March 31, 2010
TRAC Issues Annual Report on IRS OperationsFrom the Transactional Records Access Clearinghouse at Syracuse University:
The latest information about U.S. taxpayer returns is now available on TRAC's web site. New this year is a powerful app that makes it much easier to browse through extensive information on the constantly shifting kinds of income flowing to taxpayers in the fifty states and every one of the more than 3,000 counties.
TRAC's new Taxpayer Returns application can help identify changes in overall income trends, spot unusual contrasts since 1991 and zoom in and focus on particular communities. Built-in ranking information and graphic displays help bring all this information into sharp focus.
The data reported on federal income tax returns — including adjusted gross income, wages and salaries earned, interest income, dividend income, and exemptions claimed — provide unique views of the economic conditions of the country as a whole, as well as for each state and county. At the same time, the tax return information offers unusual insights about the sources of the income flowing from incomes taxes into the federal coffers.
- New York Times, Taxes and Salaries, County by County
- Web CPA, TRAC Report Offers Deeper View of Tax Return Data
Celebrity Tax Troubles
- Marion Barry, former Washington, D.C. mayor, IRS tax lien for $15,257
- Mel Blount, former Pittsburgh Steeler, IRS tax liens for $652,000
- Faith Evans, singer, IRS tax liens for $156,181; New Jersy tax lien for $204,000
- Corey Feldman, actor, IRS tax lien for $30,996
- Emanuel Steward, boxing trainer, IRS tax lien for $38,140
The Office -- IRS Edition
Following up on my prior post: tax fans of NBC's The Office will be happy to learn that the writer (Brent Forrester) is working on a new workplace comedy show for Fox set in an IRS district office in Fresno, California -- Tax Man. The show is being produced by Ron Howard and directed by Fred Savage and will star:
- Orlando Jones, as an IRS agent
- David Krumholtz, as an IRS agent
- Martin Short, as a "loud, Obnoxious IRS boss"
Johnston: Delaware Incomplete Nongrantor Trusts Scream 'Chutzpah'
All Tax Analysts content is available through the LexisNexis® services.
In this article, Johnston examines a Delaware asset protection trust that lets wealthy residents of some other states enjoy income free of state-level taxes.
WSJ: Will a Tax LL.M. Cleanse a 4th Tier, Bottom of the Class J.D.?
The Wall Street Journal Law Blog picks up on my post yesterday, Will a Tax LL.M. Cleanse a 4th Tier, Bottom of the Class J.D.?:
Let us say that the title to the post is not our own — it’s the verbatim title of a nice post by University of Cincinnati Law School tax professor Paul Caron over at the TaxProf Blog. (We wrestled with our own title, but ultimately realized we couldn’t come close to Caron’s punchy, succinct gem.)
In the post, Caron tackles something that we’d imagine a lot of current law students or out-of-work young lawyers have at least given a passing thought to in recent months: how about an advanced degree in tax? (Many schools offer LL.Ms — masters degrees in tax — which essentially add on one extra year of coursework after the JD.) If I aced a one-year program, the thinking might go, would I have a better shot of landing at a big law firm — or landing in the tax department of the same law firm that laid me off? ...
Coincidentally, it seems, Caron and colleagues last week published this paper about the value of LL.M. degrees.
Here we distinguish between two different types of prospective Tax LLM students: (1) prospective Tax LLM students who have a genuine interest in and aptitude for tax and want to develop additional tax expertise to improve their chances of being hired for a tax position to which they aspire; and (2) prospective Tax LLM students who do not have a particular interest in and aptitude for tax, but assume that a Tax LLM degree from a prestigious Tax LLM program will rehabilitate less-than-stellar JD credentials and improve their chance of obtaining a job at an elite, big firm.
You can see where this is going, can’t you LBers? The trio continues:
A prospective Tax LLM student who is not genuinely interested in tax is not likely to do well in Tax LLM classes. In addition, the potential resume boost from successful completion of a Tax LLM degree is greatest when applying for tax-specific positions.
The bottom line seems to be that if you have an aptitude for tax and want to practice tax — which really isn’t for everyone — go for it. Otherwise, save your money. LBers, any further advice on this?
An Empirical Study of Race and Law School Hiring
Does race matter in the law school hiring process? Do minority candidates benefit from affirmative action or are they hurt by racial discrimination? Is the lack of minority law professors the result of a lack of qualified minority candidates? And more broadly, what do law schools look for when making hiring decisions? These questions have been asked for decades; now, in this ground-breaking empirical analysis of law school hiring, some answers are finally offered. This paper takes an in-depth look at the candidates applying for law teaching jobs in the 2004-2005 academic year to measure how much a candidate’s race affected his or her chances of being hired as a law professor. Two findings emerge, both surprising and thought-provoking. First, being a minority had a statistically significant positive effect on a candidate’s chances of being hired, suggesting that affirmative action has a place in law school hiring. However, being a minority also had a statistically significant negative effect on where the candidate was hired, suggesting that discrimination is also present. In the realm of law school hiring, race appears to cut both ways. The article closes by reviewing potential explanations for these seemingly contradictory findings. Regardless of the why and how, it is clear that traditional qualifications and academic pedigree alone cannot explain law school hiring decisions.
From page 4:
(Hat Tip: The Faculty Lounge.)
While being a minority resulted in a positive bump in getting a tenure-track law teaching job, minority status also had a statistically significant negative effect on the prestige of the hiring law school. As an anecdote, every single hire made by the top 16 schools from the FAR of 2004-2005 was of a white candidate; not a single minority candidate was hired by any of the top 16 law schools. Based on these findings, race only seems to help if the minority candidate is willing to teach in a lower-ranked school. One could imagine that minority status is simply a proxy variable that is masking one a host of other factors, but regardless of the explanation, it is clear that traditional law school hiring credentials and academic pedigree alone are unable to predict a candidate’s success or failure on the law teaching market. Race, or some set of factors that happen to align with race, is a definite factor in law school hiring decisions.
Call for Participants: 5th Annual Junior Tax Scholars' Workshop
The fifth annual Junior Tax Scholars' Workshop will be held this year at Notre Dame Law School from the evening of Thursday, June 10th through Saturday, June 12th. The workshop is an opportunity for junior tax faculty to meet each other and to present works-in-progress in a supportive environment. All participants present a work-in-progress, are assigned two discussants, and serve as a discussant twice. We welcome presentations at any stage, from outlines and preliminary ideas to almost-final drafts.
The workshop is open to untenured scholars who are either in or have accepted tenure-track positions and who will not have received tenure by the date of the workshop. We anticipate receiving more requests from potential participants than can be accommodated without changing the nature of the conference. We think it’s best to keep the conference limited to approximately 20 people so that (1) each participant gets a chance to present and receive feedback, and (2) each of us can read at least the short version of everyone else’s project. In order to mediate between the goals of expanding access and keeping the conference intimate, we first offer slots to attendees from prior years and to those who expressed interest in prior years, before opening the conference to new applicants. Hence, if you have already accepted a tenure-track position teaching tax courses at a law school, and if you anticipate wanting to attend the conference in future years, you should respond to this posting so that your name can be added to the list, even if you will not be able to attend the conference this year. As prior participants receive tenure, we hope that all interested new participants can eventually be accommodated, even if not always in the first year in which the applicants expressed interest.
If you are interested in participating, please e-mail Rebecca Kysar (Brooklyn) by April 15th, 2010. Questions about the selection process can be directed to any member of the organizing committee: Miranda Perry Fleischer (Colorado), David Gamage (UC-Berkeley), Rebecca Kysar (Brooklyn), Adam Rosenzweig (Washington University), and Dennis Ventry (UC-Davis). Questions about the conference itself should be directed to the conference host: Lloyd H. Mayer (Notre Dame).
Private Colleges Give 53.5% Discount Off Advertised Tuition Rate
Inside Higher Ed, Slashing Prices:
Tuition discounting reached record high levels at private colleges and universities in 2008, and the largest share of that aid was awarded without consideration of students’ financial need, according to a report released Tuesday the National Association of College and University Business Officers (NACUBO).
The average discount rate for full-time freshmen increased from 39% in fall 2007 to 42% in fall 2008, and the average award covered more than half – 53.5% – of the “sticker price.” The discount rate represents the share of tuition and fee revenues colleges use to award institutionally funded aid.
Despite lamentations from some college presidents, tuition discounting has become an increasingly common practice at private institutions. Standard discounting involves placing the sticker price of attendance beyond the reach of many families, only to effectively slash that price by offering institutionally funded financial aid to many or, more typically, most students. Critics say it steers too much aid toward students without financial need, and it also forces high-tuition colleges to defend sticker prices students seldom actually pay.
Polsky: Deterring Tax-Driven Partnership Allocations
How to allocate a partnership’s tax items is the most fundamental issue in subchapter K of the Internal Revenue Code, which governs the taxation of limited liability companies, limited liability partnerships, limited partnerships, general partnerships, joint ventures, and other unincorporated business entities. The principal concern is that the flexibility afforded to partners under subchapter K could be used to trade tax attributes among the partners. For the past twenty-five years, an extremely lengthy and complex set of regulations, known as the substantial economic effect regulations, has been the government’s primary defense against the trading of tax attributes through partnerships. However, despite their importance, age, length, and complexity, these regulations have not yet been adequately examined in detail. This Article identifies, for the very first time, a number of critical implicit assumptions underlying the substantial economic effect regulations. Most significantly, the Article shows that, unless partners are highly risk averse in seeking the benefits of trading in tax attributes, these regulations should be wholly ineffective. Even if partners are risk averse, the possibility of hedging or tacit agreements among the partners must be considered. Ultimately, whether the substantial economic effect regulations are reasonably effective depends on a number of empirical questions, such as partners’ level of risk averseness and the transaction costs of hedges and tacit agreements. In addition to identifying the critical implicit assumptions of the substantial economic effect regulations, this Article also makes specific recommendations for the Treasury Department and the Internal Revenue Service to implement in order to make them more effective.
ABA Tax Section Webcast Today on The Economic Substance Doctrine
The new health care legislation contains a codification or "clarification" of the economic substance doctrine. This teleconference will examine what the new statutory language says and how it came about. The panelists will also review recent case law, including Coltec and Schering Plough, and discuss the impact on transaction planning.
Former Arnold & Porter Tax Partner Gets Three Years Probation in Tax Shelter Case
March 30, 2010
TaxProf - Tax Analysts PartnershipI am delighted to announce that Tax Analysts has agreed to partner with TaxProf Blog in making some of its wonderful content available to the broader tax community. In particular, each week I will post three full-text items from Tax Notes Today, State Tax Today, and Worldwide Tax Daily. And of course, all Tax Analysts content is available through the LexisNexis® services.
The IRS Has Sufficient Administrative Authority to Enforce ObamaCare's Individual MandateFollowing up on this morning's post, Joint Tax Committee: IRS Lacks Authority to Enforce ObamaCare's Individual Mandate: Tax Profs Ted Seto and Bryan Camp argue that the Joint Committee on Taxation overstated the limitations on the IRS's ability to enforce ObamaCare's individual mandate:
Theodore Seto (Loyola-L.A.):
In its Technical Explanation of the Revenue Provisions of the Reconciliaton Act of 2010, as Amended, in Combination with the Patient Protection and Affordable Care Act, the Joint Committee staff states the following with regard to the penalty for failure to comply with the Act’s individual insurance mandate: “The penalty is assessed through the Code and accounted for as an additional amount of Federal tax owed. However, it is not subject to the enforcement provisions of subtitle F of the Code. The use of liens and seizures otherwise authorized for collection of taxes does not apply to the collection of this penalty. Non-compliance with the personal responsibility requirement to have health coverage is not subject to criminal or civil penalties under the Code and interest does not accrue for failure to pay such assessments in a timely manner.” This has led some to ask how the penalty will be enforced.
What new Code § 5000A(g) actually provides is:
“(g) ADMINISTRATION AND PROCEDURE.—
(1) IN GENERAL.—The penalty provided by this section shall be paid upon notice and demand by the Secretary, and except as provided in paragraph (2), shall be assessed and collected in the same manner as an assessable penalty under subchapter B of chapter 68.
(2) SPECIAL RULES.—Notwithstanding any other provision of law—
(A) WAIVER OF CRIMINAL PENALTIES.—In the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure.
(B) LIMITATIONS ON LIENS AND LEVIES.—The Secretary shall not—
(i) file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty imposed by this section, or
(ii) levy on any such property with respect to such failure.”
Chapter 68, subchapter B is part of subtitle F. The staffer who wrote the relevant portion of the Technical Explanation was probably writing in haste.
What the new statute does prohibit is collection by levy. The question is whether the IRS can collect assessed penalties other than by levy. At the very least, it would appear that, under Code § 6402(a), the IRS can offset taxpayer's penalty against any refund to which she might otherwise be entitled. Indeed, under common law principles, see United States v. Munsey Trust Co., 332 U.S. 234 (1947), the United States can offset an unpaid penalty against any amount otherwise due from the United States to taxpayer.
It would appear, nevertheless, that the prohibition against enforcement by levy is likely to create significant administrative difficulties. The individual mandate does not become applicable until January 2013. Presumably, Congress will enact a technical correction to resolve the enforcement question some time between now and then.
Bryan Camp (Texas Tech):
I do not understand the claim in the JCT that the IRS cannot enforce the individual mandate. The JCT Report says, bluntly, that the “excise tax” imposed by new § 5000A “it is not subject to the enforcement provisions of subtitle F of the Code.” While Congress may have “intended” that result (whatever it means for Congress to “intend” anything), the language used in the statute does not support the JCT’s claim.
Section 5000A(g) says that the penalty “shall be assessed and collected in the same manner as an assessable penalty.” Section 6671, in turn, provides that assessable penalties “shall be assessed and collected in the same manner as taxes.” Accordingly, unless otherwise restricted, the IRS has its entire tax collection arsenal at its disposal to enforce the penalty. Section 5000A(g) removes three weapons from the arsenal. First, it prohibits the government from prosecuting noncompliant taxpayers criminally. Second, it prohibits the IRS from using its administrative levy powers. Third, it does not allow the IRS to file a Notice of Federal Tax Lien.
Even without those three tax collection weapons, the IRS has at least three remaining powers to enforce collection of the penalty, once it makes a proper assessment. First, the IRS has the power to offset any tax overpayment made by the taxpayer against the penalty. Section 6402 allows the IRS to set off any overpayment (generally, that means tax refund) against “any liability in respect of an internal revenue tax.” Is the penalty “a liability in respect of an internal revenue tax”? Well, unless the courts tell us otherwise, Congress has said it is. The Health Care bill itself calls it an excise tax. Perhaps more importantly, however, the Health Care bill treats the penalty as an assessable penalty and § 6671 says that the term “tax” also includes assessable penalties. Either analysis brings the penalty under the § 6402 statutory setoff powers.
Even if the penalty is NOT a tax, however, the IRS can still use setoff powers to collect it. That is because the Service has both a statutory and a common law right of set-off. That is, “the government has the same right which belongs to every creditor, to apply the unappropriated moneys of his debtor, in his hands, in extinguishment of the debts due to him." United States v. Munsey Trust Co., 332 U.S. 234, 239 (1947). For example, in Cherry Cotton Mills v. United States, 327 U.S. 537 (1946), the taxpayer was due a tax refund but the IRS instead applied that amount to a non-tax debt that the taxpayer owed the Reconstruction Finance Corporation (that debt arose from a loan given the taxpayer). The Supreme Court approved that use of the set-off power as between a tax overpayment and a non-tax debt.
The second remaining collection weapon is the tax lien. Section 5000A(g) does not prevent the tax lien from arising; it says only that the IRS cannot file a Notice of Federal Tax Lien. Section 6321 provides that the tax lien itself arises automatically as a matter of law when the IRS assesses a tax, sends the taxpayer a notice and demand for payment, and the taxpayer fails to fully pay. At the time it arises, the tax lien is secret, so Congress does not allow the IRS to enforce the tax lien against certain types of creditors until the IRS puts the public on notice about the tax lien by filing a Notice of Federal Tax Lien. Nonetheless, the tax lien will arise and will attach to “all property or rights to property” belonging to the taxpayer. That includes the taxpayer’s home and any future property that the taxpayer acquires, such as inheritances. See generally Drye v. United States, 528 U.S. 49 (1999) (taxpayer’s disclaimer of inheritence under state intestacy laws could not defeat attachment of federal tax lien, which was then enforceable against the person who received the disclaimed property per state laws of distribution and descent); United States v. Craft, 535 U.S. 274 (2002) (tax lien attaches even to tenancy-by-the-entireties property held by the taxpayer with his non-liable spouse).
The third remaining collection weapon is the lien foreclosure suit. Section 7403 allows the IRS (represented by the Department of Justice) to file suit in federal court to foreclose the tax lien as against any property to which the lien has attached.
In sum, § 5000A(g) does impose some important restrictions on the IRS but does not remove them all. While it does not let the IRS to enforce the tax lien as against certain types of creditors, the lien will still exist. Similarly, while it does not allow the IRS to enforce the tax lien by administrative seizure, it does not prohibit court action. Now, it is a fair question to ask whether enforcement of the tax lien is worthwhile to the government without the ability to file a public notice of the federal tax lien or conduct administrative seizures. But the answer is not open and shut. More importantly, section 5000A(g) does not impose any restrictions on the IRS powerful offset powers, which are cheap and easy to use.
Whether it is wise for Congress to ask its tax agency to enforce the Health Care bill at all is a different question, which I do not here address.”
"The GAAP Conspiracy Against ObamaCare"The Atlantic, Henry Waxman's War on Accounting:
Accounting basics: when a company experiences what accountants call "a material adverse impact" on its expected future earnings, and those changes affect an item that is already on the balance sheet, the company is required to record the negative impact--"to take the charge against earnings"--as soon as it knows that the change is reasonably likely to occur.
This makes good accounting sense. The asset on the balance sheet is now less valuable, so you should record a charge. Otherwise, you'd be misleading investors.
The Democrats, however, seem to believe that Generally Accepted Accounting Principles are some sort of conspiracy against Obamacare, and all that is good and right in America.Here's the story: one of the provisions in the new health care law forces companies to treat the current subsidies for retiree health benefits as taxable income. This strikes me as dumb policy; there's not much point in giving someone a subsidy, and then taxing it back, unless you just like doing extra paperwork. And since the total cost of the subsidy, and any implied tax subsidy, is still less than we pay for an average Medicare Part D beneficiary, we may simply be encouraging companies to dump their retiree benefits and put everyone into Part D, costing us taxpayers extra money.
But this is neither here nor there, because Congress already did it. And now a bunch of companies with generous retiree drug benefits have announced that they are taking large charges to reflect the cost of the change in the tax law.
Henry Waxman thinks that's mean, and he's summoning the heads of those companies to Washington to explain themselves. It's not clear what they're supposed to explain. What they did is required by GAAP. And I've watched congressional hearings. There's no chance that four CEO's are going to explain the accounting code to the fine folks in Congress; explaining how to boil water would challenge the format.
- Los Angeles Times, Waxman Asks AT&T CEO to Address Concerns Over Health Bill
- Red State, The Administration's Attack on American Business
- Wall Street Journal, Waxman Convenes the First Death Panel: The Chairman Is Denouncing Business for Complying with the Law
- Wall Street Journal, The Tax Police and the Helath-Care Mandate
- Washington Examiner, Dems Fear Honest ObamaCare Accounting
The World's Strangest Tax Laws
Foreign Policy, The World's Strangest Tax Laws -- my favorite:
(Hat Tip: Josh LeFevre.)
World Cup Tax Exemption
Countries: World cup hosts
Who's affected: South African residents, nonresidents
The bottom line: South Africa is understandably thrilled to be hosting the 2010 World Cup, which opens June 11. A financial boost is expected as infrastructure improvements reach a massive scale and thousands of foreign tourists travel to the country to support their favorite teams. But because of agreements that FIFA, the world's governing body for professional soccer, requires of all World Cup host countries, the boon to the state's bottom line will be minimal.
Before accepting any country's host bid, FIFA demands significant tax concessions. For its part, South Africa agreed to create a "tax bubble" around stadiums and other official World Cup sites, making any income earned off goods sold within them exempt from taxation. (Athletes, however, are not exempt from taxation. The South African national team, in particular, gets the shaft: They'll still pay normal income-tax rates, despite being participants.) Although FIFA promotes soccer as a way to bridge global divisions, the organization clearly isn't afraid to throw its weight around for its own benefit.
Tax Freedom Day Is April 9 -- Earlier in AK, LA & MS, Later in CT, NJ, NY
Tax Freedom Day will arrive on April 9 this year, the 99th day of 2010, according to the Tax Foundation’s annual calculation using the latest government data on income and taxes. Americans will work well over three months of the year – from January 1 to April 9 – before they have earned enough money to pay this year’s tax obligations at the federal, state and local levels.This year’s Tax Freedom Day is one day later than in 2009, but more than two weeks earlier than in 2007. The shift toward a lower tax burden since 2007 has been driven by three factors: (1) The recession has reduced tax collections even faster than it has reduced income; (2) President Obama and the Congress have enacted large but temporary income tax cuts for 2009 and 2010, just as President Bush did in 2008; and (3) Two significant taxes were repealed for 2010 as part of previous legislation, the estate tax and the so-called PEP and Pease provisions of the income tax.
Each state has its own Tax Freedom Day. Alaska’s is earliest on March 26, and Connecticut celebrates last on April 27. High-income states pay much more in federal taxes, and they often have higher state-local taxes as well. Joining Connecticut in the latest celebrations are New Jersey, New York, Maryland and Washington. Alaska is joined in early celebration by Louisiana, South Dakota, Mississippi and West Virginia.
to Pay Taxes
Tax Freedom Day
Avi-Yonah: Xilinx RevisitedReuven S. Avi-Yonah (Michigan) has published Xilinx Revisited, 126 Tax Notes 1621 (Mar. 29, 2010). Here is the abstract:
All Tax Analysts content is available through the LexisNexis® services.
In this article, Avi-Yonah argues that the original Xilinx panel decision was correct and that the new one was the result of the government's refusal to accept the rationale of that decision. However, he also believes that [although] taxpayers have won another transfer pricing battle, they could lose the war if Congress decides to adopt the budget proposals on transfers of intangibles.
Farewell, MalibuI am back in Cincinnati after spending spring break in Malibu, California, teaching a one-week course at Pepperdine University School of Law. It was a spectacular week in all respects.
The course, Selected Advanced Topics in Federal Income Taxation, went very well. Although we designed our Tax Stories book to be used either as supplemental reading for the basic tax course or as the text for a tax seminar, I never before had the opportunity to teach a tax seminar. We made good use of the extra time in the seminar format to explore the chapters in depth and to listen to several of the Supreme Court oral arguments from the Tax Stories website. The compressed nature of the course forced us to read several chapters together, and the pairings -- particularly Glenshaw Glass and Murphy; Kirby Lumber and Crane; Davis and Earl; Welch and INDOPCO; and Schlude and Knetsch -- allowed us to draw some connections that frankly I had not noticed before. Re-reading the book from cover to cover made me appreciate anew the great job that the chapters authors did in making the cases come alive and in explaining to students the importance of the cases in the development of the tax law. I am convinced more than ever that the book delivers on the claim I made in the Introduction, Tax Archaeology:
In tax law, as in other subject areas, there are certain landmark cases that set the law on a path that continues to shape much of the current developments in the field. In these seminal cases, the tax law was faced with a fundamental choice, the resolution of which would influence the tax law for generations to come. In Tax Stories, we look at eleven pivotal cases in the development of the federal income tax. These stories provide fresh insights into both particular doctrinal areas of tax law as well as issues of wider application across the tax law.
From my law school rankings work (What Law Schools Can Learn from Billy Beane and the Oakland Athletics, 82 Texas L. Rev. 1483 (2004); Ranking Law Schools: Using SSRN to Measure Scholarly Performance, 81 Ind. L.J. 83 (2006)), I knew that Pepperdine during the remarkable deanship of Ken Starr has made the biggest jump in the U.S. News rankings of any law school, moving from Tier 3 (2004) to the cusp of the Top 50 (55 in 2010 -- 7th among the 20 California law schools, after Stanford (3), UC-Berkeley (6), UCLA (15), USC (18), UC-Davis (35), and UC-Hastings (39)). Seeing the school up close for a week convinces me that Top Law Schools is right in predicting that, "[w]ith its strong academic programs, knowledgeable faculty, and beautiful campus, Pepperdine Law School seems a likely candidate for a continued rankings boost."
The Pepperdine faculty is particularly strong, with world class scholars and committed teachers. There is a vibrant intellectual life at the school, which I witnessed first hand at the Fifth Annual Louis D. Brandeis Lecture at the Institute on Law, Religion, and Ethics by Sanford Levinson (Texas). But I was most struck by the palpable sense of community that permeates the school, a hallmark of its distinctive mission to integrate the Christian faith in all aspects of life at the school. I saw this play out in countless ways among faculty, students, and staff throughout the week. One vignette: my last class was a 4 1/2 hour marathon beginning at 8:30 on Saturday morning. Because I felt sorry for the students having to get up so early on a Saturday to listen to me for so long, and to thank them for their hard work all week, I planned to bring some breakfast food and coffee to kick things off. But as often happens with me, my best intentions came a cropper as, despite getting up at 4:00 a.m. to prepare for class, I ran late and did not have time to pick up the breakfast on the way to school. But one of the students came armed with a delicious array of organic pastries and muffins from a Malibu bakery. I felt ashamed, and at the break asked the student to let me pay her for what must have been over $100 worth of stuff. She refused even after I repeated my offer several times, saying "This is Pepperdine -- we take care of each other."
The beauty of the Pepperdine campus and Malibu is simply breathtaking. For example, here is the view from the law school:
And here is the view from my bedroom:
But in the end, my sweetest memory of this special week is simply the gift of time with my son (a college freshman) and daughter (a high school senior). I cherished our leisurely dinners of fine food, laughter, and conversation, during which I reveled in the marvel of the wonderful young adults my kids are growing into. As the hokey Bob Carlisle song puts in, "With all that I've done wrong I must have done something right." I want to thank Dean Starr and the Pepperdine faculty for this wonderful opportunity.
Joint Tax Committee: IRS Lacks Authority to Enforce ObamaCare's Individual Mandate
One of the more controversial elements of ObamaCare is the mandate for most individuals to purchase insurance beginning in 2014. There is really no precedent for a federal mandate of this scale requiring individuals to purchase a product or service. So not surprisingly a number of state Attorney Generals have indicated they will be filing suit questioning the constitutionality of this provision. ...
Republicans for their part have focused on the fact that this mandate will be enforced via threat of a financial penalty (or tax), with the added assumption that it is the dreaded IRS which will be enforcing this. And sure enough, it’s already been reported that the IRS anticipates hiring possibly in excess of 15,000 additional personnel to deal with the collection of the individual mandate, and other tax related provisions within the bill.
However, it turns out that the Democrats who crafted this bill significantly – and I mean significantly – hamstrung the ability of the IRS or any other federal agency to enforce or collect on this mandate. Here is what the federal Joint Committee on Taxation had to say about this issue in a report released earlier this week:
Individuals who fail to maintain minimum essential coverage in 2016 are subject to a penalty equal to the greater of: (1) 2.5% of household income in excess of the taxpayer’s household income for the taxable year over the threshold amount of income required for income tax return filing for that taxpayer under section 6012(a)(1); or (2) $695 per uninsured adult in the household. The fee for an uninsured individual under age 18 is one-half of the adult fee for an adult. The total household penalty may not exceed 300 percent of the per adult penalty ($2,085). The total annual household payment may not exceed the national average annual premium for bronze level health plan offered through the Exchange that year for the household size…
The penalty applies to any period the individual does not maintain minimum essential coverage and is determined monthly. The penalty is assessed through the Code and accounted for as an additional amount of Federal tax owed. However, it is not subject to the enforcement provisions of subtitle F of the Code. The use of liens and seizures otherwise authorized for collection of taxes does not apply to the collection of this penalty. Non-compliance with the personal responsibility requirement to have health coverage is not subject to criminal or civil penalties under the Code and interest does not accrue for failure to pay such assessments in a timely manner.
According to a footnote in the report, “subtitle F of the Code” is the portion of the tax code which grants the IRS the authority to assess and collect taxes. In other words, as the law is written the federal government has no legal authority to enforce this mandate, nor will it have any recourse to collect any penalties that go unpaid!
- The Atlantic, Can the Individual Mandate Be Enforced?
- Going Concern, The IRS Will Enforce Mandatory Healthcare Using the Honor System
- InstaPundit, So, Is This Good News or Bad?
- Marginal Revolution, How Mandate Penalties Will be Enforced
- Reason, Insurance Death Spiral, Here We Come!
- Roth & Co., The Toothless Tax Bandwagon
Candidate Obama opposed an individual mandate during the presidential campaign:
Mason: Made in America for European Tax
Ruth Mason (UConn) presented Made in America for European Tax: The Internal Consistency Test, 49 B.C. L. Rev. 1277 (2008), as part of the Lisbon International and EC Tax Law Seminar:
The Flat Tax: How it Works and Why it is Good for America
A new video released yesterday by the Center for Freedom and Prosperity Foundation (CF&P) explains "why a flat tax would be superior to the internal revenue code. Entitled "The Flat Tax: How it Works and Why it is Good for America," the mini-documentary includes a 20-second tutorial showing the simple postcard-sized tax forms that would replace the hundreds of forms in the current system."
March 29, 2010
Will a Tax LL.M. Cleanse a 4th Tier, Bottom of the Class J.D.?New York Law Journal, Advice for the Lawlorn:
Question: I graduated from law school last summer. I went to a fourth tier school and graduated near the bottom of my class. ... When I came back to my hometown, I took a few LLM classes as a non-degree student at a top tier school and got good grades. I think that if I try to get an LLM at this school I will do very well and graduate with high grades. My question is, will it be worth it for me to get an LLM? I was thinking about getting one in either Tax or International Trade. But I am hesitant about taking on more law school debt. I am also worried that once I graduate with the LLM, law firms will not care much about it and focus solely on my JD performance.
Answer: Everything really depends on what you want to do with all of those degrees.
If you are hoping to become an associate at a BigLaw firm then taking on more debt is, more than likely, going to be a waste of your time and money. You are absolutely correct that the major AmLaw 100 and 200 law firms will not care that you have an LL.M., even if you intend to specialize in the practice of tax law. ... Even in the best of job markets, the LL.M. is not something that ameliorates a poor law school transcript. ...
With your bottom of the class standing from a tier four law school, you need to be realistic about where you should be applying. ... [I]f money is not an issue, go ahead and get your LL.M. from that top-ranked law school. Although nothing is going to mask where your J.D. was earned or what your grades were, if you can walk away with those high grades you are predicting, that certainly will be to your credit if you do eventually decide to practice tax law or work in an area involving international trade.
One major piece of advice – I would stay in the job market around your law school. A tier four law school is generally a regional school and graduates of those law schools do best when they apply to the local law firms and attorneys.
For our 8-page discussion of this question, see Pursuing a Tax LLM Degree: Why and When? 20-27 (Mar. 24, 2010) (with Jennifer M. Kowal & Katherine Pratt (both of Loyola-L.A.)). Here is what we say in the introduction to that discussion:
Some prospective Tax LLM students consider a Tax LLM degree as a way to improve their resume — to become more competitive for tax jobs. Sometimes a prospective Tax LLM student has attended a lower-tier law school and would like to have a school with a higher ranking at the top of her resume. Sometimes a prospective Tax LLM student is hoping for a second chance to earn high grades, having discovered an aptitude for tax law at some point in law school. In addition, prospective Tax LLM students sometimes hope that attending a well-known Tax LLM program will offer access to interviews (including on-campus-interviews) with employers that would not interview the student without an LLM.Here we distinguish between two different types of prospective Tax LLM students: (1) prospective Tax LLM students who have a genuine interest in and aptitude for tax and want to develop additional tax expertise to improve their chances of being hired for a tax position to which they aspire; and (2) prospective Tax LLM students who do not have a particular interest in and aptitude for tax, but assume that a Tax LLM degree from a prestigious Tax LLM program will rehabilitate less-than-stellar JD credentials and improve their chance of obtaining a job at an elite, big firm. Based on our experience, the former type of prospective Tax LLM students should apply to Tax LLM programs, but the latter type should not. Tax LLM classes are rigorous and demanding. For many employers, both JD grades and Tax LLM grades are extremely important. A prospective Tax LLM student who is not genuinely interested in tax is not likely to do well in Tax LLM classes. In addition, the potential resume boost from successful completion of a Tax LLM degree is greatest when applying for tax-specific positions.
NLJ: The 40 Most Influential Lawyers, 2000-2009National Law Journal, The Decade's Most Influential Lawyers:
These are the lawyers who've defined a decade.
For our annual Most Influential Lawyers special report, the editors of The National Law Journal have selected 40 attorneys in a dozen key legal areas whose work between Jan. 1, 2000, and Dec. 31, 2009, was so consequential that it helped to push the profession, an industry or a practice area substantially forward.
- Lawrence Lessig (Harvard)
- David Van Zandt (Dean, Northwestern)
- Elizabeth Warren (Harvard)
NY Times: States Seeking Cash Hope to Expand Taxes to ServicesNew York Times, States Seeking Cash Hope to Expand Taxes to Services:
In the scramble to find something, anything, to generate more revenue, states are considering new taxes on virtually everything: garbage pickup, dating services, bowling night, haircuts, even clowns. ...(Hat Tip: Francine Lipman.)
Opponents of imposing taxes on services like funerals, legal advice, helicopter rides and dry cleaning argue that this push comes as businesses are barely clinging to life and can ill afford to see customers further put off by new taxes. ...[F]rom coast to coast, desperate governments are looking to tap into new revenue streams. ... Though some say the proposed service taxes face opposition too fierce to succeed in many places, particularly in an election year, even some of the most ardent opponents predict that some of the taxes will scrape through.
Tax Profs on Chapman's Dean Search CommitteeTax Profs Bobby L. Dexter and Francine J. Lipman are serving on Chapman University School of Law's Dean Search Committee.
Hellerstein & Swain: State & Local Tax CommentaryWalter Hellerstein (Georgia) & John A. Swain (Arizona) have published State & Local Tax Commentary (March 2010):
Professors Hellerstein and Swain examine (1) the proper measure of receipts from intangibles for sales factor computation purposes; (2) the proper attribution of receipts from yellow page advertising for apportionment purposes; (3) a Texas case applying the sale-for-resale exemption in the context of taxable services; and (4) a recent ruling interpreting the Utah affiliate nexus statute.
Chutzpah: Rep. Rangel Offers Tax Advice to His Constituents
Charlie Rangel, who has taken a leave of asbsence from chairing the House Ways & Means Committee while the House Ethics Committee investigates reports that he dodged his taxes, has sent a tax advice flyer to his constituents.
- DNAinfo, Harlem Rep. Charlie Rangel Offers Tax Advice Despite His Own Tax Woes
- Going Concern, The Irony of Charlie Rangel Giving Tax Advice Is Not Lost on His Constituents
- New York Daily News, Rep. Charlie Rangel's Constituents Tell Congressman to Keep Tax Advice to Himself
- Reason, Tax Tips from Charlie Rangel
- Web CPA, Rangel Mails Tax Tips to Constituents
Fo prior TaxProf coverage of Rep. Rangel's tax troubles, see Mr. Tax Law Writing Tax Evader:
(Hat Tip: Woody McNair.)
Law Library Rankings
What Makes a Great Library (National Jurist (March 2010)):
Many thought that the digital age would render brick-and-mortar libraries obsolete. But the modern-day law library has emerged as a vital center for learning and research that's busier than ever. We rank 198 law libraries for resources, services, and space.25%: volumes
20%: library seats per student
15%: students per librarian
15%: hours open
- Ohio State
- Boston University
- Washington & Lee
- William & Mary
- Florida State
- Texas Southern
- St. Louis
- Lewis & Clark
- Washington U.
- Notre Dame
- U. Washington
Welcome to the Tax Blogosphere: Tax Blawg
A resource for news and analysis of current legal issues facing tax practitioners. Although blawg.com identifies nearly 1,400 active “blawgs,” including 20 blawgs related to taxation and estate planning, the needs of tax professionals have received surprisingly little attention. The Wall Street Journal's Tax Blog gives “tips and advice for filers,” and Paul Caron’s legendary TaxProf Blog is an excellent clearinghouse for academic and policy-oriented news. Yet, tax practitioners still lack a dedicated resource to call their own. For those intrepid souls, we offer TaxBlawg.net, a forum of tax talk for tax pros.
Early posts are quite good, including After the Flood: Has Codification Changed Economic Substance?:
The passage of President Obama’s health-care legislation will no doubt have long-lasting consequences for the economy in general and the health-care industry in particular. Less noticed by the general public, but central in the minds of tax professionals, has been a single provision in the accompanying reconciliation bill that codifies the so-called “economic substance” doctrine. Having often been introduced in bills that eventually died in the catacombs of the legislative process, many practitioners were beginning to believe that codification was a cousin of Bigfoot and the Loch Ness Monster – often spotted, but never confirmed.
So, now that Code section 7701(o) is “the law,” so to speak, has anything changed? The new law provides that a transaction:
shall be treated as having economic substance only if–
(A) the transaction changes in a meaningful way (apart from Federal income tax effects) the taxpayer’s economic position, and
(B) the taxpayer has a substantial purpose (apart from Federal income tax effects) for entering into such transaction.
At a glance, this provision seems to endorse the so-called “two-prong” test for economic substance first articulated in Rice’s Toyota World, Inc. v. Comm’r, 81 T.C. 184 (1983), aff’d in part, rev’d in part, and rem’d, 752 F.2d 89 (4th Cir. 1984), while requiring that a transaction have both “economic substance” and a “business purpose” to be respected for tax purposes. (To be sure, the new statute broadens the standard for “economic substance” by replacing the traditional profit-based test with a broader economic-change test. To the extent that codification makes sense at all, this broadening is the most sensible provision, as it recognizes that taxpayers often undertake transactions, especially those directly related to their core businesses, that don’t produce discrete profits, but are nonetheless beneficial to the taxpayer’s economic position.)
IFA International Tax Student Writing CompetitionThe International Fiscal Association is sponsoring the 2010 International Tax Student Writing Competition:
- Subject: Any topic relating to U.S. taxation of income from international activities, including taxation under U.S. tax treaties.
- Open to: All students during the 2009-10 academic year pursuing a graduate degree with a tax specialty.
- Submission Deadline: September 30, 2010.
- Prize: $2,000 cash, plus expenses-paid invitation to IFA USA Branch Annual Meeting in Atlanta in February 2011.
Here are the recent winners:
- 2009: Samuel J. Lee (LL.M. 2009, Boston University), A Recommendation, in Light of the Current Economy, for Revising the Way § 304 Applies to International Transactions, 38 Tax Mgmt. Int'l J. 500 (Aug. 2009) (IFA press release)
- 2008: Jason Sullivan, Debt-Equity Hybrid Instruments in a Cross-Border Setting: A Focus on the U.S. Foreign Tax Credit, 53 Tax Notes Int'l 817 (Mar. 2, 2009)
- 2007: David Pozen, Tax Expenditures as Foreign Aid, 116 Yale L.J. 869 (2007)
TaxProf Blog Weekend RoundupSaturday:
- Tax Lawyer Staged Suicide to Look Like Murder
- Saturday at the IRS
- Tax Articles in The Urban Lawyer
- Court Rejects NYLS Grade Complaint
- New York's Amazon Tax and the Battle Over Affiliate Nexus
- Top 5 Tax Paper Downloads
- President Obama Makes Two Tax Recess Appointments
- Students Who Visit College on a Cloudy Day Are More Likely to Enroll
- Bank of America, Wells Fargo to Pay Zero 2009 Federal Income Tax
- Feuer: A Former Spouse's Right to Employee Benefits
March 28, 2010
Top 5 Tax Paper DownloadsThere is a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with a new paper debuting on the list at #5:
1. [477 Downloads] Ten Estate Planning Advantages of Limited Liability Companies, by Paul L. Caron (Cincinnati)
2. [365 Downloads] Foreign Bank Accounts -- FBAR Reporting Obligations, Enforcement Exposures and Managing the Risk: What Every Tax and Compliance Advisor Needs to Know Now!, by Dean Kirk Marsan (former Senior Tax Counsel, Lehman Brothers)
3. [286 Downloads] Law Review Articles You Should've Read (But Probably Didn't) in 2009, by Bridget J. Crawford (Pace)
4. [225 Downloads] Estate and Gift Tax Problems of Principals and Agents Under Durable Powers of Attorney, by Paul L. Caron (Cincinnati)
President Obama Makes Two Tax Recess AppointmentsPresident Obama yesterday made 15 recess appointments:
Michael F. Mundaca: Assistant Secretary for Tax Policy, Treasury Department
Michael F. Mundaca currently is Senior Advisor for Policy within the Treasury Department's Office of Tax Policy and the Acting Assistant Secretary for Tax Policy. Mr. Mundaca served in the Treasury Department during the Clinton Administration and returned to the Treasury Department in 2007, as the Deputy Assistant Secretary for International Tax Affairs. Before that appointment, he was a partner for five years in the International Tax Services group of Ernst & Young's National Tax Department, in Washington, D.C. His practice focused on cross-border planning and structuring, including especially tax treaty issues, and on international legislative and regulatory monitoring and consulting. Before joining Ernst & Young, Mr. Mundaca served for over five years in Treasury's Office of the International Tax Counsel, leaving as the Deputy International Tax Counsel. He was also Treasury's Senior Advisor on Electronic Commerce. Prior to that first stint in Treasury, he was an associate at Sullivan & Cromwell, a law firm in New York. Mr. Mundaca has been an adjunct professor at the Georgetown University Law Center, teaching a seminar on tax treaties. Mr. Mundaca received a B.A. in philosophy and in physics from Columbia University, in 1986, and an M.A.in philosophy from the University of Chicago, in 1988. He received a J.D. from the University of California, Berkeley, School of Law (Boalt Hall), in 1992, where he was Senior Executive Editor of The California Law Review and a member of the Order of the Coif. He also has an LL.M., in taxation (international tax specialization), from the University of Miami.
Jeffrey Goldstein: Under Secretary for Domestic Finance, Treasury Department
Jeffrey Goldstein is currently a Counselor to the Secretary of the Treasury. Mr Goldstein was a Managing Director of Hellman & Friedman LLC, a private equity investment firm with offices in San Francisco, New York and London. Mr. Goldstein served at the World Bank from 1999 to 2004, where he served as Managing Director and Chief Financial Officer. He oversaw the Bank's work with its client countries in strengthening financial and capital market systems. Mr. Goldstein was the Bank's point person on the International Development Association (IDA). He also helped lead the Bank's relationship with the G-8 countries. As Chief Financial Officer, he was responsible for the Bank's financial operations and budget. He was the Bank's representative on the Financial Stability Forum and on the International Monetary Fund's Capital Markets Consultative Group and Chairman of the Pension Finance Committee. Prior to joining the World Bank, Mr. Goldstein was Co-Chairman of BT Wolfensohn and a member of the Bankers Trust Company Management Committee. He held senior management positions and worked with BT Wolfensohn and its predecessor, James D. Wolfensohn Incorporated, for more than 15 years. Early in his career, Mr. Goldstein taught economics at Princeton University and worked at the Brookings Institution and the U. S. Department of the Treasury. Mr. Goldstein received his Ph.D., M.Phil., and M.A. in economics from Yale University. He received his B.A. with honors in economics from Vassar College (Phi Beta Kappa) and attended the London School of Economics. He is on the Board of Trustees of Vassar College and was Chairman of the Vassar College Investments Committee.
- Associated Press, Obama Announces 15 Recess Appointments, Scolds GOP
- Bloomberg,Obama Makes 15 Recess Appointments, Including Treasury Posts
- The Hill, Obama Makes Two Tax-Related Recess Appointments
Students Who Visit College on a Cloudy Day Are More Likely to EnrollUri Simonsohn (University of Pennsylvania, Wharton School) has published Weather To Go To College, 120 Econ. J. 270 (2009). Here is the abstract:
Does current utility bias predictions of future utility for high stakes decisions? Here I provide field evidence consistent with such Projection Bias in one of life's most thought-about decisions: college enrolment. After arguing and documenting with survey evidence that cloudiness increases the appeal of academic activities, I analyse the enrolment decisions of 1,284 prospective students who visited a university known for its academic strengths and recreational weaknesses. Consistent with the notion that current weather conditions influence decisions about future academic activities, I find that an increase in cloudcover of one standard deviation on the day of the visit is associated with an increase in the probability of enrolment of 9 percentage points.
Bank of America, Wells Fargo to Pay Zero 2009 Federal Income Tax
Charlotte Observer, Bank of America, Wells Fargo Probably Won't Pay Income Tax for 2009:
This tax season will be kind to Bank of America and Wells Fargo: It appears that neither bank will have to pay federal income taxes for 2009.
Bank of America probably won't pay federal taxes because it lost money in the U.S. for the year. Wells Fargo was profitable, but can write down its tax bill because of losses at Wachovia, which it rescued from a near collapse.
The idea of the country's No. 1 and No. 4 banks not paying federal income taxes may be anathema to millions of Americans who are grumbling as they fill out their own tax forms this month. But tax experts say the banks' situation is hardly unique.
"Oh, yeah, this happens all the time," said Robert Willens, an expert on tax accounting who runs a New York firm with the same name. "Especially now, with companies suffering such severe losses."
(Hat Tip: Francine Lipman.)
Update: From Peter Portia:
The real story here is how Wells Fargo got to write down those losses.In an astounding bit of good fortune and timing, the Treasury in late 2008 changed the rules on how banks can apply losses from an acquired institution. The rule change saves Wells Fargo billions in taxes, an indirect federal expenditure likely to be larger than the direct cost of an FDIC absorption of Wachovia's loan portfolio.Look at the remarkable coincidence at work here:Sep. 26: WFC decides to pass on Wachovia, leaving it to Citigroup.
Sep. 29: The IRS announces the rule change.
Oct. 3: WFC changes its mind and purchases Wachovia.Of course, some observers have a more jaundiced view of the events than I.
Feuer: A Former Spouse's Right to Employee Benefits
Albert Feuer (Law Offices of Albert Feuer, Forest Hills, NY) has posted Who is Entitled to Life Insurance Benefits and Top-Hat Benefits from an ERISA Plan Following a Divorce or a Marital Separation?, NYSBA Family L. Rev. Newsletter, Vol. 41, No. 3, p. 10, Winter 2009. Here is the abstract:
The extent, if any, to which a participant’s spouse or former spouse is entitled to the participant’s employee benefits is often an important issue in divorces and marital separations. State courts thus frequently issue domestic relations orders (“DROs”) pertaining to such benefits. Benefit entitlements of ERISA plans, i.e., pension plans and welfare plans (which include life insurance plans), are determined by the terms of those plans. See generally Kennedy v. Plan Administrator of the DuPont Savings and Investment Plan, 555 U.S. ___ (Jan. 26, 2009).
ERISA plans generally need not follow state-court orders. On the other hand, ERISA plans must follow the designation terms of those DROs that are qualified domestic relations orders (“QDROs”). Questions have been raised about whether life insurance plans and top-hat plans (which are pension plans maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees) must follow the designation terms of a DRO that “satisfies the QDRO requirements,” but contradicts a designation made pursuant to the plan terms.
Many courts, including quite recently a federal district court in Rhode Island and one in New Hampshire, recently and incorrectly disregarded the QDRO requirement that the plan be subject to the ERISA Alienation Prohibition. See Metropolitan Life v. Drainville, 2009 U.S. Dist. LEXIS 63613 (D.C. R.I. July 23, 2009) and Metropolitan Life v. Hanson, 2009 U.S. Dist. LEXIS 92044 (D. N.H. Oct. 1, 2009), respectively. The Alienation Prohibition does not apply to life insurance plans or to top-hat plans. Thus, the QDRO requirement that ERISA plans follow the designations of such orders are not applicable to such plans. Therefore, the court should have directed the Metropolitan Life plan to disregard the DRO at issue in Drainville and Hanson, and should have held that the participant’s designee pursuant to the plan terms, his second wife and third wife, respectively, was entitled to receive and keep the proceeds.
March 27, 2010
Tax Lawyer Staged Suicide to Look Like Murder
Alabama tax lawyer Major Bashinsky (Tax LL.M., Florida), 63, son of the late CEO of Golden Flake Snack Foods, staged his own suicide to make it look like he had been abducted and murdered.
Saturday at the IRS
“We are holding these special open houses to give taxpayers who are struggling in these difficult economic times more opportunity to work directly with IRS employees to resolve their tax issues," said IRS Commissioner Doug Shulman.
People dancing, people laughing,
A man selling ice cream
Singing Italian songs
Can you dig it (yes, I can)
And I've been waiting such a long time
Tax Articles in The Urban Lawyer
- Lauren Ashley Smith (J.D. 2010, Washington University), Alternatives to Property Tax Increment Finance Programs: Sales, Income, and Nonproperty Tax Increment Financing, 41 Urb. Law. 705 (2009)
- Philip J.F. Geheb (Husch Blackwell Sanders, St. Louis), Tax Increment Financing Bonds as "Debt" Under State Constitutional Debt Limitations, 41 Urb. Law. 725 (2009)
- Laura M. Bassett (Miller Canfield, Detroit), Tax Increment Financing as a Tool for Redevelopment: Attracting Private Investment to Serve a Public Purpose—The Example of Michigan, 41 Urb. Law. 755 (2009)
Court Rejects NYLS Grade Complaint
Following up on my prior post, Court Refuses 2L's Request to Change "C" Grade or to Order NYLS to Adopt Pass/Fail Grading System: the Appellate Division has affirmed the dismissal of the student's complaint. Keefe v. New York Law School, 2010 NY Slip Op 02477 (A.D. 1st Dep't. Mar. 25, 2010).
New York's Amazon Tax and the Battle Over Affiliate Nexus
Sam Zaprzalka (J.D. 2010, Seattle) has published Note, New York's Amazon Tax Not Out of the Forest Yet: The Battle Over Affiliate Nexus, 33 Seattle U. L. Rev. 527 (2010). Here is the Conclusion:
Of course, the ultimate question in this Amazon Tax saga is, “Who cares? How does this affect me personally?” Residents of New York who shop with Amazon or other major e-tailers have already been affected; they now pay a tax charge on all of their purchases. If the Statute is upheld, residents of every other state will most likely have a similar experience. On a more positive note, states will be better able to provide the services we all depend on as the reduction of their revenues is slowed or even stopped. Nonetheless, your days of tax-free shopping on the internet are likely numbered.
Ultimately, the Amazon Tax represents just one more way that states have attempted to circumvent the Quill substantial nexus standard. Until a determination of what constitutes a substantial nexus is resolved and Congress develops a policy on how to tax internet sales, e-tailers will continue to operate in a very uncertain tax landscape. Whether Congress will enact a federal statute to clear up the situation or whether states will continue to enact piecemeal attempts to circumvent Quill remains to be seen. The court battle over the Statute has the potential to play a key role in this determination. But, as long as internet sales continue to grow and states continue to feel they are losing out on revenue, the Amazon Tax is only the first of many attempts to tax internet sales.
March 26, 2010
Kleinbard Publishes Woodworth Lecture: How Tax Expenditures Distort our Budget and our Political Processes
Edward D. Kleinbard (USC) has published his Laurence Neal Woodworth Memorial Lecture in United States Tax Law and Policy delivered at the May 2009 ABA Tax Section Midyear Meeting, The Congress within the Congress: How Tax Expenditures Distort our Budget and our Political Processes, 36 Ohio N.U. L. Rev. 1 (2010). Here is the abstract:
Tax expenditures have grown in importance to the point where they are now the dominant instruments for implementing new discretionary spending policies, and operate at a cost in forgone revenues unmatched since the Tax Reform Act of 1986. While it is true that some forms of government intervention are best delivered through the tax system, it cannot be the case that neutral design principles would lead to a situation where the federal government spends twice as much through tax expenditures as it does through explicit discretionary spending programs.
This paper, the Fourteenth Annual Woodworth Memorial Lecture, is a meditation on the corrosive effect of tax expenditures on the federal budget and Congressional political processes. Tax subsidies erode our ability to conceptualize the size and activities of government, or to engage in constructive political discourse about our allocative priorities in a world of scarce resources. The paper therefore attempts to shift attention from the decades-long debate over the normative tax base from which tax expenditures should be identified to the more pressing questions of how the political process privileges tax expenditures over explicit outlays, and how in turn the lower salience of tax expenditures distorts policy making.
Tax expenditures are privileged because they are not treated as spending for any budget purpose: instead, they are budget “nothings,” and their costs are simply subsumed into the revenues baseline. The result is that their efficiency costs are typically under-appreciated (as developed in an extended fable about the country of Freedonia), and the repeal of a poorly targeted tax subsidy, rather than being hailed as curbing wasteful spending, is decried as a targeted tax hike.
Pay-as-you-go (PAYGO) rules limit the growth of tax expenditures to some extent, because they require a “pay for” to be paired with a new tax subsidy, but those rules in turn inadvertently encourage the perverse phenomenon of the Congress Within a Congress, in which the tax-writing committees, having learned how to dispense even lump sum discretionary grant programs through the tax code, can function as a complete mini-Congress. The tax-writing committees now both raise revenues (their traditional role) and spend those new revenues, through increasingly transparent tax subsidies that satisfy both the tax-writing committees’ spending priorities and the PAYGO rules. The resulting package is presented to the two chambers of Congress as revenue-neutral, and therefore implicitly as having no significant distributive or allocative consequences, when instead it should be understood as a “tax and spend” proposal.
Each 100-Point Increase in Woman's SAT Score Increases Payment for Egg Donation by $2,350
A new study by Aaron D. Levine (Georgia Tech) and published by the Hastings Center reports for each 100-point increase in her SAT score, women at elite universities can earn an extra $2,350 for donating eggs for in vitro fertilization, up to as much as $50,000 per donation (in violation of voluntary ethical guidelines by the American Society for Reproductive Medicine capping such payments at $10,000).
- Press Release
- Boston Globe
- Fox News
- Inside Higher Ed
- Los Angeles Times
- Wall Street Journal
- Washington Post
Legislature Takes Aim at Maryland Law School ClinicsBaltimore Sun: State House Bullies Target UM Law School:
(Hat Tip: Above the Law.)
Make no mistake, the state Senate has done much more than express some idle curiosity about the University of Maryland’s law clinics. Budget language approved by the Senate this week includes a not-so-subtle message: Be careful who you let your law students represent.
The tactics have all the charm of what Sen. Jim Brochin calls "something straight out of communist China." The University of Maryland School of Law is being ordered to produce a list of all the plaintiffs their students have represented over the past two years or lose $250,000 in funding.
And that’s the nicest version of the proposal. Delegates are considering a 5-year, $750,000 smack in the face.
What’s particularly galling is that the assault on the law school’s academic freedom and the independence of its fledgling lawyers is all because some students had the temerity to help some Eastern Shore residents and environmental groups go after polluters.
One might assume a lawsuit aimed at reducing pollution into a Pocomoke River tributary would be regarded as a good thing, but the one filed earlier this year on behalf of the Assateague Coastal Trust and the Waterkeeper Alliance names Perdue Farms as a defendant. Perdue is the nation’s third largest poultry company with $4.6 billion in sales — and a lot of political muscle in this state. ...
If lawmakers were genuinely curious about the law school clinics, they might have made a phone call before they started taking the school’s budget hostage. If they had, they’d discover the clinical law program is ranked sixth in the nation by U.S. News & World Report and that it provides an invaluable service as the largest provider of free legal advice to the state’s disadvantaged. It should be regarded with pride rather than suspicion; all Maryland law students are required to do some pro bono work on behalf of the community, a rarity in academia.
What’s the harm in providing a list of clients? Not every person who has sought legal representation — from the AIDS clinic patient to the homeowner seeking expert help to avoid foreclosure — wants that fact publicized for the whole world to see. You can bet lawmakers know that.
David Meyer Named Dean at Tulane
David Meyer, Associate Dean for Academic Affairs at the University of Illinois College of Law and a Constitutional Law and Family Law scholar, has been named Dean at Tulane, replacing Interim Dean Stephen M. Griffin who has served since former dean Lawrence Ponoroff stepped down in 2009. From the Tulane press release:
"David Meyer's appointment is the result of a national search that brought us a scholar of international renown," Tulane President Scott Cowen said. "He also has vast experience working directly with students and external constituencies, something we feel is vital in shaping the future course of our nationally ranked law program." ...
Meyer will be joined at Tulane by his wife, Amy Gajda, a faculty member at the University of Illinois in both journalism and law. A specialist on First Amendment law and privacy issues, Gajda will become associate professor of law at Tulane.
Weisbach & Posner: Climate Change JusticeTax Prof David Weisbach (Chicago) & Eric A. Posner (Chicago) have published Climate Change Justice (Princeton University Press, 2010). Here is the abstract:
Climate change and justice are so closely associated that many people take it for granted that a global climate treaty should--indeed, must--directly address both issues together. But, in fact, this would be a serious mistake, one that, by dooming effective international limits on greenhouse gases, would actually make the world's poor and developing nations far worse off. This is the provocative and original argument of Climate Change Justice. Eric Posner and David Weisbach strongly favor both a climate change agreement and efforts to improve economic justice. But they make a powerful case that the best--and possibly only--way to get an effective climate treaty is to exclude measures designed to redistribute wealth or address historical wrongs against underdeveloped countries.
In clear language, Climate Change Justice proposes four basic principles for designing the only kind of climate treaty that will work--a forward-looking agreement that requires every country to make greenhouse--gas reductions but still makes every country better off in its own view. This kind of treaty has the best chance of actually controlling climate change and improving the welfare of people around the world
In clear language, Climate Change Justice proposes four basic principles for designing the only kind of climate treaty that will work--a forward-looking agreement that requires every country to make greenhouse--gas reductions but still makes every country better off in its own view. This kind of treaty has the best chance of actually controlling climate change and improving the welfare of people around the world.
New U.S. News Rankings to be Released on April 15
This year, we have improved and modified both our part-time J.D. and part-time M.B.A. program ranking methodologies. U.S. News's new part-time law rankings are based on a 5.0-scale peer assessment survey, median LSAT scores and median undergraduate grade-point average for fall 2009 entering part-time students, and an exclusive part-time J.D. curriculum index that measures the extent to which a law school offers a rich part-time program to its students. U.S. News's previous part-time law school rankings were based solely on the number of times a part-time program was nominated to be among the 10 top programs.
Tax Foundation Publishes 2010 Facts & Figures: How Does Your State Compare?The Tax Foundation yesterday released the 2010 version of Facts and Figures: How Does Your State Compare?, a pocket-sized booklet comparing the 50 states on 31 different measures of taxing and spending, including individual and corporate income tax rates, business tax climates, excise taxes, tax burdens and state spending.
A Celebration of Bill Stuntz
Following up on my prior post, Harvard Law Prof Bill Stuntz Talks of His Impending Death, Faith (Mar. 7, 2010): a two-day Celebration of the Career of Bill Stuntz kicks off today at Harvard (schedule; live webcast). From Orin Kerr (George Washington), one of the participants:
On the afternoon of Friday, March 26, and the morning of March 27, Harvard Law School will be celebrating the work of Bill Stuntz, the Henry J. Friendly Professor of Law. The conference will be a bittersweet event. It will be sweet in that many outstanding criminal procedure scholars, together with many other academic luminaries, will be gathering to honor the scholarship and humanity of a man who I personally think is the best criminal procedure scholar in the United States. It will be bittersweet in that Bill, 52, is terminally ill with cancer, as he has written about eloquently himself (see, for example, here, here). I am deeply honored to be one of the presenters at the conference.
The conference is open to the public, and it promises to be a remarkable event. Here is the list of speakers, which includes many close friends, colleagues, and former students of Bill: Pam Karlan, Anne Coughlin, Dan Kahan, Mike Seidman, Carol Steiker, Joe Hoffmann, Richard McAdams, Dan Richman, David Sklansky, Kenneth Abraham, Barbara Armacost, Andy Kaufman, John Manning, Andy Leipold, Tracey Meares, Erin Murphy, Dana Mulhauser, Elizabeth Scott, Robert Scott, and myself. Dean Martha Minow will provide a welcome, and Bill himself will be speaking at a time to be determined.
The Right Warms to Tax Increases
Fututre of Capitalism, Another Tax Increaser on the Right:
(Hat Tip: Ira Stoll.)
We've been tracking the increased openness on the center-right to new or increased federal taxes: David Brooks, Glenn Hubbard, Karl Rove, Tyler Cowen, Greg Mankiw. The latest example comes in the new Spring issue of National Affairs, which bills itself as the successor to Irving Kristol's Public Interest. There, Donald Marron, who served on President George W. Bush's Council of Economic Advisers (as did Professor Hubbard and Professor Mankiw), writes: "No one solution — not economic growth, not tax increases, and not spending reductions — can get us to our goal. To put ourselves on a sustainable fiscal trajectory, we will need to use all the measures at our disposal." Or, to be more blunt: "some tax increases will almost certainly be required." ...
[T]he fact that three members of the Bush Council of Economic Advisers plus Karl Rove are all signaling openness to federal tax increases is newsworthy, and if Tom Herman and David Cay Johnston hadn't both retired (See "The Tax News Vacuum"), you might have read about it already somewhere other than here. At least Paul Caron, the indefatigable "Tax Prof" blogger, is on the case; he links to an Al Hunt column in Bloomberg reporting on yet another former Bush administration official, Michael Graetz, who served in the George H.W. Bush Treasury department, who wants to add a consumption tax to the income tax.