April 30, 2010
Death of Alvin StorrsTax Prof Alvin Storrs (Michigan State) died Monday, April 26, 2010, after a lengthy illness. From the Michigan State press release:
"This is a terrible loss for the Law College," said Joan Howarth, dean of MSU College of Law. "Al Storrs exemplified the highest values of our law school and our profession. With his passing, we have lost a wonderful teacher, a masterful and inspiring leader, and an exceptional man of principle, vision, and grace."
Professor Storrs had been a highly-respected member of the MSU College of Law faculty since 1987. He was chair of the Taxation Law concentration program and proudly served as faculty advisor to the Black Law Students Association (BLSA). Professor Storrs taught Basic Income Taxation, Corporate Income Taxation, and Deferred and Executive Compensation at the Law College, teaching most recently in the fall 2009 semester. ...
Professor Storrs is survived by his wife, Regina, and their two children, Alvin and Ashley; his oldest daughters, Verna Nevels and Heather Holloway; his granddaughter, Ashlyn; and his dear mother, Amye Davis. Those who wish to share fond memories or extend condolences to the family may send them to The Family of Professor Alvin Storrs, c/o Michigan State University College of Law, 368 Law College Building, East Lansing, MI 48824-1300. ...
In lieu of flowers, the family requests that memorial donations be made in Professor Storrs' name to any of the following:
- Black Law Students Association (BLSA) Scholarship Fund: Donations to the BLSA Scholarship Fund may be made by completing the online form at www.law.msu.edu/donate, by calling the Office of Advancement at 517-432-6844, or by printing and mailing the BLSA Gift Form.
- Marvin L. Winans Academy of Performing Arts
7616 E. Nevada
Detroit, MI 48234
- Second Baptist Church of Detroit
441 Monroe St.
Detroit, MI 48226
2d Cir. Rejects Firm's 'Bold Attempt' to Contest IRS Levy
New York Law Journal, 2nd Circuit Rejects Firm's 'Bold Attempt' to Contest IRS Levy:
A law firm partner's advances on partnership profits are subject to administrative levies imposed by the IRS, the 2nd U.S. Circuit Court of Appeals ruled Thursday.
The circuit found that the advances, or partner "draws," at personal injury firm Moskowitz, Passman & Edelman constituted "salary or wages" under § 6331(e) of the Internal Revenue Code. The firm will now have to pay the government nearly $1.5 million.
The circuit said it was unpersuaded by Moskowitz Passman's "bold attempt to evade the levies" as it also upheld a statutory fine imposed in United States v. Moskowitz, Passman & Edelman, 08-3017-cv.
Forbes: Can Tax Court Force IRS to Check Out Whistleblower's Claim?Forbes, Can IRS Be Forced To Check Out Informant's Tip?:
In related lawsuits with broad implications for the new tax whistleblower law, the U.S. Tax Court is set to rule on a bounty-seeking informant's request that the IRS be ordered to investigate his tips.
The matter involves the estate of Dorothy Dillon Eweson, one of two children of famed Wall Street financier Clarence Dillon (1882-1979). She died in 2005 at age 92, leaving behind what has been estimated at $300 million held personally and in trusts.
Five years later, the estate remains mired in probate litigation. In court papers Ann S. Peipers, widow of Eweson grandson David H. Peipers, who died of Legionnaires disease at age 48 two months before his grandmother, charges that other Eweson heirs improperly maneuvered to cut back a huge inheritance for her still-minor son, a great-grandchild of Eweson.
Ann Peipers' new boyfriend, Nashville lawyer William Prentice Cooper III, sought to take advantage of the tax whistleblower law, which Congress passed in 2006. It mandates a minimum 15% reward for collections resulting from tips. In August 2008 Cooper filed with the IRS' new Whistleblower Office the first of several Form 211 applications "for award for original information."
On the forms and in supporting documents, Cooper said one trust set up in 1918 by Clarence Dillon holding $103 million was left out of Eweson's probate and that a large generation-skipping tax due to the IRS wasn't paid. Collectively, the Forms 211 allege failure to pay more than $100 million in taxes. He wrote on the Forms 211 he was "an attorney for, and the boyfriend of" Ann Peipers and that he got his information primarily "by examination of public records."
In September 2009 the IRS rejected Cooper's tips, writing him--in what looks like a form letter--"The information you provided did not identify a federal tax issue upon which the IRS will take action."
Cooper promptly filed twin lawsuits against the IRS in the Tax Court. He asked for orders to "direct" the IRS "to undertake a complete re-evaluation of the facts in this matter, begin an investigation of this matter, open a case file and take whatever steps may be necessary to determine" whether there is validity to his information.
Courts rarely issue such directives to executive-branch agencies. But there is some indication the Tax Court is taking Cooper's contentions seriously. In January Tax Court Judge John O. Colvin ordered the IRS to file a second round of briefs dealing with Cooper's arguments. The Tax Court traditionally is a slow-moving tribunal, so a decision still could be months away.
Cooper's two lawsuits are in the vanguard of what could be a slew of cases interpreting the scope, applicability and generosity of the new whistleblower law. Informant Bradley C. Birkenfeld is credited with blowing the whistle on massive tax evasion involving offshore accounts held by U.S. citizens at Swiss bank
UBSAG. He is now serving a 40-month sentence for helping Orange County billionaire Igor Olenicoff hide a quarter-billion dollars offshore. Birkenfeld has hired lawyers to press both his bounty claim and his request for a presidential pardon.
The whistleblower law gives the Tax Court jurisdiction to review "any determination regarding an award." Cooper argues that a decision not to pursue his tip was in effect a determination of a zero award and thus is appealable to the Tax Court.
IRS lawyers say the Tax Court has jurisdiction only to review the sufficiency of an award if one actually is made. In any event, the IRS argues the Tax Court lacks the authority to order the IRS to start an investigation. A brief submitted over the name of IRS Chief Counsel William J. Wilkins said the agency "diligently investigated information" that Cooper provided "and properly concluded not to proceed" against the Eweson estate. However, the brief gave no details of the extent or nature of that diligence.
VanderWolk: Inversions Under § 7874
Jefferson P. VanderWolk (Faculty of Law, Chinese University of Hong Kong) has posted Inversions Under Section 7874 of the Internal Revenue Code: Flawed Legislation, Flawed Guidance, 30 Nw. J. Int'l L. & Bus. ___ (2010), on SSRN. Here is the abstract:
The section applies to two categories of inversions involving a limited change of ownership and the use of a new foreign parent corporation in a country where the group does not have substantial business activities. In one category, the group’s ownership does not change by more than 20 percent (disregarding any change due to a public offering related to the inversion). In such cases, the statute eliminates any US tax benefit from the transaction by treating the foreign parent as a US corporation for all purposes of the Internal Revenue Code. In the second category are inversions in which the group’s ownership changes by more than 20 percent but no more than 40 percent. In these cases, the statute respects the new parent company’s foreign status, but preserves US taxing rights over the group’s accrued gains up to the time of the inversion and limits the group’s ability to erode the US tax base through related party transactions. The statute does not apply to inversions where either the group has substantial business activities in the country of the foreign parent, or the change of ownership exceeds 40 percent.
The Obama Administration’s international corporate tax proposals would, if enacted, be likely to increase the US tax costs of many multinational groups that are owned by a US entity. One possible response by the managers or owners of such a group would be to restructure the group via an inversion transaction, so that the group would have a foreign corporate parent instead of a US parent entity. To discourage inversions, Congress enacted section 7874 of the Internal Revenue Code as part of the American Jobs Creation Act of 2004.
Section 7874 is complex. Its language immediately raised a number of issues requiring guidance from the IRS and Treasury in order to prevent absurd results. The statute also contains unclear terms, creating a need for regulatory guidance. In addition, the statute empowered the IRS and Treasury to write regulations “to prevent the avoidance of the purposes” of the section. This power has been exercised several times. The IRS and Treasury have adopted an overly restrictive interpretation of section 7874 in certain respects, with the result that certain inversions that ought not to be subject to the statute may be treated as being within its scope.
Part 1 of this article introduces the statute and discusses its legislative history. Part 2 explains in more detail how the statute works. Part 3 critically discusses particular guidance issued in 2009 relating to the ownership-change determination required by the statute. Part 4 discusses the statutory test of substantial business activities, the regulatory guidance on its application, and the implications of the subsequent elimination of much of that guidance. Part 5 discusses inversions from a policy perspective, within the context of the broader US international tax regime. Part 6 contains concluding observations.
The article concludes that the language and legislative history of section 7874 do not support recent guidance regarding the ownership-change tests. There is no indication that Congress intended to have the new foreign parent corporation treated as a domestic corporation in a case in which the owners of the group effectively transfer more than 20 percent of their equity interest to new investors via a private placement of stock in the new foreign parent corporation. Moreover, regarding the business-activities test of section 7874, the elimination of previous guidance, combined with the no-ruling position of the IRS, means that many inversions could not be undertaken with any idea of whether or not section 7874 would apply. The IRS and Treasury need to publish new and helpful guidance regarding the level of business activity in the foreign country of incorporation that will be considered “substantial” when compared to the total business activities of the group. From a policy perspective, the article advocates the partial or total repeal of section 7874 as part of a larger revision of the US international tax regime.
Prof. Rotunda's Sexual Harassment Case Against George Mason Goes to Trial in JuneFollowing up on my prior post, Prof. Rotunda Sues George Mason for Sexual Harassment: the Washington Times reports that the case is going to trial in June:
An ex-assistant secretary of the Air Force who has become a George Mason University Law School professor has asked a federal court to throw out a lawsuit by a former female professor who claimed he sexually harassed her and then retaliated when she rejected him.
The filing is just the latest salvo in a several-year battle between Joseph Zengerle, a West Point graduate and Airborne Ranger Infantry officer in Vietnam who founded the university's Clinic for Legal Assistance to Servicemembers, and Kyndra Rotunda, former lawyer in the Army's Judge Advocate General's Office and a prosecutor for the Guantanamo Bay Office of Military Commissions, who was hired as the clinic's director.
Mr. Zengerle has denied the allegations, outlined as part of a bitter fight that has resulted in a testy court case involving the exchange of nearly 100,000 pages of documents and 100 hours of depositions. The dispute also led to Mrs. Rotunda and her husband, Ronald Rotunda, a noted constitutional law expert, quitting their jobs at George Mason.
The university also is named in the suit and joined with Mr. Zengerle in asking the court to dismiss it. The school has denied allegations that it ignored Mrs. Rotunda's complaints and paid her a lesser salary because she is a woman.
In his July 17, 2008, resignation letter, Mr. Rotunda said GMU was "more concerned with hiding its dirty laundry than cleaning it." He said when his wife complained of incidents of sexual harassment, the law school "scrambled to cover up the problem … and retaliated against the victim instead of fixing the problem."
Both Rotundas now teach at Chapman University School of Law in California.
Raskolnikov: Reforming the Taxation of DerivativesAlex Raskolnikov (Columbia) has posted Reforming the Taxation of Derivatives -- An Overview on SSRN. Here is the abstract:
This brief essay outlines three benchmarks for evaluating alternative ways of taxing capital income, summarizes anticipatory, retroactive, and accrual-based proposals for reforming the taxation of derivatives, and offers guidelines for evaluating more limited reforms. It is intended as an introduction to key concepts, tensions, and ideas for reforming the taxation of financial instruments.
Abrams: Partnership Book-Ups
In Rev. Proc. 2009-70, the IRS asked for guidance regarding the proper allocation of partnership built-in gain. This article offers two sets of three recommendations. The first set proposes technical modifications to the computation of allowable book-ups to ensure that the values ascribed to partnership assets correspond with objectively verifiable values. The second set of recommendations proposes more radical changes to the allocation of built-in gain when book-ups are triggered by distributions of partnership property to ensure that tax allocations properly correspond to economic sharing of gains and losses.
All Tax Analysts content is available through the LexisNexis® services.
Bishop: A Jurisdictional & Governing Law Quagmire: LLC Charging OrdersCarter G. Bishop (Suffolk) has posted A Jurisdictional & Governing Law Quagmire: LLC Charging Orders on SSRN. Here is the abstract:
Is an LLC a necessary party to a charging order action brought by a judgment creditor of a member but not the LLC and, if the LLC was formed in another state, which state law controls the limits of the charging order remedy?
Taylor: Taxation in Indian Country After Carcieri v. Salazar
Scott A. Taylor (University of St. Thomas) has published Taxation in Indian Country After Carcieri v. Salazar, 36 Wm. Mitchell L. Rev. 590 (2010). Here is the abstract:
Federally recognized Indian tribes are governments within our federal legal system. Tribes have aboriginal sovereignty that provides them with inherent governmental powers, such as the power to tax. Tribal sovereignty also protects tribes from state interference, such as state taxation of tribal lands. Both the exercise of tribal governmental powers and the tribal immunity from state interference have a territorial component. This makes the status of Indian lands a critical inquiry into tribal/state relations. Because of the importance of land status in federal Indian law, especially in matters involving taxation, the decision of the United States Supreme Court in Carcieri v. Salazar deserves special attention. In the Carcieri case, the Court held that the Secretary of the Interior did not have the statutory authority to place lands into trust on behalf of Indian tribes that were recognized after the enactment of the Indian Reorganization Act of 1934. This article explores taxation in Indian Country after Carcieri.
April 29, 2010
Wisconsin Hosts Conference Today on The Transnationalization of Tax LawmakingWisconsin hosts a conference today on Networks, Norms, and the Transnationalization of Tax Lawmaking:
- Panel I: Case Study of Brazil -- Luis Eduardo Schoueri (University of Sao Paulo Law School, Brazil), Andre Mendes Moreira (Milton Campos School of Law, Brazil)
- Panel II: Case Studies of China and Turkey -- Ruiqing Zhong (Zhejiang University Guanghua Law School, China), Leyla Ates (Inonu University Business School, Turkey)
- Panel III: Case Studies and the Development of International Tax Theory -- Allison Christians (University of Wisconsin Law School)
WSJ: Dividend Tax to Increase From 15% to 43.4%Wall Street Journal editorial, The Dividend Tax Bill Arrives: Democrats Would Nearly Triple the Top Rate:
As the big tax increase day of January 1, 2011 approaches, the Democrats running Congress are beginning to lay out their priorities. Get ready for bigger rate increases than previously advertised.
Last week the Senate Budget Committee passed a fiscal 2011 budget resolution that includes an increase in the top tax rate on dividends to 39.6% from the current 15%—a 164% increase. This blows past the 20% rate that President Obama proposed in his 2011 budget and which his economic advisers promised on these pages in 2008.
(See "The Obama Tax Plan," August 14, 2008, by Jason Furman and Austan Goolsbee: "The tax rate on dividends would also be 20% for families making more than $250,000, rather than returning to the ordinary income rate.")
And that's only for starters. The recent health-care bill includes a 3.8% surcharge on all investment income, including dividends, beginning in 2013. This would nearly triple the top dividend rate to 43.4% in Mr. Obama's four years as President
Idaho Seeks to Hire a Tax VisitorThe University of Idaho College of Law seeks to hire a tax visitor for the 2010-11 academic year:
Anticipated curricular needs include Basic Income Taxation, Business Entities Taxation, Estate Tax and Planning, and Elder Law. ... Interested persons should send a letter of application and resume listing three references to Visiting Faculty Search, University of Idaho, College of Law, PO Box 442321, Moscow, Idaho 83844-2321 or apply online.
The application deadline is May 14, 2010. Given the late date, Idaho is looking to fill the position with a tax practitioner who has some teaching experience and is interested in entering academia.
New Issue of Journal of Taxation of InvestmentsThe Journal of Taxation of Investments has published its Spring 2010 issue (Vol. 27, No. 3), with these articles:
- Todd D. Keator, Basis in a Life Insurance Contract: The Janus Face of Revenue Ruling 2009-13, 27 J. Tax'n Inv. 5 (2010)
- Matthew Gelfand, Pay Now or Pay Later? Capital Gains Harvesting With Changing Tax Rates, 27 J. Tax'n Inv. 31 (2010)
- Judith R. Fiorini & Isaac J. Wheeler, Changes to Tax Guidance Provided in Response to the Market Turmoil, 27 J. Tax'n Inv. 43 (2010)
- David F. Earley, Common Hedge Fund Year-End Tax Considerations, 27 J. Tax'n Inv. 57 (2010)
- John R. Wiktor, Putting Family First: Intergenerational Wealth Transfer and Investment Planning, 27 J. Tax'n Inv. 69 (2010)
- Michael F. Lynch & Nicholas C. Lynch, Attaining Capital Gains Treatment in a Related-Party Condominium Conversion Sale, 27 J. Tax'n Inv. 79 (2010)
Chronicle: Law School Should Be More Like Medical SchoolChronicle of Higher Education, Law Schools Could Take a Hint From Medical Schools on Curriculum Reform, Experts Advise:
The nation's legal-education system needs a major overhaul so that students graduating with more than $100,000 in debt can find jobs in a shrinking market and graduate ready to practice. That was the consensus of most of the nearly 100 judges and law-firm partners who converged at a forum this week sponsored by Arizona State University's Sandra Day O'Connor College of Law.
Participants in the "National Forum on the Future of Legal Education" said law schools should emulate medical schools and transform the third year into clinical rotations, so that students know the nuts and bolts of being a lawyer by the time they graduate. Such changes are needed, they said, at a time when law firms are hiring fewer lawyers, and clients are less willing to pay for young associates to gain on-the-job training with their cases. ...
Paul Schiff Berman, law dean at Arizona State University, said his staff will summarize the findings and recommendations and distribute them to law schools nationwide. ...
"Lawyers come out of law school eager and smart and knowing absolutely nothing useful," said J. William Dantzler Jr., the head of global tax practice for the firm White & Case LLP. "I came here with a vague sense that doing away with the third year might be useful, but being a lawyer, I want to hear both sides." During his own third year of law school, he said, "I mostly drank beer and enjoyed myself immensely." ...
Patrick J. Schiltz, a U.S. District Court judge in Minnesota [who] taught law at the University of Notre Dame and the University of St. Thomas before his appointment to the federal bench in 2006. ... Mr. Schiltz said most law professors nationwide graduated from a few top schools and have little practice experience. "The faculty can't teach these skills because they don't know how," he said. "They've never had a client, and they aren't interested. Teaching students (these skills) doesn't enhance their prestige or help their schools climb in the rankings."
See also Christine Nero Coughlin (Wake Forest), Lisa T. McElroy (Drexel) & Sandy Patrick (Lewis & Clark), See One, Do One, Teach One: Dissecting Medical Education's Signature Pedagogy in the Law School Classroom, 26 Ga. St. U. L. Rev. 361 (2010):
(Hat Tip: Ron Jones.)
With the recent publication of the Best Practices in Legal Education, and the Carnegie Report on the Advancement of Teaching, law professors today have an opportunity to adopt pedagogies that have been successfully used in other professional disciplines that, like law, integrate skills and theory. In this article, we focus specifically on the “see one, do one, teach one” approach used in medical education because medical students and law students develop early professional reasoning skills in parallel ways.
This article dissects medical education’s signature pedagogy by focusing on the use of simulation and samples, active learning exercises, and peer teaching opportunities as a corollary to using visualization, application, and demonstration in the medical context. The article guides legal educators through the process of implementing the methodology. This article concludes that utilizing the “see one, do one, teach one” methodology facilitates student engagement with course material on a deeper analytical level, by providing context for the students, and allowing students to internalize and transfer that knowledge. Accordingly, borrowing the signature “see one, do one, teach one” pedagogy from medical education will ultimately help students better bridge the gap between law school and the practice of law.
USA Today: 'Defanged' IRS Won't Be Able to Enforce ObamaCare Insurance MandateUSA Today, IRS Lacks Clout to Enforce Mandatory Health Insurance, by Sandra Block:
The IRS processed more than 230 million tax returns last year, paid 127 million refunds and received about 68 million phone calls. The agency is responsible for enforcing a tax code that, at 71,000 pages, makes Anna Karenina look like a comic book.
Starting in 2014, the agency will have another task: making sure all Americans have health insurance. Under the law, Americans who can afford health insurance but refuse to buy it will face a fine of up to $695 or 2.5% of their income, whichever is higher. More than 4 million Americans could be subject to penalties of up to $1,000 by 2016 if they fail to obtain health insurance, the Congressional Budget Office said last week.
The IRS will be the enforcer — sort of.
While the IRS can impose liens or levies, seize property or seek jail time against people who don't pay taxes, it's barred from taking such actions against taxpayers who ignore the insurance mandate. In the arsenal instead: the ability to withhold refunds from taxpayers who decline to pay the penalty, IRS Commissioner Doug Shulman said this month.
Still, compliance with the health reform law will be largely voluntary, says Timothy Jost, a law professor at Washington and Lee University. "By taking criminal sanctions and liens and levies off the table, the IRS' hands are tied, to a considerable extent."
The IRS is "being put in a position where it will be sending notices that will annoy people" and not much else, says James Maule, professor of law at Villanova University and author of the tax blog MauledAgain. "It's basically designed for failure."
Shulman said he believes most Americans will comply with the law. The experience of Massachusetts, which has required residents to have health insurance since 2006, would appear to support that view. In 2008, 98% of state tax filers who were required to provide health insurance information with their state tax returns met that filing requirement, and 96% had coverage, according to a preliminary report issued in December by the Massachusetts Department of Revenue.
But Massachusetts' health care law gives the Department of Revenue the authority to use its regular tax-collection powers to enforce the insurance mandate, says spokesman Robert Bliss. Through September 2009, the state had collected $12.9 million of the $16.4 million in penalties assessed in 2008.
In this political environment, even a defanged IRS stirs up powerful emotions. Among the concerns about the IRS' role in the health care reform law:
- The law will lead to a dramatic expansion of the IRS.
- The law will make it more difficult for the IRS to carry out its primary job of collecting taxes.
- The IRS does a poor job of managing social programs.
Caron, Kowal, Pratt & Seto: Pursuing a Tax LLM Degree -- Where?Jennifer M. Kowal (Loyola-L.A.), Katherine Pratt (Loyola-L.A.), Theodore P. Seto (Loyola-L.A.) and I have posted Pursuing a Tax LLM Degree: Where? on SSRN. Here is the abstract:
This Article and a related article, Pursuing a Tax LLM Degree: Why and When?, provide information and advice about Tax LLM programs to American law students and JD graduates who are thinking about pursuing a Tax LLM degree. In addition to discussing factors that can help prospective Tax LLM students determine which Tax LLM programs would be a good fit for them, this Article compiles information about the following thirteen highly ranked Tax LLM programs: (1) NYU; (2) Florida; (3) Georgetown; (4) Northwestern; (5) Miami; (6) Boston University; (7) San Diego; (8) Loyola-L.A./LMU; (9) SMU; (10) Denver; (11) University of Washington; (12) Villanova; and (13) Chapman. The topics on which information is reported in this Article include: (1) tuition; (2) scholarships; (3) the full-time tax professors who teach in each program and the tax courses they teach; (4) the number of full-time and part-time students enrolled in each program; (5) general information about adjunct professors teaching in each program; (6) required courses; (7) elective courses, specialty certificates, and concentrations; (8) opportunities to develop tax practice skills by taking experiential learning courses and simulated practice courses; (9) extracurricular tax activities; (10) opportunities to graduate with honors or receive academic prizes; and (11) career planning and placement services offered to students in each program. This Article also includes supplemental information provided by the directors of these Tax LLM programs, in response to our invitation to provide information of interest to prospective students.
2010 Tannenwald Tax Writing Competition
For students writing tax seminar papers this semester: the Theodore Tannenwald, Jr. Foundation for Excellence in Tax Scholarship and American College of Tax Counsel are sponsoring the 2010 Tannenwald Writing Competition:
Named for the late Tax Court Judge Theodore Tannenwald, Jr., and designed to perpetuate his dedication to legal scholarship of the highest quality, the Tannenwald Writing Competition is open to all full- or part-time law school students, undergraduate or graduate. Papers on any federal or state tax-related topic may be submitted in accordance with the Competition Rules.
Cash Prizes: $5,000, $2,500 and $1,500 for the top three papers.
Deadline: July 1, 2010. Mail papers to: Tannenwald Foundation, Ste. 200, 1275 Pennsylvania Ave., N.W., Washington, D.C. 20004, attn: Melnie Moore.
For more information, contact Nancy Abramowitz.
ABA Tax Section Publishes Spring 2010 Issue of News Quarterly
- Hot Topics and Current Developments in Circular 230, by Christine L. Weingart (Dean, Mead, Egerton, Bloodworth, Capouano & Bozarth, Orlando, FL), pp. 1, 12-13
- Section Meeting Calendar, p. 2
- From the Chair (Stuart M. Lewis) (Buchanan Ingersoll & Rooney, Washington, D.C.), pp. 3, 17
- Tax Bites: Borrows from Shakespeare, by Gail L. Richmond (Nova), p. 4
- Report of the Nominating Committee 2010-2011, p. 4
- Interview with Mabel Walker Willebrandt (Head, Tax Division of the U.S. Justice Department, 1921-1929), by Jasper L. Cummings, Jr. (Alston & Bird, Washington, D.C.) & Alan J.J. Swirski (Skadden, Washington, D.C.), pp. 5-6
- Opinion Point: One-Size-Fits-All Lien Filing Policies Circumvent the Spirit of the Law, Fail to Promote Future Tax Compliance, and Unnecessarily Harm Taxpayers (excerpts of National Taxpayer Advocate's Annual Report to Congress), pp. 7-8
- Points to Remember: Tax Crimes and Defenses, by Megan L. Brackney (Kostelanetz & Fink, New York) & Caroline D. Ciraolo (Rosenberg, Martin & Greenberg, Baltimore), pp. 9-10
- Points to Remember: AMT Planning: An Unexpected Opportunity for Capital Gains and Dividends, by Oleg Ikhelson (The MDE Group, Morristown, NJ), pp. 10-12
- 2010 Janet Spragens Pro Bono Award Recipients: Caroline D. Ciraolo and Juan F. Vasquez, Jr., p. 14
- News Briefs, p. 15
- CLE Calendar, p. 17
- Government Submissions Boxscore, p. 18
Hellerstein & Gillis: The VAT in the European Union
One of the key issues to be addressed in the United States would be coordinating a federal VAT with state and local retail sales taxes. In addition to having the VAT of broadest application in economic terms, the European Union is in some respects analogous to the United States in the sense that it is a group of states, each with sovereign taxing authority, but with some restraints imposed on them by the existence of the union that they are a part of. How the VATs used by the members of the EU are coordinated with one another may be instructive if a VAT were considered in this country. This article reviews the history, structure, and operation of the EU VAT with an emphasis on the manner in which EU member states deal with cross-border transactions.
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Lee: The Role of Danielson in the Taxation of Credit Card Securitizations
Grace Soyon Lee (Alabama) has published What's in a Name?: The Role of Danielson in the Taxation of Credit Card Securitizations, 62 Baylor L. Rev. 110 (2010). Here is the abstract:
While the doctrine of substance over form has been a part of tax law for over seventy years, courts look disfavorably upon taxpayers who invoke the doctrine to argue against the forms of their own transactions under what is commonly referred to as the Danielson rule. Although the Danielson rule appears sound on its face, it holds less force when applied outside of its original context. In particular, the Danielson rule should not apply when the form given to a transaction is given for non-tax reasons, such as to achieve a particular accounting treatment. The taxation of credit card securitizations provides a particularly acute example of how the Danielson rule could lead taxing authorities to erroneously base the taxation of a transaction on its form for accounting purposes. In this article, I explain why the Danielson rule should not apply to credit card securitizations. First, I describe how credit card securitizations are structured and how they are treated under both the accounting and the tax rules. I then explain the origins and purposes of the Danielson rule, why it should not apply to credit card securitizations, and how it could adversely affect their taxation if applied. By expressly excluding from the scope of the Danielson rule those transactions where the difference between substance and form is rooted in the difference between the accounting and tax regimes, the government will clarify a currently muddled area of law and provide greater certainty to participants in credit card securitizations and similar transactions.
April 28, 2010
District Court Rejects Merck's Request for New Trial in $690m Assignment of Future Income Tax ShelterI previously blogged the district court's rejection of a $690 million assignment of future income tax shelter in Schering-Plough v. United States, 651 F.Supp.2d 219 (D.N.J. 2009). The district court today rejected the taxpayer's motion for a new trial. Merck & Co., Inc. v. United States, No. 05-2575 (D.N.J. Apr. 28, 2010) Hat Tip: Richard Jacobus.)
Florida Tax Review Publishes New IssueThe Florida Tax Review has published Vol. 10, No. 1:
- John F. Avery Jones (Judge, Upper Tribunal (Tax and Chancery Chamber), UK), Understanding the OECD Model Tax Convention: The Lesson of History, 10 Fla. Tax Rev. 1 (2009)
- Irene J.J. Burgers (University of Groningen, The Netherlands), The New OECD Approach on Profit Allocation: A Step Forward Towards Neutral Treatment of Permanent Establishments and Subsidiaries, 10 Fla. Tax Rev. 51 (2009)
The U.S. News Rankings, Employment Statistics, and Consumer ProtectionConsumer Law & Policy Blog, The US News Rankings, Employment Statistics, and Consumer Protection, by Jeff Sovern (St. John's):
In ranking law schools, US News takes into account the percentage of students who are employed at graduation and nine months after graduation. This has led to reports that are interesting, to say the least. ... These reports may well be true. The numbers can be manipulated. ...
[H]ere comes the consumer protection angle: US News should limit the jobs it counts in two ways: first, it should exclude jobs at the law school itself (either directly or indirectly to prevent imaginative ways around that restriction), and second, it should limit the jobs that count to those for which a JD is required or desirable. That way, the rankings will reflect more accurately the value the law school adds to students' employment prospects as of graduation and nine months afterwards and eliminate an avenue for manipulating the figures. To be sure, some people graduate from a law school and are perfectly happy with a non-law job, but probably few go into law school with that expectation, and perhaps the numbers of such students are similar across law schools (if that is a real issue, perhaps US News could include a separate list of those numbers, as it does for diversity, for example, or include them in the rankings with a lower weighting).
Houston Business & Tax Law Journal Publishes New Issue
The Houston Business & Tax Law Journal has published Vol. 9, Part 2 (2009):
- Geraldine Szott Moohr, Introduction: Tax Evasion as White Collar Fraud, 9 Hous. Bus. & Tax J. 207 (2009)
- Stuart P. Green,What Is Wrong with Tax Evasion?, 9 Hous. Bus. & Tax J. 220 (2009)
- Robert Edwin Davis & Danny S. Ashby, The Role of Criminal Tax Enforcement in the Federal “Voluntary” Self-Assessment and Payment Tax Systems, 9 Hous. Bus. & Tax J. 234 (2009)
- John A. Townsend, Tax Obstruction Crimes: Is Making the IRS’s Job Harder Enough?, 9 Hous. Bus. & Tax J. 255 (2009)
- John A. Townsend, Tax Obstruction Crimes: Is Making the IRS’s Job Harder Enough? -- Online Appendix, 9 Hous. Bus. & Tax J. A-1 (2009)
Charlotte Seeks to Hire Associate Dean for Faculty Development
Primary Duties & Responsibilities:
Support and manage faculty recruitment, development, mentoring, retention and promotion; Exemplify and promote excellence in teaching, scholarship, and skills development; develop faculty recognition process which will include both internal and external recognition; Create an infrastructure of support for development of academic leaders. Assist faculty in the performance of faculty responsibilities and duties as set out in the faculty handbook, providing mentoring and constructive feedback. Organize and facilitate best practice in teaching meetings. Effectuate midterm and long-term development and implementation of the faculty performance evaluation process, and ensure resources are available to promote faculty success in teaching, scholarship, culture, and service. Serve as a leader/role model/mentor/liaison in promoting CharlotteLaw’s mission and culture to the faculty. Refine and monitor implementation of faculty tenure and promotion process.
- Minimum of five years law school teaching experience with excellent teaching evaluations.
- Comprehensive knowledge of the principles, practices, methodologies and techniques involved in management of the administrative functions of a law school.
- Comprehensive knowledge of the programs and policies of a law school, the American Bar Association, and the Association of American Law Schools.
- Ability to interact with others using judgment and decorum and to relate effectively with the Law school faculty.
- Ability to manage multiple tasks and projects simultaneously.
- Detailed oriented.
- Good Organization Skills.
Students at Private Colleges Get 0.30 Higher GPAs, Improving Their Chances for Law School Admission
- Teachers College Record, Grading in American Colleges and Universities
- New York Times Economix, Want a Higher G.P.A.? Go to a Private College
- The Faculty Lounge, The Advantage of Sending Your Child to a Private College or University
- The Daily Princetonian, Average GPA Is 3.0 at Public Universities, 3.3 at Private Schools
- Yale Daily News, Higher GPAs Coming From Private Universities
- Washington Examiner, Are Private Schools Inflating GPAs Over Public Schools?
Forthcoming Tax RegulationsHere.
The Law School Tuition Bubble
- Conglomerate, Minding Our Own Business Forum: Bubbles, Student Loans and Sub-Prime Debt, by Christine Hurt (Illinois)
- ABA Journal, Law Prof Sees Parallels Between Tuition Hikes and Subprime Mortgage Bubble, by Debra Cassens Weiss
- Above the Law, The Next Bubble: Law School Tuition, by Elie Mystal
- Chicago Tribune, Law School Tuition Hikes Spark Talk of Bubble, by Ameet Sachdev
- Finance & Commerce, The Law School Tuition Bubble: When Will It Burst?, by Patrick Thornton
Court: Pole Dancing Does Not Qualify for Artistic Exception to Sales Tax
New York Law Journal, Pole Dancing Is Not Art, N.Y. Tax Appeals Panel Rules:
The gyrations of a pole dancer may be difficult to execute, but that does not make them art, a New York state tax appeals board has concluded in rejecting an administrative law judge's finding that the exotic dancing qualifies for a sales tax exemption.
The two-member Tax Appeals Tribunal held that the routines performed nude or nearly nude by dancers at the Nite Moves club near Albany were largely learned from other dancers or on YouTube and the Internet, and are not the kind of carefully arranged and practiced patterns of movement normally equated with the art of dance.
"We question how much planning goes into attempting a dance seen on YouTube," the tax appeals panel concluded in Matter of 677 New Loudon Corporation D/B/A Nite Moves, 821458. "The record also shows that some of the moves on the pole are very difficult, and one had best plan how to approach turning upside down on the pole to avoid injury. However, the degree of difficulty is as relevant to a ranking in gymnastics as it is dance."
The panel overturned the finding by Administrative Law Judge Catherine M. Bennett that a "dramatic arts" exception to Tax Law §1105(f)(1) should apply to Night Moves' liability for some $129,000 in state sales taxes on cover charges and money dancers turned back to the club for the individual dances they performed for patrons in private. The tax bill covered 2002-05.
Best Law Revue Video
Above the Law is asking readers to vote on the best law revue video from seven law schools. My favorite is from Northwestern:
April 27, 2010
Kleinbard: An American Dual Income Tax: Nordic PrecedentsEdward D. Kleinbard (USC) has published An American Dual Income Tax: Nordic Precedents, 5 Nw. J. L. & Pub. Pol'y 41 (2010). Here is the abstract:
A classic dual income tax is a schedular income tax in which capital income (broadly defined, and including corporate income) is taxed at a relatively low flat rate and labor (and unspecified) income is taxed at higher progressive rates. The Nordic countries, in particular Norway, have pioneered the implementation of dual income tax principles in their fiscal systems.
This article analyzes the Nordic experience with dual income taxes with a view to their potential utility for tax system design in the United States. The Article demonstrates that, on balance, implementable dual income taxes compare favorably with actual implementations of comprehensive income taxes across several important dimensions.
Dual income taxes are administratively viable, although a dual income tax of the classic variety does require the adoption of a robust mechanism for separating labor from capital income when the two are factually conjoined. Dual income taxes compare favorably with comprehensive income tax systems on economic efficiency grounds, and achieve those gains with relatively little redistributive effect (mainly due to the great difficulty of taxing capital income in comprehensive tax systems in the first place). Moreover, unlike more ambitious reform proposals, a dual income tax could be implemented in the immediate future.
Finally, a dual income tax is an effective strategic response to the problems that otherwise would plague the U.S. tax system if, as appears likely, the United States materially lowers its corporate income tax rate and allows the maximum individual income tax bracket to rise. In the absence of some strategic response, this rate differential would lead to a phenomenon not seen for at least a generation: the rise of the taxable (“C”) corporation as a tax shelter.
Tax Court: Mortgage Disqualifies Charitable Deduction for Conservation EasementThe Tax Court yesterday denied a claimed charitable contribution deduction for a façade easement granted to a tax-exempt organization be cause the property was subject to a mortgage and thus "the conservation purpose [was not] protected in perpetuity" within the meaning of § 170(h)(2)(C) and § 170(h)(5)(A) and Reg, § 1.170A-14(a). Kaufman v. Commissioner, 134 T.C. No. 9 (Apr. 26, 2010).
New Issue of The Law TeacherThe Institute for Law Teaching and Learning has published the Spring 2010 issue of The Law Teacher with these articles:
- Team-Based Learning — An Overview, by Sophie Sparrow (Franklin Pierce), p.1
- The “Other Minority,” by Sabah Carrim (KDU College, Malaysia), p.3
- The Socratic Method Outline, by Kelly A. Moore (Toledo), p.4
- Student Self-Assessment Book (SAB): Reflective Thinking and Journaling in Law School, by Mary Dolores Guerra (Phoenix), p.6
- Teaching State Criminal Law to 1Ls, by Chad Flanders (Saint Louis), p.10
- Looking at the Initial Client Meeting through an Interdisciplinary Lens: Applying Lessons from the Medical Profession to Law Teaching and Practice, by Lisa Radtke Bliss (Georgia State), p.12
- Bringing Lawyers Back on Campus: A “Modest Proposal” for Change, by Steven C. Bennett (Jones Day, New York), p.14
CRS: An Overview of Tax Reform Proposals in the 111th CongressOpen CRS has posted James M. Bickley, Tax Reform: An Overview of Proposals in the 111th Congress (R40414). Here is the summary:
Tax reform is of congressional interest in the 111th Congress. This report primarily covers fundamental tax reform because CRS reports are available online concerning the other three categories of tax reform: tax reform based on the elimination of the individual alternative minimum tax (AMT), proposals for reforming the corporate income tax, and proposals for reforming the U.S. taxation of international business. Most proposals for fundamental tax reform involve the concept of replacing the current income tax system with some form of a consumption tax, usually with a single or "flat tax" rate. Other proposals would significantly broaden the income tax base and lower tax rates. Proponents of these tax revisions often maintain that they would simplify the tax system, make the government less intrusive, and create an environment more conducive to saving. Critics express concern about the distributional consequences and transitional costs of a dramatic change in the tax system. For those fundamental tax reform proposals involving shifting to a consumption tax, one or more of the following four major types of broad-based consumption taxes are included in these congressional tax proposals: the value- added tax (VAT), the retail sales tax, the consumed-income tax, and the flat tax based on a proposal formulated by Robert E. Hall and Alvin Rabushka of the Hoover Institution. As of March 17, 2010, the following bills for fundamental tax reform have been introduced: Representative David Dreier's proposal (H.R. 99), Representative John Linder's proposal (H.R. 25), Senator Saxby Chambliss's proposal (S. 296), and Senator Arlen Specter's proposal (S. 741), Representative Michael C. Burgess's proposal (H.R. 1040), Senator Lamar Alexander's proposal (S. 963), Senator Richard C. Shelby's proposal (S. 932), Representative Paul D. Ryan's proposal (H.R. 4529), Senator Jim DeMint's proposal (S. 1240), Senator Ron Wyden's proposal (S. 3018), and Representative Chaka Fattah's proposal (H.R. 4646). Companion bills are H.R. 25/S. 296 and H.R. 1040/S. 963.
A temporary patch for 2009 for the individual alternative minimum tax (AMT) was included in American Recovery and Reinvestment Tax Act of 2009 (P.L. 111-5). The patch increased the individual AMT exemption amount and allowed personal credits against the AMT. The FY2010 budget resolution conference report (S.Con.Res. 13) provides for three years of relief from the AMT, through 2012, without the need for any revenue offset.
In the 111th Congress, options for reforming the federal business income tax are under consideration. The concept of lowering the marginal corporate income tax rate and broadening the corporate income tax base has been advocated by some Members of Congress, including Representative Charles B. Rangel, Chairman of the House Ways and Means Committee. Other options for reform include corporate tax integration and the replacement of the income tax system with a consumption tax.
The current system of U.S. taxation of international business is complex and difficult to administer. Furthermore, critics argue that the current system is not sufficiently neutral, which results in economic inefficiency. Proposals to reform the system include the replacement of the current hybrid system with either a territorial tax system or a residence based system. In the FY2011 Budget, the Obama Administration proposed numerous changes in the U.S. international tax system that would raise revenue through "reforms" and closing "loopholes."
Winchester: Corporations That Weren't: The Taxation of Firm Profits in Historical PerspectiveRichard Winchester (Thomas Jefferson) has posted Corporations That Weren't: The Taxation of Firm Profits in Historical Perspective, 19 S. Cal. Interdisc. L.J. ___ (2010), on SSRN. Here is the abstract:
This article examines the nation's earliest income tax laws, focusing on the provisions that tax business profits in a way that disregards a firm's state law business form. Broadly speaking, this practice dates back to the Civil War era, when a firm's state law business form made no difference in how its profits were taxed. After the adoption of the Sixteenth Amendment, however, Congress decided to give partial tax relief to undistributed corporate profits, largely on the theory that the firm could and would reinvest those profits in its business. But Congress denied that tax relief to a corporation in certain instances, and it also extended the relief to certain unincorporated firms in a narrow range of situations. This study of those provisions reveals how these measures implicitly reaffirmed the Congressional justification for the partial tax relief on undistributed corporate profits. The study also considers the extent to which each of these measures served the larger interests of equity.
Professors Without Borders
A group of professors announced on Monday that it has launched a new charity, Professors Beyond Borders, modeled after the highly successful Doctors Without Borders (which won the 1999 Nobel Peace Prize for its humanitarian efforts):
Our Mission: Professors Beyond Borders are dedicated to public health and a secure global village for all. We offer academics of our global community the ability to organize their individual experiences and expertise into a greater effort wherever there is a recognized need and workable problem set.
Textron Files Reply Brief in Tax Work Papers Case
I previously blogged the eleven amicus briefs filed in January in the U.S. Supreme Court (No. 09-750), supporting Textron's certiorari petition seeking review of the First Circuit's 3-2 en banc decision in United States v. Textron, Inc., No. 07-2631 (1st Cir. Aug. 13, 2009), which reversed the 2-1 panel decision and held that Textron's tax accrual work papers were not protected under the work product doctrine and thus had to be turned over to the IRS in its tax shelter investigation, as well as the Government's brief opposing certiorari. Textron has filed its reply brief:
In its brief in opposition, the government concedes that there is a longstanding circuit conflict concerning the scope of the work product privilege. And the government does not dispute that the scope of the privilege is an exceptionally important issue for civil litigants—nor could it, In light of the almost unprecedented number and diversity of amici who have urged this Court to resolve that issue. Instead, the government contends only that the Court should deny review because there is no circuit conflict concerning the applicability of the privilege to the specific type of documents at issue in this case. That is true, but irrelevant under the Court's familiar standards for certiorari. Instead, the salient questions are whether there is a circuit conflict concerning the legal standard for work-product protection and whether resolution of that conflict would be outcome-dispositive here. Because the answer to each question is plainly yes, this case is an ideal vehicle for resolution of the conflict.
The government devotes the remainder of its brief to a discursive analysis on the merits. Notably, however, the government does not explicitly defend the First Circuit's novel "for use" standard. Nor does the government explain how requiring disclosure of the documents at issue here would be consistent with the policies animating the work-product privilege—and, in particular, with the need to protect an attorney's opinions and thought processes, which lie at the core of work-product protection.
If left undisturbed, the decision below will enable the IRS more aggressively to seek workpapers embodying counsel's opinions from taxpayers, As it has already declared it intends to do. The decision below will also framatically curtail the availability of the work-product privilege in other contexts. And if the Court does not grant review here, it is far from clear when it will have the opportunity to consider the scope of the privilege in the future. Notwithstanding the government's all-out efforts to defend the outcome below, this case is an obvious candidate for further review. The petition for certiorari should therefore be granted.
Chronicle: Faculty, Like Students, Can be Led Astray by RankingsChronicle of Higher Education, Academics, Too, Can Be Led Astray by College Rankings, Study Finds, by Peter Schmidt:
Prospective students are hardly the only ones who can be overly fixated on college rankings and make poor judgments of the institutions as a result. A new study suggests that academics, too, can have their opinion of a university seriously skewed by how some publication ranks it—even when judging the quality of the institution's offerings in their own academic field.
The fault appears to lie with a psychological phenomenon known as the "anchoring effect." When people are asked to make judgments in ambiguous circumstances—by, for example, putting a dollar value on a home or a used car—most will start with whatever information is made available to them and work from there. ...
Nicholas A. Bowman, a postdoctoral research associate at the Center for Social Concerns at the University of Notre Dame, and Michael N. Bastedo, an associate professor of education at the University of Michigan's Center for the Study of Higher and Postsecondary Education, found a similar dynamic at work in a new study of university rankings and reputations.
In a paper they plan to present at the annual meeting this weekend of the American Educational Research Association, the two researchers say The Times Higher Education Supplement created a "natural experiment" for measuring the anchoring effect's influence when it introduced its World University Rankings, in 2004.
In each of the first three years it published its rankings, the magazine, now known as Times Higher Education, based 40 percent of the score it assigned each university on a reputational survey that asked college faculty members and administrators around the world to list up to 30 universities that they considered the leaders in their general area of study. (The five areas were defined as science, technology, medicine, social science, and arts and the humanities.) In the first year the academics were surveyed, they answered the reputational survey in the absence of any world rankings published by the magazine. It was only in subsequent years that rankings potentially could influence their opinion.
In their analysis, Mr. Bastedo and Mr. Bowman found that results of the reputational survey conducted in the second year much more closely matched the overall published rankings than did the results of the first year's survey. In other words, institutions that ranked high in the first year fared significantly better on the reputational survey in the second, suggesting that the widely publicized rankings had helped a consensus form around the perceived superiority of certain institutions. ...
Although their paper is their first to examine the anchoring effect's impact on college reputations, Mr. Bastedo and Mr. Bowman have scrutinized rankings systems before. In a paper published in February in the American Journal of Education, they examined the U.S. News & World Report rankings and similarly concluded that colleges' reputations are influenced by rankings.
More on the 47% Who Pay No Income Tax
Following up on my prior post, More on the 47% Who Pay No Income Tax:
- Neil H. Buchanan (George Washington), Do Some Americans Pay No Taxes? The Contrived Claims That Everyone Must Help Pay for the Government (FindLaw)
- Neil H. Buchanan (George Washington), Freeloaders and Taxpayers (Dorf on Law)
- VAT Bastard, The 47% Wake Up Call (tax.com)
April 26, 2010
Houston Business & Tax Journal Publishes New IssueThe Houston Business & Tax Law Journal has published Vol. 10, Part 1 (2010):
- William M. Funk, On and Over the Horizon: Emerging Issues in U.S. Taxation of Investments, 10 Hous. Bus. & Tax L.J. 1 (2010)
- Glenn Walberg, Reconsidering the Treatment of Investigatory Costs for Taxpayers with Existing Businesses, 10 Hous. Bus. & Tax L.J. 47 (2010)
- Sylvia Ngo, Egyptian Goddess v. Swisa: Patently Obvious? Reconciling the Ordinary Erver and Point of Novelty Tests, 10 Hous. Bus. & Tax L.J. 110 (2010)
- Sharda B. Sharma, The Impact of the Adoption of International Financial Reporting Standards on the Legal Profession, 10 Hous. Bus. & Tax L.J. 139 (2010)
- Brian E. Surratt, Choose Your Experts Carefully: Evaluating the Proposed Regulations on the Alternate Valuation Date in Light of Kohler, 10 Hous. Bus. & Tax L.J. 166 (2010)
Joulfaian: The Federal Estate Tax: History, Law, and EconomicsDavid Joulfaian (Office of Tax Analysis, Treasury Department) has posted The Federal Estate Tax: History, Law, and Economics on SSRN. Here is the abstract:
The estate tax is the only wealth tax levied by the Federal government. It was enacted in 1916, and its scope was expanded to encompass gifts as well. It evolved over the years into the current Unified Transfer Tax which consists of the estate, gift, and generation skipping transfers taxes. The major features of the tax in effect in 2011 reflect a maximum tax rate of 55 percent and an exemption of $1,000,000, with a full exemption for spousal and charitable bequests. The tax provides for a credit for state death taxes at a maximum rate of 16 percent of the federal taxable estate, which effectively reduces the Federal marginal tax rate for the wealthiest estates to a maximum of 39 percent. Temporary features of the tax in effect in 2010 reflect provisions introduced in 2001 which are dramatically different than those in effect in 2011 and beyond.
This manuscript traces the evolution of the estate tax since its enactment. It provides a brief legislative history and description of the structure and features of the tax. Next it reviews the fiscal contribution of each of the estate and gift taxes. In addition, it provides trends on the number of individuals and households touched by the tax as reflected by the number of returns filed over time. It also provides a comprehensive review of the behavioral effects of the tax. Estate and gift taxes may have considerable implications for economic behavior. The latter include the effects on saving, labor supply, charitable giving, migration, capital gains realizations, and timing of transfers among others.
This manuscript is a work in progress and is made available given the timeliness of the subject. It is a companion to my earlier The Federal Gift Tax: History, Law, and Economics manuscript which exclusively focused on the gift tax.
TIGTA: IRS Fails to Flag 1.2 Million Tax Returns Evidencing Identity TheftThe Treasury Inspector General for Tax Administration today issued a press release, TIGTA Publicly Releases Report on Identity Theft Involving Individual Taxpayer Identification Numbers:
An estimated 1.2 million tax returns filed in 2007 reported wages earned by taxpayers who used another taxpayer's Social Security Number, a sign of possible identity theft, according to a report publicly released today by TIGTA.
The IRS cannot currently identify identity theft cases when taxpayers file tax returns using an Individual Taxpayer Identification Number (ITIN) and use another person's name and Social Security Number to work, the report found.
TIGTA conducted this review when it learned that individuals using another person's Social Security Number to work had their wages attached by the IRS to satisfy a tax debt associated with the tax accounts of the legitimate holders of the Social Security Number.
ITINs are intended to provide tax identification numbers to resident and nonresident alien individuals who may have U.S. tax reporting or filing obligations but do not qualify for Social Security Numbers, which generally are only issued to U.S. citizens and individuals legally admitted to the U.S. The issuance of an ITIN, however, does not change an individual's immigration status, nor does it entitle the individual to work in the U.S. or receive Social Security benefits.
TIGTA assessed whether the IRS has procedures to effectively handle collection issues related to ITINs. The IRS lacks internal guidelines for its employees to follow to assist either the taxpayer whose wages are being attached or the legitimate holder of the Social Security Number (who may unknowingly be the victim of identity theft).
"This report reveals a very troubling situation. The IRS must take steps to ensure that innocent taxpayers are notified when there is evidence that their identity has been compromised," said J. Russell George, the Treasury Inspector for Tax Administration. "When the IRS is in a position to notify victims of the theft of their identity, it should do so without fail."
TIGTA recommended that the IRS alert taxpayers that their identity may have been compromised, match ITIN returns with their related reporting returns, such as Wage and Tax Statements (Form W-2), and, update guidelines to handle collection issues associated with ITINs. The IRS generally agreed with TIGTA's recommendations.
2010: A Good Year to Die?NPR, There May Be A Tax Upside To Dying In 2010:
The saying that nothing is more certain than death or taxes doesn't apply to all of Sanford Schlesinger's clients. The trust and estates attorney has one client, for example, who died and left $70 million -- but it's not clear whether or how much the heirs will actually inherit.
"It's possible people will get anything from millions of dollars to zero," he says. "So I have to tell people, 'We don't know what you're going to get. Don't assume you're a millionaire.'"
Such is life after death in 2010 -- at least for those with lots of money....All of this is confusing -- even for legal exerts like Schlesinger. Is it, on balance, a good year to die for the rich? "I don't know," says Schlesinger. "It would be a shame if I decided to die and Congress reinstates the estate tax, and I died for no reason." ...
[A]s the year drags on, Congress may have less ability to apply a retroactive tax, says Ray Madoff, a professor at Boston College Law School. "It's now mid-April. It's getting less likely Congress will be able to do this kind of retroactive fix, because it raises constitutional questions about whether you can change tax rules retroactively," she says. ...
In the meantime, she says, it makes for some pretty uncomfortable situations. At a funeral Madoff recently attended, she was approached by the son-in-law of the deceased. "He just sidled up to me and asked me whether he thought they were going to have to pay estate taxes," she says. "Boy, I was really stumped."
Schlesinger, the estates attorney, says the question marks are affecting dozens of clients who are trying to plan their estates. ... In the meantime, he has this advice: If you're rich, watch your back.
Schlesinger says: "If we come down to November and there's no estate tax, if I were grandma I would not show up for Thanksgiving dinner without a food taster.
(Hat Tip: Ann Murphy.)
Borden: PIP Factors: Examine With Low ExpectationsBradley T. Borden (Washburn) has published PIP Factors: Examine With Low Expectations, 26 Tax Mgmt. Real Est. J. 31 (2010). Here is the abstract:
This article takes a critical look at the factors the income tax regulations use to define partners' interests in a partnership. The article concludes that the factors do little to help determine partners' interests in the partnership.
Third National People of Color Conference Offers How to Enter the Legal Academy: Pipeline ProgramSeton Hall hosts the Third National People of Color Conference, Our Country, Our World in a "Post-Racial" Era, on September 9-12, 2010. The conference includes a Works-in-Progress Sessions, a Junior Faculty Writing Competition, and a Student Writing Competition, as well as a How to Enter the Legal Academy: Pipeline Program -- "an opportunity to learn the inside information necessary to join the legal academic community":
All interested parties are invited to attend a four-hour “boot camp” program featuring panel discussions about entering law school teaching as a person of color:
- How to Gain a Position: Self-marketing, CVs, Callbacks, Job Talks
- Placement: The “Meet Market,” FAR forms and Interviewing Advice
- Entrée Strategies: Fellowships, Clerkships, Visiting Assistant Professorships
- Writing for the Academy: Turning law school papers into articles, research agendas
- Advice for Late Bloomers: Entering the academic market later in your career
(Hat Tip: Francine Lipman.)
Johnston: The IRS Is More Popular Than Sarah Palin and the Tea Party
David Cay Johnston has published What Polls Tell Us About the Public's View of Taxes, 127 Tax Notes 473 (Apr. 26, 2010):
All Tax Analysts content is available through the LexisNexis® services.
Readers, here is some terrific news for sound tax policy -- and two related problems. But first, to give context to both the good news and the problems, a little quiz. Based on the latest national polls, how do Sarah Palin, the tea party movement, and the IRS rate with the American people? ...
Last place in favorable impressions goes to the former governor of Alaska. Fewer than one in four Americans view her favorably. Next up, with a 36% favorability rating, is the tea party movement. Leading the pack by a large margin is the IRS, with an approval rating of 49%.
Wow! Who would have thought that the IRS would have a favorability rating a third higher than the tea party movement's? Or that the IRS would be twice as popular as Palin?
Who would have thought the IRS has a favorability rating just 1 (statistically insignificant) percentage point below President Obama's? The IRS's favorability rating stands much higher than that of House Speaker Nancy Pelosi, D-Calif. (29%), and of Senate Majority Leader Harry Reid, D-Nev. (16%), and four times that of House Minority Leader John A. Boehner, R-Ohio (12%). ...
The poll results are cause to celebrate, not just at IRS offices, but everywhere that people want sound tax policies. Those favorability ratings indicate that sound tax policies -- transparent, simple, equitable ways to raise revenue that grease the wheels of the economy -- can be attained. The public evidently gets that the IRS is only the tax police, enforcing the law Congress makes. Years of carefully crafted demagoguery using slogans polished by Republican pollster Frank Luntz are losing their hold on public opinion as hard facts disprove or discredit them.
NY Times: 20%-25% of Charities to Lose Their Tax-Exempt Status on May 15
New York Times, One-Fourth of Nonprofits Are to Lose Tax Breaks, by Stephanie Strom:
As many as 400,000 nonprofit organizations are weeks away from a doomsday.
At midnight on May 15, an estimated one-fifth to one-quarter of some 1.6 million charities, trade associations and membership groups will lose their tax exemptions, thanks to a provision buried in a 2006 federal bill aimed at pension reform. ...
The federal legislation passed in 2006 required all nonprofits to file tax forms the following year. Previously, only organizations with revenues of $25,000 or more — or the vast majority of nonprofit groups — had to file.
The new law, embedded in the 393 pages of the Pension Protection Act of 2006, also directed the IRS to revoke the tax exemptions of groups that failed to file for three consecutive years. Three years have passed, and thus the deadline looms.
- IR-2010-10, The IRS Reminds Tax-Exempt Organizations of All Sizes to File the Form 990 on Time to Preserve Their Tax Exempt Status
- IRS, Annual Electronic Filing Requirement for Small Exempt Organizations — Form 990-N (e-Postcard)
- Chronicle of Philanthropy, Up to 25% of Nonprofit Groups Could Soon Lose Charity Status
IRS Investigates Florida Senatorial Candidate Marco Rubio
Web CPA, IRS Investigates Marco Rubio:
The IRS is reportedly investigating Florida senatorial candidate Marco Rubio’s use of a Republican Party credit card. ...
Rubio has been criticized in campaign ads for using his Republican Party American Express card to pay for personal expenses, including repairs to his family minivan, grocery bills, plane tickets for his wife, and retail purchases. Rubio blamed accounting errors and said he has reimbursed the party for over $16,000 in expenses. He reportedly racked up over $100,000 in expenses on the card while he was House Speaker, but he claimed most of the expenses were business related.
Any personal expenses that were not reimbursed by him would have to be claimed as personal income on his tax returns. The IRS is reportedly investigating his expenses, along with those of two other state party officials, according to the Miami Herald and the St. Petersburg Times.
- The Hill, Federal Authorities Launch Criminal Probe Into Florida GOP
- Jacksonville Observer, Uh Oh, Marco: IRS Investigating Rubio’s Tax Records
- Miami Herald, Feds Launch Inquiry Into Florida GOP Credit-Card Expenses
- Tax Lawyer's Blog, Florida Senate Candidate Marco Rubio Under IRS Scrutiny
- Washington Post, Feds Launch Probes of Florida GOP, Rubio's Credit Card Use
Court Rejects 'Holocaust Defense' of UBS Tax Cheat
Former UBS client Jack Barouh, 65 years old, was sentenced on Friday to 10 months in federal prison after claiming his Jewish parents' experience fleeing the Nazi Holocaust drove him to compulsively hide more than $10 million in secret accounts at the Swiss bank.
(Hat Tip: Andy Morriss.)
TaxProf Blog Weekend Roundup
- Backdating and Taxes
- Bartlett: The Case Against the VAT
- The Structured Settlement Tax Subsidy
- Textron: The First Circuit Destroys the Work Product Doctrine for Public Companies
- Tax Prof Dancing Through the Years
- Top 5 Tax Paper Downloads
- Nicholas Mirkey Receives Humanitarian Award
- Congress Should Amend § 911 to Include Antarctica
- Tax Policy and the Taxation of Credit Card Rewards