told the Daily Journal. "The Bernhofts are the Paris Hilton of lawyers -- just to be famous, not to do anything." ...

Bernhoft and Barnes, who were not immediately available for comment, have slammed the Daily Journal story as a "defamatory hit job." ...

Also not in the game: Jones Day. ...  Jones Day litigation partner Brian O'Neill confirmed that the firm has chosen not to represent Francis, but declined to elaborate. (As an aside, O'Neill also praised Bernhoft, saying that a fellow Jones Day partner saw Bernhoft speak at a criminal law conference in Aspen, Colo., several weeks ago, noting that he had an "impressive" knowledge of tax law.)

Francis also approached Howrey's Handzlik about representing him in the tax case.

And while the Daily Journal reported that Munger Tolles litigation partners Brad Brian and Luis Li are poised to take over the tax case, Brian denied as much when contacted by The Am Law Daily on Tuesday afternoon. The firm has not yet made a decision on whether it will represent Francis, Brian says. Should a new counsel appointment be made, Francis is seeking to have his trial postponed until the fall--ostensibly to give his new lawyers more time to prepare.

Prior TaxProf Blog posts:

• Taxes Gone Wild: Joe Francis Indicted on Tax Charges (4/12/07)
• Founder of "Girls Gone Wild" Pleads Not Guilty to Tax Evasion Charges, Says "IRS Gone Wild" (7/23/08)

Update: The Daily Journal has issued this clarification:

A story published Jan. 26, "Law Firm, Celebrity Client May Part Ways: Spotlight On Bernhoft Could Dim as 'Girls Gone Wild' Founder Seeks New Counsel," may have inadvertently created the impression Joe Francis was firing his lawyers at the Bernhoft Law Firm, by saying the firm was "about to be tossed on its ear." In fact, as was reported in the same story, itwas the Bernhoft firm that first sought judicial permission in a Nov. 28 motion to withdraw as Francis' counsel. The Daily Journal regrets any misperception this caused.

Knoll: The Corporate Income Tax and the Competitiveness of U.S. Industries

Michael S. Knoll (Pennsylvania) has posted The Corporate Income Tax and the Competitiveness of U.S. Industries on SSRN. Here is the abstract:

Hit hard by the financial crisis and recession, U.S. auto producers are seeking a massive bailout from the U.S. Congress. Many reasons are given for the U.S. auto industry's lack of competitiveness including the U.S. corporate income tax. Although it is regularly asserted that there is a direct connection between the corporate income tax and competitiveness, what that connection is has not been carefully spelled out. In this essay, I describe how the corporate income tax directly harms the competitiveness of U.S. industries. I show that the mechanism differs depending upon whether the U.S. industry is defined as the global production of U.S.-based corporations or as all productive activities undertaken in the United States regardless of where the corporations undertaking those activities are based. I also examine the impact on competitiveness of various possible replacements for the corporate income tax, including a value added tax (VAT), formulary apportionment, a cost of capital allowance (COCA), and preset "in lieu of tax" payments.

California Water’s-Edge Election

Giles Sutton (Grant Thornton, Washington, D.C.), Chuck Jones (Grant Thornton, Chicago), Jack Hodges (Grant Thornton, San Francisco) & Jaime Yesnowitz  (Grant Thornton, Washington, D.C.) have published California Water’s-Edge Election, 61 Tax Law. 1111 (2008).  Here is the Introduction:

Many of the states that permit or require corporations to file tax returns based upon a combined report either require that such reporting be made based on the domestic group or a worldwide group or permit a “water’s-edge” election. In this respect, “water’s-edge” refers to the territorial borders of the United States, and includes corporations domiciled or doing significant business therein. A water’s-edge group is a subset of a multinational unitary business. As such, the election provides entity-based exceptions to the pure application of unitary principles. In some cases, large multinational corporate groups may be comprised of multiple unitary groups, each of which needs to make its own separate water’s-edge election. An entity that is not part of a taxpayer’s worldwide unitary group cannot be part of a water’s-edge group simply because it is domestic and commonly owned. In addition, the existence of a unitary relationship is determined by the relationship between all members of the unitary business, even though some of the members may be excluded by the election. Further, water’s-edge elections can often take on the characteristics of tax attributes in the context of certain merger and acquisition transactions.

In an era where states are increasingly adopting combined reporting, in particular unitary combined reporting to expand the number of foreign companies whose income must be reported to the state, corporations are focusing on the subtle issues pertaining to unitary reporting and water’s-edge elections. Issues surrounding the mechanics of the water’s-edge election, a taxpayer’s eligibility to make the election, the composition of the combined reporting group, the required method of making the election, the impact of making an election, how water’s-edge returns are examined, and planning issues that should be considered will of necessity assume greater importance.

This Article addresses these issues as they relate to the water’s-edge filing option available in the state of California. California’s water’s-edge law is complex and merits a thorough analysis for several reasons. Economically, California is the largest state to use worldwide combined reporting with the option to elect water’s-edge treatment. Because California’s water’s-edge law has been in effect since 1988, a substantial amount of law and authority has developed in this area. As such, California’s provisions significantly inform the topic of water’s-edge concepts as they potentially apply to other states.

Senate Finance Committee Approves Stimulus Bill With One-Year AMT Patch

The Senate Finance Committee yesterday approved the economic stimulus legislation (S. 1) 14-9 after adding a one-year AMT patch costing $70 billion, bringing the tax portion of the bill to $342 billion.   The patch would increase the exemptions from $46,200 to $46,700 for individuals and from $69,950 to $70,950 for couples.

• Senate Finance Committtee, Press Release
• Joint Committee on Taxation, Description of Chairman's Mark (JCX 12-09)
• Joint Committee on Taxation, Revenue Estimate of Chairman's Mark (JCX 13-09)
• Associated Press, Senate Panel Adds Big Tax Break to Stimulus
• ataxingmatter:
  • Economic Stimulus (Part I)
  • Economic Stimulus (Part II):  AMT
  • Economic Stimulus (Part III): Class Warfare, Income Inequality, and -- Tax Cuts as Economic Stimulus?
• Bloomberg, Senate Panel Adds $70 Billion Tax Relief to Stimulus
• Dow Jones, Senate Panel Adds AMT Protections to U.S. Recovery Bill
• The Hill, Senate Finance Adds AMT Patch to Stimulus 
• Reuters, Senate Panel Expands Stimulus Plan With Tax Fix
• Roth & Co., Senate Finance Committee Stimulus Bill Includes AMT Patch
• Wall Street Journal, Senate Provision Would Let Buyout Firms Defer Taxes on Canceled Debt
• WebCPA, Senate Committee Approves Simulus Tax Cuts

McLaughlin & Weeks: In Defense of Conservation Easements

Nancy A. McLaughlin (Utah) & W. William Weeks (President, Conservation Law Center; Director, Conservation Law Clinic, Indiana University School of Law) have published In Defense of Conservation Easements: A Response to "The End of Perpetuity",  9 Wyoming L. Rev. 1 (2009).  Here is the abstract:

This article critiques the arguments offered in favor of treating donated conservation easements as unrestricted charitable gifts (that is, as fungible or liquid assets in the hands of their government or land trust holders). It also discusses the practical and potential constitutional problems associated with proposals to change state law to permit government entities and land trusts to sell, trade, release, extinguish or otherwise terminate the conservation easements they hold outside of judicial cy pres proceedings.

Fogg: § 6672 -- A Flawed Collection Device

T. Keith Fogg (Villanova) has published Leaving Money on the Table and Providing an Incentive Not To Pay--The Story of a Flawed Collection Device, 5 Hastings Bus. L.J. 1 (2009)  Here is the abstract:

As of September 30, 2007, the IRS had $282 billion of unpaid assessments on its books. Of that amount $58 billion, over 20%, represents the unpaid payroll taxes due from employers. The majority of payroll taxes due from employers results from income and social security taxes collected by the employer and held in trust for the Government. Section 6672 gives the Government the right to pierce the corporate veil to pursue collection of these payroll taxes collected for the Government but not paid. Because it creates personal liability, § 6672 can serve as a powerful tool in the fight against the growing tax gap.

Unfortunately, § 6672 is flawed in the way it operates due to its position in the Code as an assessable penalty. The interest charged under § 6672 only runs from the date of the actual assessment against the individual and does not relate back to the due date of the corporate employment tax return. The flaw allows those responsible for failing to pay over payroll, and other, taxes collected for the Government to avoid paying interest for two years or more. Additionally, the flaw provides an incentive for those responsible to withhold payment and delay assessment. Those studying the causes of the IRS tax collection gap uniformly identify the creation of incentives to pay and removal of delayed collection attempts as keys to successful collection and reduction of the gap.

Using the model provided by the tax gap literature, this paper identifies the source of the problem with § 6672 and recommends a solution. The sources of the problem are rooted in the history of the statute. It grew from a criminal provision to one of civil penalty. When the codification effort took place in 1954, § 6672 was placed with the assessable penalties even though everyone, including the Supreme Court, agrees that it is a collection device and not a penal provision. The solution is to remove § 6672 from the assessable penalty provisions and make clear in the statute that interest charges against the individuals responsible accrue from the due date of the corporate return. Moving the statute will not only remove the impediment caused by the disconnect on the charging of interest but will provide an opportunity to craft a statute that creates incentives to pay rather than disincentives.

Kerik Deploys Geithner-Martin Defense to Tax Evasion Charges

Yesterday's Senate approval of Timothy Geithner as Secretary of the Treasury by a 60-34 vote brought to mind this Steve Martin bit:

"You can be a millionaire and never pay taxes. You say, ‘Steve, how can I be a millionaire and never pay taxes?’ Two simple words. ‘I forgot.’ How many times do we let ourselves get into terrible situations because we don’t say, ‘I forgot’? Let’s say you’re on trial for armed robbery. You say to the judge, ‘I forgot armed robbery was illegal.’”

As John Phllips notes, "[I]f you get hauled before Treasury for not paying taxes, just say 'I forgot.' And if they give you any trouble, use another Steve Martin line, 'Well, excuuuuuuuuuse me!'

Bernard B. Kerik, the former New York City police commissioner who was President Bush’s choice to lead the Department of Homeland Security, has raised the Geithner-Martin defense in his tax fraud case in which he is charged with failing to report over $500,000 of income:

Disgraced ex-top cop Bernard Kerik wants to be treated more like Timothy Geithner.

In new court papers, the former police commissioner complains that the feds want to send him to prison for the same sort of problems that officials overlooked in Geithner, whom the Senate confirmed yesterday as treasury secretary.

In an obvious reference to Geithner's tax troubles, Kerik's lawyers in White Plains federal court cited "recent events" showing that the vetting process for presidential appointees is "an imperfect one, during which mistakes and omissions occur."

While Geithner was allowed to pay his back taxes, Kerik was "treated differently" in his tax-fraud indictment, his lawyers charged.

New York Post via JammieWearingFool and InstaPundit.  See also the Washington Times.

Logue Presents Coase, Calabresi & Optimal Tax Policy Today at Michigan

Kyle D. Logue (Michigan) presents Of Coase, Calabresi, and Optimal Tax Policy (with Joel S. Slemrod (Michigan)) today at Michigan as part of its Tax Policy Workshop Series hosted by Reuven S. Avi-Yonah. Here is the abstract:

The Coase Theorem and the vast literature it inspired explore two basic questions: to whom should responsibility for external harms be assigned and how will that assignment matter. Building on the Coasean insight in the torts context, Guido Calabresi observed that the assignment of tort liability can indeed matter from an efficiency perspective and should, under certain assumptions, be assigned to the “cheapest cost avoider.” This article applies a similar Coasean/Calabresian framework to a related (though not identical) set of questions in the tax context: To whom should the responsibility for remitting taxes be assigned and when and how will that assignment matter? Following Calabresi’s canonical formulation for the design of an optimal tort system, we conclude that an optimal tax remittance regime requires that tax liabilities be assigned so as to minimize the overall social costs of compliance and administration for a given level of achievement of the tax law’s desired distributional and revenue goals. This will sometimes mean assigning tax remittance responsibility to the lowest-compliance-cost remitter, and other times not – if that party happens also to be the lowest-cost liability avoider (the party best able to evade the tax). This comparison of tax remittance responsibility and tort remittance responsibility produces a number of positive and normative insights. For example, it helps to explain why the remittance responsibility for the retail sales tax lies primarily with the sellers rather than the buyers, as well as why we have wage withholding for the income tax. It also supports a number of reforms in the current U.S. regime for tax enforcement such as expanding the withholding requirement to payments made to independent contractors, which are a type of payment that currently contributes significantly to the overall U.S. federal tax gap.

Stanford Law Grad-Call Girl Pleads Guilty to Tax Evasion

I previously blogged 2001 Stanford Law Grad Cristina Schultz (now Cristina Warthen after her marriage to David Warthen, co-founder of the online search engine Ask Jeeves, now known as Ask.com), who was indicted in California federal district court for failing to pay taxes on $133,717 she earned as a prostitute in 2003 (United States v. Warthen, No. CR-08-682).  From the San Jose Mercury-News:

A Stanford law school graduate pleaded guilty Monday to federal income tax evasion charges, admitting she ran a high-priced call girl service "entertaining'' clients in cities across the country.

Under the terms of the plea agreement, filed in federal court in San Jose, Cristina Warthen agreed to pay $313,000 to the government to cover taxes on the earnings she made as a prostitute who went by the name of "Brazil.'' As part of the plea bargain, Warthen would not be sent to federal prison, but instead would serve one year of home detention and three years of probation.

During a hearing, Warthen, dressed in a gray pantsuit, said little as she agreed to the terms of the plea arrangement. U.S. District Judge James Ware set Warthen's sentencing for June 15.

Federal prosecutors in September charged Warthen, 34, with tax evasion, alleging she failed to pay taxes on more than $133,000 she earned as a prostitute in 2003. Court papers show Warthen at the time was jetting off to Washington, D.C., Chicago, New York and other cities for liaisons with clients she solicited on her steamy Web site, "TouchofBrazil.net,'' all of whom paid her in cash.

See also ABA Journal, L.A. Times, San Francisco Chronicle.  (Hat Tip: Above the Law.)

Commentary on Tax Provisions of Stimulus Bill

• Bloomberg:  Senate Panel May Add $69 Billion AMT Plan to Stimulus
• Center on Budget & Policy Priorities:
  • Boehner-Cantor Tax Cut Proposal Less Effective as Stimulus Than “Making Work Pay” Credit  
  • Estate Tax Should be Made No Weaker on a Permanent Basis Than It Will Be in 2009 
  • Tax Credit Priorities in House and Senate Recovery Packages Would Lessen Ggowth in Poverty 
• Tax Policy Center: Tax Stimulus Report Card: Ways and Means Bill
• Wall Street Journal op-ed: Corporate Tax Cuts Should be Part of the Stimulus
• WebCPA:  Lawmakers Hone Tax Stimulus Package

Ainsworth: Zappers: Technology-Assisted Tax Fraud

Richard Thompson Ainsworth (Boston University) has published Zappers: Technology-Assisted Tax Fraud, SSUTA, and the Encryption Solutions, 61 Tax Law. 1075 (2008).  Here is the abstract:

"Zappers," or automated sales suppression devices, have brought unheard of efficiencies and economies of scale to a very simple tax fraud - skimming cash sales at point of sale (POS) terminals (electronic cash registers). Until recently the largest tax fraud case in Connecticut, also the "largest computer driven tax-evasion case in the nation," was a zapper case. Stew Leonard's Dairy in Norwalk Connecticut skimmed $17 million in receipts and hid the cash in St. Martin (a Caribbean island). Talal Chahine and his wife, Elfat El Aouar, owners of the La Shish restaurant chain in Detroit Michigan have the dubious honor of replacing Stew Leonard as the leading U.S. zapper fraud case. They zapped $20 million in cash sales and sent the funds to Hezbollah in Lebanon.

Zapper frauds (like electronic cash registers) are not confined to the U.S. Zappers are also a significant problem in Canada, Brazil, Australia, and many countries in the EU. When the U.S. and foreign experiences are considered comparatively, it is not the similarity in the fraud-mechanism (the zapper) that is the most striking - it is the difference in the enforcement mechanism that catches one's attention. In both Canada and Brazil zappers were identified through consumption (not income) tax investigations, and this difference should suggest to U.S. policy-makers that important enforcement opportunities lay within a strengthened State-Federal audit exchange at the retail sales tax level.

This paper makes this income tax/retail sales tax connection, and extends it by opening up for consideration the enforcement opportunities that are available through certified tax software solutions under the Streamlined Sales and Use Tax Agreement (SSUTA). An extension of the SSUTA is proposed through the adoption of German Working Group on Cash Register's proposal to use encryption and smart cards in ECRs and POS systems. A certified service provider (CSP) under the SSUTA (as extended) with current levels of technology, could easily be employed not only to assure the States that the correct retail sales tax was being collected and remitted, but also assure the federal government that cash sales were not being skimmed by zappers.

Germain: Will Former Lehman CEO's Sale of Mansion to Wife for $10 Protect It From His Creditors?

Gregory Germain (Syracuse) follows up on yesterday's post on Richard S. Fuld, Jr., the former chairman and CEO of Lehman Brothers, who recently sold his Florida mansion to his wife for $10 in an apparent attempt to shield the home from his potential creditors:

The case of Richard Fuld (former Lehman CEO) selling his half interest in a $14 million Florida mansion to his wife for nominal consideration raises interesting questions under Florida state law and bankruptcy. Florida’s unlimited homestead exemption has for many years been a refuge for those seeking to shelter assets from creditors.

The new 2005 bankruptcy amendments may be an impediment to the Fulds’ strategy. In the first place, Ms. Fuld might not be able to use Florida’s homestead exemptions in bankruptcy. Under the 2005 amendments to the Bankruptcy Code, a debtor can only use a particular state’s exemptions if the debtor has been continuously domiciled in the state for the 730 days immediately preceding bankruptcy. If the debtor was not domiciled in any one state continuously during the 730 day period, then the debtor would be eligible to use the exemptions from the one state in which the debtor was longest domiciled for the 180 day period preceding the 730 day period. 11 U.S.C. § 522(b)(3)(A). The upshot is that Ms. Fuld might not be able to use the Florida exemptions at all if she has been domiciled in New York rather than Florida during the relevant time periods.

In addition, even if Ms. Fuld was sufficiently domiciled in Florida to be eligible to use the Florida exemptions in bankruptcy, Section 522(p) of the Bankruptcy Code limits any increase in the value of an exemption acquired during the 1215 day period preceding bankruptcy to $136,875. If Ms. Fuld’s bankruptcy is filed within 1215 days of the transfer, it appears her homestead would be limited to $7,136,875, allowing the trustee to sell the homestead to realize the additional $6,863,125 in value for creditors (assuming the mansion is really worth $14 million).

So it would seem that Ms. Fuld would have to live in Florida for the 730 days preceding bankruptcy and would have to avoid bankruptcy for more than 1215 days after the transfer, in order to get the full benefit of the Florida homestead exemption in bankruptcy.

However, this all assumes that Ms. Fuld ends up in bankruptcy. The Fulds may be trying to shield Ms. Fuld’s new interest outside of bankruptcy under Florida law. The Fulds may be expecting judgments against Mr. Fuld and not Ms. Fuld. To get at Ms. Fuld's property if she is not personally liable on any judgment, they would have to bring a fraudulent transfer action to avoid Mr. Fuld’s gift transfer of the half interest in the mansion. There is an interesting question whether this gift transfer could be avoided under Florida law.

The Florida Supreme Court ruled in Havoco of America, Ltd. v. Hill, 790 So. 2d 1018 (Fla. Sup. Ct. 2001), that the Florida homestead law prevented a creditor from setting aside the conversion of non-exempt assets into an exempt Florida homestead, even where the conversion was made with actual intent to hinder, delay or defraud creditors. The Florida Supreme Court ruled that the homestead law, set forth in the Florida Constitution, has primacy over laws enacted by the legislature, such as the Florida Uniform Fraudulent Transfers Act and a Florida law prohibiting fraudulent conversions. However, the Florida Supreme Court in Havoco recognized an exception to the homestead law where the homeowner used the proceeds of fraud to acquire or improve the property. It would be an interesting question whether Richard Fuld’s fraudulent conveyance of his half interest in his homestead to his wife could be made to fit within the “acquire or improve” exception under Florida law.

If the Florida homestead exemption stands, the battle would likely turn to forcing Ms. Fuld into involuntary bankruptcy in a timely fashion, so that the 2005 Bankruptcy Code limitations can be made to apply. In order to file an involuntary petition, three creditors of Ms. Fuld’s, holding non-contingent, liquidated claims exceeding $13,475 would have to join together in a petition. 11 U.S.C. 303(b)(1). That’s the easy part. If Ms. Fuld objected to the petition, as she surely would, the bankruptcy court could grant the bankruptcy petition only if Ms. Fuld was “generally not paying [her] debts as they come due.” 11 U.S.C. § 303(h)(1). This standard might be difficult to meet when the only unpaid creditors are those who recovered judgment on fraudulent conveyance claims. This would certainly be an interesting case.

Of course, this analysis assumes that Mr. Fuld is ultimately found to be liable for large claims. Whether Mr. Fuld will be held personally liable for the events surrounding Lehman Brothers’ collapse is far from certain. At this point, it’s nothing more than an interesting law school hypothetical.

Kirsch: The Limits of Administrative Guidance in the Interpretation of Tax Treaties

Michael S. Kirsch (Notre Dame) has posted The Limits of Administrative Guidance in the Interpretation of Tax Treaties, 87 Tex. L. Rev. ___ (2009), on SSRN.  Here is the abstract:

This Article addresses the increasingly important role of administrative guidance in interpreting the United States' international treaty obligations. The relationship between administrative guidance and treaties raises important issues at the intersection of international law, constitutional law, and administrative law.

These issues are explored in the context of the United States' extensive tax treaty network. Tax treaties play an important role in a global economy, attempting to reconcile the complex and ever-changing internal tax laws of different countries. The Treasury Department is considering the increased use of administrative guidance to interpret the meaning and application of tax treaties, particularly in response to the increasingly sophisticated business structures and cross-border transactions utilized by multinational corporations.

This Article considers the weight that courts should give to unilateral administrative guidance when interpreting tax treaties. The Article concludes that Treasury's traditional ad hoc approach based on informal technical explanations is entitled to little, if any, deference in interpreting previously negotiated bilateral agreements between sovereign nations. However, the Article identifies certain limited circumstances where formal Treasury regulations might enable the Treasury Department to influence the application of previously negotiated tax treaties without violating the United States' obligations under these treaties.

Wood: Deductibility of Restitution, Fines, and Penalties

Robert W. Wood (Wood & Porter, San Francisco) has published Cleaning Up: Tax Deductions for Restitution, Fines, and Penalties,122 Tax Notes 489 (Jan. 26, 2009).  Here is the Conclusion:

Restitution payments, compensatory fines, and remedial penalties all seem to be fair game for tax deductions, though the facts and the law are all important. It is awfully hard to summarize this area. It is no wonder that taxpayers negotiating with plaintiffs or regulatory bodies seek tax deductions for their payments. ...

In fact, because of the difficulty in harmonizing the case law, many taxpayers can perhaps be forgiven for believing that virtually all of their payments should be in the deductible category. This is a fact-intensive area. One has to consider the facts about particular conduct, and related criminal or other civil proceedings, real or perceived quid pro quos, the purpose and scope of a particular fine or penalty, the statutory or regulatory scheme under which the fine or penalty is awarded, and the particular nature and intent of any restitution. That multiplicity of factors makes this a tough area.

Yet engaging in bargaining over tax-driven language in settlement agreements may be somewhat one-sided. Interestingly, a GAO study [Tax Administration: Systematic Information Sharing Would Help IRS Determine the Deductibility of Civil Settlement Payments (GAO-05-747) (Sept. 2005)] found that four large federal agencies (including the Justice Department) do not negotiate with companies over whether settlement payments are tax deductible. Instead, the GAO says, the agencies leave the IRS to handle that. Indeed, the Justice Department has said that as a matter of policy, its agreements are "tax neutral," leaving the difficult issues of deductibility to the expertise of IRS tax lawyers.

Without legislative action, which seems unlikely, a major shift in the focus of settlement discussions and the tax treatment of payments is probably not in the offing. Taxpayers can and should consider tax issues when they are resolving matters. Absent cross-pollenization from differing governmental entities (including the IRS), it is probably unreasonable to expect that the government as a whole will be as sensitive as taxpayers to these tax issues.

Moreover, the endemically amorphous restriction on the deductibility of fines and penalties -- with "compensatory fines" and "nonpunitive penalties" being deductible -- inevitably leads to line-drawing that probably must be done on a case-by-case basis. There is probably a better system for this. But until we have one, we've got to apply what we have.

CTJ: House Democrats' Stimulus Plan Better Than Republicans' Plan

Citizens for Tax Justice has published Tax Cuts in House Democratic Stimulus Plan Better Targeted Than Those of House Republican Plan; National and State-by-State Estimates of Effects of Tax Cut Proposals in Appendix.  Here is the Conclusion:

Lawmakers who are serious about reviving the economy should recognize that tax cuts will be less effective than government spending. There is no certainty that tax cuts will ever result in the sort of immediate spending that economists agree is needed to boost demand for goods and services. But to the extent that Congress feels compelled to cut taxes, the sort of tax proposals included in the House Democrats’ bill (H.R. 598) promise to be far more effective than those included in the Republican bill (H.R. 470). This is because the Democrats’ plan would immediately put money in the hands of those who are most likely spend it quickly — low- and middle-income working families.

Lederman: Lindens in Second Life Should be Taxed Like PayPal Profits on eBay

Leandra Lederman (Indiana) has published EBay’s Second Life: When Should Virtual Earnings Bear Real Taxes?, 118 Yale L.J. Pocket Part 136 (2009).  Here is the abstract:

Millions of people participate in virtual worlds—immersive online forums such as Second Life and World of Warcraft (WoW). While some online activities lack significant economic implications, one of the attractions of Second Life, which is designed to be a commercial platform, is the prospect of making “real money.” This essay argues that profits received in the form of Lindens (Second Life’s currency) should be taxed in much the same way profits received via PayPal, a widely used electronic-payment system, are. Although Second Life profits could instead be taxed once the taxpayer sells for real money (“cashes out”), that would create a special exception for Second Life that does not exist for platforms such as eBay. It would facilitate abuse and distort economic activity.

July 2008 California Bar Results, by School

The July 2008 California bar passage rates by school are out.  For first-time takers, the overall pass rates were 74.8% for all takers and 83.2% for graduates of the twenty California ABA-approved law schools.

The results by gender:

• Female:  75.4% overall, 83.6% CA ABA-approved
• Male:  74.3% overall, 82.4% CA ABA-approved

The results by race:

• White:  79.5% overall, 86.6% CA ABA-approved
• Asian:  71.1% overall, 80.1% CA ABA-approved
• Hispanic:  64.4% overall, 76.3% CA ABA-approved
• Other Minority:  64.5% overall, 73.5% CA ABA-approved
• Black:  52.7% overall, 68.4% CA ABA-approved

The results by school (along with U.S. News rank) [click on chart to enlarge]:

Blank Presents Tax Shelter Detection Today at SMU

Joshua D. Blank (Rutgers-Newark) presents Overcoming Overdisclosure: Toward Tax Shelter Detection, 56 UCLA L. Rev. ___ (2009), at SMU today as part of its Tax Policy Colloquium Series moderated by Christopher H. Hanna.  Here is the abstract:

Every year, thousands of taxpayers and their advisors mail special disclosure forms that reveal details of potentially abusive tax strategies to the Office of Tax Shelter Analysis of the Internal Revenue Service in Ogden, Utah. The mandatory disclosure regime has been widely praised as one of the government's most effective weapons in its war on tax shelters. In contrast to this largely positive portrayal, however, this Article argues that the current tax shelter disclosure law is incomplete. While the primary aim of current law is to deter non-disclosure of information by taxpayers and advisors, my claim is that the government should also strive to prevent behavior that may be just as problematic to the IRS's ability to detect and challenge tax shelters - "overdisclosure" of information. As this Article demonstrates, since the introduction of the tax shelter reporting rules in 2000, taxpayers and advisors have frequently disclosed to the IRS their participation in routine, non-abusive transactions or details of activities that are irrelevant to tax shelter detection. After investigating the sources of overdisclosure, I conclude that the tax law itself invites this response from distinct types of taxpayers and advisors. Conservative types overdisclose out of excessive caution, while aggressive types overdisclose in an attempt to avoid detection of abusive tax planning. As a result of the threats to tax administration that overdisclosure poses, I offer three proposals for proactively reducing its occurrence: the incorporation of a reasonableness threshold into the "substantial similarity" standard under current law; the introduction of "anticipatory" angel lists when the IRS designates new listed transactions; and the enactment of targeted overdisclosure penalties.

Shaviro: The Optimal Relationship between Taxable Income and Financial Accounting Income

Daniel N. Shaviro (NYU) has published The Optimal Relationship between Taxable Income and Financial Accounting Income: Analysis and a Proposal, 97 Geo. L.J. 423 (2009).  Here is the abstract:

The persistence of the book-tax gap, or excess of companies’ reported financial accounting income over their taxable income, suggests that accounting manipulation and tax sheltering remain significant problems, even in the aftermath of the “Enron era.” Some have therefore suggested making the United States a “one-book” country, in which the same income measure would be used for both purposes. This Article offers the first systematic exploration of the optimal relationship between the two income measures, based on the distinct purposes they serve and the significance of two distinct sets of incentive problems: those pertaining to corporate managers and those pertaining to the political decisionmakers who make the rules.

Absent these incentive problems, the two ideal measures would differ, reflecting that allocating tax burdens is not the same exercise as informing investors. The incentive problems cut in favor of uniformity, however, by supporting the creation of a “Madisonian” offset between managers’ and politicians’ twin quests for high accounting income and low taxable income. But this offset has more promise as a device to constrain managers than politicians, given the difficulty of binding Congress and the existing partial insulation of accounting rules from direct political influence. In light of the political incentive issues, pure one-book and two-book approaches may both be inferior to partial conformity, such as that which would result from generally requiring a 50% adjustment by large, publicly traded companies of taxable income towards financial accounting income.

Kahn Leaves Penn State for Washington & Lee

Jeffrey H. Kahn (Penn State) has accepted a lateral offer at Washington & Lee, where he will replace Dorothy Brown, who left for Emory last year.  From the Penn State web site:

Professor Jeffrey Kahn’s scholarship focuses on the federal tax area. He has published articles in law reviews and tax journals, including pieces on: tax policy and horizontal equity, the taxation of gifts, the charitable contribution deduction, the tax expenditure budget and personal deductions, and the tax consequences to a reality television candidate. He is also the co-author of a leading income tax student treatise and a nutshell on the Taxation of S Corporations. His work in progress includes a student treatise on corporate taxation.

Ray: Dormant Commerce Clause Analysis After Davis and United Haulers

Daniel R. Ray (Thomas Cooley) has published Cash, Trash, and Tradition: A New Dormant Commerce Clause Exception Emerges from United Haulers and Davis, 61 Tax Law. 1021 (2008).  Here is the Introduction:

Like most of her sister states, Kentucky law exempts from state income taxation the interest earned on municipal bonds issued by the State and its political subdivisions. Interest earned on out-of-state municipal bonds is taxable. In Davis , the Kentucky Court of Appeals found this disparate treatment to be a violation of the dormant Commerce Clause. The Supreme Court agreed to review Davis during the October 2007 term to harmonize conflicting state court decisions and to resolve this issue of national importance. In Davis, the Supreme Court reversed the Kentucky Court of Appeals, concluding that there was no constitutional infirmity in Kentucky’s municipal bond tax law. Justice Souter’s opinion found controlling the rule announced in United Haulers Association.. There, the Supreme Court ruled that “flow control” ordinances favoring a government-owned waste disposal facility did not discriminate against interstate commerce. Waste disposal, said the United Haulers Court, is a traditional government activity. All private waste disposal companies that were in competition with the government’s waste disposal facility were treated exactly the same, regardless of whether they were in-state or out-of-state. A plurality then concluded that the counties were pursuing legitimate government interests and that the local benefits of the flow control ordinances outweighed any burdens they might place on interstate commerce.

Justice Souter, writing for the Court in Davis, said “[i]t follows a fortiori from United Haulers that Kentucky must prevail.” United Haulers was controlling, he said, because issuing debt securities is “a quintessentially public function,” a function with a “venerable history.” While it is easy to say with the benefit of hindsight, the Davis outcome was never much in doubt. A majority of the Roberts Court appears to accept, as a baseline premise, that the focus of the dormant Commerce Clause is on state regulations and taxes that impair private trade. If the Constitution is not offended by a regulatory scheme that monopolizes one government function—waste disposal—in favor of a public agency, it is difficult to see how a constitutional line is crossed when a state uses its taxing authority merely to favor another government function—issuing its public debt securities. Upholding Kentucky’s municipal bond tax system would be expected of a Supreme Court that favors a relatively greater degree of state autonomy over free markets when state and local governments are doing the things they are organized to do.

Though the outcome may have lacked suspense, there is much about Davis, particularly when read together with United Haulers, that is both significant and worthy of close analysis. In particular, Davis expressly goes where no dormant Commerce Clause decision has gone before. States are now free to couple a discriminatory tax scheme with a traditional government function, at least in those instances where in-state and out-of-state interests are treated the same. The danger here is clear. Taxes can support any number of government functions; there will be an obvious temptation to read Davis as a license to enact discriminatory taxes with dormant Commerce Clause impunity. In addition, taxation is simply one form of regulation. If discriminatory taxes in support of traditional government functions are allowed under the dormant Commerce Clause, we should expect to see states try a variety of regulatory measures in conjunction with these functions. Courts will have their hands full setting the outer limits on this newfound authority. Government and tax counsel advising public clients will need to be familiar with United Haulers and Davis, the opportunities they present, and the pitfalls that are likely to go along with those opportunities.

This article is divided into four parts. Because United Haulers sets the analytical framework for Davis, Part II reviews the United Haulers decision in some detail. Part II also describes the multi-part rule that emerges from United Haulers. Part III lays out the facts and procedural history in Davis, and then summarizes Justice Souter’s opinion for the Court. In addition, this Part takes the United Haulers rule and adds to it the elements that controlled the Davis outcome. Part IV analyzes the Davis decision and the United Haulers rule as elaborated by Davis and concludes that the United Haulers rule is ill-advised. The Court would do better to build on the now-familiar market participant rule, a rule that, if correctly applied, achieves the same result as the United Haulers rule, but without all the jurisprudential baggage that accompanies traditional government functions. Finally, Part V explores the opportunities and difficulties that the United Haulers rule presents to government and tax attorneys advising their public clients.

Former Lehman CEO Sells Florida Mansion to Wife for $10

Richard S. Fuld, Jr., the former chairman and chief executive of Lehman Brothers, recently sold his $13.75 million Florida home to his wife Kathryn for $10:

The motivation is unclear, but Mr. Fuld has been under intense scrutiny since Lehman declared bankruptcy in September. The longtime leader of the brokerage firm is at the center of a federal investigation into whether Lehman executives misled investors about the state of the company. ...

It is possible that he is now transferring properties because of his fears of investor lawsuits or a possible bankruptcy, lawyers in Florida said. “This is the oldest trick in the books” said Eric S. Ruff, a lawyer with Ruff & Cohen in Gainesville, Fla. “It’s common when you hear the feet of your creditors approaching to divest yourself.” ...

It is also unclear how much Mrs. Fuld paid for the house. It is standard for property deeds to contain a placeholder number. The $10 on the deed in Martin County could simply be a placeholder, and Mrs. Fuld might have paid more, lawyers said. The tax stamp on the deed says there were 70 cents of taxes, which would suggest that she may have paid as much as $100 for the house.

• New York Times
• Reuters

NLJ: 3Ls Brace for Tough Job Prospects; Does Tax Offer Hope?

In this week's National Law Journal: The View from 3L: Law Students Brace for Tough Reality, by Karen Sloan:

Although 3Ls aren't in despair, many of them are far less confident about what the future holds for them than the classes that preceded them.

The article then profiles 3Ls at Georgia, Michigan, NYU, San Diego, Vanderbilt, and concludes with this great quote from the Michigan 3L:

Jenkins landed just six on-campus interviews at the start of the school year and got three callbacks. Two firms flew him in for second-round interviews, but no job offers emerged. The third firm finally came through with an offer in mid-November, and Jenkins will head off to a midsize New York firm, where he expects to work in the tax practice.

"Taxes are as omnipresent as death," Jenkins said. "I think it's a relatively safe place to be."

Senate Finance Committee Holds Markup Session Tomorrow on Recovery and Reinvestment Tax Act

The Senate Finance Committee holds a markup session tomorrow on The American Recovery and Reinvestment Tax Act of 2009

• Joint Committee on Taxation Description
• Joint Committee on Taxation Revenue Estimate
• Bloomberg
• CNN
• Reuters

Nevada Rebuffs Brothels' Request to be Taxed

New York Times:  Brothels Ask to Be Taxed, but Official Sees a Catch, by Steve Friess:

It is virtually unheard of for any legal industry to ask to be taxed. And it would seem even more unlikely for any government, especially one facing down a nearly $2 billion budget gap, to hesitate when a business is willing to pay up.

Yet such is the case for Nevada’s brothels, a $50-million-a-year industry that pays significant amounts of tax to the rural counties in which they operate but only a $100 business license fee to the state.

The industry’s lobbyist, George Flint, director of the Nevada Brothel Association, has been approaching the Legislature’s leadership for months about creating an entertainment tax that would require the state’s 25 legal brothels to give the state some money on a per-transaction basis. ...

Nevada is the only state where prostitution is legal, but by state law it also is restricted to counties with fewer than 400,000 residents. That outlaws it in two counties, Clark, which contains Las Vegas, and Washoe, which contains Reno. There are about 225 women licensed by the state as prostitutes; no county allows brothels to have men who sell sexual services. ... [Speaker of the House Barbara] Buckley said she did not support taxing brothels because she believed that to do so the state would have to legalize prostitution in the largest counties, “and I just don’t support the idea.”

CB&PP: Repeating Dividend Repatriation Tax Holiday Would be Poor Stimulus

The Center on Budget & Policy Priorities has released Proposed Tax Break for Multinationals Would be Poor Stimulus; "Dividend Repatriation Tax Holiday" Failed in 2004, Unlikely to Work Now, by Chye-Ching Huang:

The Business Roundtable and Chamber of Commerce have proposed resurrecting, as a stimulus measure, the 2004 “dividend repatriation tax holiday,” which allowed firms to bring their foreign-generated profits back to the United States at a greatly reduced tax rate. The Joint Committee on Taxation estimates this proposal would cost $16 billion over ten years.

Yet the evidence shows that the 2004 tax holiday did little more than give windfall profits to a small number of large multinational corporations and did not lead to increased investment and jobs in the United States. Indeed, as a recent Goldman Sachs analysis concluded, this idea is more likely to help corporations’ balance sheets than to stimulate demand.

Resurrecting the tax holiday would also encourage corporations to shift profits and jobs out of the United States by increasing the tax advantages of foreign over domestic investment. That is likely why Congress, when it enacted the 2004 measure, explicitly stated that it should be a one-time-only tax break that should not be repeated.

TaxProf Blog Weekend Roundup

Saturday:

• Magee & Farmer: A FIRPTA Tax Trigger
• Unsuccessful Iowa Legal Writing Faculty Candidate Sues, Claiming Discrimination Due to Her Conservative Views
• State Financing of Universities Leads to Lower Quality Faculty
• Temporarily Suspending DOI Rules on Repurchase of Below-Par Business Debts

Sunday:

• Top 5 Tax Paper Downloads
• CB&PP: Corporate Tax Rate Cut Ineffective as Stimulus
• IRS TV

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 #4:

1.  [301 Downloads]  The Virtual Tax Library: A Comparison of Five Electronic Tax Research Platforms, by Katherine Pratt, Jennifer M. Kowal & Daniel Martin (all of Loyola-L.A.)

2.  [191 Downloads]  Research in Accounting for Income Taxes, by John R. Graham (Duke University, Fuqua School of Business), Jana Smith Raedy (University of North Carolina, Kenan-Flagler Business School) & Douglas A. Shackelford (University of North Carolina, Kenan-Flagler Business School)

3.  [151 Downloads]  The LDS Church, Proposition Eight, and the Federal Law of Charities, by Brian D. Galle (Florida State)

4.  [135 Downloads]  Estate Tax Reform: Issues and Options, by Lily L. Batchelder (NYU)

5.  [113 Downloads]  Employer Mandates and ERISA Preemption: A Critique of Golden Gate Restaurant Association v. San Francisco, by Edward A. Zelinsky (Cardozo)