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Editor: Paul L. Caron
Pepperdine University School of Law

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Sunday, May 31, 2009

NY Times: Will BOA Deal Usher in New "Synthetic Consolidation" Tax Shelter?

New York Times:  A Shelter That Could Start a Stampede, by Gretchen Morgenson:

If the Treasury is ever to replenish its coffers, increased tax receipts will be sorely needed. But these inflows could be reduced if an unusual tax-avoidance transaction — set up to allow losses at one company to offset profits at another — gains acceptance throughout corporate America.

Given the potential tax benefits associated with the strategy (and given the enormous losses that have been generated across industries in recent years), the popularity of the maneuver is almost certain. At least that’s the view of Robert Willens, an authority on taxes and accounting, who spent decades at Lehman Brothers and now runs his own shop in New York.

In an article [Synthetic Consolidation: Tne Next Big Thing, 123 Tax Notes 1013 (May 25, 2009)] that was published last week in Tax Notes, a well-regarded publication devoted to tax policy and analysis, Mr. Willens examined a deal that Bank of America completed for a unit of Fairfax Financial Holdings, a Canadian insurance company, and the Odyssey Re Holdings Corporation, a writer of property and casualty reinsurance that had been spun out of Fairfax in 2001.

The complex structure allowed Odyssey to avoid paying taxes on some of its profits by shifting those earnings onto Fairfax’s books. Fairfax had weathered nearly $1 billion in losses accumulated during a previous downturn in the insurance market. So it had losses it could use to offset the Odyssey profits coming onto its books. And the shift saved Odyssey an estimated $400 million in taxes.

The debate over the tax structure is contentious. Fairfax says that the IRS signed off on it and that the company has done nothing untoward. It also disputes Mr. Willens’s impartiality in questioning the transaction, citing his work as a paid consultant for a hedge fund that has targeted Fairfax.

Under tax rules, offsetting losses against gains can occur only among companies operating within the same parent corporation and filing a consolidated income tax return. Therefore, a company hoping to shelter another’s earnings with its own losses must acquire at least 80% of the shares in that profitable enterprise. From a tax standpoint, a stake below 80% would mean the companies wouldn’t be affiliates.

The particulars of the Fairfax deal are as follows: Before the Fairfax-Odyssey transaction, which was created in March 2003 and unwound in August 2006, Fairfax held 73.8% of Odyssey’s shares. To meet the consolidation threshold, Fairfax had to buy 4.3 million additional Odyssey shares. At the time, that required an investment by Fairfax of around $78 million.

But instead of paying cash for the shares, Fairfax struck a deal with Bank of America, its longtime banker, and issued debt to the bank in exchange for the stock. Fairfax issued two notes to an offshore affiliate of the bank in the amount of $78 million. The notes matured in 2010 and carried an interest rate of 3.15%, well below the rate Fairfax would have had to pay if it had issued debt publicly.

Through the affiliate, Bank of America agreed to borrow Odyssey shares from other investors and transfer them to Fairfax. Even though the Bank of America affiliate was short the shares it transferred to Fairfax, it retained several significant attributes of ownership in those shares, Mr. Willens says.

(Hat Tip: Alan Weiner.)

May 31, 2009 in IRS News, News, Scholarship, Tax | Permalink | Comments (0) | TrackBack (0)

Top 5 Tax Paper Downloads

SSRN There is a lot of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with a new #1 paper and new papers debuting on the list at #4 and #5:

1.  [234 Downloads]:  Measuring Rates of Return for Lobbying Expenditures: An Empirical Analysis Under the American Jobs Creation Act, by Raquel Meyer Alexander (University of Kansas, School of Business), Stephen W. Mazza (University of Kansas, School of Law) & Susan Scholz (University of Kansas, Accounting and Information Systems Area)

2.  [222 Downloads]:  Now You See it, Now You Don't: Exiting a Partnership and Making Gain Disappear, by Howard Abrams (Emory)

3.  [221 Downloads]:  Hidden Taxes, by Brian D. Galle (Florida State)

4.  [157 Downloads]:  What's Wrong With Shaming Corporate Tax Abuse, by Joshua D. Blank (Rutgers-Newark)

5.  [148 Downloads]:  Effects of Strategic Tax Behaviors on Corporate Governance, by Nicola Sartori (S.J.D. candidate, Michigan)

May 31, 2009 in Tax, Top 5 Downloads | Permalink | Comments (0) | TrackBack (0)

Law, Society & Taxation Panel #14: Designing Taxes to Change Behavior

Today's fourteenth Law, Society, and Taxation panel at the Law & Society Association Annual Meeting in Denver is on Designing Taxes to Change Behavior:

Taxes can be used to change specific behavior as well as to raise revenue. The scholars on this panel will discuss the uses of tax policy to reduce pollution and to stabilize the financial system, and they will consider how to measure and assess the results of policies that alter people's behavior.

Jonathan Barry Forman (Oklahoma) (Chair/Discussant)

As economist Nicholas Stern declared in his much-publicized report to the U.K. government in the fall of 2006, climate change is “the greatest and widest-ranging market failure ever seen.” In order to address this global market failure, economists generally favour two possible policy responses. First, by setting an annual cap on global emissions and requiring emitters to purchase emissions credits either from a regulator or from other emitters, so-called emissions-trading regimes create a price for carbon emissions which creates market incentives for emitters to reduce their emissions and for individuals and enterprises to develop alternative low-carbon technologies. Alternatively, governments can set this price directly through a tax on carbon emissions or (as a close proxy for these emissions) on the carbon content of fossil fuels. Over the past 15 years, governments have experimented with each of these policy approaches. While the ultimate policy goal of capping annual emissions might suggest that an emissions-trading system is preferable to a tax regime, the enormous political challenges to the creation of a global trading system – exemplified by the limited success of the Kyoto Protocol – suggests that carbon taxation might be a more politically feasible strategy to encourage emission reductions over the short term. In addition, as the Stern Report explains, uncertainties about the social costs of carbon emissions and the costs of adaptation to climate change over time might also favour carbon taxation over emissions trading as an initial strategy to reduce GHG emissions. As well, uncertainty about the price for carbon emissions that might emerge under an emissions-trading regime has caused some sectors of the business community to favour a carbon tax which establishes a clear and certain price for emissions. The purpose of this paper is to inform the debate about carbon taxation in Canada and other developed countries by explaining the theoretical case for carbon taxation and reviewing the design and experience with carbon taxation in countries such as the Scandinavian countries and the United Kingdom. The paper should be approximately 40-60 double-spaced pages in length.

This Article explores how the principles of optimal taxation may be operationalized nonmathematically and applied to general problems of tax system design. Part I offers a taxonomy of tax avoidance, breaking avoidance into four categories, the most problematic of which – lawful sheltering – results in both behavioral distortion and revenue loss. Part II proposes four nonmathematical principles which, if applied at the design stage, should minimize both behavioral distortion and revenue loss. To illustrate how these principles might operate in practice, Part III then applies them to the design of a system for taxing multinational corporations. Behavioral distortion and revenue loss will be minimized, it concludes, if multinationals are taxed on book income, computed on a consolidated basis and allocated to the jurisdiction imposing the tax using a single factor formula based on sales adjusted by industry average profit-to-sales ratios. Any deviation from this base is likely to increase both economic distortion and compliance problems.

  • Michael J Waggoner (Colorado), Cap-and-Trade Will Not Work to Limit CO2 Emissions, but a Carbon Tax Will:

    Many elected officials support cap-and-trade to limit CO2 emissions, but this consensus contains a hidden fissure. Conservatives expect industry to own the right to emit CO2; progressives expect the public to own that right and to sell or rent that right to industry. Although the Coase Theorem suggests it matters little to whom rights are initially assigned, in terms of the ultimate results, Coase noted that welfare effects will differ. The difference in welfare effects of assigning emission rights to industry or to the public are so dramatic that there is no agreement in fact. Cap-and-trade has two other major problems: First, it has great difficulty dealing with international trade, an issue handled under a carbon tax by analogy to Value Added Taxes: Impose the tax on domestic activities, rebate the tax on exports, impose the tax on imports. Second, while cap-and-trade appears to have worked well for SO2 emissions, initial reports suggest that CO2 cap-and-trade under Kyoto has presented serious problems. A revenue-neutral carbon tax will both effectively reduce CO2 emissions and be an improvement in our tax base.

May 31, 2009 in Conferences, Scholarship, Tax | Permalink | Comments (0) | TrackBack (0)

SOI Releases Spring 2009 SOI Bulletin

Saturday, May 30, 2009

Galle Presents Hidden Taxes Today at Stanford/Yale Junior Faculty Forum

Brian D. Galle (Florida State) presents Hidden Taxes, 86 Wash. U. L. Rev. ___ (2009), today at the 2009 Stanford/Yale Junior Faculty Forum at Stanford.  Here is the abstract:

The idea of hidden taxes is as old as John Stuart Mill, but convincing evidence of their existence is new. In this Article, I survey and critique recent studies that claim to show that there are some taxes that can go unnoticed by those who pay them. I also develop the array of unanswered theoretical questions and policy implications that potentially follow from the studies’ results.

Probably the central question for hidden taxes is whether they might enable government to raise revenue without also distorting the economy. If so, I argue, they have the potential to radically refashion the architecture of redistributive government. But, as I also show, whether that is true turns on the cognitive mechanisms that might permit taxes to go unnoticed. For example, if hidden taxes are caused not by rational ignorance but by cognitive shortcomings, then it is likely that the burden of a hidden tax will be borne disproportionately by poorer taxpayers, and vice-versa. Thus, I attempt to integrate with the tax literature some recent developments in our understanding of bounded rationality in consumers more generally.

The commentators are Joe Bankman (Stanford) and Thomas Griffith (USC). 

May 30, 2009 in Scholarship, Tax | Permalink | Comments (0) | TrackBack (0)

Law, Society & Taxation Panel #13: Tax Policy

Today's thirteenth Law, Society, and Taxation panel at the Law & Society Association Annual Meeting in Denver is on Thinking Big About Tax Policy:

While much tax policy analysis deals with narrow issues of doctrine and statutory interpretation, this panel will address issues of much broader political and social consequence. What is the "optimal" level of taxation? Should consumption rather than income be taxed -- and can it be taxed progressively? Should the Social Security system be changed to include private accounts? How should the tax and benefit systems interact? Each of these issues will be discussed and debated in this session.

Kerry Ryan (Saint Louis) (Chair/Discussant)

This paper looks at how the U.S., Canada, Australia, and Great Britain use their tax systems to provide benefits to low-income workers and their families. Among other things, this paper considers the participation rates of tax versus traditional welfare programs and whether tax expenditures like the U.S. earned income tax credit and child tax credit are and should be scored as tax breaks or as expenditures.

When we move to consumption tax, we need to run outcomes through progressive brackets. We need to repeal 1014, Roth IRAs and capital gains rates for consumed amounts. While tax prepayment (with yield exemption) is touted as equivalent to expensing investments (with tax on all withdrawals from investment), tax prepayments alternative should be rejected. First, volatile or risky investments produce winners and losers. It is an abomination to tax losers and winners as if they were the same. Secondly, when yields exceed economy average, the government is better off with a share, which expensing accomplishes, and TP is indifferent, on assumption that upfront tax is a budget constraint that reduces upfront investments. Thirdly, it is impossible to separate investment from labor income for high yields. If TP knows in advance that yield will be high, it is because of factors (labor return, monopoly) that should be taxed through a bracket system to capture high standard of living.

An exploration of the assumptions underlying Mirrlees' 1971 paper on optimal tax theory. If those assumptions are true, the question posed by the title must be answered in the affirmative -- or, at least, optimal tax theorists must be comfortable with the possibility that the answer is Yes. If those assumptions are false, then optimal tax computations are academic exercises with minimal normative relevance.

  • Michael J Waggoner (Colorado), A System of Personal Accounts in Social Security that Progressives Should Support:

    Any proposal for personal accounts in Social Security must protect two key aspects of Social Security. First, the personal accounts must be secure, that is, guaranteed by the government. If they are to be guaranteed, the accounts must be severely limited in investment choices (only low-cost, broad-based index funds), trading (only to rebalance and to shift to less equities and more bonds as retirement approaches), and pay outs (only when Social Security pays out [death with dependents, disability, or retirement] and only as annuities). Second, the progressive nature of Social Security benefits (replacing for 2009 90% of the first $744 of monthly service income, 32% of the next $3739, and 15% of the remaining $4417) must continue. Instead of all covered workers diverting 2-4% of the 12.4% Social Security tax to personal accounts, each should divert to that person's personal account the Social Security tax on the first roughly $1000 of monthly earned income. This proposal will preserve these two key aspects of Social Security, while providing the benefits of funded pensions (the type in use for most employees of for-profit, non-profit, and governmental units): Investments compound over many decades, allowing quarters, perhaps dimes, or perhaps even nickels of contributions to grow to dollars of pensions.

May 30, 2009 in Conferences, Scholarship, Tax | Permalink | Comments (0) | TrackBack (0)

Law, Society & Taxation Panel #12: Tax Agreements

Today's twelfth Law, Society, and Taxation panel at the Law & Society Association Annual Meeting in Denver is on Agreements, Negotiation, and Tax Laws:

The scholars on this panel will discuss the impact of agreements large and small on the tax systems and economic welfare of nations, discussing agreements from the WTO to the OECD to various types of international treaties to business/government agreements at the national level.

Heather Field (UC-Hastings) (Chair/Discussant)

In Cameroon, as in many other developing countries, tax law has been subject to constant reforms in recent times. This paper explores the impact of these reforms from the vantage point of a series of ‘concertation’ meetings between state representatives and business operators in the north of the country. In such contexts, ‘la concertation,’ a formula that has prospered in contemporary French law to ensure that administrative authorities proceed in concert with those who experience the everyday effects of their actions, becomes the site of protracted negotiations over the enforcement of legal provisions in the domain of taxation. An exploration of these public encounters, as well as their background and aftermath, provides insights into the situated legal consciousness of key economic actors and complements the extensive literature on governance in developing countries, which has been far too often exclusively focused on state capacity and bureaucratic efficiency.

In this paper I focus on the OECD Sector Understanding on Export Credits for Civil Aircraft signed on July 2007, its negotiation and the involvement of Brazil in the restricted group of parties to this understanding. Brazil is the first non-OECD Member part of the arrangement. There were two main reasons for this special invitation: firstly, Embraer, one of the largest Brazilian companies, had become the third largest producer of civil aircraft, since 2004; secondly, in 2004 Brazil was still negotiating with Canada the implementation of the civil aircraft cases, concerning prohibited subsidies, under the World Trade Organization (WTO) dispute settlement proceedings. Based on empirical research, mainly interviews with those involved, this paper intends to identify the reasons for the invitation of Brazil to be part of the 2007-ASU negotiation, and in a second step to explore the peculiarities that came up with that in the WTO and the OECD, as well as to their relationship. The point of departure is the WTO Embraer-Bombardier case, its rulings and its connection with the ASU. As a consequence the first parts of the paper are mainly descriptive of the facts and rulings of both WTO and OECD. In a second moment, the paper tries to explore the consequences for Brazil as a developing country in dealing with both forums and the meaning of its participation in the balance of power on the regulation of export credit issues.

  • Axel Verstraeten (University of Buenos Aires), Inter-Nation Inequity: Unilateral, Bilateral, or Multilateral Solutions?:

    This paper intends to analyze if the current inequity situation in the distribution of revenue among developing and developed countries at an international level can be solved. To do this the paper will go through different scenarios, unilateral, bilateral or multilateral solutions, focusing only in tax treaties and transfer pricing.

May 30, 2009 in Conferences, Scholarship, Tax | Permalink | Comments (0) | TrackBack (0)

Law, Society & Taxation Panel #11: Tax-Exempt Organizations

Today's eleventh Law, Society, and Taxation panel at the Law & Society Association Annual Meeting in Denver is on Charity and Nonprofit Organizations:

Exemption from taxation for nonprofit organizations is a cornerstone of the tax system in the United States. Scholars on this panel will discuss whether there is a good rationale for such a fundamental rule, and they will analyze specific problems that arise in determining which entities are "charitable" and in curbing abuses in the charitable sector.

J. Clifton Fleming, Jr. (BYU) (Chair/Discussant)

In his landmark 1980 overview of the economic rationale for the nonprofit sector, Henry Hansmann acknowledges that his theories largely omit any explanation why the functions he attributes to nonprofit organizations cannot similarly be carried out by government. This is that explanation. Burton Weisbrod, famously, has also offered a theory of "government failure" to justify subsidies for the nonprofit sector. In Weisbrod's view, government meets only the needs of the median voter, leaving other preferences for public goods to be filled elsewhere. But Weisbrod devotes only one sentence to the possibility that there is not one sovereign and one median voter, but rather many, each embodying a different set of preferences. Thus, the true challenge for those who would rationalize favorable tax treatment of charity is to explain why, in a world where Tiebout sorting among many jurisdictions is possible, there remains a space for charity. This paper begins such an account.

Recently, public confidence in the charitable sector has been eroded by the barrage of media reports on scandals and abuses. The principal parties charged with regulation of the charitable sector, the Internal Revenue Service and the state attorneys general, are saddled with bureaucratic constraints which make it difficult to enforce the laws governing the fiduciary responsibilities of charity managers. Substantial reform in the area of regulation of charitable organizations is necessary to curb the reported abuses that have undermined confidence in the charitable sector. Responsible oversight of the charitable sector which is best accomplished by vigorous enforcement of the federal norms of charitable behavior embodied in the federal tax laws applicable to charitable organizations. The creation of a quasi-governmental agency that would serve as the principal regulator of the charitable sector would relieve many of the financial, political and institutional limitations that handicap the current government regulators. The new agency would be a self-funded, independent, and proactive regulator that would serve the dual purposes of curbing the abuses that have eroded public confidence in the sector and educating charitable managers of their obligations as responsible stewards of charitable resources. In addition, the separation of oversight of charity governance from the tax collection function would harmonize the United States with other countries that have established independent charity oversight agencies.

Should some nonprofit organizations (particularly private foundations) be considered too rich to be tax-exempt, or at least, too well-funded to be entitled to a full tax subsidy? Before the recent economic crisis, the general rise in the stock market pre-2007 led to significant increases in the wealth holdings of many private foundations. Sometimes the funding of these entities seemed excessive for their tasks and purposes, calling into question the rationale for their tax-subsidy via income tax exemption. The well-established trust law doctrine known as “cy pres” severely constrains modification of trusts to expand their uses, even when the assets of nonprofit trusts are considered so significantly overfunded for the purposes identified in the trust as to be considered troublesome under the doctrine of waste. In other words, the cy pres doctrine always trumps the doctrine of waste in trust law. But what about in tax law? Should the well-established common law doctrine of waste mitigate against the continued availability of the government subsidy (via tax-exemption) in such situations? I argue that the policy concerns in trust law and tax law differ and that while the potential for waste (although ameliorative) may not justify the use of cy pres under standard trust law, it may provide adequate justification for taxation of revenues above certain limits. If so, how would we determine these limits? Although this issue may have fewer instances of application in a time of economic downturn such as now, I believe its exploration has currency even in these times because it informs understanding of the broader justifications for tax-exemption for nonprofit organizations in general and potentially provides expenditure guidelines for adequately funded nonprofits.

In many smaller cities and towns, a daily or weekly newspaper provides the interstices of the business and social fabric of the community. However, due to increased competition from other media, prominently including web-based media, publishing a newspaper in many such communities is becoming more and more marginal economically. There are organizations willing to publish newspapers under conditions in which little or no profit is expected, but their efforts would be greatly enhanced if the organizations could qualify as 501(c)(3) organizations under the Internal Revenue Code. Under current Treasury Regulations, there is ambiguity about whether this status is possible or not. Those regulations, however, are badly out of date, having been promulgated nearly fifty years ago. This paper will look at one area among several that would benefit from revisiting the issue of what makes a charitable organization charitable.

May 30, 2009 in Conferences, Scholarship, Tax | Permalink | Comments (0) | TrackBack (0)

McMahon Presents Putting the "Community" in Community Property at Law & Society

My colleague Stephanie McMahon (Cincinnati) presents California Women: Putting the "Community" in Community Property today at the Gender and Justice in Courts and Families panel at the Law & Society Association Annual Meeting in Denver:

Community property is currently thought of as a more equitable marital property regime than the common law system because it is thought to provide each spouse with ownership of fifty percent of the family’s income. Historically, however, community property as exercised in the United States, and in particular in California, has not always been thought of so favorably. Although the concept implied a partnership between spouses, in practice wives were denied almost all rights a partner would normally enjoy. This paper looks at how women lobbied to enlarge the protection wives enjoyed under the community property regime in the early twentieth century. In particular, women’s groups used arguments under the federal income tax, that a community property regime that gave more rights to wives would reduce families federal tax obligations, to help equalize spouses’ rights and obligations. It was the ability of Progressive Era women to use arguments seemingly independent of their purpose to accomplish their goal that furthered their claims to equity, even if they failed to win completely equality.

May 30, 2009 in Conferences, Scholarship, Tax | Permalink | Comments (0) | TrackBack (0)

Friday, May 29, 2009

Court Rejects G-I Holdings' Request to Reopen Case to Hear Congressional Staff Testimony on Meaning of Tax Transition Rule

I previously blogged the taxpayer's attempt to have the district court reconsider its decision in In re G-I Holdings, Inc., 369 B.R. 832 (D.N.J. 2007), based on affidavits to be supplied by Senate Finance Committee staffers on the meaning of a tax transition rule:

The U.S. District Court for the District of New Jersey yesterday dismissed the taxpayer's motion for reconsideration.   In re G-I Holdings, Inc., No. 02-3082 (D. N.J. May 28, 2009)

May 29, 2009 in New Cases, Tax | Permalink | Comments (0) | TrackBack (0)

Law, Society & Taxation Panel #10: Tax Expenditures

Today's tenth Law, Society, and Taxation panel at the Law & Society Association Annual Meeting in Denver is on Conferring Valuable Social Benefits through the Tax System:

The government can spend money directly on an activity, or it can indirectly subsidize an activity by giving advantageous tax treatment to those who engage in the activity. Identifying and accounting for these "tax expenditures" have been an area of intense controversy for decades. The scholars on this panel will discuss whether tax expenditure analysis could ever be normatively neutral as well as offering analyses of some specific tax expenditures such as home mortgage deductions and benefits to low-income workers.

Brian Galle (Florida State) (Chair/Discussant)

The Staff of the Joint Committee on Taxation of the United States Congress has recently published a report which attempts to avoid the harshest criticisms of tax expenditure analysis (TEA) by propounding a version of TEA that does not rely on a normatively correct baseline concept of income. We believe that TEA cannot function without a normative baseline from which tax expenditures are found to deviate, that the proper baseline is the Schanz-Haig-Simons definition of income (which is based on the ability-to-pay principle), and that the Joint Committee report implicitly embraces these conclusions.

This article will: (1) address the federal income tax classification of the costs of sex reassignment surgery as either deductible medical expenses or nondeductible cosmetic surgery costs (the issue in the pending Tax Court case, Commissioner v. O’Donnabhain); and (2) compare the tax classification of the costs of (a) fertility treatment, and (b) other medical treatment that facilitates sexual or reproductive functioning or reproductive choice.

This paper will reconceptualize the gift tax exclusion for transfers relating to education and health care (Section 2503(e)) as transfers of human capital.

This paper examines the historical development of the home mortgage interest deduction, including its birth and subsequent evolution under the federal income tax, as well as its politicization over time and its relationship to other tax subsidies for homeownership.

May 29, 2009 in Conferences, Scholarship, Tax | Permalink | Comments (0) | TrackBack (0)

Law, Society & Taxation Panel #9: History & Constitution

Today's ninth Law, Society, and Taxation panel at the Law & Society Association Annual Meeting in Denver is on Historical and Constitutional Analyses:

The scholars on this panel will bring their skills in historical analysis to bear on several classic issues in taxation. The relevance of original attitudes about "direct taxation," the purpose of corporate taxation, and the form of estate and gift taxation continue to be relevant to policy discussions today.

Leandra Lederman (Indiana-Bloomington) (Chair/Discussant)

As part of the 1932 Tax Act designed to combat the Great Depression, Congress made several crucial decisions regarding the structure of estate and gift taxation. The Congress of 2009 likely will face similar decisions and may have much to learn from the choices made in 1932. The paper will provide an historical perspective on both the role of estate and gift taxation in U.S. society and well as the optimal structure of those taxes.

At the turn of the twentieth century, state and federal government actors attempted to use their taxing powers to control the burgeoning power of corporate capital. Using tax policy to contain corporate power soon became a critical intermediary step in the broader historical process of amending national and state constitutions. Indeed, it is no coincidence that Congress introduced the Sixteen Amendment, nullifying Pollock, at the same time that it enacted a new levy on corporations. This paper analyzes how political reformers were able to capitalize on the social anxieties surrounding corporate capitalism to create not only the constitutional amendment, but also the first set of legislative enactments that would soon become the legal foundations for the emerging modern fiscal polity.

This paper explains why American legal institutions authorized the sale of liability insurance for personal injury accidents so quickly after companies first began selling such insurance in 1886. Today, liability insurance for personal injury accidents is both ubiquitous and assumed to substantially influence how and how much law constrains behavior, particularly of sophisticated parties. However, at its inception in the late nineteenth century, it was not inevitable that American legal institutions would permit liability insurance to cover personal injury as well as property damage. In the prevailing account for why they did, judges are the pivotal actors. Based on newly-collected data, this paper shows that State legislators and insurance regulators sanctioned liability insurance for personal injury accidents many years before any judge did. The paper then develops explanations for why legislatures, regulators, and judges accepted America’s first liability insurance market for personal injury accidents. In so doing, the paper advances not only the historical literature on the development of American tort law, but also the growing literature on the diffusion of legal innovation.

This paper explores a peculiar question concerning Constitutional deliberation presented by Professors Calvin Johnson and Erik Jensen’s debate over the meaning of “Direct Tax without Apportionment.” According to Professor Jensen, apportionment of direct taxes was intended to serve as a significant limitation on the Federal government’s ability to tax citizens directly. Professor Johnson, on the other hand, believes the Constitution requires apportionment only of Federal requisitions directly from the States. Professor Johnson’s theory places the issue of slave counting at the core of the debate over taxation and representation. For students of legal construction, interpretation and deliberation, their debate inspires a couple peculiar questions: When interpreting the Constitution does it matter at all what slaves thought particular words or phrases meant? If it does matter, how important is it and how would we discover it? The answer to the question ‘does it matter at all’ is, of course, it depends. Different deliberative/interpretive techniques—textualism, intentionalism, purposivism, and dynamism—answer the question differently. And the results might a represent a political irony to some. Justice Scalia’s brand of originalist textualism accords the most respect to the views of slaves on Constitutional issues. Similarly, it accords the most respect for women’s views. His interpretive theory requires judges to consider what the text of the Constitution meant to the People of the United States. He considers the Federalist papers not to be evidence of the Framers’ intents but as evidence of what the People thought specific words meant. But, even if the Federalist papers represent the best evidence of original Constitutional meaning, they are not the only evidence of what the People of the United States understood. Thus, Scalia’s original textualism requires judges deciding Constitutional questions to consider to some degree and to the extent possible the meaning most likely supplied by blacks, women, and perhaps Native Americans (especially if there is evidence that their understanding differs to some extent from the dominant public sphere of the time).

May 29, 2009 in Conferences, Scholarship, Tax | Permalink | Comments (0) | TrackBack (0)

Hamill: The Vast Injustice Perpetrated by State and Local Tax Policy

Susan Pace Hamill (Alabama) has published The Vast Injustice Perpetrated by State and Local Tax Policy, 37 Hofstra L. Rev. 117 (2008).  Here is the abstract:

State and local tax policy is one of the most important areas of public policy affecting the lives of the most powerless and vulnerable segments of the population -- children from low income families. Focusing on the funding of primary and secondary education, especially in high poverty school districts, and the scheme for allocating the tax burden, this article empirically proves that all fifty states have unjust state and local tax policy, with thirty-one states inflicting an extreme level of injustice on poor children and their families. This article argues that the people in most states, as well as their political leaders, are compelled to reform state and local tax policy because they claim to practice Christianity or Judaism, and, in addition to being unjust under secular-based ethical models, their state and local tax policy also violates the moral principles of Judeo-Christian ethics. This article also argues that the moral context of a faith-based appeal offers the best chance to inspire people to support tax policy, requiring greater levels of sacrifice from wealthier Americans, a group that must be part of the reform effort in order to change the state and local tax picture from a vast sea of injustice to a tool of justice protecting our most vulnerable and powerless citizens.

May 29, 2009 in Scholarship, Tax | Permalink | Comments (1) | TrackBack (0)

Garrett Withdraws Nomination for Assistant Secretary for Tax Policy

Garrett Tax Prof Elizabeth Garrett (USC) has withdrawn as President Obama's nominee to be Assistant Secretary for Tax Policy.  From Bloomberg (Garrett Withdraws as Top Tax Official in Blow to Obama Agenda):

Garrett ... said in her withdrawal statement that personal considerations “have required that I reassess my initial decision to be considered for this office.” ...  Jeff Trinca, a tax lobbyist at Van Scoyoc & Associates in Washington who became friends with Garrett when both worked on Capitol Hill, said she wasn’t willing to undergo the rigorous vetting process Obama has imposed on his nominees following the administration’s early stumbles. “The nomination process has gotten so harsh that good people like Beth are unwilling to put them and their families through the wringer,” Trinca said.

May 29, 2009 in IRS News, Tax, Tax Prof Moves | Permalink | Comments (9) | TrackBack (1)

Law, Society & Taxation Panel #8: Business Tax

Today's eighth Law, Society, and Taxation panel at the Law & Society Association Annual Meeting in Denver is on The Thrills and Chills of Business Taxation:

Like all acquired tastes, scholarship in the area of business taxation is all the more satisfying as we learn to savor the nuances. Scholars on this panel will look at issues of business taxation from a broad perspective (e.g., whether U.S. corporate tax rates are "high" or "low") and will investigate several persistent issues in the taxation of businesses, including doctrines in partnership taxation, the taxation of intangibles, and the debt/equity morass. We will sell no doctrine before its time.

Kristin E. Hickman (Minnesota) (Chair/Discussant)

This paper will examine the proper tax treament and classification of arrangements that create economies of scale. 

There is no need for the continuity of interest requirement in tax free reorganizations because the idea that holders maintain a continuing interest, whether the interest is debt or equity is a fiction. There is no longer a clear distinction between debt and equity. Therefore requiring a specific ownership requirement in stock is a fallacy because it does not represent the actual ownership in a corporation. I propose eliminating the continuity of interest requirement and allowing anyone who exchanges a like instrument for a like instrument in connection with a tax-dree reorganization tax-free treatment, provided the remaining tax-free reorganization requirements are met.

The article argues that corporate tax rate is very modest for products like Google, Grand Theft Auto IV, Doom III and Guitar Hero, but very high, e.g., for Macy's. The articles calls for either fixing the problem of intangibles either by capitalizing investments in intangibles or by abandoning accounting based definitions of income as a tax base. The article also proves an "effective tax rate ratio" that is, that the firm-wide effective tax rate is its adjusted basis for its assets divided by fmv of its assets in absence of tax. Effective tax rate is a measure of how much pretax internal rate of return is reduced by tax.

  • Andrew G Oh-Willeke (Akerman Senterfitt, Denver), This Financial Crisis Was Brought to You by the Internal Revenue Code:

    Tax incentives that favor personal debt, favor corporate debt over equity, and favor executive compensation modes such as stock options have shaped American attitudes towards risk and debt among both elites and ordinary people that helped create the Financial Crisis that began in 2007, spread in 2008 and continues to play out in 2009. These choices flow, in part, from societal values formed in prior panics. In contrast, tax incentives in Continental Europe have been important in driving a societal distaste for debt and risk that has reduced systemic risk there.

May 29, 2009 in Conferences, Scholarship, Tax | Permalink | Comments (0) | TrackBack (0)

Law, Society & Taxation Panel #7: Normative Analyses of Tax Doctrines

Today's seventh Law, Society, and Taxation panel at the Law & Society Association Annual Meeting in Denver is on Normative Analyses of Tax Doctrines:

What constitutes an unacceptable tax position? Scholars on this panel will discuss the general problem of tax shelters, some doctrines to fix it, and some specific issues of personal taxation that may actually not be "abusive" if viewed in the appropriate light.

Linda McKissack Beale (Wayne State) (Chair/Discussant)

Although direct taxation in the European Union is reserved for Member States, the European Court of Justice has recently developed its own anti-avoidance doctrine. This doctrine, which this paper introduces and defines as the “wholly artificial arrangements doctrine,” is a judicial creation that sets the outer limits of permissible tax avoidance within the European Union. Unlike anti-avoidance doctrines in other jurisdictions, however, the wholly artificial arrangements doctrine has been created and applied by a supranational court and serves to constrain domestic measures meant to police tax avoidance. Although taxpayers attempting to avoid taxation may support the creation of this doctrine, since it makes avoidance less likely to be policed, the doctrine poses significant problems to law-abiding taxpayers and Member States alike. From the point of view of taxpayers, this doctrine is likely to lead to less respect for the tax system, lower tax revenues in Member States, and unpredictability as to the level of avoidance permitted within the European Union. From the point of view of Member States, this doctrine raises even greater concerns, in that the European Court of Justice is creating a legislative vacuum in the area of anti-avoidance law. Since no European Union institution is empowered to police tax avoidance without unanimous support of the Member States, European taxpayers and Member States alike are thus left in a world of greater tax avoidance, lower tax revenues, and no ability to overcome these problems.

This project considers the tax shelter problem by (1) highlighting a lack of consensus surrounding the Internal Revenue Code’s relevant core principles and (2) arguing that, in light of this lack of consensus, the Internal Revenue Code’s method of combating tax shelters through specific rules/prohibitions and residual anti-abuse rules undermines the theoretical legitimacy and coherence of tax shelter regulation.

The most complicated provisions of the Code apply to all taxpayers, including those of low and moderate incomes. Among those provisions are the credit provisions, some of which provide refundable credits. Taxpayers of low or moderate incomes are the least likely of taxpayers to obtain good advice and help in completing their returns. Yet, after receiving their refunds, they are also the most likely to be audited and to have to return their refunds plus penalties and interest. For many, this begins a process of ever increasing liabilities that can only be settled with the help of tax professionals who can aid in obtaining an offer in compromise or an installment agreement.

The most complicated provisions of the Code apply to all taxpayers, including those of low and moderate incomes. Among those provisions are the credit provisions, some of which provide refundable credits. Taxpayers of low or moderate incomes are the least likely of taxpayers to obtain good advice and help in completing their returns. Yet, after receiving their refunds, they are also the most likely to be audited and to have to return their refunds plus penalties and interest. For many, this begins a process of ever increasing liabilities that can only be settled with the help of tax professionals who can aid in obtaining an offer in compromise or an installment agreement.

May 29, 2009 in Conferences, Scholarship, Tax | Permalink | Comments (0) | TrackBack (0)

Law, Society & Taxation Panel #6: Tax Rules and Social Outcomes

Today's sixth Law, Society, and Taxation panel at the Law & Society Association Annual Meeting in Denver is on Tax Rules and Social Outcomes:

Several classic doctrines in tax law respond to recurring problems in the lives of taxpayers. Interactions between accidents, insurance, unexpected reversals, and tax consequences have created uniquely difficult questions of tax law. Scholars on this panel will discuss several proposed changes to the way the tax system treats unexpected and extreme events in the lives of individuals and communities.

Reginald Mombrun (North Carolina Central) (Chair/Discussant)

Our project will focus on casualty losses arising from floods and will recommend insurance and tax reforms with the goal of developing a better integrated and more comprehensive approach to managing this risk.

The paper discusses the evolution and status of the classic definition of “insurance” for federal income tax purposes (i.e., an arrangement in which risk shifting and risk distributing are present) and the Service’s aggressive efforts to prevent companies from taking “premium” deductions for what the Service views as mere contributions to the company’s own contingency reserves. I question whether the current standard has served us well over time, whether a limited contingency reserve system would, in fact, reflect better tax/economic policy, and the potential forms such a contingency reserve framework might take.

This paper will present and analyze tax provisions that are targeted to assist members of the armed forces. The paper will critically review these provisions to determine if they are serving their purpose and if not propose improvements.

May 29, 2009 in Conferences, Scholarship, Tax | Permalink | Comments (0) | TrackBack (0)

Thursday, May 28, 2009

Law, Society & Taxation Panel #5: Comparative Tax

Today's fifth Law, Society, and Taxation panel at the Law & Society Association Annual Meeting in Denver is on Comparative Analyses of National Tax Systems:

Participants in this session will offer comparative analyses of a number of national tax systems, including Germany, Brazil, the United States, and others. The focus will be on both equity and behavioral matters, including the usefulness of the ability-to-pay principal in guiding tax law-making.

Allison Christians (Wisconsin) (Chair/Discussant)

The 'ability to pay' principle first appeared in the Brazilian legal order in the 1946 Constitution. It was excluded from the texts of 1967/69 and reappeared in paragraph 1 of article 145 of the 1988 constitution, which is now 20 years old. The objective of this paper is to analyze the application of this principle to decisions of the Brazilian Supreme Court. In research carried out on the court website, the term “ability to pay” appeared 70 times in court decisions. In order to analyze the decisions, I began with texts from Italian jurists, especially Pietro Boria, who sought to demonstrate that the ability to pay principle in Italy is applied both in the protection of taxpayer interests as well as the protection of the state. I concluded that, also in Brazil, the ability to pay principle has been applied in the protection of both these interests and the paper analyzed the central characteristics of this application. Decisions were divided into five groups, according to the interest protected and the subject involved. The final part of the paper points out limits to the use of the principle from a philosophical perspective.

Particularly in the United States, we tend to be a bit inbred about tax policy decisions, rarely looking outside of our own universe for answers. Yet other countries may have looked at a given issue and come up with intelligent answers that could helpfully inform our own decisions. One of the striking things about doing comparative tax analysis is how differently, but legitimately, different countries can answer the same question. This paper will compare German and US Income Taxation, with particular emphasis on those areas where the two countries approach the same question differently.

This paper establishes the principle of ownership as the basis of family taxation in the United States. The first half of the paper traces the development of the ownership principle between 1913 and 1930; that is, from ratification of the 16th Amendment to the Supreme Court’s decision in Poe v. Seaborn, the landmark family tax case establishing legal ownership rather than (non-legal) incidents of ownership as the bedrock of family taxability. The second half of the paper affirms the continued vitality of the ownership-equals-taxability principle by examining all federal and state court cases citing Seaborn from 1930 to the present (i.e., over 500 cases). With the ownership principle firmly established as good law, the paper then articulates an argument for taxing members of state-recognized civil partnerships--married, single, opposite-sex, same-sex--according to ownership interests as determined by state property law. In the end, the paper removes marriage between a man and a woman as the basis of family taxation under the federal income tax, and replaces it with ownership principles grounded in longstanding Supreme Court jurisprudence.

May 28, 2009 in Conferences, Scholarship, Tax | Permalink | Comments (0) | TrackBack (0)

Law, Society & Taxation Panel #4: International Tax

Today's fourth Law, Society, and Taxation panel at the Law & Society Association Annual Meeting in Denver is on International Taxation:

Nation states must interact -- and ideally cooperate -- in their treatment for tax purposes of persons and organizations whose activities cross national borders. The scholars on this panel will discuss the effects on tax systems and taxpayers of multilateral treaties, norms, and international organizations.

Darien Shanske (UC-Hastings) (Chair/Discussant)

A number of regional blocks have negotiated and/or entered into multilateral tax treaties. A few of those treaties have been the subject of academic review. This paper seeks to add to that literature by reviewing the world's multilateral treaties with a view to assessing whether they achieve the potential ascribed to them.

Who decides who should pay tax, how much, where, and when? The answer increasingly depends on transnational networks where global policies take shape. Tax policy norms about who and how to tax emerge and spread from country to country through these networks, yet the mechanism and processes of this contribution to rulemaking in taxation are not widely examined in the tax literature. This project analyzes the evolution and transfer of law as a means of understanding how the process of norm development animates the substance of national tax law and how chosen norms and rules frame the scope of economic globalization.

  • Diane M. Ring (Boston College), The Role of International Organizations in Shaping Tax Policy:

    This paper explores the ways in which international organizations use their expertise and influence to affect the broader agreements and trends we see with international tax. Relevant questions here include – how do these organizations or groups determine their own agenda (relationship to membership, organizational structure, history); how do they develop positions; and how are those positions made influential?

May 28, 2009 in Conferences, Scholarship, Tax | Permalink | Comments (0) | TrackBack (0)

Law, Society & Taxation Panel #3: Improving Tax Administration

Today's third Law, Society, and Taxation panel at the Law & Society Association Annual Meeting in Denver is on Improving the Administration of the Tax System:

Taxpayers face an array of choices in determining their tax liabilities. Some of these choices exist by design, while others exist by implication. Determining how to limit and guide choices is essential to improve the collection of legitimate taxes, to deter fraud, and to enhance tax revenue. The scholars on this panel will discuss a number of innovative proposals in this area of tax law.

Brad Borden (Washburn) (Chair/Discussant)

This paper considers the many tax elections offered in the Internal Revenue Code and regulations and their impact on fairness and efficiency in the tax system.

This paper will examine the extent to which taxpayers can, and should be able to, choose what tax law applies to them when the tax law changes. In addition to exploring other opportunities for the expression of choice in the face of a law change, this paper will analyze the use of explicit elections as part of the transitional relief provided upon a change in the tax law.

This essay develops a framework for evaluating the efficiency of information reporting proposals, then evaluates how several current proposals fare under it. Accordingly, it makes recommendations on which proposals warrant serious consideration as revenue raisers that would help narrow the federal tax gap.

Credit card issuers often raise money by using their receivables as collateral to borrow money from outside investors; this process is known as “securitization”. Credit card securitizations are vulnerable to attack from the Internal Revenue Service because investors in these transactions always face some risk that the receivables will not be sufficient to protect them from loss. If the risk of loss is too great, then investors have arguably bought the receivables rather than simply looked to the receivables as collateral. Such a result could have negative tax consequences, since a credit card issuer whose securitization is treated as a sale rather than a loan would no longer be able to deduct the interest payments made on the transaction. This risk is greater for credit card issuers that characterize their securitization instruments as certificates in order to comply with certain accounting standards, since the term “certificate” implies a sale rather than a loan. The discrepancy caused by calling a transaction a sale while treating it as a loan appears to violate the Danielson rule, which states that a taxpayer cannot argue that the form of a transaction differs from its substance. However, I will show in this paper that the Danielson rule should not be applied to credit card securitizations at all, since a difference between treatment for tax purposes and for accounting purposes does not in fact constitute a difference between form and substance.

May 28, 2009 in Conferences, Scholarship, Tax | Permalink | Comments (0) | TrackBack (0)

Law, Society & Taxation Panel #2: Gender, Families, and Sexuality in Tax Law

Today's second Law, Society, and Taxation panel at the Law & Society Association Annual Meeting in Denver is on Gender, Families, and Sexuality in Tax Law:

How to treat incomes that are shared within households, how to account for the biological differences between women and men, and the treatment of unpaid work are all timeless issues in tax and family law. In this panel, scholars will discuss various problems that arise in the tax system when issues of gender, family, and sexuality become salient.

Meredith R. Conway (Suffolk) (Chair/Discussant)

This paper uses the history of nationalized income-splitting to highlight the cost of individual tax filing. While lessening the psychological and economic impact of family taxation on wives as secondary earners, will likely increase tax avoidance among the wealthy which imposes a real cost on our progressive income tax system.

Sexual intercourse makes women pregnant, and pregnancy makes women vulnerable. Being pregnant radically alters a woman’s body, mind, and public identity. It puts her, as the old euphemism goes, in a “delicate condition.” In the best case, where the pregnancy is wanted by both parents and it progresses normally, the discomforts and inconveniences it typically entails—nausea, back pain, memory loss, swollen feet, dietary restrictions, lost wages, and the inability to travel—are not insignificant. In the worst case, pregnancy can be debilitating, even life threatening. The same is true of a miscarriage—it can cause a woman to bleed and cramp for several days, and it can kill. Where a pregnancy is unintended and a woman chooses to abort, the difficulties she faces also range in severity. Under any scenario, being pregnant is no walk in the park. Some men recognize this reality and take care of the women they impregnate. Others do not, and the law gives them a free pass. Thus, society reinforces a fundamental gender inequality: pregnancy is a woman’s problem. The biological inequality between men and women’s reproductive burdens cannot be changed, but the law can mitigate its harmful effects. These effects extend to men as well as women because the asymmetry in the risks associated with sex creates a fundamental power imbalance, an imbalance that sows tension and mistrust in relations between heterosexual lovers at both conscious and unconscious levels. This asymmetry in risk also translates into asymmetrical incentives to prevent an unwanted pregnancy where partners assume that the woman would abort. This Article argues that unless a man has been raped or deceived, the law should require him to participate in the price of pleasure by making a monetary contribution to the woman he impregnates.

    This paper will analyze the extent to which unpaid work is valued, or should be valued, by the paid marketplace. It also will address the impact of the commodification debate on assumptions in law underpinning the taxation of women.

My paper will exam the income tax rules of Singapore, Sweden and the States and compare the "state support" system of Sweden to the "personal responsibility" structure in the States to the "class based" structure in Singapore. The paper will particularly focus on working mothers and how that impacts their ability to compete in the market.

May 28, 2009 in Conferences, Scholarship, Tax | Permalink | Comments (0) | TrackBack (0)

Worker Faces 10 Years in Jail for Peeing in IRS Elevator

According to this affidavit filed on Tuesday in U.S. District Court in Michigan, an IRS worker faces ten years in prison for repeatedly urinating in the elevator at the IRS Service Center in Detroit and causing $4,626.25 of "deep cleaning expense."

May 28, 2009 in IRS News, News, Tax | Permalink | Comments (1) | TrackBack (1)

Monopoly -- Income Tax Edition

Monopoly Check out Monopoly: Income Tax Edition:

This is a fairly easy Monopoly game expansion to teach youngsters the principles of filing and paying income tax. It includes an income tax form on which players keep track of income and deductions, figure and pay their income tax at the end of each circuit of the board. Players may opt to hire themselves out as tax preparers and those who do not wish to file their own returns may hire and pay tax preparers to do so, the cost of which is tax deductible, of course.

I absolutely love this warning:

Please note that this is not a representation of real-life tax preparation. It is a simplified simulation meant to educate children on the basic principles of income and taxes and should not be taken as a source for tax preparation information.

(Hat Tip: Sarah Lawsky, Jim Maule.)

May 28, 2009 in Celebrity Tax Lore, Tax | Permalink | Comments (2) | TrackBack (0)

Why Do Law Schools Encourage Unfunded Faculty Research?

Dahlia K. Remler (CUNY, Baruch College) & Elda Pema (Naval Postgraduate School, Graduate School of Business & Public Policy) have posted Why do Institutions of Higher Education Reward Research While Selling Education? on NBER.  Here is the abstract:

Higher education institutions and disciplines that traditionally did little research now reward faculty largely based on research, both funded and unfunded. Some worry that faculty devoting more time to research harms teaching and thus harms students' human capital accumulation. The economics literature has largely ignored the reasons for and desirability of this trend. We summarize, review, and extend existing economic theories of higher education to explain why incentives for unfunded research have increased. One theory is that researchers more effectively teach higher order skills and therefore increase student human capital more than non-researchers. In contrast, according to signaling theory, education is not intrinsically productive but only a signal that separates high- and low-ability workers. We extend this theory by hypothesizing that researchers make higher education more costly for low-ability students than do non-research faculty, achieving the separation more efficiently. We describe other theories, including research quality as a proxy for hard-to-measure teaching quality and barriers to entry. Virtually no evidence exists to test these theories or establish their relative magnitudes. Research is needed, particularly to address what employers seek from higher education graduates and to assess the validity of current measures of teaching quality.

In today's Inside Higher Ed: The Mystery of Faculty Priorities, by Scott Jaschik:

One of the much debated trends in higher education in the last generation or so is the increasing emphasis on research. Of course the very concept of the research university is based on faculty members who view research as central to their jobs.

But research expectations have grown at many institutions where the missions -- at least until recently -- have been primarily focused on teaching. And as Dahlia K. Remler and Elda Pema note in a provocative new paper, the emphasis extends beyond research that pays for itself.

"For faculty who engage in funded research, there is no economic mystery: research is the product being sold and it makes sense to emphasize it. However, the rewards apply to unfunded research also," they write, in an analysis released by the National Bureau of Economic Research. "Moreover, the phenomenon of faculty rewards for research is prevalent and growing in the humanities, law schools, and other disciplines with little or no funded research -- a trend that has persisted for decades, across schools and across geographical boundaries." ...

The authors suggest that higher education would benefit from figuring out just why this phenomenon has taken place, given its expense in money and faculty time. Further, they note that the trends appear to run counter to the desire of many experts on higher education who would like to see teaching receive more emphasis -- not to mention the many critics of higher education who argue that the research emphasis drives up costs and denies students the attention they deserve.

Among the theories that the authors say could be at play, a number of which challenge conventional wisdom and most of which the authors find still need evidence to back them up:

  • Students gravitate toward research orientations.
  • Research makes professors better teachers.
  • Research-oriented professors help sort students by being poor teachers.
  • Research quality has become a proxy for teaching quality.
  • Altruism.
  • Faculty members like to do research.
  • Envy and prestige.

The authors both explain why these theories may apply and poke at them a bit. But they suggest that higher education has real risk in not understanding why more individual professors, disciplines and institutions are embracing the research model. There is a growing teaching-only model, they note, and it involves trends that many in academe view with some skepticism.

May 28, 2009 in Legal Education | Permalink | Comments (0) | TrackBack (0)

Law, Society & Taxation Panel #1: Distributive Justice, Tax Policy & Society

The four-day Law & Society Association Annual Meeting kicks off today in Denver.  The first Law, Society, and Taxation Panel today is Distributive Justice, Tax Policy, and Society:

Rarely has the United States -- or the world -- seen such extreme disparities in wealth and income. In the midst of what could become the worst economic downturn in generations, it is essential that Law & Society scholars consider the causes and solutions of these imbalances. This panel will investigate various aspects of the issues surrounding economic and social inequality and will discuss whether and how to address such inequality.

Richard Schmalbeck (Duke University) (Chair/Discussant)

This paper summarizes the long list of arguments offered by opponents of redistributive policies, exposing them as a series of excuses designed ultimately to justify doing nothing to help those who are less fortunate and who need a helping hand

An accessions tax is a tax, at progressive rates, on the aggregate lifetime gratuitous receipts of an individual in excess of a specified exemption. The main thesis of this article is that an accessions tax is not simply a reverse image of the current estate tax system, but is significantly different both in purpose and effect. An accessions tax is a tax on the unearned income (accessions to wealth) of individuals. In operation, the accessions tax can avoid many of the loopholes in the estate tax, because the accession can occur after the transferor’s death. Accessions would be taxed only when realized in cash or assets that are not hard to value. Since only trust distributions (as opposed to the acquisition of trust interests) would be taxed, actuarial tables would be irrelevant, and general powers of appointment would be ignored. Taxation of qualified hard-to-value property (such as interests in a closely-held business) would be deferred to conversion to cash (or other event whereby qualification lapses). Elaborate qualification rules for the spousal and charitable exclusions would not be necessary.:

The role of efficiency in determining tax policy is often over-emphasized at the expense of equity. Predictions of gains from increased efficiency seem more certain than gains from equity because efficiency gains appear quantifiable while equity gains seem intangible. This article suggests, however, that the results of efficiency analysis are also very uncertain because taxpayer responses are often unpredictable in theory and empirical data may be contradictory. This article considers some basic efficiency issues in tax policy to illustrate doubts about efficiency analysis. The prevailing belief that efficiency gains would arise from broadening the tax base and lowering rates is not certain because of transition effects. Also, the notion that high tax rates encourage tax evasion is not predicted in theory and results of empirical examinations are contradictory. Last, the argument that a consumption tax is more efficient than an income tax, while true in theory, is not clear in reality because of transition effects and behavioral responses. Having shown the weaknesses of applying efficiency analysis to some basic areas of tax policy, the article suggests, paradoxically, that efficiency analysis is also deficient because it is applied too narrowly. Traditional efficiency analysis has not considered another important source of efficiency gains--equity. Evidence exists that achieving equity contributes efficiency gains. Thus, the article concludes, the divide between the tangible results of achieving efficiency and the intangible results of equity is false. Benefits from achieving efficiency and equity are difficult to identify, but both make important tangible contributions.

May 28, 2009 in Conferences, Tax | Permalink | Comments (1) | TrackBack (0)

Indiana-Indianapolis Seeks to Hire Tax Prof

Indylaw Indianana-Indianapolis is looking to a hire a tenure-track or tenured Tax Prof to begin in the 2010-11 academic year.  For details or to apply, see here.

May 28, 2009 in Legal Education, Tax, Tax Prof Jobs, Tax Prof Moves | Permalink | Comments (0) | TrackBack (0)

Schwarzenegger Proposes Terminating State Funding for UC-Hastings

California Goveror Arnold Schwarzenegger has proposed eliminating virtually all state funding for UC-Hastings College of the Law. (The state would give the school $7,000 to comply with the letter, if not the spirit, of the 19th century bequest by the school's founder S.C. Hastings.) The proposed $10.3 million cut is approximately 25% of UC-Hasting's budget.

May 28, 2009 in Legal Education | Permalink | Comments (0) | TrackBack (0)

British Politicians Got Reimbured for Tax Preparation Expenses

The British press has been in a feeding frenzy over many of the 646 members of Parliament getting reimbursed for various dubious personal expenses, including horse manure for a garden, plasma televisions, and porn films.  The latest outrage: 39 officials were reimbursed for the cost preparing their tax returns.

May 28, 2009 in News, Tax | Permalink | Comments (0) | TrackBack (0)

FIU Names Miami U.S. Attorney Dean

Despite a majority vote of the Florida International faculty deeming Miami U.S. Attorney Alex Acosts "not acceptable,"  he was named Dean yesterday.

May 28, 2009 in Legal Education | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 27, 2009

Group Asks IRS to Review Liberty University's Tax-Exempt Status

Following up on Monday's post, Liberty University as Bob Jones University -- Can the IRS Strip Tax-Exempt Status for Revoking Recognition of Democratic Club?:  Americans United for Separation of Church and State today asked the IRS to review Liberty University's tax-exempt status:

May 27, 2009 in IRS News, News, Political News, Tax | Permalink | Comments (0) | TrackBack (0)

Doran: Managers, Shareholders, and the Corporate Double Tax

Michael Doran (Georgetown) has published Managers, Shareholders, and the Corporate Double Tax, 95 Va. L. Rev. 517 (2009).  Here is the abstract:

The United States generally imposes two levels of federal income tax on corporate profits. The first level taxes income to the corporation; the second level taxes dividends to the shareholders. Academics and policymakers have long considered this double tax to be “unusual, unfair, and inefficient.” Legislators from both political parties have proposed integration of the corporate and individual income taxes on many occasions, but the proposals consistently fail. Prior academic analyses have struggled to explain the failure of integration. This paper demonstrates how certain managers, shareholders, and collateral interests rationally favor certain integration proposals and oppose other integration proposals, while other managers, shareholders, and collateral interests rationally adopt contrary positions. The substantial heterogeneity of interests among managers, shareholders, and collateral interests generally accounts for the stubborn persistence of the double tax. Close examination of the lobbying positions taken by managers, shareholders, and collateral interests in response to the Bush Administration’s dividend-exclusion proposal establishes that the heterogeneity of interests directly shapes the legislative process and definitely affects legislative outcomes. The argument presented here implies that, as a political matter, the corporate double tax is much more entrenched than most prior analyses assume.

May 27, 2009 in Scholarship, Tax | Permalink | Comments (0) | TrackBack (0)

Chetty & Saez: Earnings Responses to an Experiment with EITC Recipients

Raj Chetty & Emmanuel Saez (both of the UC-Berkeley, Department of Economics) have posted Teaching the Tax Code: Earnings Responses to an Experiment with EITC Recipients on NBER. Here is the abstract:

This paper tests whether providing information about the Earned Income Tax Credit (EITC) affects EITC recipients' labor supply and earnings decisions. We conducted a randomized experiment with 43,000 EITC recipients at H&R Block in which tax preparers gave simple, personalized information about the EITC schedule to half of their clients. Tracking subsequent earnings, we find substantial heterogeneity in treatment effects across the 1,461 tax professionals who assisted the clients involved in the experiment. Half of the tax professionals, whom we term "compliers", induce treated clients to increase their EITC refunds by choosing an earnings level closer to the peak of the EITC schedule. Clients treated by complying tax professionals are 10% less likely to have very low incomes than control group clients. The remaining tax preparers generate insignificant changes in EITC amounts but increase the probability that their clients have incomes high enough to reach the phase-out region. Treatment effects are larger for the self-employed, but are also substantial among wage earners, suggesting that information provision induced real labor supply responses. When compared with other policy instruments, information has large effects: complying tax preparers generate the same labor supply response along the intensive margin as a 33% expansion of the EITC program, while non-complying tax preparers induce the same response as a 5% tax rate cut.

(Hat Tip: Francine Lipman, Danny Sokol.)

May 27, 2009 in Scholarship, Tax | Permalink | Comments (0) | TrackBack (0)

Keinan: The Case For Residency-Based Taxation of Financial Transactions in Developing Countries

Yoram Keinan (Michigan) has published The Case For Residency-Based Taxation of Financial Transactions in Developing Countries, 9 Fla. Tax Rev. 1 (2008).  Here is part of the Introduction:

The question addressed by this article is whether a developing country (hereinafter “Country D”) is better off adopting a source-based or residency-based taxation regime (or a combination thereof) for cross-border financial transactions. Financial transactions add an important dimension to the general conflict between source-based and residency-based regimes since money is fungible. hus, when a non-resident wishes to invest overseas, the investor can easily switch from one country to another, and will do so if the tax rules in Country D could result in a heavier tax burden.

Nevertheless, for developing countries, choosing between source-based and residency-based taxation is not easy. On the one hand, a source-based regime would allow Country D to keep more tax revenues from non-residents. Assuming that Country D has source rules similar to most other countries with respect to financial transactions, a source-based regime would allow Country D to tax income derived by non-residents from interest and dividends paid by domestic entities. On the other hand, non-residents from countries that have a residency-based taxation regime would be less inclined to invest in Country D, since their home country would impose tax on such non-residents' activity in Country D. This might result in double taxation if no treaty applies, and there is no other relief from double taxation.  Furthermore, as set forth below, residency-based taxation promotes Capital Export Neutrality. As this article concludes, the adoption of a residency-based taxation regime for financial transactions by developing countries would benefit Country D in terms of attracting foreign investment.

May 27, 2009 in Scholarship, Tax | Permalink | Comments (0) | TrackBack (0)

WaPo: VAT Gains Momentum

In today's Washington Post: Once Considered Unthinkable, U.S. Sales Tax Gets Fresh Look; Levy Viewed as Way to Reduce Deficits, Fund Health Reform, by Lori Montgomery:

With budget deficits soaring and President Obama pushing a trillion-dollar-plus expansion of health coverage, some Washington policymakers are taking a fresh look at a money-making idea long considered politically taboo: a national sales tax.

Common around the world, including in Europe, such a tax -- called a value-added tax, or VAT -- has not been seriously considered in the United States. But advocates say few other options can generate the kind of money the nation will need to avert fiscal calamity. ...

"There is a growing awareness of the need for fundamental tax reform," Sen. Kent Conrad (D-N.D.) said in an interview. "I think a VAT and a high-end income tax have got to be on the table." ...

"Everybody who understands our long-term budget problems understands we're going to need a new source of revenue, and a VAT is an obvious candidate," said Leonard Burman, co-director of the Tax Policy Center, a joint project of the Urban Institute and the Brookings Institution, who testified on Capitol Hill this month about his own VAT plan. "It's common to the rest of the world, and we don't have it." ...

In his 2008 book, 100 Million Unnecessary Returns, Yale law professor Michael J. Graetz estimates that a VAT of 10 to 14% would raise enough money to exempt families earning less than $100,000 -- about 90% of households -- from the income tax and would lower rates for everyone else.

And in a paper published last month in the Virginia Tax Review [A Blueprint for Tax Reform and Health Reform, 28 Va Tax Rev. 287 (2009)], Burman suggests that a 25% VAT could do it all: Pay for health-care reform, balance the federal budget and exempt millions of families from the income tax while slashing the top rate to 25%. A gallon of milk would jump from $3.69 to $4.61, and a $5,000 bathroom renovation would suddenly cost $6,250, but the nation's debt would stabilize and everybody could see a doctor.

May 27, 2009 in News, Tax | Permalink | Comments (2) | TrackBack (1)

Houston Restaurant Owner Convicted of Trying to Bribe IRS Agent With Pizza to Avoid $49k Liability

Pizza WebCPA reports that a Houston restaurant owner has been sentenced to two years in jail after he was convicted of trying to bribe an IRS agent by offering her free pizza and a job after an audit revealed that he owed $49,000 in back taxes for 2004-2007.  (IRS Agent Refuses Pizza Bribe.)

May 27, 2009 in News, Tax | Permalink | Comments (1) | TrackBack (1)

SSRN Tax Professor Rankings

SSRN has updated its monthly rankings of 586 American and international law school faculties and 1,500 law professors by (among other things) the number of paper downloads from the SSRN data base.  Here is the new list (through May 18, 2009) of the Top 25 U.S. Tax Professors in two of the SSRN categories: all-time downloads and new downloads (within the past 12 months):

 

 

All-Time Downloads

 

Recent Downloads

1

Louis Kaplow (Harvard)

14,131

Reuven Avi-Yonah (Michigan)

3357

2

Vic Fleischer (Illinois)

12,211

Dennis Ventry (UC-Davis)

3106

3

Reuven Avi-Yonah (Michigan)

10,810

Bradley Borden (Washburn)

2856

4

James Hines (Michigan)

10,733

Vic Fleischer (Illinois)

2207

5

David Walker (BU)

9097

James Hines (Michigan)

2173

6

Chris Sanchirico (Penn)

8852

Richard Kaplan (Illinois)

1985

7

David Weisbach (Chicago)

7790

Wendy Gerzog (Baltimore)

1934

8

Ed McCaffery (USC)

7508

Louis Kaplow (Harvard)

1878

9

Dennis Ventry (UC-Davis)

7228

Karen Burke (San Diego)

1758

10

Paul Caron (Cincinnati)

7205

Francine Lipman (Chapman)

1725

11

Robert Sitkoff (Harvard)

7039

David Weisbach (Chicago)

1715

12

Ted Seto (Loyola-L.A.)

 6861

Ruth Mason (Connecticut)

1636

13

Steven Bank (UCLA)

5930

Michael Knoll (Penn)

1545

14

Richard Kaplan (Illinois)

5616

Carter Bishop (Suffolk)

1364

15

David Schizer (Columbia)

5589

David Walker (BU)

1330

16

Bradley Borden (Washburn)

5109

Erik Jensen (Case Western)

1268

17

Francine Lipman (Chapman)

5039

Bridget Crawford (Pace)

1250

18

Michael Knoll (Penn)

4832

Ed McCaffery (USC)

1227

19

Daniel Shaviro (NYU)

4584

Ted Seto (Loyola-L.A.)

1186

20

Terrence Chorvat (G. Mason)

4381

Steven Bank (UCLA)

1078

21

Wendy Gerzog (Baltimore)

4349

Grayson McCouch (San Diego)

1075

22

Leandra Lederman (Indiana)

3811

Bryan Camp (Texas Tech)

1051

23

Ruth Mason (Connecticut)

3598

Chris Sanchirico (Penn)

1028

24

Bridget Crawford (Pace)

3596

Robert Sitkoff (Harvard)

917

25

Erik Jensen (Case Western)

3457

Matthew Barrett (Notre Dame)

910

Continue reading

May 27, 2009 in Scholarship, Tax, Tax Prof Rankings | Permalink | Comments (0) | TrackBack (0)

Raskolnikov: Using Taxpayer Choice to Target Tax Enforcement

Alex Raskolnikov (Columbia) has published Revealing Choices: Using Taxpayer Choice to Target Tax Enforcement, 108 Colum. L. Rev. 689 (2009).  Here is the abstract:

People pay their taxes for many different reasons. Some choose to game the system, paying only when the cost of noncompliance outweighs its benefits. Others comply out of habit, a sense of duty or reciprocity, a desire to avoid feelings of guilt or shame, and for many other reasons. Our tax enforcement system has ignored this variety of taxpaying motivations for decades. It continues to rely primarily on audits and penalties, at least where information reporting and withholding are impossible. Fines and audits deter those rationally playing the tax compliance game, but are wasteful or even counterproductive when applied to others. The shortcomings of the current one-size-fits-all approach to tax enforcement are well understood. They also appear to be insurmountable. This Article argues that it is possible to design a more tailored regime. The idea is to separate taxpayers based on their taxpaying motivations by creating two different enforcement regimes and inducing taxpayers to choose one when they file their annual returns. With this separation accomplished, the government can target enforcement by matching enforcement policies to taxpayer types. Those who choose to game the system will be deterred by higher penalties in one regime. Everyone else will be induced to comply by cooperative enforcement measures in the other. If successful, separation and targeted enforcement will improve tax compliance without raising its social cost, or keep the level of compliance unchanged while making tax administration more efficient.

May 27, 2009 in Scholarship, Tax | Permalink | Comments (0) | TrackBack (0)

Submission Guide for Online Law Review Supplements

Colin Miller (John Marshall) has posted Submission Guide for Online Law Review Supplements on SSRN.  Here is the abstract:

This document contains information about submitting essays and articles to general online law review supplements. It covers 19 general online law reviews. This document will be updated on an annual basis and as law schools create new online law review supplements.

May 27, 2009 in Legal Education, Scholarship | Permalink | Comments (0) | TrackBack (0)

ABA Tax Section Offers Webcast Today on Troubling Issues with Troubled Members of Consolidated Groups

ABA Tax The ABA Tax Section offers a teleconference and webcast today on Troubling Issues with Troubled Members of Consolidated Groups from 1:00 - 2:30 p.m. EST:

Please join our distinguished group of panelists as they provide an analysis of consolidated return issues relating to troubled members of consolidated groups (including worthless stock deductions, liquidations, and distressed debt).

Speakers:

  • Devon M. Bodoh (Dewey & LeBoeuf, Washington, D.C.) (Moderator)
  • Theresa Abell (IRS)
  • Andrew Dubroff (Ernst & Young, Washington, D.C.)
  • Jonathan Forrest (Deloitte Tax, Washington, D.C.)
  • Don Leatherman (University of Tennessee College of Law)

May 27, 2009 in ABA Tax Section, Conferences | Permalink | Comments (0) | TrackBack (0)

D.C. Bar Hosts Program Today on The Future of the Charitable Contribution Deduction

The District of Columbia Bar Association Tax Section hosts a luncheon program today on The Future of the Charitable Contribution Deduction in Light of the Obama Administration Proposal:

The Obama Administration proposal that would result in limiting the value of the charitable contribution deduction for certain high-earners has set off a flurry of debate. Would the proposal significantly impact charitable giving? Would any decrease in giving be offset by the gains to funding health care reform? What does the proposal, and responses to it suggest about the meaning of charity and reasons for giving? Are other reforms on the horizon?

Speakers:

  • Tom Barthold (Chief of Staff, Joint Committee on Taxation)
  • Diana Aviv (President and CEO, Independent Sector)
  • Jeffrey Liebman (Associate Director & Chief Economist, Office of Management & Budget)
  • Roger Colinvaux (Columbus School of Law, Catholic University) (Moderator)

May 27, 2009 in Conferences, Tax | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 26, 2009

Judge Sotomayor's Savings

Greg Mankiw (Harvard University, Department of Economics) takes Supreme Court nominee Sonia Sotomayor to task for saving little ($50,000 - $115,000) of her $179,500 yearly salary as a Second Circuit Judge:

I once wrote a short paper called The Savers-Spenders Theory of Fiscal Policy based on the premise that there are two types of people: Some save and intertemporally optimize their consumption plans, while others live paycheck to paycheck, spending their entire income as soon as it's received. Sometimes readers of the paper think of the two groups as rich and poor, but that interpretation is wrong. Some people with low incomes manage to scrimp and save (I always think of my grandmother), and some people with high incomes spend most everything they earn. ...

My grandmother would have been shocked and appalled to see someone who makes so much save so little.

Tom Smith (San Diego) defends Judge Sotomayor:

Judge Sotomayor has only roughly $100,000 in savings, but look, she is (I gather) a single woman with no children. She has a life tenured position where her salary is paid by the United States and which she can be fired from only with serious cause. She makes only $179,000 per year but it is as secure as a job can be. She has a generous judicial pension plan that will kick in as soon as she has enough years of service ....  [W]hen you take Sotomayor's human capital and circumstances into account, there is nothing wrong with her balance sheet. Sure, she could have another $500,000 tucked away, and that would be nice. But why should she? ...  She has a guaranteed job for life with very generous retirement and health benefits, and any day she decides she wants to be a millionaire, all she has to do is pick up the phone. ...  I think Mankiw should ease off.

May 26, 2009 in News, Tax | Permalink | Comments (8) | TrackBack (0)

NY Times: The Case for Taxing Email

The New York Times Idea of the Day:  The Case for Taxing Email:

Today’s idea: A tax on e-mail would stem the deluge of spam — and both free up and help pay for the bandwidth that the Internet needs to grow.

The idea is from the British magazine Prospect:  We Need an eMail Tax:  A Penny Charge for Every eMail Would Stop Spam, and Fill the Empty Public Purse, by Edward Gottesman:

The time has come for a public sector remedy: a tax, perhaps no more than 2p, or 3c, on every email sent. Opponents will argue that collecting the tax is impossible or unfair. Yet the status quo is unworkable. Since early 2007 the global volume of spam has more than trebled. To stop this blizzard of unwanted messages, ISPs and most large businesses spend a sizeable chunk of their IT budget filtering out obvious junk. Despite this, most of us spend time each day clicking “delete”—and the deluge is getting worse. A unit tax on email would stop most spam. A peddler sending 1m messages a day hawking cross-border pharmaceuticals, for instance, would have to balance the uncertain revenues against the tax cost of £100,000 or $150,000 a week. Trying to con people out of money or their bank password would become a risky gamble. ...

Is there a downside? Like any excise tax, the move might be considered regressive. But for most users the cost would be offset by the ongoing falls in the price of broadband itself. The growth of blogs and social networks should head off claims that the tax would strangle internet freedom, as user-initiated website access will be unaffected. Above all, an email tax could safeguard the future of the internet itself. Peer-to-peer data transfers, video streaming and voice services like Skype demand ever greater bandwidth. When new capacity is needed, part of the tax proceeds could be used for investment. Best of all, the spam tax would remind us of a basic rule: pay for what you value. Email, like clean water and air, is not free. We may have a greater respect for our thoughts if we remember that sending them has a price.

(Hat Tip: Amitrai Barth.)

May 26, 2009 in News, Tax | Permalink | Comments (25) | TrackBack (0)

Life Insurance Is "Blowing Up" Estate Plans

In today's Wall Street Journal:  Keep Tabs on Insurance That Covers Estate Tax, by Arden Dale:

Using life insurance to cover the death tax is common practice, but the strategy is blowing up some estate plans now.

The policies are imploding because of low interest rates. An insurance plan issued years ago, when interest rates were higher, may no longer be earning the investment returns it needs to pay premiums as drafted. That shortfall leaves the owner on the hook for unexpected costs.

If the worst happens and a policy collapses, its demise can even result in a big tax bill.

Estate planners are noticing the problem. (It is hardly limited to their arena. A policy can lapse no matter what it is used for.) Some expect it to get worse. ...

Insurance consultant Bill Boersma, the founder and president of Opportunity Concepts in Grand Rapids, Mich., said he has worked with many troubled policies recently. He predicts a "tsunami" of lapses over the next few years.

Advice to those using life insurance in an estate plan: Have an attorney check on the health of the plan. And don't be surprised if that person turns the matter over to an independent insurance expert. Policies are complicated enough that an estate planner or attorney may not feel comfortable vetting them.

May 26, 2009 in News, Tax | Permalink | Comments (1) | TrackBack (0)

Posner, Becker Criticize Proposed Soda Tax

Richard Posner, A Soda or Calorie Tax to Reduce Obesity:

Articles in the New England Journal of Medicine on April 30, and in the New York Times on May 19, discuss a proposal now before Congress to impose a tax on sugar-sweetened sodas in order to reduce obesity. Taxes are ordinarily intended to raise revenue, but some taxes, such as taxes on alcohol and tobacco--and on carbon emissions, should such a tax ever be passed--are designed not to raise revenue but to alter behavior, and the more they succeed in altering behavior the less revenue they generate. ...

[T]here are two situations in which preventing people from choosing the style of life that maximizes their utility can be defended (provided certain assumptions are made about cost and efficacy) on economic grounds. One is where consumers are unable to evaluate a product or to act upon their evaluation; another is where a voluntary transaction imposes costs on other people which the transactors do not take into account.

The first is a significant factor in the soda market. The sellers advertise very heavily to children, who do not have the knowledge or the self-control that they would need to be able to resist such advertising. ...  The solution, though, is not a tax on sodas, as such a tax would have only a small effect. A ban on advertising would be preferable. ...

As to whether by increasing obesity the sale of sugar-flavored sodas imposes costs on other people besides the buyers, the evidence is mixed. ...  [A]ssuming nevertheless that the net social costs of obesity are positive, this would be a ground for arguing for taxing obesity, but such a tax would be unacceptable as well as cruel. The alternative of a soda tax would be unlikely to have much effect, for the reasons stated earlier.

Gary BeckerA Tax on Sodas?:

To combat obesity, an article in the April 30, 2009 New England Journal of Medicine by Brownell and Frieden argues for a tax on sugared beverages. I agree with Posner that this is a bad idea.

Many doctors and others who advocate taxing sugared beverages and fast foods at heart do not believe that consumer taste for sugar and fast foods should be taken into account in devising public policy. Perhaps not, but they have to advance better arguments than they have done so far to justify policies that interfere with the exercise of these tastes and desires.

May 26, 2009 in Tax | Permalink | Comments (1) | TrackBack (0)

WSJ State Tax Editorials: Maryland, New Jersey

Maryland's Miilionaires Go Missing:

Maryland couldn't balance its budget last year, so the state tried to close the shortfall by fleecing the wealthy. Politicians in Annapolis created a millionaire tax bracket, raising the top marginal income-tax rate to 6.25%. And because cities such as Baltimore and Bethesda also impose income taxes, the state-local tax rate can go as high as 9.45%. Governor Martin O'Malley, a dedicated class warrior, declared that these richest 0.3% of filers were "willing and able to pay their fair share." The Baltimore Sun predicted the rich would "grin and bear it."

One year later, nobody's grinning. One-third of the millionaires have disappeared from Maryland tax rolls. In 2008 roughly 3,000 million-dollar income tax returns were filed by the end of April. This year there were 2,000, which the state comptroller's office concedes is a "substantial decline." On those missing returns, the government collects 6.25% of nothing. Instead of the state coffers gaining the extra $106 million the politicians predicted, millionaires paid $100 million less in taxes than they did last year -- even at higher rates.

New Jersey's Flat Tax Debacle:

If ever a state were ripe for bold economic reform, it would be New Jersey, which is shedding jobs and is in perennial budget crisis despite one of the highest tax burdens in the land. So why is Chris Christie, the GOP front-runner in the state's 2009 gubernatorial race, taking cheap shots at the flat tax?

[H]e seems to be running scared in next month's Republican primary, when he faces former Mayor of Bogota Steve Lonegan, who is proposing to scrap Jersey's job-killing graduated income tax that has rates running from 1.4% to 8.97%. Mr. Lonegan wants to replace it with a 2.98% flat tax on the first dollar of income earned.

That's a good idea that would give the Garden State the lowest tax rate in the Northeast after New Hampshire. Mr. Lonegan says this will ensure that when New Jersey incomes "move-up," the residents "don't move out." Over the past decade, New Jersey has suffered the fourth highest rate of out-migration of all the states, with nearly half a million residents fleeing to the likes of Delaware, Florida and even New York. ...

If he wins the primary, Mr. Christie will need his own tax reform agenda, both to defeat Mr. Corzine and win a mandate for changing the corrupt mess that is Trenton. Mr. Christie should understand that a flatter tax is an economic and anticorruption strategy because it limits the opportunity for political mediation on behalf of special interests. Republicans can't credibly be the candidates of growth if they echo liberal class-envy rhetoric to attack tax reform.

May 26, 2009 in News, Tax | Permalink | Comments (1) | TrackBack (0)

IRS Scraps New Web Site After Spending $19.5m

After spending two years and $19.5 million to develop its new website, the IRS has canceled the project six months before its scheduled completion date. From the Treasury Inspector General for Tax Administration, Initial Efforts to Develop a New Web-based Portal Environment Were Not Successful (2009-20-079) (May 19, 2009):

In Fiscal Year 2006, the IRS recognized the need to upgrade its existing portal environment and initiated the New Portal Implementation Project. A major concern that led to developing the new portal environment was that a significant amount of portal equipment was nearing or was at the end of its useful life expectancy. In addition, requirements from existing and planned projects that needed portal support could not be met due to technical limitations of existing equipment.

The IRS planned to complete the new portal environment by November 2008; however, in June 2008, the IRS Chief Information Officer cancelled the Project before it was completely developed. Reasons for the cancellation included the lack of a comprehensive enterprise strategy that considered industry best practices or advancements in portal technology, and budget challenges due to the significant expenditure requirements necessary to replace existing equipment. Subsequent to the Project being cancelled, the IRS hired a contractor to assist in developing an enterprise portal business strategy.

The IRS planned to launch two new projects, the My IRS Account project and a new release of the Modernized e-File project, in the new portal environment. However, because the New Portal Implementation Project was cancelled, the IRS had to expend $9.7 million for new equipment and upgrades to the existing portal capacity to operate projects dependent on the portals, including the My IRS Account and Modernized e-File projects. In addition to extraneous expenses, purchasing new equipment for portal capacity upgrades prior to development of an enterprise portal business strategy increases the risk that new equipment may not integrate with the new portal environment once it is developed.

Continue reading

May 26, 2009 in IRS News, Tax | Permalink | Comments (0) | TrackBack (2)

45% of Law Students Cheat

Following up on my post earlier this month, Cheating Scandal Erupts at Syracuse Following Biden's Graduation Speech: in this week's National Law Journal: Cheating 2.0:  New Twists on a Venerable Temptation are Confronted by Law Schools, by Leigh Jones:

About 45% of law school students have engaged in some form of cheating at least once in the previous year, according to a survey published in 2006 by Rutgers University professor Donald McCabe. ...

Every law school has problems with cheating and plagiarism, said Florida Coastal Vice Dean Terri Davlantes. "It's just a matter of catching those cheaters. We do our best to detect cheating opportunities," she said. The school last fall expelled a first-year student who ran an advertisement offering to pay someone to write a paper for him.

The ABA, which accredits law schools, does not specifically address academic integrity or student ethics in its standards for accreditation. All but two of the law schools accredited by the ABA have devised their own academic conduct and integrity rules, according to a 2006 report by the ABA Standing Committee on Professionalism. The others rely on the policies of the universities to which they belong. ... In general, law schools rely on the intense competition among students to motivate them to report other cheaters and uphold their honor codes. But strong bonds among class members and a resistance to tattle can undercut that motivation.

May 26, 2009 in Legal Education | Permalink | Comments (8) | TrackBack (0)

ABA Tax Section to Award Two Public Service Tax Fellowships

ABA Tax The ABA Tax Section has announced that it will award two two-year pro bono fellowships to recent law school graduates (J.D. or LL.M.) or judicial clerks for their work in tax-related public service organizations:

The section is now accepting applications for those interested in the two annual fellowships. Applicants must arrange employment with a tax-related § 501(c)(3) organization of choice, and must commit to working there for two years. Their work must involve taxation or the administration of tax law. Possible options include the Low Income Taxpayer Clinics in all fifty states, supported in part by the IRS. The section will pay the salary and benefits for two fellows each year, and will provide a law school debt service plan to those not already covered by such a program.

For more information, see here. Completed application forms are due August 1, 2009.

May 26, 2009 in ABA Tax Section, Tax, Tax Prof Jobs | Permalink | Comments (0) | TrackBack (0)

TaxProf Blog Holiday Weekend Roundup

Monday, May 25, 2009

Memorial Day Tax Resources for U.S. Armed Forces (Plus Their Families & Employers)

Memorial_dayContinuing a TaxProf Blog Memorial Day tradition (2008, 2007, 2006, and 2005), I want to pass along links to the Tax Information for Members of the U.S. Armed Forces material maintained on the IRS web site:

The tax laws provide some special benefits for active members of the U.S. Armed Forces, including those serving in combat zones. For federal tax purposes, the U.S. Armed Forces includes officers and enlisted personnel in all regular and reserve units controlled by the Secretaries of Defense, the Army, Navy and Air Force. The Coast Guard is also included, but not the U.S. Merchant Marine or the American Red Cross. However, these and other support personnel may qualify for certain tax deadline extensions because of their service in a combat zone.

For dozens of links to military tax resources, see below the fold.

Continue reading

May 25, 2009 in IRS News, News, Tax | Permalink | Comments (1) | TrackBack (0)