August 31, 2009
Masur Presents Well-Being Analysis Today at Loyola-L.A.
Jonathan Masur (Chicago) presents Well-Being Analysis (with John Bronsteen (Loyola-Chicago) & Christopher J. Buccafusco (Chicago-Kent)) today at Loyola-L.A. today as part of its Tax Policy Colloquium Series. The commentator is A.J. Julius (UCLA, Department of Philosophy). Here is the abstract:
Perhaps the most important goal of law and policy is improving people’s lives. But what constitutes improvement‘ What is quality of life, and how can it be measured‘ In previous articles, we have used insights from the new field of hedonic psychology to analyze central questions in civil and criminal justice, and we now apply those insights to a broader inquiry: how can the law make life better‘ The leading accounts of human welfare in law, economics, and philosophy are preference-satisfaction - getting what one wants - and objective list approaches - possessing an enumerated set of capabilities. This Article argues against both major views and in favor of a third, defining welfare as subjective well-being. As a result, we advocate the replacement of cost-benefit analysis (CBA, the tool of the preference-based approach) with well-being analysis (WBA). Like its sibling CBA, WBA compares the costs and benefits associated with enacting some law or policy. But while CBA requires monetizing costs and benefits to make them commensurable, WBA simply considers their direct effects on reported well-being. Groundbreaking new research in hedonic psychology makes this possible, and we discuss how it can be accomplished.
Dems/Unions Push New Investment Taxes
Reuters: Dems/Unions Push New Wave of Investment Taxes, by James Pethokoukis:
American equity investors have suffered a lost decade of portfolio performance — the S&P 500 is about where it was back in 1998 — and trillions of dollars of lost net worth, so it may seem a terrible time to hit them with a $100 billion-a-year investment tax. And, of course, it is.
But good sense isn’t stopping the AFL-CIO from pushing just such an ill-advised plan. The nation’s largest labor organization is proposing a tenth of a percent tax on every stock transaction, to fund infrastructure projects that would, presumably, employ union members. ...
[C]ongressional Democrats are also toying with similar ideas. Earlier this year, a group of House members introduced a bill that would impose a quarter percent tax on all securities transactions, with the hope of raising at least $150 billion a year.
More recently, one of that bill’s sponsors, Representative Peter DeFazio, an Oregon Democrat, has proposed a 0.2 percent tax on crude oil futures contracts to tamp down on speculation and pay for national transportation spending.
See also The Hill: AFL-CIO, Dems Push New Wall Street Tax, by Alexander Bolton.
Can Attending a Cheaper Law School Lead to a Big-Firm Job?
The American Lawyer: Can Attending a Cheaper Law School Lead to a Big-Firm Job?, by Brian Baxter:
Given the state of the economy, it seems an appropriate time to compare two recent surveys to consider whether attending a cheaper, less prestigious law school can still land students lucrative jobs at Am Law firms.
The National Jurist this week released its list of Best Value Law Schools, the 65 schools that offer law students the "best bang for their buck" based on the cost of attending those schools and on the percentage of those schools' graduates who passed the bar and got jobs. (Hat Tip: Paul Caron's Tax Prof Blog.) ...
Another NLJ study, this one in the publication's 2008 Law Schools Report, examined a larger sample size by looking at where graduates from the class of 2005 found work (looking at a graduating class several years later provides a more comprehensive snapshot of job prospects, allowing for jobs taken after clerkships to be taken into account).
Many of the schools ranked this year by the National Jurist appeared on that list, including North Carolina, Georgia, Wisconsin, BYU, Georgia State, Mississippi, Florida, Alabama, Tennessee, LSU, Louisville, Kentucky, and Missouri-Kansas City.
Of course, today's legal job market is a far cry from that of 2005. And as law professors William Henderson and Andrew Morriss wrote in The NLJ last year, lower-ranked schools can provide students with more opportunities in the long run. Less debt lessens the need to pursue a job at a large firm.
Knoll: Taxation and the Competitiveness of Sovereign Wealth Funds
Michael Knoll (Penn) has published Taxation and the Competitiveness of Sovereign Wealth Funds: Do Taxes Encourage Sovereign Wealth Funds to Invest in the United States?, 82 S. Cal. L. Rev. 703 (2009). Here is the abstract:
Sovereign wealth funds (“SWFs”) control large amounts of capital and have made, and are continuing to make, high-profile investments in the United States, especially in the financial services sector. Those investments in particular, and SWFs in general, are highly controversial. There is much discussion of the costs and benefits to the United States of investments by SWFs, and there is an intense and ongoing debate over what should be the United States’ policy toward SWFs. In the course of that debate, some critics have called on the U.S. government to abandon its long-held position of neutrality toward foreign investment and to use the income tax to discourage investments by SWFs. Surprisingly, in light of such calls, there is little understanding of how the tax system affects the competition among SWFs, private foreign investors, and U.S. investors to acquire and hold U.S. assets. Accordingly, in this Article, I develop a model for how taxes influence the ownership of assets, and I then apply that model to investments in U.S. equities, U.S. debt, and U.S. real estate. Where feasible, I estimate the tax-induced advantage or disadvantage SWFs have relative to private foreign investors and U.S. investors for each asset class under current law. I also discuss how the international tax system could be reformed so that it does not distort ownership patterns. The basic idea is to divide the right to tax into two pieces. First, the source country has the right to tax an investment on the condition that the tax it imposes does not vary depending on who makes the investment or where the investor making the investment resides. Second, the home country has the right to tax the investor on the conditions that the home country taxes the investor at the same rate on income from all sources and that the home country allows a deduction, but not a credit, for any taxes paid to the source country.
Ault: The Role of the OECD in Developing International Tax Norms
Hugh J. Ault (Boston College) has published Reflections on the Role of the OECD in Developing International Tax Norms, 34 Brook. J. Int'l L. 757 (2009). Here is part of the Introduction:
In this paper, I would like to focus on the process through which the OECD works, as reflected in several of the projects in which the OECD could be said to be developing international tax norms. Hopefully, a better understanding of how the OECD functions at a practical level will help to inform the fascinating theoretical academic scholarship that has focused on the OECD tax work.
Bill Bradley: Tax Reform’s Lesson for Health Care Reform
New York Times op-ed by Bill Bradley, Tax Reform’s Lesson for Health Care Reform:
The chance of bipartisan agreement on health care seems to be waning as August draws to a close and ideologues mount increasingly vitriolic attacks on President Obama’s health care initiative. ...
In 1986, before President Ronald Reagan, a Republican Senate and a Democratic House succeeded in passing landmark tax reform, Washington insiders and the press predicted — as they are doing now — that it would never happen. There are lessons from the 1986 legislative experience that can be applied to health care reform today. ...
The bipartisan trade-off in a viable health care bill is obvious: Combine universal coverage with malpractice tort reform in health care.
Fellowships for Aspiring Law Professors (2009-10 Edition)
For practitioners and others contemplating joining the law professor ranks, many law schools offer wonderful opportunities to transition into the legal academy with one- or two-year fellowships which allow you to enter the AALS Faculty Recruitment Conference (the "meat market") with published scholarship (and in many cases teaching experience) under your belt:
- Alabama: Hugo Black Fellowship Program (for Supreme Court clerks)
- Arizona State: Visiting Assistant Professor Program
- Boston University: General VAP Program & Health Law Visiting Assistant Professor Program
- Brooklyn: Visiting Assistant Professor Program
- California Western: Legal Scholars Teaching Fellowship Program
- Byse Fellowships
- Climenko Fellowship
- Kauffman Legal Fellowship (for Harvard Law alumni)
- Reginald F. Lewis Fellowship for Law Teaching
- Petrie-Flom Fellowships in Health Law Policy, Biotechnology and Bioethics
- Post-Graduate Fellowship in International Law (for Harvard Law alumni)
- Post-Graduate Fellowship in Public Law (for Harvard Law alumni)
- Post-Graduate Research Fellowship Program (for Harvard Law alumni)
- Program on Negotiation Research Fellowships
- Raoul Berger Visiting Fellowship in Legal History
- Visiting Assistant Professor Program
- VAP in Negotiations
- VAP in Securities and Finance
- VAP in Taxation
- Center for Ethics in Society
- Center for Internet & Society Teaching Fellowship Program
- Center for Internet & Society and Constitutional Law Center Joint Fellowship
- Center for Law and the Biosciences
- Center on the Legal Profession
- Clinical Teaching Fellowship Program
- CodeX: Center for Computers and Law
- Constitutional Law Center
- Criminal Justice Center
- Environmental and Natural Resources Policy Program
- Legal Resarch & Writing Teaching Fellowship Program
- Rock Center for Corporate Governance
For more information on becoming a law professor, including a discussion of the advantages of these fellowship programs, see:
- Jack Chin (Arizona) & Denise Morgan (New York Law School),Breaking Into the Academy: The 2002-2004 Michigan Journal of Race & Law Guide for Aspiring Law Professors, 7 Mich. J. Race & L. 457 (2002)
- Glenn Cohen (Harvard):
- Why Not/Do a Fellowship
- So You Are a Fellow, What Exactly Does That Mean?
- Job Market Timetable
- Recommenders and the Entry-Level Job Market
- The Meat Market Is Like ... The Meat Market
- Asking Questions on the Job Market - Part 1: Before the Offer
- Asking Questions on the Job Market - Part II: About the Offer
LaLumia: The EITC and Self-Employment Income
Sara LaLumia (Williams College, Department of Economics) has published The Earned Income Tax Credit and Reported Self-Employment Income, 62 Nat'l Tax J. 191 (2009). Here is the abstract:
The EITC subsidizes earnings from both wages and self–employment. This paper uses tax return data to investigate how the EITC affects the reporting of self–employment income to the IRS. A difference–in–difference strategy is used, considering three EITC expansions and comparing filers with and without children. Expansions are predicted to increase the reporting of self–employment income in the phase–in region and to reduce it in the phase–out region. Among the lowest–income filers, the 1994 expansion is associated with a significant increase in the probabilityof reporting positive self–employment income, equal to 3.2 percentage points for unmarried filers and 4.1 percentage points for married filers.
Does the Incentive Effect of the Charitable Deduction Vary Across Charities?
Michelle H. Yetman & Robert J. Yetman (both of University of California-Davis, Graduate School of Management) have posted Does the Incentive Effect of the Charitable Deduction Vary Across Charities? on SSRN. Here is the abstract:
We examine how taxes affect the amounts of donations given to charities and, in particular, how the sensitivity of donations to taxes varies across different types of charities. Prior studies generally constrained tax price elasticities to be constant across charities not by choice, but rather by empirical necessity, as the data used in those studies (i.e., individual income tax returns) do not break out donations by type of charity. Unlike prior studies, which estimated the tax price elasticity of donations given, we use charity-level data to estimate the tax price elasticity of donations received. We find significant differences in the response of donations to taxes across different types of charities. Donations to charities that provide basic goods and services to humans in need appear to be unresponsive to tax incentives, while donations to charities that appeal to higher human needs, animals, and the environment are very sensitive to tax incentives. These results suggest that changes to tax laws that affect the price of giving would likely lead to a reallocation of relative donations across different types of charities.
TaxProf Blog Weekend Roundup
- CT AG Demands Access to 4,450 Taxpayer Names to be Released by UBS to IRS
- AICPA Urges Civil Tax Penalty Reform
- The 'Good Enough' Law Teacher
- VanderWolk Posts Tax Papers on SSRN
- Top 5 Tax Paper Downloads
- UBS Tax Case Web Site
- District Court Rejects $690m Assignment of Future Income Tax Shelter
- Tax Regimes for Private Pension Savings
August 30, 2009
Top 5 Tax Paper Downloads
There is quite a bit 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 #2 and #5:
1. [284 Downloads] Ghosts of 1932: The Lost History of Estate and Gift Taxation, by Jeffrey A. Cooper (Quinnipiac)
2. [221 Downloads] A Tale of Two Codes: An Empirical Analysis of the Jurisprudence of the United States Tax Court (1990-2008), by Lilian V. Faulhaber (Harvard), Daniel Martin Katz (Michigan) & Michael James Bommarito (Michigan)
3. [216 Downloads] The Big, Bad FBAR: Reporting Foreign Bank Accounts to the U.S. IRS, by Lawrence Lokken (Florida)
5. [167 Downloads] Retirees at Risk: The Precarious Promise of Post-Employment Health Benefits, by Richard L. Kaplan (Illinois), Jordan Zucker (DLA Piper) & Nicholas J. Powers
UBS Tax Case Web Site
UBS has set up this web site with documents and other information concerning its settlement agreement with the United States and the disclosure of the names of 4,450 U.S. taxpayers with offshore accounts. (Hat Tip: Alan E. Weiner.)
District Court Rejects $690m Assignment of Future Income Tax Shelter
The U.S. District Court on Friday rejected a $690 million assignment of future income tax shelter in a 91-page opinion. Schering-Plough Corp. v. United States, No. 05-2575 (D. N.J. Aug. 28, 2009) (citations omitted):
The Court holds that the 1991 and 1992 swap-and-assign transactions into which Schering-Plough entered should not be respected as sales of future income streams. The transactions were, in substance, loans. Furthermore, the transactions had no appreciable economic effect on the parties, and Schering-Plough lacked sufficient subjective non-tax motivations for entering into them; it therefore cannot reap the benefit of the tax-driven vehicle. Finally, by repatriating $690 million in offshore earnings, Schering-Plough cannot avoid—under the pretext of Notice 89-21—the obvious intent of Congress to capture a portion of such sums under Subpart F.
The Supreme Court has said:
As to the astuteness of taxpayers in ordering their affairs so as to minimize taxes . . . the very meaning of a line in the law is that you intentionally may go as close to it as you can if you do not pass it. This is so because nobody owes any public duty to pay more than the law demands: taxes are enforced exactions, not voluntary contributions.
Subpart F does not leave room for a corporate taxpayer to opt out of making a "voluntary contribution." Subpart F prescribes an exaction—which the law demands—upon repatriation of foreign-earned revenue.
The repatriation transactions became immediately taxable when the Swiss subsidiaries advanced the lump-sum payments to their corporate parent in the United States. The Court therefore holds that Schering-Plough is not entitled to a refund.
(Hat Tip: Richard Jacobus.)
Tax Regimes for Private Pension Savings
Koen Caminada (Leiden Law School, Department of Economics) & Kees Goudswaard (Leiden University, Department of Public Finance) have posted Budgetary Costs of Tax Facilities for Pension Savings: An Empirical Analysis on SSRN. Here is the abstract:
A wide variety of tax regimes for (occupational) private pension saving are in place around the world. Generally, pension saving is taxed at a relatively low rate, although the revenue loss due to tax facilities for pension savings and/or pension tax expenditures may differ across countries. A strong fiscal stimulus to build up pension capital will support funding. However, these tax facilities may become an expensive business for governments. This paper investigates the ex ante budgetary effects of a cash-flow tax regime for pension savings by full present-value calculations. The fiscal subsidy on pension savings in several (European) countries is often associated with the application of the cash-flow treatment of pensions under the personal income tax: pension contributions are tax exempt, capital income of pension funds is tax-exempt, and pension benefits are taxed, but usually the elderly aged 65 years and over are taxed at a relatively low rate. This form can be described as EET, with E denoting an exemption or relief from tax and T denoting a point at which tax is payable. Indeed, tax treatment of pension saving can have other forms as well. We consider a specified form of a comprehensive income tax system (TTE) as an appropriate benchmark. Using the TTE-benchmark, the ex ante budgetary cost of the current tax treatment of pension saving in countries can be quantified. We employ an empirical analysis for the Netherlands, because this country belongs, with its three pension pillars and its sound funding, to the leading group of countries in Europe with a solid pension system. Our calculations, using Income Panel Data from Statistics Netherlands for the years 1990-2003, show that current taxation on a cash-flow basis means on balance a major loss to the Treasury (compared to the benchmark). For the year 2003 we estimate a fiscal subsidy associated with the current Dutch tax rule of 1.2 to 1.5 percent of GDP, depending on the assumed rate of return on pension capital.
August 29, 2009
CT AG Demands Access to 4,450 Taxpayer Names to be Released by UBS to IRS
Connecticut Attorney General Richard Blumenthal announced on Thursday that he has sent letters to the IRS and Department of Justice requesting the names of the 4,450 taxpayers to be released under the August 19 settlement agreement with UBS and the Swiss government.
AICPA Urges Civil Tax Penalty Reform
The American Institute of Certified Public Accountants yesterday submitted a 20-page report to Congress, the Treasury Department, and the IRS, Report on Civil Penalties: The Need for Reform:
We are writing to express our concerns about the current state of civil tax penalties and to offer some suggestions for improvement. Specifically, we address the following issues:
- The trend away from voluntary compliance as the primary purpose of civil tax penalties;
- The lack of clear standards in some penalties;
- The fact that some penalties are disproportionate both in amount and severity;
- The fact that some penalties are overbroad, deter remedial and other good conduct, and punish innocent conduct;
- The trend toward strict liability;
- An erosion of basic procedural due process;
- Inconsistencies between penalty standards and the role of tax professionals;
- The increase in automated assessment of penalties that can lead to unwarranted assessments;
- The need for better coordination and oversight of penalty administration;
- The bias in favor of asserting penalties;
- The need to improve internal IRS guidance and training; and
- The need for the IRS to increase its efforts to educate taxpayers and tax professionals.
The 'Good Enough' Law Teacher
Mary R. Falk (Brooklyn) has published "The Play of Those Who Have Not Yet Heard of Games": Creativity, Compliance, and the "Good Enough" Law Teacher, 6 J. Ass'n Legal Writing Directors 201 (2009). Here is the abstract:
If there is creative thinking out there in the law offices and courts of our country, it is present not, in the main, because law school does a good job of teaching that skill. Not surprisingly, employers of new law graduates believe we could be doing a better job of turning out creative thinkers. These are problems that I have been thinking about and writing about these past 15 years -- all the while teaching students in their first year to toe the intellectual line and then trying to convince them as upper-class students to think new thoughts about the law.
Recently, I’ve been led to consider these issues in a different light. That light is cast for me by the work of developmental psychoanalyst D.W. Winnicott. Although he founded no school or movement of his own, Donald Winnicott was one of the past century’s most influential psychoanalysts, both as a theorist and as a practitioner. When I first began to read Winnicott, two major and related themes in his work interested me particularly: first, his notion of “good enough” caregiving and second, his understanding of the role of play in the lives of infants and adults, the relationship of play to creativity, and the consequences of the absence of play. This essay is an attempt to see what as a lawyer, law teacher and, more particularly, as a writing teacher, I might usefully take from Winnicott the theorist, the professional, and the writer.
VanderWolk Posts Tax Papers on SSRN
Jefferson P. VanderWolk (Faculty of Law, Chinese University of Hong Kong) has posted two tax papers on SSRN:
- Codification of the Economic Substance Doctrine: If We Can't Stop It, Let's Improve It
- U.S. Exceptionalism in International Taxation: It's Time for a Change
August 28, 2009
Tax for Clunkers (Continued)
Although the IRS has made it clear, following the language of the enacting statute, that the amounts paid by the government to auto dealers as part of the cash-for-clunkers program is gross income to the dealers but not the purchasers, there are some important questions to be answered with respect to the state tax consequences of the program. ...
Jim notes that states differ over whether the $3,500 and $4,500 payments under the Car Allowance Rebate System (CARS) are subject to sales tax.
States which exclude CARS payments from sales tax:
States which subject CARS payments to sales tax:
- New Jersey
- New York
- Rhode Island
- South Dakota
LexisNexis has this detailed chart on the sales tax treatment of the CARS payments in the fifty states.
Sales Tax Holidays: Politically Expedient but Poor Tax Policy
The Tax Foundation has released Sales Tax Holidays: Politically Expedient but Poor Tax Policy, by Mark Robyn, Micah Cohen and Joseph Henchman. Here is the Executive Summary:
Sales tax holidays are periods of time when selected goods are exempted from state (and sometimes local) sales taxes. Such holidays have become an annual event in many states, with exemptions for such targeted products as back-to-school supplies, clothing, computers, hurricane preparedness supplies, products bearing the U.S. government's Energy Star label, and even guns. High-tax New York State sparked the trend in 1997 as a way to discourage border shopping. In 2009, 16 states will conduct sales tax holidays.
At first glance, sales tax holidays seem like great policy. They enjoy broad political support, with backers arguing that holidays are a highly visible form of tax cut and provide benefits to low-income consumers. Politicians and other supporters routinely claim that sales tax holidays improve sales for retailers, create jobs, and promote economic growth.
Despite their political popularity, sales tax holidays are based on poor tax policy and distract policymakers and taxpayers from real, permanent, and economically beneficial tax reform. Sales tax holidays introduce unjustifiable government distortions into the economy without providing any significant boost to the economy. They represent a real cost for businesses without providing substantial benefits. They are also an inefficient means of helping low-income consumers and an ineffective means of providing savings to consumers.
Zelinsky: Interpretive Bulletin 08-1 and Economically Targeted Investing
Edward A. Zelinsky (Cardozo) has published Interpretive Bulletin 08-1 and Economically Targeted Investing: A Missed Opportunity, 82 S. Cal. L. Rev. Postscript 11 (2009). Here is the Conclusion:
IB 08-1 was a missed opportunity. By attenuating ERISA’s exclusive benefit rule, the ETI moniker opens the decisionmaking of employee plan fiduciaries to pressures and concerns which the rule should foreclose. The assets held in trust by employee benefit plans constitute compensation earned by plan participants. Per ERISA’s duty of loyalty, fiduciaries should invest plan assets with single-minded concern for the welfare of plan participants and their beneficiaries. Economically targeted investing contradicts this duty of loyalty by permitting, indeed encouraging, trustees to invest plan assets to generate collateral benefits for third parties other than the participants whose labor is embodied in those assets.
Rather than repudiating economically targeted investing as inconsistent with ERISA’s exclusive benefit rule, IB 08-1 purports to limit such investing. Like most such half measures, IB 08-1 proves wanting.
Papers in Higher Ranked Journals Get Cited More
The Impact Factor’s Matthew Effect: A Natural Experiment in Bibliometrics, by Vincent Larivière & Yves Gingras:
Since the publication of Robert K. Merton’s theory of cumulative advantage in science (Matthew Effect), several empirical studies have tried to measure its presence at the level of papers, individual researchers, institutions or countries. However, these studies seldom control for the intrinsic “quality” of papers or of researchers—“better” (however defined) papers or researchers could receive higher citation rates because they are indeed of better quality. Using an original method for controlling the intrinsic value of papers— identical duplicate papers published in different journals with different impact factors—this paper shows that the journal in which papers are published have a strong influence on their citation rates, as duplicate papers published in high impact journals obtain, on average, twice as much citations as their identical counterparts published in journals with lower impact factors. The intrinsic value of a paper is thus not the only reason a given paper gets cited or not; there is a specific Matthew effect attached to journals and this gives to paper published there an added value over and above their intrinsic quality.
Installing an Extra Bathroom Won't Improve Your Child's SAT Scores
The New York Times uses this graph to show that kids from higher income families get higher average SAT scores:
Of course! But so what? This fact tells us nothing about the causal impact of income on test scores. ... This graph is a good example of omitted variable bias. ... The key omitted variable here is parents' IQ. Smart parents make more money and pass those good genes on to their offspring.
Suppose we were to graph average SAT scores by the number of bathrooms a student has in his or her family home. That curve would also likely slope upward. (After all, people with more money buy larger homes with more bathrooms.) But it would be a mistake to conclude that installing an extra toilet raises yours kids' SAT scores.
Colorado Seeks to Fill Endowed Professorship in Tax
The University of Colorado Law School at Boulder is accepting applications and nominations to an endowed professorship in the area of business law, including business associations, securities law, corporate finance, entrepreneurial law, tax, and commercial law. For more information or to apply or submit a nomination, email Scott Peppet.
Even Tax Lawyers Get the Ax
From Above the Law, Nationwide Layoff Watch: Even Tax Lawyers Get the Ax:
Nothing is certain but death and taxes -- and employment for tax lawyers, right? Not necessarily. Read more at our sister site, Going Concern:
True Partners Consulting (TPC), who provides “Intelligent Tax Advice” according to its website, ... just cleaned house in Chicago. I can tell you for sure that they laid off at least 20 employees (non-partners), most of whom were mid-level or juniors, and that they just rescinded the vast majority (28 out of 36) of outstanding offers of employment. Apparently, the tax attorneys were hit disproportionately hard. I personally know three University of Illinois College of Law newly minted tax attorneys who were just given the axe before they even started work. I have no idea about the firm’s other offices, but I assume they are undergoing a nation-wide bloodbath. ...
Since it’s possible that many of you aren’t familiar with TPC, we took the liberty of checking them out. TPC has fourteen offices worldwide, including New York, Chicago, LA, London, Munich, and Paris and they specialize in a wide array of tax and business consulting services.
UConn Law Prof's Latest Troubles
Following up on my previous post, UConn Law Prof Suspended for Showing Film Clip in Class; Blames Technology "Wardrobe Malfunction": Above the Law reports on Professor Robert L. Birminham's latest travails (from the Hartford Courant):
Heather Kaufmann, 33, surrendered to police Monday and is facing charges of second-degree forgery, third-degree larceny, third-degree identity theft, credit card theft, receiving goods illegally, charging less than $500 on a revoked credit card and five counts of fraudulent use of an ATM....
According to court documents, police said that in the days following the death of her aunt on Dec. 7, 2008, Kaufmann used her aunt's ATM card and wrote a check on the account that, together, came to more than $3,200. ...
The affidavit also says that Kaufmann wrote a check from the account of more than $1,000 to her boyfriend, UConn Law Professor Robert L. Birmingham, and signed the check with her aunt's name....
Kaufmann served as Birmingham's attorney in October 2007 when the professor agreed to take a leave of absence after showing a clip from the R-rated film "Really, Really Pimpin' in Da South" in his legal remedies class.
The film featured an interview with a convicted pimp, but when Birmingham pressed the pause button as the interview ended, the film had switched over to a scene of a thong-clad woman dancing suggestively, which created a buzz on the campus but did not result in any formal student complaints.
Birmingham returned the following semester, but his usual course on feminist legal theory was dropped.
Brophy: The Signaling Value of Law Reviews -- An Exploration of Citations and Prestige
Alfred L. Brophy (North Carolina) has published The Signaling Value of Law Reviews: An Exploration of Citations and Prestige, 36 Fla. St. U. L. Rev. 229 (2009). Here is the abstract:
This brief Essay reports a study of citations to every article published in 1992 in thirteen leading law journals. It uses citations as a proxy (an admittedly poor one) of article quality and then compares the citations across journals. There are, not surprisingly, vast differences in the number of citations per article. While articles in the most elite journals receive more citations on average than the other less elite (but still highly regarded) journals studied, some articles in the less elite journals are more heavily cited than many articles in even the most elite journals. In keeping with studies in other disciplines and other citation studies of legal journals, the results here suggest that we should be wary of judgments about quality based on place of publication. We should also be wary of judgments about quality of scholarship based on the number of citations, and we should, therefore, continue to evaluate scholarship through close reads of it.
More Tax Problems for Rep. Rangel
New York Post: Tax Chief Charlie a Tax "Cheat," Too:
The Tax Man is a deadbeat. Rep. Charles Rangel, chairman of the tax-writing Ways and Means Committee, has failed to pay taxes on two plots of land he has in New Jersey, records show.
Rangel's ownership of the small, undeveloped properties came to light on Tuesday only after he drastically amended at least six years of financial-disclosure forms he had filed annually with the House clerk as required by law.
The corrected filings as much as doubled the amount of personal wealth Rangel has claimed going back years and revealed at least $780,000 in previously unreported assets.
The Harlem Democrat concealed somewhere between $38,902 and $116,800 in 2007 income, according to the revised filings.
Among the assets he failed to list was a checking account containing somewhere between $250,000 and $500,000.
Also undisclosed for years were two lots he owns in Glassboro, NJ, about 100 miles from the city. Rangel is delinquent on his taxes on that property, according to the Gloucester County Clerk's office.
- Bloomberg: Rangel Amends Financial Disclosures Amid Ethics Investigation
- New York Daily News: New Disclousure Reveals Rep. Charles Rangel's Hidden Wealth
- New York Times: Rangel Failed to Disclose $500,000 in Assets for ’07
- Wall Street Journal: The Absent-Minded Chairman
August 27, 2009
Buchanan Named Featured Columnist at FindLaw
Tax Prof Neil Buchanan (George Washington) has joined FindLaw's Writ, the editorial page of the FindLaw website, as a featured columnist. His column appears every other Thursday, and today's inaugural column is Rationing Health Care: We Have Always Done It, We Do It Now, and We Always Will:
As the debate over health care reform has become increasingly degraded over the past few weeks, one of the claims that has been treated as a serious complaint about the Democrats' plans -- unlike, say, the claim that the plans include "death panels" -- has been the assertion that their proposals will result in the rationing of health care. ...
The bottom line? There is not, has never been, and can never be, enough medical care to cover everyone in every situation. Rationing is a fact of life. Current health care proposals in Congress would change the rules for rationing, bring them into the light, and create accountability for the decision makers. If we do not adopt those proposals, we will go back to the chaotic form of rationing that has been killing far too many of us for far too long.
Ted Kennedy's Tax Votes
On the Issues lists these tax votes by Ted Kennedy:
- Voted YES on increasing tax rate for people earning over $1 million. (Mar 2008)
- Voted NO on allowing AMT reduction without budget offset. (Mar 2008)
- Voted NO on raising the Death Tax exemption to $5M from $1M. (Feb 2008)
- Voted NO on repealing the Alternative Minimum Tax. (Mar 2007)
- Voted NO on raising estate tax exemption to $5 million. (Mar 2007)
- Voted NO on supporting permanence of estate tax cuts. (Aug 2006)
- Voted NO on permanently repealing the "death tax". (Jun 2006)
- Voted YES on $47B for military by repealing capital gains tax cut. (Feb 2006)
- Voted NO on retaining reduced taxes on capital gains & dividends. (Feb 2006)
- Voted NO on extending the tax cuts on capital gains and dividends. (Nov 2005)
- Voted NO on $350 billion in tax breaks over 11 years. (May 2003)
- Voted YES on reducing marriage penalty instead of cutting top tax rates. (May 2001)
- Voted YES on increasing tax deductions for college tuition. (May 2001)
- Voted NO on eliminating the "'marriage penalty". (Jul 2000)
- Voted NO on across-the-board spending cut. (Oct 1999)
- Voted NO on requiring super-majority for raising taxes. (Apr 1998)
- Rated 17% by NTU, indicating a "Big Spender" on tax votes. (Dec 2003)
- Rated 100% by the CTJ, indicating support of progressive taxation. (Dec 2006)
(Hat Tip: The Tax Lawyer's Blog.)
Joe Francis to Use "Deductions Gone Wild" Defense in Tax Evasion Trial
Following up on my earlier posts (below): The Smoking Gun reports that Joe Francis, founder of the Girls Gone Wild video series, is going to use a slide show to try to convince a jury in his upcoming tax evasion trial that various expenses are deductible as business expenses:
As part of Joseph Francis's opening statement in U.S. District Court in Los Angeles, his defense team will show a series of slides (or "opening statement demonstratives") that link the "Girls Gone Wild" boss and his firm to movie stars like Jennifer Aniston, Jack Nicholson, Vince Vaughn, and Orlando Bloom. A copy of the slide presentation was filed last week in federal court by Francis's defense team.
Prosecutors allege that Francis, whose trial is set to open in mid-October, illegally sought to conceal income in offshore companies and deducted millions in phony business expenses, including costs incurred at Casa Aramara, Francis's beachfront Mexican home. One defense slide ... includes photos of Aniston, ... Bloom, and Vaughn, who are described as "celebrity guests" at the Punta Mita property. It appears that Francis, 36, will argue that the estate was an investment property frequently leased to wealthy tenants and, as such, certain business tax deductions were warranted.
[One] slide will helpfully inform jurors that Francis is "in Business of Sex," while another provides a "Marketing 101" overlook at the "Girls Gone Wild" soft-core franchise. The defense slide show will also attempt to draw parallels between Francis's business and Hugh Hefner's Playboy empire.
As Joe Kristan notes, "I wouldn't give much for his chances for getting the deductions from the IRS, but he doesn't have to win the deductions at trial; he just has to convince a jury that he wasn't willfully evading taxes. It should be an interesting trial."
Prior TaxProf Blog posts:
- Taxes Gone Wild: Joe Francis Indicted on Tax Charges (4/12/07)
- Founder of "Girls Gone Wild" Pleads Not Guilty to Tax Evasion Charges, Says "IRS Gone Wild" (7/23/08)
- "Girls Gone Wild" Founder Seeks New Counsel in Tax Evasion Case (1/28/09)
- Tax Lawyer Strikes Back at "Girls Gone Wild" Founder Joe Francis (1/30/09)
Rosser: On Becoming 'Professor' -- A Semi-Serious Look in the Mirror
Ezra Rosser (American) has published On Becoming "Professor": A Semi-serious Look in the Mirror, 36 Fla. St. U. L. Rev. 215 (2009). Here is the abstract:
Brief parody article about law reviews, socio-economic class, cheese, and the legal professoriate.
Tax Man Uses MySpace to Nab Deadbeats
In today's Wall Street Journal, Is "Friending" in Your Future? Better Pay Your Taxes First, by Laura Saunders:
(Hat Tip: Ann Murphy.)
Tax deadbeats are finding someone actually reads their MySpace and Facebook postings: the taxman.
State revenue agents have begun nabbing scofflaws by mining information posted on social-networking Web sites, from relocation announcements to professional profiles to financial boasts. ...
An IRS spokesman declined to say whether its agents use social-networking sites to pursue delinquent taxes or assist audits.
There are limits to what state agents can do on the Web. In Nebraska, agents are only allowed to use information that is publicly available online. So, MySpace ... tends to work best because its users often post more public information than do those of sites like Facebo. ... The default settings for adults on MySpace create a public profile, while the default settings on Facebook create a profile only viewable by an approved list of friends. "Agents are not allowed to 'friend' someone using false information" ...
Crawford & Gans: Estate & Gift Tax Treatment of Copyright Termination Rights
Bridget J. Crawford (Pace) & Mitchell Gans (Hofstra) have posted Sticky Copyrights: Discriminatory Tax Restraints on the Transfer of Intellectual Property, 66 Wash. & Lee L. Rev. ___ (2009), on SSRN. Here is the abstract:
The focus of this article is the federal estate and gift tax treatment of copyright termination rights. The right of a creative individual to terminate prior copyright transfers serves to protect against economic exploitation. Once a copyright’s value has been established in the marketplace, the author (or the author’s heirs) enjoy a 'second look' at the gift, sale, license or other transfer of a copyright. But copyright termination rights -- intended to enhance the economic well-being of authors and artists -- undermine estate-planning strategies available to owners of other types of property. There is no policy justification for such discrimination, and so this article proposes legislative changes that would level the playing field for wealth transfer tax purposes.
Former Adjunct Arrested in Louisville Law School Library With 2 Guns, 53 Rounds of Ammunition
AMT by State, 2007
Carol Rosenberg, AMT Coverage by State, 2007 (Aug. 3, 2009):
The map below shows the proportion of taxpayers paying AMT in each state in 2007. In two-thirds of the states, less than 3.5% of taxpayers were subject to the AMT, but in New Jersey 8.7% of taxpayers paid AMT, and 7.7% owed AMT in neighboring New York. More than 6.5% of taxpayers in California, Connecticut, and the District of Columbia were subject to the AMT.
Seattle Seeks to Hire Tax Prof
Seattle University School of Law seeks to hire entry-level and lateral faculty members to begin in the 2010-11 academic year in a variety of fields, including trusts & estates/estate planning (elder law a plus), corporate law/securities, and taxation. For more information or to apply, contact Mark Chinen, Chair, Faculty Appointments Committee.
August 26, 2009
Tax for Clunkers
Following up on my previous post, Cash for Clunkers = Gross Income to Dealers (Not Customers), which explained that the statute expressly provides that the $3,500 and $4,500 rebates are not treated as income to car buyers for federal income tax purposes (as confirmed in the government's official clunker website's FAQ). But several blogs state (without explanation) that the rebates constitute income to car buyers for state tax purposes:
- Keloland: "The Cash for Clunkers program is adding to the activity at treasurers' offices all around South Dakota. ... [M]any of those cashing in on the clunkers program are surprised when they get to the treasurer's office windows. That's because the government's rebate of up to $4500 dollars for every clunker is taxable. 'They didn't realize that would be taxable. A lot of people don't realize that. So they're not happy and kind of surprised when they find that out,' [Minnehaha County Treasurer Pam] Nelson said."
- Right Wing News: "Yep, you read that right. In many states car buyers that turned in their "clunkers" for up to $4,500 off the cost of a new car are finding out that they have to pay state sales tax on the $4,500 too. And still others just might find out next year that they'll have to pay income tax on that "free" government money. Many South Dakotans, for instance, have been shocked to find that the wonderful gift from Obama was still added in with the cost of the automobile for the sales tax calculation, so their tax went up accordingly despite that they didn't pay the $4,500 themselves. Some states calculate sales tax by subtracting from the total cost of a new purchase the trade-in allowance of a buyer's old car. But in the case of cash for clunkers, there is no trade-in allowance and the $4,500 remains added to the car purchase. Even worse, many states will charge income tax on the $4,500 because the sum will be determined to be the same thing as income to the car buyer."
- The Blog Prof
- Fausta's Blog
(Hat Tip: Chris Kobus.)
Taxpayer Advocacy Panel Releases Annual Report
The Taxpayer Advocacy Panel (TAP) has released its 2008 Annual Report. The report fulfills TAP’s responsibility under its charter to provide a written report describing TAP’s objectives and a self-assessment of TAP’s work relative to its objectives each year. The annual report highlights important actions of the Panel and summarizes the 112 new recommendations and completed projects TAP generated for IRS consideration in 2008.
NY Times: Downturn Dims Prospects Even at Top Law Schools
New York Times: Downturn Dims Prospects Even at Top Law Schools, by Gerry Shih:
This fall, law students are competing for half as many openings at big firms as they were last year in what is shaping up to be the most wrenching job search season in over 50 years.
For students now, the promise of the big law firm career — and its paychecks — is slipping through their fingers, forcing them to look at lesser firms in smaller markets as well as opportunities in government or with public interest groups, law school faculty and students say.
(Hat Tip: Brad Mank.)
TEI Urges Moratorium on Taxing Employer-Provided Cell Phones
Following up on June's post, IRS Bails on Proposal to Tax Employee Cell Phone Use: the Tax Executives Institute on Monday urged the IRS to temporarily suspend enforcement of the rules requiring the inclusion of employer-provided cell phones in employees' income:
In light of the Treasury Department’s and Commissioner’s support for pending legislation to remove cell phones from the definition of listed property, TEI recommends that the IRS temporarily suspend enforcement of the listed property rule and the employee benefit income inclusion for cell phones. A moratorium on enforcement would be consistent with the Commissioner’s recent action suspending the imposition of tax shelter penalties pending a legislative amendment to narrow an overbroad section 6707A. An enforcement moratorium would also be consistent with Announcement 2002-18, suspending taxation upon the redemption of frequent flyer travel awards for personal use where mileage credits are accumulated wholly or partly in business travel.
The Commissioner has stated that if cell phones are removed from the definition of listed property, the personal use of a cell phone will not trigger taxation to employees or a loss of deduction for employers. Even in the absence of congressional action, TEI believes there is authority for the IRS and Treasury Department to eliminate the substantiation requirement, maintain employers’ entire deductions, and provide that there will be no taxable benefit to employees.
Specifically, section 274(d)(4) accords the IRS authority to adopt regulations providing that the detailed substantiation rules of section 274 will not apply “in the case of an expense which does not exceed an amount prescribed pursuant to such regulations.” In addition, section 132(e) provides that “a ‘de minimis fringe’ means any property or service the value of which is (after taking into account the frequency with which similar fringes are provided by the employer to the employer’s employees) so small as to make accounting for it unreasonable or administratively impracticable.” Thus, examples in the regulations under section 132 sensibly provide that an employee’s occasional personal use of an employer’s telephone for local calls is not taxable and neither is the personal use of the company copying machine, provided the employer exercises sufficient control and imposes significant restrictions on the copier so that at least 85 percent of the use of the machine is for business.
Although no regulations have been issued under section 274(d)(4) detailing listed property expenses that should be excluded from the heightened substantiation requirements, personal use of an employer-provided cell phone should qualify.
Court: MA Cannot Force NH Vendor to Collect Use Tax From MA Purchaser
Following up on last November's post on Town Fair Tire and the Silliness of the Physical Presence Rule for Use Tax Collection Nexus, 50 State Tax Notes 447 (Nov. 17, 2008): the Massachusetts Supreme Judicial Court yesterday issued its opinion in Town Fair Tire Centers v. Commissioner of Revenue, No. 10360 (Aug. 25, 2009):
We consider in this appeal whether a vendor who sells "tangible personal property" to a Massachusetts resident is obligated to collect and remit Massachusetts use tax where the customer purchases and takes delivery of the merchandise outside the Commonwealth. Following a sales and use tax audit of Town Fair Tire Centers, Inc. (Town Fair), concluding, among other things, that certain automobile tires had been sold at Town Fair's New Hampshire stores to Massachusetts residents and inferentially were installed on vehicles registered in Massachusetts, the Commissioner of Revenue (commissioner) assessed use tax and related penalties against Town Fair for failing to collect use taxes on those tire sales. See G.L. c. 64I, § 1. Town Fair appealed to the Appellate Tax Board (board), which ruled in favor of the commissioner, finding that the automobile tires at issue were intended for use in the Commonwealth. Town Fair appealed from the board's decision, see G.L. c. 58A, § 13, and we transferred the case here on our own motion. Because we conclude that the applicable Massachusetts statutes do not permit the Commonwealth to assess use taxes against a vendor in circumstances such as these, we reverse.
- Associated Press
- Boston Business Journal
- Boston Herald
- Boston Globe
- Don't Mess With Taxes
- Manchester Union Leader
- Massachuestts Lawyers Weekly
- Wall Street Journal
(Hat Tip: David Nagle.)
Tax Court Rejects Taxpayer's Attempt to Use Geithner's TurboTax Defense
The Tax Court yesterday rejected a taxpayer's attempt to use the TurboTax defense successfully employed by Treasury Secretary Timothy Geithner. Hopson v. Commissioner, T.C. Summ. Op. 2009-130 (Aug. 25, 2009) (citations omitted):
Petitioners have not met their burden of persuasion with respect to reasonable cause and good faith. Mr. Hopson admitted that he received both Forms 1099-R for the distributions and that he knew they constituted income. After using tax return preparation software for nearly 20 years, he simply filed the return that was generated by the software without reviewing it. The omission of the distributions resulted in the failure to report over 40 percent of petitioners’ total income for the year. Granted this was a one-time event, but petitioners nevertheless had a duty to review their return to ensure that all income items were included. Petitioners were not permitted to bury their heads in the sand and ignore their obligation to ensure that their tax return accurately reflected their income for 2006. In the end, reliance on tax return preparation software does not excuse petitioners’ failure to review their 2006 tax return.
Aspiring Law Professors Conference
Arizona State is hosting the Aspiring Law Professors Conference on October 17, 2009:
Designed for Visiting Assistant Professors and Fellows who plan to go on the academic teaching market.
- Learn to succeed in the entry-level law teaching market
- Obtain an insider’s perspective on the appointments process from faculty who’ve been there
- Conduct a mock interview or mock job talk and gain feedback from law professors
Summer 2009 SOI Bulletin
- Sole Proprietorship Returns, 2007, by Adrian Dungan
- Individual Noncash Contributions, 2006, by Pearson Liddell & Janette Wilson
- S Corporation Returns, 2006, by Heather Duffy Parisi
- Foreign-Controlled Domestic Corporations, 2006, by James R. Hobbs
- Corporate Foreign Tax Credit, 2005, by Melissa Costa
- Sales of Capital Assets Panel Data, Tax Years 1999-2003, by Janette Wilson & Pearson Liddell
ABA Journal Launches Legal Rebels Project
The ABA Journal yesterday launched a Legal Rebels Project, which will profile fifty of the legal profession's leading innovators over the next three months. The first seven Legal Rebels includes Northwestern Dean David Van Zandt:
The legal profession often has a guild mindset, he posits: Members value perceived intelligence and craftsmanship. What the group sees as perfection is often rewarded by other guild members. But clients don’t always want something that is technically perfect, and they are often equally concerned with time and cost savings. Also, they value social skills as well as perceived, measurable intelligence. “Guilds are always giving out awards and badges,” Van Zandt says, “and clients don’t really care about that sort of thing."
ABA Tax Section Offers Webcast Today on Hot Topics in Bad Debt
Please join our panelists as they cover a variety of character and timing considerations under § 166 (for bad debts) and § 165 (both worthless securities and losses generally), including:
- When is loss on a debt instrument subject to § 165, rather than § 166 (and what kind of character whipsaws does this present)
- What is sufficient to constitute a "charge off" under § 166; and
- What is the character of future recoveries after the debt has been charged off
- David Garlock (Ernst & Young, Washington, D.C.)
- Rebecca E. Lee (PricewaterhouseCoopers, Washington, D.C.)
- Patrick E. White (Senior Counsel, IRS)
August 25, 2009
Felix & Hines: Union Workers Bear Greater Share of High State Corporate Taxes
R. Alison Felix (Federal Reserve Bank of Kansas City) & James R. Hines, Jr. (Michigan) have posted Corporate Taxes and Union Wages in the United States on NBER. Here is the abstract:
This paper evaluates the effect of U.S. state corporate income taxes on union wages. American workers who belong to unions are paid more than their non-union counterparts, and this difference is greater in low-tax locations, reflecting that unions and employers share tax savings associated with low tax rates. In 2000 the difference between average union and non-union hourly wages was $1.88 greater in states with corporate tax rates below four percent than in states with tax rates of nine percent and above. Controlling for observable worker characteristics, a one percent lower state tax rate is associated with a 0.36% higher union wage premium, suggesting that workers in a fully unionized firm capture roughly 54% of the benefits of low tax rates.
See also Wall Street Journal: Union Workers Hit Harder By High State Taxes, Study Finds:
Union employees bear more of the burden of high state corporate taxes than non-union employees, according to a new study distributed by the National Bureau of Economic Research.
That suggests that in high-tax states like Pennsylvania and New Jersey, taxes take a bigger bite out of pay for union members than non-union workers in similar circumstances. Conversely, union workers may have more to gain from low taxes in places like Texas or Wyoming than non-union employees.
Maid Owes IRS $80, Gets $122,783.51 Refund Check
Laura Schultz, a Denver house cleaner with Sunshine Maids, owed the IRS $80 but instead received a refund check for $122,783.51. She contacted the IRS and was told to void the check. "The IRS says it cannot comment on what caused the error, but Schultz still has to pay the $80 she owed."
The Distribution of Federal Taxes, 2009-12
Overall, the federal tax system is progressive: on average, households with higher incomes pay taxes that are a larger share of their income. Under current law, our tax laws will change markedly in each of the next few years, significantly altering the system's progressivity between now and 2012. This paper summarizes the Tax Policy Center's latest estimates of the distribution of federal taxes for each year from 2009 through 2012.