Thursday, May 24, 2012
David J. Kohtz (J.D. 2012, Texas), Note, Improving Tax Incentives for Historic Preservation, 90 Texas L. Rev. 1041 (2012):
Historic preservation laws are increasingly controversial, and their perceived unfairness has led to calls for their repeal. In his note, David Kohtz argues that policymakers should condition tax incentives on some form of public access to efficiently produce the public benefits that justify the incentives. He first examines the justifications for historic preservation tax incentives, concluding that public access is essential to effective incentive programs. Next, he critically reviews public access provisions in selected statutes, focusing on access to private residences. The programs provided by these statutes, he explains, fall into three categories: (1) physical access, (2) visual access, and (3) virtual access. Kohtz concludes that it is only by providing at least one of these types of access that historic preservation tax incentives are justified.
David Listokin (Rutgers University, School of Planning and Public Policy) & Siona Listokin-Smith (George Mason University, School of Public Policy), Improving the Incentives for Historic Preservation: A Reply to David Kohtz, 90 Texas L. Rev. See Also 285 (2012):
David Kohtz considers the justification, efficiency, and public policy provisions of such tax incentives. Kohtz’s justification discussion oversimplifies and has a tenuous relationship to the public access mandates while his efficiency discussion, which equates efficiency with public access, undershoots a more complex economic framework of what constitutes efficient policy. Nonetheless, Kohtz’s review of the current state of the art and future recommendations for change concerning public access in the historic preservation tax incentives are a timely contribution to the literature. We especially like the note’s conceptualizing a multi-dimensional model of access in the incentives ("physical," "visual" and "virtual"), and we suggest an additional access component that we label as "policy."
Last week, a Reddit user posted a photo of a $114,000 student loan bill—paid in cash—that elicited thousands of comments and dozens more when we posted it here. Since then, the anonymous alum has stepped forward as Alex Kenjeev, a 2009 law school graduate of the University of Toronto. Kenjeev, who works for venture capitalist firm O'Leary Ventures, told Business Insider the $114,000 payment was the last chunk left of $190,000 in loans he took out during school.
He'd spent years dragging out his payments while pouring most of his income into a start-up. As for why he paid in cash, Kenjeev said he wasn't proving some point about the dangers of credit cards or trying to show off. He just thought it'd be really funny. "It was stressful enough to carry such a big debt load. I thought it would be worth getting a few laughs out of it," he said. "Neither bank thought it was as funny as I thought it was."
- Above the Law, Dreams Do Come True, You Can Pay Off Your Student Debts in Cash, by Elie Mystal:
I still consider Alex Kenjeev my hero. Slow rolls his debts, makes a bunch on money, then dump bags of cash on the bank to leave him alone. ... My God, that’s so awesome. If I could ever pay back my loans in one sitting, this is how I’d do it. In fact, this is how I thought it would happen. I figured I’d have to play a little dodgeball with my creditors for a couple of years, but then I’d hit it big and earn enough money to make my outstanding debt seem trivial. I’d walk into a bank one day and drop a hundred and fifty thousand dollars on somebody, and bam, I’d be done.
- ABC News, Man Pays Off $114K Student Loan Debt in Cash
- Daily Mail, Law School Grad Pays Off $114,000 Student Loan in CASH... and Brags About It by Posting the Receipt on Facebook
- JD Journal, Law Grad Pays Loan Balance in Cash
McMahon Presents Innocent Spouse Relief, Women, and Joint and Several Tax Liability Reform at Cincinnati
Stephanie Hunter McMahon (Cincinnati) kicked off our 16th Annual Summer Faculty Workshop Series yesterday with a wonderful presentation of her latest paper, What Innocent Spouse Relief Says About Women and Why We Need a New Rule for Joint and Several Tax Liability:
Every time spouses sign joint returns, they accept joint and several liability. Therefore, each spouse is liable for all of the tax due on income reported, or failed to be reported, on the joint return unless he or she can claim relief. One form of relief targeted specifically to filers of joint returns is innocent spouse relief that relieves a spouse of liability under one of three vague standards. Joint and several liability’s efficient tax collection often conflicts with innocent spouse’s equitable claims to have signed the return while being lied to, abused, or manipulated. The question for Congress is how to balance these competing claims. Located at the intersection of the public-market / private-family divide, innocent spouse relief offers an opportunity to explore how the government views women. Currently, the relief provided is both over- and under-inclusive by not offering relief to all wives who are unable to assess the validity of their returns but offering relief to some who both know and help orchestrate the evasion. This paper argues, instead, that the IRS should respect wives’ autonomy when signing the return and grant relief only when a wife was unable to exercise that autonomy. Therefore, in the event that a spouse is abused or deceived, relief needs to be more automatic that under today’s law to reduce the administrative costs on both taxpayer and the government.
This paper follows up on Stephanie's prior work, including:
- An Empirical Study of Innocent Spouse Relief: Do Courts Implement Congress’s Legislative Intent?, 12 Fla Tax Rev. ___ (2012)
- To Have and To Hold: What Does Love (of Money) Have to do with Joint Tax Filing?, 11 Nev. L.J. 718 (2011)
- London Calling: Does the U.K.'s Experience with Individual Taxation Clash with the U.S.'s Expectation?, 55 St. Louis L.J. 159 (2010)
- California Women: Trying to Use Federal Taxes to Put the 'Community' in Community Property, 25 Wis. J. L. Gender, & Soc'y 36 (2010)
The earned-income tax credit is often said to encourage work, but it may do just the opposite. ... The chart below shows the credit’s schedules for the 2011 tax year as a function of annual earned income for a given family situation (other family situations have the same basic shape). The schedule shown illustrates the mountain-plateau pattern described above: an increasing portion for the lowest incomes, a flat portion, a decreasing portion and then finally a flat portion of zero.
... For the same reasons that the credit encourages more work among people who might otherwise earn close to zero during a year, it can also influence some people to work less — those with earnings at or slightly above the downward-sloping or “phase-out” portion of the schedule, where people lose about 20 cents of their credit for every additional dollar earned during a year. In other words, for households on the downward-sloping portion of the earned-income tax credit schedule, the credit acts as an extra 20% tax on the income they earn in that range. The work-encouraging potential of the credit occurs only on the upward-sloping portion. ... [I]t is more common for families to be on the part of the earned-income tax credit where it acts as a tax, rather than a reward to additional work.
Update: Linda Beale (Wayne State), EITC: Mulligan (economic theory) vs. Seto (empirical evidence)
Cynthia Blum (Rutgers-Newark) & Paula N. Singer (Vacovec, Mayotte & Singer, Newton, MA), A Proposal for Taking the Complexities Out of Taxing U.S. Retirement Distributions to Foreign Nationals, 11 Fla. Tax Rev. 775 (2012):
As the global mobility of workers increases, more and more foreign nationals participate in U.S. retirement plans and eventually receive payments from these plans. The current system for U.S. taxation of these payments is exceedingly complex and uncertain. An elderly recipient of these payments living outside the U.S. finds it difficult and expensive to obtain the tax advice necessary for filing an accurate nonresident Form 1040NR. As a result, many do not file the return, and few are likely to be contacted by the IRS. Whatever tax, if any, was withheld by the payer becomes by default the final tax, even though it is unlikely to correspond with the actual tax liability prescribed by Congress and the applicable U.S. treaty. Moreover, foreign recipients are often able to avoid disclosure of their payments to tax authorities in their home countries.
We recommend a new system for taxing retirement payments to foreign nationals that would alleviate these serious administrative burdens. Under our proposal, Congress would establish two withholding rates for these distributions: a low rate of 15% for periodic distributions or minimum required distributions; and a 30 percent rate for other lump sum distributions, which are most conducive to avoiding home country tax and depleting retirement savings. The 30 percent withholding rate would also apply whenever a payee fails to provide documentation of his U.S. or foreign *776 status. These rates would be, by design, the final U.S. tax liability for foreign nationals, who would generally have no need to file a nonresident Form 1040NR. In addition, the Treasury would provide more detailed guidance to payers regarding the types of distributions that qualify for treaty relief; and a recipient's request for treaty relief would always trigger notification to the home country so as to permit it to collect its own tax. Our proposal would greatly reduce administrative burdens for the IRS, for payers and for payees, and would provide greater assurance that the tax prescribed by Congress and by our treaty partners is accurately collected.
I. Jay Katz, The William O. Douglas Tax Factor: Where Did the Spin Stop and Who Was He Looking Out For?, 3 Charlotte L. Rev. 133 (2012):
Although much better known for his opinions regarding constitutional law and individual rights, Justice William O. Douglas also left an indelible mark in tax law. Throughout his thirty-six year tenure on the Supreme Court, Douglas wrote a significant number of majority and dissenting opinions in some of the most famous tax law cases of his day. As the title of the article suggests, most of Douglas's opinions were full of spin from the bias of the party he favored and read more like a brief than an objective Court opinion. In additionto their obvious spin, Douglas's opinions often lacked well-reasoned analysis, ignored compelling counter-arguments made by his brethren in dissenting and majority opinions, misconstrued, minimalized, or completely ignored contrary judicial and legislative authority. In many instances, Douglas's majority opinions frequently crossed the line of judicial interpretation into judicial legislation with absurd outcomes and punitive consequences to the taxpayer or the government. In addition to Douglas's dubious legacy as a “spin” Justice in tax controversies, Douglas also wrote poorly reasoned majority opinions that were difficult to comprehend and provided little guidance to the taxpayer and the government.
The purpose of this Article is to critique the judicial evolution of Douglas as a “rogue” Justice in tax controversies through a comprehensive analysis of a cross section of Douglas's prominent majority and dissenting opinions in the three distinct periods of his judicial tenure. Those periods were (1) the Pro-Commissioner Period (1939-1944) in which Douglas's opinions were decidedly spun for the Commissioner regardless of the inequitable consequences to the taxpayer; (2) the Pro-Taxpayer Period (1944-1958) in which Douglas's allegiance shifted from the Commissioner to the taxpayer as reflected in his opinions delivered throughout that period; and (3) the Taxpayer Advocate Period (1958-1975) in which Douglas's Pro-Taxpayer opinions were as extremely slanted in favor of the taxpayer as they were in favor of the Commissioner during the Pro-Commissioner Period.
Wednesday, May 23, 2012
Accounting and finance cannot be taught through the dense text and format typical of legal casebooks. Mirroring textbooks used at business schools with significant quantities of visuals, Essential Concepts of Business for Lawyers uses many graphical elements, including pictures, charts, diagrams, and tables. Engaging hypotheticals are fun and engaging, but they also illustrate the application of important concepts in business situations. At the end of every chapter, there are three forms of review and summary: Essential Terms, Key Concepts, and Review Questions. The text uses many examples, specially set in example boxes, to illustrate and reinforce difficult concepts. Completely up to the minute, the book features material on important, recent events such as the financial crisis of 2008-2009, the collapse of investment banks, the Bernie Madoff fraud case, and Enron. While this book is not a casebook, it includes edited appellate cases at the end of every chapter. These cases provide essential contextualization, illustrating the legal application of the business concepts presented, and make more concrete the lawyer’s need to understand business. This makes Essential Concepts of Business for Lawyers unique among available books, as the cases connect the unfamiliar (business concepts) with the familiar (case law). Flexibility makes it stand out as well. It can be easily used as a primary text in an independent course on essential business concepts and is the only single book that adequately serves this function. Additionally, this book can be used as a required or recommended supplement in doctrinal business law courses such as business associations, securities regulations, corporate finance, taxation, banking law, financial regulation, and business planning. A Teacher’s Manual accompanies with PowerPoint slides.
Huzzah for U.S. News and World Report! The most recent edition of its law school rankings includes the median LSAT and GPA of each school’s entering class. [Unfortunately, the rankings table still sorts by 25th-75th percentiles; to get median LSAT and GPA data, you must click on each individual school, and then click on "More About Admissions"].... Though USN&WR remains short of that ideal, disclosing median LSATs and GPAs represents a major step towards making the rankings more transparent and, thus, trustworthy.
USN&WR started the trend towards transparency last year, when it began publishing the “volume and volume equivalents” measures that it uses in its law school rankings.... There remain only two categories of data that USN&WR still uses in its law school rankings but does not disclose: overhead expenditures/student (worth 9.75% of a school’s score in the rankings) and financial aid expenditures/student (worth 1.5%). [Full methodology here] It isn’t evident why USN&WR declines to publish those inputs, too, though perhaps the financial nature of the data raises special concerns. If USN&WR cannot bring itself to publish overhead expenditures/student and financial aid expenditures/student, however, it should abandon those measures. They serve as poor proxies for the quality of a school’s legal education and if we cannot double-check the figures we cannot trust their accuracy.
Wall Street Journal editorial, O'Malley's Tutorial: Maryland's Governor Offers a Lesson in Progressive Taxation:
Governor Martin O'Malley is the gift that keeps on taking. Even as he grabs ever more from Maryland taxpayers, he's providing useful instruction in the real purpose and pattern of progressive taxation, which is that sooner or later it comes after the middle class.
Last week the legislature in Annapolis enacted another huge tax increase, this time hitting anyone earning more than $100,000 ($150,000 for couples). This isn't a tax on the 1%. It's a tax on the top 14%.
Readers may recall that when Mr. O'Malley first raised taxes, in 2007, he said he could balance the budget on the backs of the rich. That didn't work out so well. The number of millionaires fell sharply in the state, whether because of the recession or because they sought tax shelters or simply fled to lower-tax states. Revenues came in far below projections, and the deficit forecast ballooned.
So Mr. O'Malley is now going where the real money is—the middle class. The highest state-local combined income tax rate will rise to 8.95% from 8.7% and 7.95% when Mr. O'Malley became Governor, giving Maryland one of the highest rates in the nation. About 300,000 Maryland filers reported six-figure incomes last year. ...
The progressive tax ratchet—the racket—is to pretend government can squeeze more money from the rich than is possible, then spend the imaginary windfall, then when deficits persist claim there's no choice but to raise taxes on the upper middle class and eventually on everyone who has income to tax. This is why Californians making as little as $48,000 pay a tax rate of 9.3%.
Our condolences to Maryland residents who are getting soaked again, but thanks to Mr. O'Malley for this tutorial in progressive government. In a second term, rest assured President Obama will do the same.
Several commenters have asked me whether faculty are discussing the issues raised in this blog and, if so, what any of us see as the endgame. ... [H]ere are four predictions about what might happen by the end of the game's first quarter (roughly within the next two years). ...
1. This summer will produce shock waves at almost every school. Applications are down, including among those who scored highly the LSAT. In addition, based on comments at sites like top-law-schools, 0Ls are much more reluctant to pay sticker price outside the T14. Even some applicants with multiple offers in hand are still weighing whether to attend law school at all.
Schools outside the T6 almost certainly will have trouble filling their seats with applicants as qualified as the ones they currently enroll. The challenges may be greatest at schools ranked roughly 15-100, who will face pressure on three fronts: (a) fewer applicants in their original pool, especially at the higher LSAT levels; (b) more competition from schools ranked just above each of them, who are dipping further into their own pools; and (c) more competition from the schools ranked just below each of them, whose scholarship offers will be more tempting to applicants than in the past.
A significant number of schools at every level may pare class size to maintain LSAT and GPA levels. Alternatively, they may end up inadvertently under-enrolled because students change their minds in late summer. This summer probably will be a volatile one for admissions, with lots of students admitted off waiting lists who leave gaps at other schools.The schools that do cut class size may face a sobering outcome: the unfilled seats are likely to be full-price ones. I suspect, in other words, that schools will continue offering scholarship money to attract the best students; they may even push those budgets to maintain their entering-class profile. When classes start in August, the missing bodies may be ones who would have paid full tuition. Losing 10-25 students at the "average" seat cost isn't too bad; losing 10-25 students who would have paid full tuition for three years is a bigger blow. ... 2. Tuition won't rise nearly as fast as it has in recent years. Some schools may even freeze tuition to attract students, although I think few will go so far as to roll back sticker price. Instead, schools may try to increase scholarship offers, de facto lowering tuition. Scholarships are an appealing way for schools to cut tuition, because they can differentiate among applicants. ...
3. Schools will begin looking for new sources of revenue. They are likely to admit more international students to both LLM and JD programs. They may also create revenue-generating courses targeted at practitioners. ...4. Schools, students, and employers will adapt to new hiring patterns. I don't think the boom times of 2007 will come back -- certainly not within the next two years. The new patterns will vary by law school prestige and geography, but some likely overall trends are:
(a) More externships, volunteer positions, and fellowship-funded positions during the 1L and 2L summers. ...
(b) More staff attorney, career associate, contract attorney, and other "alternative" positions at law firms of all sizes. ...
(c) Much more mobility and part-time work during the first 2-3 years after graduation. The job market overall is unstable, and new lawyers clearly are having a hard time establishing themselves. We'll continue to see graduates moving among contract positions, government jobs, fellowships, and law firms. ...
(d) Increased emigration. American JDs have value abroad and, as the domestic job market remains rocky, foreign jobs may become more attractive. ...
Notice that my "first quarter" predictions do not include massive closings of law schools. It's possible that some law schools will shutter, and I think that would be a good result. But law schools have a lot of resources and considerable fat to pare from their budgets. Meanwhile, although the applicant stream has diminished, it is still large enough to fill all existing seats at law schools. At least during the next two years, I think we'll see reduced class sizes rather than closures. What happens after that may depend on how schools themselves react during the next two years, especially on predictions 2-4. Will we find ways to attract more students by cutting some costs? Will we find new sources of revenue? Will we place more of our graduates abroad? Will we find out more about the new job market so that we can help our graduates better navigate those waters?
Forbes, Seventh Circuit Surprised To See Accounting Firm "Screw Up Its Taxes", by Peter J. Reilly:
“That an accounting firm should so screw up its taxes is the most remarkable feature of the case.”
Yikes. I used to write things like that before I got on a classy venue like Forbes.com and started working for a national firm for my day job. So I want to be clear. That’s not me. It is the Seventh Circuit in its wrap-up to Mulcahy, Pauritsch, Salvador & Co., Ltd, an appeal of a tax court decision which I wrote about, almost exactly a year ago, in a post titled Personal Service Corporation and C Corp – Recipe For Disaster. MPS is a full service accounting firm. For the years in question (2001 – 2003), it was a C Corp, which is a little unusual nowadays, but not so unusual in 1979, when the firm was founded. Once you have a business in a C corporation, it is not so easy to get it out, so it is understandable that they continued that way.
Following up on Monday's post, LST Calls for Resignation of Rutgers Dean and ABA Investigation of Improper Recruiting of Law Students:
- ABA Journal, Rutgers at Camden Law Dean Defends Marketing Pitch Touting Salaries of $130K for ‘Many Top Students’:
A marketing pitch sent to prospective students by Rutgers University School of Law at Camden touted a 90% employment rate in the legal field for its employed graduates and top private-practice salaries in excess of $130,000 for “many top students.” Now law dean Rayman Solomon is defending those claims after critics charged that the statistics are misleading. ...
According an analysis by Law School Transparency, no more than five recent graduates reported a salary of $130,000. And the 90% employment statistics include jobs where having a J.D. is an advantage, the group says. Solomon said he didn't dispute the group's figures, but disagreed with its analysis.
- Inside Higher Ed, Group Seeks Resignation of Rutgers-Camden Law Official:
Alleging false and misleading recruitment materials that overstated earnings expectations and understated the risk of unemployment, an advocacy group is calling for the resignation of a Rutgers University at Camden School of Law administrator. Law School Transparency, a policy organization working to reduce the cost of legal education, said associate dean Camille Andrews sent prospective students information that exaggerated the benefits of attending Rutgers-Camden. In addition to Andrews's resignation, Law School Transparency called for an investigation by the American Bar Association and asked the university to clarify the data in those materials to any prospective students who were contacted.
Dean Rayman Solomon is standing by Andrews. Solomon said the recruitment material was accurate but that he's "open to discussion" about the best way to reach prospective students going forward. The promotion in question targeted potential applicants who took the GMAT, not the LSAT, the typical law school admission test. The goal, Solomon said, was to reach a new audience and introduce the Rutgers-Camden program. Students could then go online to get more information.
"This was one letter saying are you interested, have you thought about it?" Solomon said. "This is not our entire marketing campaign. This is telling people that we have a program."
But were the numbers misleading?
"I don’t know how to respond," Solomon said. "If you have a hundred people, would four of them be misled? Would one be misled? Would 98 be misled? [It was] a piece that was designed to get people to think about something they hadn't thought about. This wasn’t the only information they could get about it."
- Law School Transparency, Rutgers–Camden School of Law’s Dean Stands by Marketing Campaign:
The brunt of Dean Solomon’s response is that this is but a single letter that isn’t a big deal and shouldn’t affect decision making. To that we ask, what could the employment statistics have been meant to do other than affect application and enrollment decisions? The letter was part of a recruitment campaign, not a not a teaser for a movie due out next summer. Camden should strive to have all of its communications with students be accurate and honest. Dean Solomon further states that the misinformation is okay because other information is out there. It would appear that he is saying “you should know not to take our statements at face value.” That’d be a pitiful position for a law school dean to take.
It’s not acceptable to provide prospective students with false and misleading information just because the truth is available somewhere else. Interpretation 509-4 to ABA Standard 509 clearly states that reporting consumer information accurately somewhere does not absolve a school’s responsibility to present such information in a fair and accurate manner elsewhere.
- Above the Law, Rutgers Law Dean Offers Nonsensical Response to Transparency Criticism
- Cherry Hill Courier Post, Doubts on Law School Pitch
- JD Journal, Activists Ask Rutgers-Camden School of Law Administrator to Step Down
Luke Roosevelt Hornblower (J.D. 2012, Loyola-L.A.), The Empire Strikes Out: The IRS & the Ambiguities of Tax Accounting, 135 Tax Notes 1045 (May 21, 2012):
This article surveys the rare cases in which the IRS has unsuccessfully challenged a taxpayer’s method of accounting as not clearly reflecting income. Those cases together shed light on when tax accounting methods may reflect income just clearly enough to pass judicial muster.
All Tax Analysts content is available through the LexisNexis® services.
Massachusetts Bar Association Task Force on Law, the Economy and Underemployment, Beginning the Conversation (May 17, 2012):
The MBA Task Force on Law, the Economy and Underemployment began its work in November of 2011 with a mission to study factors contributing to the problem of underemployment among recent law school graduates in Massachusetts. ...
In an effort to achieve its mission, the task force members were divided into four sub-committees, assigned to explore and report on: (1) law school curriculum reformation and the creation of a legal residency program; (2) fair disclosure of data by law schools and reasonable expectations by prospective law students; (3) structural obstacles to employment; and (4) avenues to utilize the resource of new law graduates while enhancing their skills for employment. While these topics are by no means an exhaustive list of factors contributing to the current employment picture, the task force used them as a launching point for what it hopes will be a more extended conversation.
The task force initially examined two non-legal professions currently experiencing little to no unemployment among its recent graduates, and compared their teaching methodologies to that of a typical modern law school. The task force found that both the medical and dental school teaching models place considerable emphasis on providing the kinds of hands-on practical training that more fully equips students to begin practicing soon after graduation. In contrast, while law schools offer a certain amount of practical training, largely at the election of the student, the primary concentration of offerings continues to be highly theoretical. The task force recommends that the MBA encourage Massachusetts law schools to reinvent the third year so as to provide greater opportunities for law students to gain practical legal experience and expand opportunities to hone their legal writing skills, beyond that offered through traditional first year legal writing programs.
In order to incentivize law schools to make such a shift, while remaining responsive to the needs of its readers, U.S. News & World Report should be pressed to incorporate a new criterion into its ranking system, based on how well each law school prepared its graduates for actual practice. Finally, the task force recommends that the MBA further explore the concept of a highly supervised legal residency program, which would provide practice-area specific training (such as civil trial law, criminal defense or probate practice training) to third year students and/or recent graduates in their chosen area of legal concentration.
The task force also considered the highly publicized issue of law schools misreporting admissions and employment data. While there have only been two recent examples of law schools supplying false admissions data [Illinois, Villanova], the task force considered whether the sanctions for misreporting are sufficient to deter other law schools from doing the same. As one suggestion to ensure better compliance, the task force recommends that the MBA support legislation, similar in concept to the goals of the Sarbanes-Oxley Act, requiring law school deans and trustees to certify that the data provided by the law school is fair and accurate. With respect to employment data, because of significant changes made recently by the American Bar Association in collecting data from the law schools, it is premature to determine if more must still be done. However, the task force recommends that the MBA further explore alternative sources — rather than the law schools themselves — to provide the critical data upon which prospective law students rely when choosing a law school. At the same time, the task force members did feel that prospective law students bear some responsibility to conduct adequate investigation and adjust their expectations to the economic realities of the legal job market.
It is important to note that the task force did not limit its focus solely to law schools as it explored root causes of underemployment among new lawyers. It also examined existing barriers to employment in Massachusetts, including the oversupply of lawyers caused by the virtual open door bar admission policies existing in Massachusetts. In an effort to reduce these barriers, the task force recommends that the MBA pass a resolution to better regulate the bar passage rate in Massachusetts by tying it to the national average. The task force further recommends that Massachusetts limit reciprocity with lawyers admitted in foreign states and initiate reciprocal pro hac vice rules, particularly with its border states. The task force further suggests that Massachusetts law schools provide incentives for their students to practice in other states, to further expand the footprint of employment opportunities for graduates of the nine existing Massachusetts law schools.
Finally, the task force catalogued a number of resources and opportunities already available to unemployed and underemployed lawyers in Massachusetts in order to fill gaps in legal services’ needs, and to provide recent graduates with experience necessary to increase marketable skills and thereby employment opportunities. While the task force made a number of recommendations to expand existing programs, the task force also supports the creation of certain new programs, including postgraduate clinics and the law school law firm, first proposed by [Tax Prof] Bradley T. Borden and Robert J. Rhee [The Law School Firm, 63 S.C. L. Rev. 1 (2011)].
Together, this report and the recommendations contained herein, represent the beginning of an important conversation to address the dynamic employment prospects faced by current and future law school graduates. Perhaps the most significant of the task force’s recommendations is that the MBA establish a permanent committee to study these and other factors contributing to underemployment among law school graduates with the goal of more closely monitoring evolving employment trends and developing strategies designed to overcome identified obstacles to employment.
- ABA Journal, Mass. Bar Task Force: Legal Education Could Take a Page from Medical Education’s Book
- Boston Business Journal, Report: Law School Should be More Like Medical School
- JD Journal, Massachusetts Bar Task Force Releases Report
- Legal Skills Prof Blog, Massachusetts Bar Task Force Says Third Year of Law School Should Focus More on Practical Training
Following up on my prior posts (links below): Fox News: It's Time to Investigate the IRS:
Richard Nixon ordered the IRS to conduct tax audits of those on his infamous “Enemies List.” Now, a spate of investigations and leaks coming out of President Obama’s IRS raises concerns that this administration may also be using the power of the nation’s most feared agency to silence its political opponents.
Today, more than six dozen grassroots citizens groups seeking to gain 501(c)(4) -- and in some cases 501(c)(3) -- tax status today find themselves facing unexpectedly invasive investigations and onerous procedural hurdles. All these groups have received non-profit recognition at the state level. Yet their requests for IRS recognition have been left in bureaucratic limbo for months -- in some cases, for more than two years. ...
In a separate instance of bureaucratic malfeasance, it appears that some within today’s IRS are even willing to break federal law to publicly disclose the private donor information of conservative non-profits.
Somehow, the Human Rights Campaign (HRC), a gay advocacy group, got its hands on Schedule B of the tax return filed by the National Organization for Marriage (NOM) -- a conservative values organization that has sparred with the administration and liberal groups over homosexual marriage. The HRC -- soon followed by scores of left-leaning publications, magazines, and blogs like the Huffington Post and Mother Jones -- published the confidential document that revealed the names, contact information, and donation amounts of anyone who had given over $5,000 to NOM.
NOM has called for immediate investigations by the Justice Department and the Treasury Department’s Inspector General to determine how HRC gained possession of this document. ...
The IG and the DOJ need to undertake their investigations with utmost seriousness, swiftness and impartiality. And they should bring criminal indictments against anyone inside or outside of the IRS found to be responsible for these abuses of federal tax power. This kind of behavior is simply unacceptable, for it threatens the liberty and freedom of Americans who want to participate in the political process.
Prior TaxProf Blog coverage:
- Senate Candidate Calls for Investigation of IRS 'Assault' on Tea Party (Feb. 24, 2012)
- IRS May Out Donors to Tea Party, Other 501(c)(4) Groups (Mar. 9, 2012)
- NY Times Backs IRS Efforts to Out Donors to Tea Party, Other 501(c)(4) Groups (Mar. 10, 2012)
- Why Is The IRS Asking Tea Party Groups If They Know Me? (Mar. 16, 2012)
- More on IRS, Tea Party Groups, and § 501(c)(4) Tax-Exempt Status (Mar. 24, 2012)
- House Demands IRS Documents on Alleged Harassment of Tea Party Groups (Apr. 12, 2012)
- National Organization of Marriage Demands Investigation of IRS's Leak of Mitt Romney's Contribution (Apr. 13, 2012)
- Sen. Hatch Demands Investigation of IRS's Leak of Mitt Romney's Contribution to Pro-Marriage Group (May 11, 2012)
Charlene Davis Luke (Florida) & Aviva Abramovsky (Syracuse), Managing the Next Deluge: A Tax System Approach to Flood Insurance, 18 Conn. Ins. L.J. 1 (2011):
This Article critiques the National Flood Insurance Program and proposes an alternative insurance plan that would use the strengths of the federal tax system to address the complexities of flood loss and provide basic coverage for all individuals. The Article also discusses the current tax rules applicable to flood loss and proposes methods for harmonizing such rules with the proposed program.
Tuesday, May 22, 2012
My Cincinnati colleague Kristin Kalsem has published In Contempt: Nineteenth-Century Women, Law, and Literature (Ohio State University Press, 2012):
In Contempt: Nineteenth-Century Women, Law, and Literature, by Kristin Kalsem, explores the legal advocacy performed by nineteenth-century women writers in publications of nonfiction and fiction, as well as in real-life courtrooms and in the legal forum provided by the novel form.
The nineteenth century was a period of unprecedented reform in laws affecting married women’s property, child support and custody, lunacy, divorce, birth control, domestic violence, and women in the legal profession. Women’s contributions to these changes in the law, however, have been largely ignored because their work, stories, and perspectives are not recorded in authoritative legal texts; rather, evidence of their arguments and views are recorded in writings of a different kind. This book examines lesser-known works of nonfiction and fiction by legal reformers such as Annie Besant and Georgina Weldon and novelists such as Frances Trollope, Jane Hume Clapperton, George Paston, and Florence Dixie.
In Contempt brings to light new connections between Victorian law and literature, not only with its analysis of many “lost” novels but also with its new legal readings of old ones such as Emily Brontë’s Wuthering Heights (1847), George Eliot’s Adam Bede (1859), Lewis Carroll’s Alice’s Adventures in Wonderland (1865), Rider Haggard’s She (1887), and Thomas Hardy’s Jude the Obscure (1895). This study reexamines the cultural and political roles of the novel in light of “new evidence” that many nineteenth-century novels were “lawless—showing contempt for, rather than policing, the law.
“Kristin Kalsem’s In Contempt makes a significant contribution to scholarship on the history of feminist jurisprudence. She covers thorny legal issues including married women’s property, infanticide, and lunacy law, as well as birth control, imperialism, and women’s admission to the bar. In her afterword she urges scholars to engage the ‘new evidence’ she has brought to light—and I have no doubt that this evidence will be welcomed enthusiastically.” -- Christine L. Krueger, professor of English, Marquette University
"Our consumers are not very price sensitive." I've heard that sentiment repeatedly during the last year, as colleagues across the nation respond to criticisms of law school tuition. ...
I wonder, in fact, how much of the tuition collected by law schools represents monopoly rents from the guild restrictions of the legal profession itself. To practice law, individuals must surmount significant barriers to entry: They must complete a four-year college degree, score decently on the LSAT, attend (and pay for) law school, and pass the bar examination (which often entails paying still more tuition for a bar review course). Increasingly, these individuals must also take a series of low-paying or volunteer positions to obtain practical experience and establish their credibility as lawyers. ... [L]aw school represents the single largest--and by far most expensive--barrier to entry. Potential lawyers don't get to choose their pipers: They must dance to our tune at whatever price we charge. ...
[L]aw schools are triply shielded from the free market: first by rules that restrict law practice to licensed lawyers; second by bar admission regulations that require applicants to graduate from accredited law schools; and third by self-designed accreditation standards. When we take advantage of these restrictions to escalate tuition far beyond inflation, we're not just stifling our graduates with debt; we're abandoning our professional responsibilities.
If you have a fetish for footnotes, DCM and I published a more academic version of these ideas last year (Responsibility-Rights in the Legal Profession).
The Treasury Department's Office of Tax Analysis has released Distributing the Corporate Income Tax: Revised U.S. Treasury Methodology (Technical Paper 5, May 2012):
The purpose of this analysis is to improve the U.S. Treasury Department’s distributional model and methodology by defining new model parameters. We compute the percentage of capital income attributable to normal versus supernormal return, the percentage of normal return attributable to a cash flow tax versus a “burdensome” capital tax, and the portion of the burdensome tax on normal return to capital to distribute to capital income versus to labor income. In summary, 82% of the corporate income tax burden is distributed to capital income and 18% is distributed to labor income.
Jon Garon (NKU Chase College of Law), Legal Education in Disruption: The Headwinds and Tailwinds of Technology:
Part one of the article tracks the changes that automation is bringing to the legal profession from self-help online tools to predictive document drafting and other innovations. It analyzes the potential of the virtual law firm, unbundled (or specialized) legal services and the development of virtual law firm networks that will grow into the standard for small firm practice.
Part two translates these changes for legal education. While much of the core subjects taught in law school today will remain the same (i.e. Contracts, Torts, Property, Civil Procedure, Constitutional Law, Evidence, Corporation, Tax, etc.) much else needs to change.
- Like the other advocates for skills training, the article emphasizes clinical and field placement education for students.
- Like advocates for better instructional design, it calls for law school to each subject like logic and communication skills explicitly rather than hoping that students will glean these skills from the first year classroom discourse.
- It changes the focus on professionalism by recognizing that law is also a business, requiring law schools to prepare graduates with courses and training on the business of lawyering (including accounting, human resources, business development, legal business ethics, marketing, leadership and management training).
- It also emphasizes that 64% of law practice is done for business entities and an additional 10% of attorneys work in-house. So the emphasis of law schools should better reflect the kinds of lawyering that are actual taking place. While this does not suggest abandoning litigation or the teaching of how to serve individuals, it requires a more accurate balance so graduates are less surprised by the environment in which they practice law.
- Finally, it highlights that the nature of business has become global and technical so courses on international business, intellectual property and other fields relevant to the success of one’s clients should comprise the electives. Moreover, the proposal recognizes that many of these courses are better learned from the disciplines where the clients are trained, so interdisciplinary programs with certificates and even joint degrees should be encouraged.
- The trade-off means that fewer credits and course hours are expended on the core subject matter law school teaches. This will not be a problem since the measure of seat time is a poor approximation of a student’s learning or competency. Instead, competency testing for both skills and knowledge should be integrated throughout the curriculum, allowing students to move at their own pace and demonstrate readiness to leave law school using something more precise than a six-semester schedule.
Walsh: The Puzzle of the Pre-enforcement Challenge to the Individual Mandate of § 5000A of the Tax Code
Kevin C. Walsh (Richmond), The Anti-Injunction Act, Congressional Inactivity, and Pre-Enforcement Challenges to Section 5000A of the Tax Code, 46 U. Rich. L. Rev. 823 (2012):
There is a puzzle surrounding the Supreme Court’s consideration in March 2012 of a pre-enforcement challenge to the “individual mandate,” the provision of the Patient Protection and Affordable Care Act codified at § 5000A of the federal tax code. Republicans and Democrats alike claim to want a prompt, definitive ruling from the Supreme Court about the constitutionality of § 5000A. But the federal tax Anti-Injunction Act (“AIA”) presents a serious potential obstacle to the Supreme Court’s ability to reach the merits of the present pre-enforcement challenges. The AIA is a rule that Congress made. And it is not too late for Congress to make an exception to that rule. The puzzle, then, is this: If there is a congressionally created obstacle to getting a ruling that everyone in Congress seems to want, and Congress can remove that obstacle, then why has it not done so? This contribution to the Everything but the Merits symposium held on November 11, 2011 at the University of Richmond School of Law examines various aspects of this puzzle.
A combination of inertia, ignorance, and uncertainty about how the Supreme Court will rule if it reaches the merits may explain Congress’s failure to act in the face of the serious jurisdictional problem that the AIA may present. Partisans on both sides of the constitutional debate obviously want to win, but only one side can, and both sides prefer a jurisdictional loss to a loss on the merits. It could be, also, that there really is no AIA problem. One seeking an exhaustive analysis of the arguments can look to the briefs filed in the litigation. This symposium contribution presents one simple argument for the applicability of the AIA from the text of § 5000A itself that should be enough to demonstrate why those who want a prompt ruling should have cause for concern.
The costs to delayed review of the AIA’s constitutionality are, at this point, sufficient to justify Congress in acting to avoid it. But if Congress and the Obama Administration do not act, then neither should the Supreme Court strain one way or the other in deciding whether the AIA bars the present pre-enforcement challenges.
Wei Cui (China University of Political Science and Law), Foreign Administrative Law and International Taxation: a Case Study of Treaty Implementation in China, 64 Admin. L. Rev. 191 (2012):
U.S. tax specialists and the U.S. government increasingly have to take into account the interactions between U.S. and foreign tax laws, but to date, they have paid little attention to the administrative law backgrounds of foreign tax laws. In a growing range of cases, especially in the tax treaty and foreign tax credit (FTC) areas, the need for such attention is urgent. This Article describes a novel class of cases encountered by U.S. taxpayers that emanate from recent tax treaty implementation in China. In these cases, U.S. (and other foreign) investors face certain rules that conflict with common interpretations of tax treaties, and that, at the same time, are not legally binding under Chinese domestic law. The questions arise as to (1) whether U.S. taxpayers should still treat such rules as binding, and (2) what the consequences are of their doing so in terms of their ability to claim U.S. foreign tax credits. Equally, the U.S. government faces the question of what to do with these cases of errant treaty interpretation.
This Article shows that these questions for U.S. tax law and policy cannot be answered without an understanding of the Chinese administrative law approach to treaty implementation. An examination of this background suggests that affected U.S. taxpayers cannot simultaneously avoid contesting the applications of the Chinese rules and to claim, for FTC purposes, that they have taken “all practical and effective remedies” to reduce their tax liabilities. It also suggests that the U.S. FTC rules on what qualifies a compulsory tax payment constitute a way of “exporting” U.S. concepts of the rule of law. But most fundamentally, it highlights the inadequacy of the traditional leap of faith undertaken by both the signers and users of tax treaties—the belief that treaties should be expected to be implemented by other countries regardless of their domestic laws. Instead of making such a leap of faith, this Article argues that U.S. taxpayers and the U.S. government should recognize that the observation of treaty obligations can be ensured only if the signatories embrace the rule of law. To protect their rights and expectations under tax treaties, they must tap unfamiliar mechanisms that enhance the rule of law, such as legislative, judicial, and executive oversight.
David J. Herzig (Valparaiso), Exchange Funds: A Proposal for Regulations, Finally, 135 Tax Notes 865 (May 14, 2012):
The economic downturn has created an investment market in which some tax-advantaged strategies have become favored. To avoid taxable diversification, taxpayers have turned to exchange funds. Through the rules in sections 351, 721, and 368, taxpayers can diversify a single stock position without recognition. Exchange funds have existed in one form or another since the 1930s. However, after 50 years of IRS acquiescence and minimal public discourse, the debate surrounding the technical rules has been renewed. This report discusses the basics of exchange funds and the regulation and legislative proposals the New York State Bar Association Tax Section submitted to Treasury. The author then explores those recommendations and makes a proposal of his own.
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Bankruptcy Court Finds Undue Hardship, Discharges $340,000 Student Loan Debt of Former Law Student With Asperger Syndrome
National Law Journal, Asperger Syndrome Prompts Court to Forgive Former Law Student's Debt:
A former law student has won a bid in bankruptcy court to discharge nearly $340,000 in education debt because her diagnosis of Asperger Syndrome rendered her unable to repay the loans. The U.S. Bankruptcy Court for the District of Maryland on May 17 found that Carol Todd, who attended the University of Baltimore School of Law, met the difficult burden of showing that she would suffer undue hardship if forced to repay her debt.
Todd, who received her high school general equivalency diploma during the late 1980s, at the age of 39, began attending law school in 1992 but did not finish, according to the opinion. She went on to obtain a master's degree from Towson University and a Ph.D. from an unaccredited online school in 2007. She filed for Chapter 7 bankruptcy in 2009. At the time of her trial, she was 63 and owed $339,361 to three student loan creditors.
Victoria J. Haneman (La Verne), The Inappropriate Imposition of Court-Ordered Mediation in Will Contests, 59 Clev. St. L. Rev. 513 (2011):
Following the successful implementation of court-ordered mediation programs in divorce and family law cases, similar programs are being adopted to mandate the use of mediation in other areas of litigation. Complex emotional and personal issues can easily transform inheritance into a destructive process, and an increasing number of courts are ordering probate disputes and will contests to mediation.
The freedom of the individual to designate his heirs is a foundational norm that permeates doctrine in the law of wills, and as a result, the idea of testator intent has reached near-mythical stature. Conversely, mediation shapes settlement without rigid deference to legal rules and often marginalizes the intent of the testator as an impediment to reaching agreement. Because the approach taken in mediation directly conflicts with the legal rules applied by the courts adjudicating those same cases, a legitimate question is raised as to whether or not instituting court-ordered mediation programs that mandate mediation in will contest cases is appropriate. The contention of this Article is not that mediation is inappropriately used by the parties to a will contest case, but instead that court-ordered mediation is inappropriate. Mandatory mediation imposes an obstruction on the right of access to the courts that is inappropriately imposed when the process contravenes the substantive law of the case. This Article proposes an easily-implemented legislative solution that resolves the conflict between law and process.
Terri Guinn (J.D. 2012, San Diego), Comment, Proposed 2009 Regulations Dealing With Section 356 Nonrecognition Rules Should be Given the Boot, 48 San Diego L. Rev. 1397 (2011):
“Fire, Aim, Ready!” Could this be the approach taken by the Internal Revenue Service (the Service) in its attempt to finalize regulations, proposed more than two years ago, that would specify a new method for determining a shareholder’s taxable gains and losses in certain reorganization transactions? Has the Service decided to elevate theory over practicality without thinking through all of the ramifications of these regulations? Finalizing these proposed regulations in their current form may have serious unintended consequences. As drafted, they miss their intended mark by inadvertently creating a loophole whereby some shareholders could take immediate losses on some of their shares when, in reality, they have an overall gain. This Comment will explain why the proposed 2009 regulations set poor policy and are inconsistent with congressional intent.
Monday, May 21, 2012
This Article examines the history of the development of federal incentive tax credits, from the enactment of the investment credit in 1962 to the cash grant in lieu of credits regime introduced as part of the American Recovery and Reinvestment Act of 2009, and methods for "monetizing" tax credits developed in the context of state tax credits as well as federal tax credits (and associated taxation issues). The principal thesis of the Article is that (1) the current array of federal business tax credits addressed in the Article are in the nature of subsidies rather than structural components of the computation of a "correct" tax; and (2) therefore constraining the monetization of these tax credits through the imposition of normative-based substantive requirements is inappropriate. As the Article states in conclusion, if the judgment is that tax expenditures of this kind play a useful role (i.e., they should not simply be repealed), then the articulation of the underlying goals and intended beneficiaries of current tax-based subsidies should be sharpened and our existing "delivery mechanism" closely examined and possibly overhauled.
Discussion of the so-called fiscal cliff—the combination of tax increases and spending cuts that will come in 2013 if Congress and the president don't act—confuses a number of different issues. The evidence suggests that we should fear the tax hikes, but not necessarily the spending cuts.
Anyone who uses the term "fiscal cliff" accepts a Keynesian view of the economy, knowingly or not. Both tax increases and constrained spending are assumed to be bad for the economy.
But there are two other views: that of the budget balancer and that of the supply-sider. Rather than term the impending changes that will occur in 2013 a "fiscal cliff," the budget balancer thinks of this as "fiscal consolidation." Tax increases reduce the deficit, as do cuts in government spending. Both are austerity measures that make the government more responsible and, therefore, both are conducive to long-run economic growth. Those who support the Simpson-Bowles plan subscribe, at least in part, to this view. ... The budget balancer regards both tax increases and spending cuts as moves in the right direction.
The supply-sider has a different view from both the Keynesian and the budget balancer. Fundamentally, supply-side advocates focus on the harmful effects of tax increases. Raising tax rates hurts the economy directly because tax hikes reduce incentives to invest and because they punish hard work. As such, tax increases slow growth. But budget cuts work in the right direction by making lower tax revenues sustainable. If spending exceeds revenues, then the government must borrow and this commits future governments to raising taxes in order to service the debt. ...
Which of the three views is correct?
On the tax side, there is strong evidence that supports the supply-siders. Christina Romer, President Obama's first chairwoman of the President's Council of Economic Advisers, and David Romer document the strong unfavorable effect of increasing tax rates on economic growth [The Macroeconomic Effects of Tax Changes]. They report that an increase in taxes of 1% of gross domestic product lowers GDP by almost 3%. The evidence on government spending also suggests that high spending means lower growth.
The evidence on government spending also suggests that high spending means lower growth. For example, Swedish economists Andreas Bergh and Magnus Henrekson survey a large literature and conclude that an increase in government size by 10 percentage points of GDP is associated with a half to one percentage point lower annual growth rate [Government Size and Growth: A Survey and Interpretation of the Evidence].
The evidence suggests that we should move away from worry over the impending "fiscal cliff" and focus more heavily on concern about raising taxes. And although some Keynesians may view this as not the best time to control spending growth, promising to change our ways in the future is as credible as Wimpy's promise to pay on Tuesday for the hamburger that he eats today.
Check out this online tool to calculate your worth to Facebook: at today's market price, I am supposedly worth $1,537 to Facebook ($1,876 if I start playing Zynga games). As the saying goes, If you're not paying for something, then you're not the customer—you're the product being sold. See also Forbes, Post Facebook IPO, Your Brain and its Data Are Worth $91.44 to Mark Zuckerberg:
Now that the dust has settled and Facebook has traded on NASDAQ for a day, it’s possible to gauge more precisely than ever before how much the company is worth, and with that number, how much of its value derives from its relationship with each of the 900 million people who visit the site on a regular basis, gaze at and click on its ads, and feed its databases with some of their most private bits of information.
Exit Tax (known as expatriation in the U.S.) is a tax rule (and a tool) used by governments to prevent taxpayers from changing their country of domicile solely for tax benefits. A person is usually subject to taxation in his country of domicile on his worldwide income. Since there is a broad variety of tax systems in the world, in which some countries impose higher income tax rates on its residents and others impose lower rates or even no tax on certain classes of income, people might choose to change their country of domicile to a more favorable jurisdiction when they expect a big taxable gain.
- Forbes: How Mark Zuckerberg's Taxes Change Now That He's Married, by Robert W. Wood (Wood LLP, San Francisco):
What a week! First an unprecedented IPO, then marriage. Yes, Facebook’s Zuckerberg Marries His Longtime Girlfriend Priscilla Chan. ... [W]hat does this latest one-two development mean for the Zuckerberg family tax return?
- Joint v. Separate?
- Separate v. Community?
- Business and Investment Management?
- Gifts During Marriage?
- Divorce Rules
- New York Daily News, Facebook Founder Mark Zuckerberg Put IPO Before ‘I Do’s’:
Facebook founder Mark Zuckerberg displayed perfect timing in uttering two simple words — “I do” — while still cleverly safeguarding his $20 billion fortune, divorce lawyers say. By wedding college sweetheart Priscilla Chan just 24 hours after taking his social media powerhouse public Friday, he’s protecting his wealth, top lawyers say. Zuckerberg can now say his billions were minted before he took the plunge — dramatically lessening Chan’s share in any divorce settlement from the world’s 26th-richest man.
“If they married the day before, it would have made a huge difference,” said Manhattan divorce lawyer Bonnie Rabin. That’s because Zuckerberg’s holdings in Facebook — 533 million shares and an undisputed control of voting rights — could have been considered marital assets if the nuptials had taken place before the company’s initial public offering.
- Don't Mess With Taxes, Mr. and Mrs. Mark Zuckerberg and Their Community Property Taxes, by Kay Bell
- Forbes, Mark Zuckerberg Ties the Knot, But It Isn't All Love And Roses, by Deborah L Jacobs
Sullivan: Are You Ready for Taxmageddon ($5.8 Trillion in Tax Increases Over 10 Years, Starting Jan. 1, 2013)?
A combination of spending cuts and tax increases could bring the economy to its knees at the end of 2012. By our count, the economy must deal with nine significant fiscal events that will be automatically triggered by current law if Congress and the president take no action. Together these events create a perfect storm of contractionary tax and spending policies that could push the already fragile American economy back into recession. Fed Chair Ben Bernanke dubbed it a "fiscal cliff." The media calls it Taxmageddon. [Click on chart to enlarge.]
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LST Calls for Resignation of Rutgers Dean and ABA Investigation of Improper Recruiting of Law Students
Last week we became aware of an ongoing recruiting campaign by Rutgers – Camden School of Law that targets students who were not considering law school. As a part of this campaign, Camille Andrews, Associate Dean of Enrollment, sent students an email with bold statements about the employment outcomes achieved by the class of 2011. When compared to the school’s self-published employment data, we see Dean Andrew’s statements range from misleading to plainly false. Because the statements made in this email are demonstrably deceptive and are in clear violation of ABA Standard 509, Dean Andrews should resign immediately from her administrative appointment.
There are two important layers to this story. First, Dean Andrews made unfair statements about the employment outcomes of Camden graduates. These statements exaggerate the successful outcomes of Camden graduates and attempt to influence student behavior. The realities of Camden’s placement are far different from what Dean Andrews discloses. (More on this below.)
Second, Camden has extended a special offer for people who haven’t followed the normal application process and haven’t expressed an interest in law school or legal practice. (The email recipients had taken the GMAT, not the LSAT.) The Camden Special allows the students to avoid delay and enroll this August. By portraying Camden as some down-economy safe haven that leads to status and riches, Dean Andrews is attempting to enroll the exact students who ought not to attend law school: people who have not had time to carefully weigh the pros and cons of this significant investment.
- Above the Law, Law School Sales Pitch Doubles Down on the Getting Rich Rationale For Law School
- Paul Campos (Colorado), Rutgers-Camden Goes Old School
- LSAT Blog, Rutgers Law School Takes GMAT Scores
- Deborah Jones Merritt (Ohio State), Update on Rutgers-Camden
The Tax Policy Center hosts a conference today on State and Local Budget Pressures: The Charitable Property-Tax Exemption and PILOTs:
The Current Landscape: Who wins and who loses from exemption?:
- Moderator: Elizabeth Boris (Urban Institute)
- Evelyn Brody (Chicago-Kent)
- Joseph Cordes (George Washington)
- Rick Cohen (Nonprofit Quarterly)
- Thomas Longoria (Texas State University)
Focus on Eds and Meds: A focus on the current major pressure points: nonprofit hospitals and colleges and universities.
- Moderator: Roger Colinvaux (Catholic)
- Matt Hamill (National Association of College and University Business Officers)
- Keith Hearle (Verite Healthcare Consulting)
- Woods Bowman (DePaul)
Negotiated Payments in Lieu of Taxes as Wave of the Future? Will global solutions remain elusive? Will we see more use of “voluntary” PILOTs? What should a well-designed PILOT program look like, and how should it be created?
- Moderator: Kim Rueben (Urban Institute)
- Ron Rakow (City of Boston)
- Daphne Kenyon (Lincoln Institute of Land Policy)
- David Thompson (National Council of Nonprofits)
- David Brunori (State Tax Notes)
- G. Reynolds “Renny” Clark (Pittsburgh)
Sunday, May 20, 2012
- Estate & Gift Tax Savings From Facebook Co-Founder's Renunciation of U.S. Citizenship Dwarf Income Tax Savings
- 64% of Recent Law Grads Do Not Work as Lawyers
- Tax Exceptionalism and Tax Reform
- The Tax Treatment of Carried Interest
- Should You Renounce Your U.S. Citizenship Like Facebook Co-Founder Eduardo Saverin?
- David Cay Johnston v. Grover Norquist on HBO's Real Time with Bill Maher
- Top 5 Tax Paper Downloads
- California and the Amazon Tax
Wall Street Journal: Should You Renounce Your U.S. Citizenship?, by Laura Saunders:
For some people, the best tax strategy is simply to pack up and leave. That is the lesson from the disclosure that Eduardo Saverin, the 30-year-old billionaire who helped found Facebook, has renounced his U.S. citizenship to become a resident of Singapore.
Singapore offers huge tax advantages for people like Mr. Saverin, whose wealth is primarily in the form of capital gains. The Southeast Asian city-state has no capital-gains tax and its top income-tax rate is 20%—compared with rates of 15% and 35%, respectively, in the U.S. ...
Should you follow Mr. Saverin's lead and high-tail it to a lower-tax country? While it might seem tempting, renouncing one's citizenship has many drawbacks. ... Here are some considerations.
- Get ready for questions. Expatriation involves an exit interview with a U.S. official...
- You need somewhere to go. How to find a new home? ...
- You might owe an exit tax. U.S. citizens who expatriate are treated as though they sold all of their property the day before they renounce, even if they will continue to own it and pay property or other taxes. Capital gains (net of losses) are taxed at the current top rate of 15%, after an exemption of $651,000. The tax on some assets, such as an individual retirement account, will be at ordinary income rates up to 35%. ... tax applies to U.S. taxpayers whose net worth is greater than $2 million or whose average annual income tax for the past five years is $151,000 (adjusted for inflation). ...
- You will have to certify that you have been tax-compliant for the last five years. ...
- Your heirs could get a big tax bill. The U.S. heirs of wealthy taxpayers who renounce their citizenship usually owe inheritance tax equal to the U.S. estate tax on assets left to them by the expatriate. (This doesn't apply to spouses who are U.S. citizens.) ...
- You might find travel more complicated. ...
There is more: Under the "Reed amendment," named after a Democratic senator from Rhode Island, U.S. officials may bar entry to any person who renounced citizenship for tax reasons. This provision is rarely, if ever, invoked—Ms. Weintraub has never heard of a case—but it is on the books. Experts say the attention surrounding Mr. Saverin's case could revive it, and recently lawmakers proposed raising the exit tax.
Is all this hassle really worth a tax savings? You be the judge.
Prior TaxProf Blog Posts:
- Facebook Co-Founder Renounces U.S. Citizenship in Advance of IPO, Saving Millions in U.S. Taxes (May 11, 2012)
- Will Facebook Co-Founder's Renunciation of U.S. Citizenship Increase His U.S. Tax Bill? (May 12, 2012)
- Seto, Kleinbard Explain Tax Consequences of Facebook Co-Founder's Renunciation of U.S. Citizenship (May 13, 2012)
- Tax Savings From Facebook Co-Founder's Renunciation of U.S. Citizenship: $67 Million (May 16, 2012)
- Sen. Schumer Proposes 30% Tax on Facebook Co-Founder, Others Who Renounce U.S. Citizenship for Tax Purposes (May 17, 2012)
- WSJ: New Ex-Patriot Tax on Facebook Co-Founder 'Isn't Worthy of America' (May 18, 2012)
- Estate & Gift Tax Savings From Facebook Co-Founder's Renunciation of U.S. Citizenship Dwarf Income Tax Savings (May 19, 2012)
There is a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with new papers debuting on the list at #2 and #5. The #1 paper is now #29 in all-time downloads among 8334 tax papers:
1. [1784 Downloads] There’s No There There: Low Tax Rates and Economic Growth, by Filip Spagnoli (National Bank of Belgium)
3. [224 Downloads] Recent Developments in Federal Income Taxation: The Year 2011, by Martin J. McMahon, Jr. (Florida), Ira B. Shepard (Houston) & Daniel L. Simmons (UC-Davis)
4. [209 Downloads] Guide to the Internal Revenue Service Decision-Making Process Under Section 501(c)(3) for Journalism and Publishing Non-Profit Organizations, by Jeffrey P. Hermes (Berkman Center for Internet & Society)
5. [179 Downloads] Zotero -- A Manual for Electronic Legal Referencing, by John Prebble & Julia Caldwell (both of Victoria University of Wellington, Faculty of Law)
Andrew T. Cannon (J.D. 2012, UC-Hastings), Note, Where California Went Wrong With the Amazon Tax: Application of Due Process and Commerce Clause Jurisprudence to State Use Tax Collection Requirements Imposed on Out-of-State Internet Retailers, 39 Hastings Const. L.Q. 691 (2012):
Part I of this Note answers questions about the use tax including the following: What is it, why do we have it, and what problems are encountered when states enforce use tax collection requirements on out-of-state internet retailers. Part II focuses on the historical developments of Due Process and Commerce Clause jurisprudence in the area of state use tax collection. Part III explains the application of this jurisprudence in Scripto v. Carson, and recent state court decisions upholding use tax collection requirements where in-state independent contractors actively solicit sales for out-of-state retailers. Part IV explains the Google advertising model, and details the relationship between internet retailers and Google. Lastly, Part V argues that California made a mistake when exempting internet retailers doing business with Google from collecting use taxes on California sales.
Saturday, May 19, 2012
Estate & Gift Tax Savings From Facebook Co-Founder's Renunciation of U.S. Citizenship Dwarf Income Tax Savings
Following up on my prior post, Tax Savings From Facebook Co-Founder's Renunciation of U.S. Citizenship: $67 Million: Wall Street Journal: So How Much Did He Really Save?, by Laura Saunders:
Eduardo Saverin renounced his U.S. citizenship last year and now is a resident of Singapore. How much did he save on his taxes by making the switch then? ... [B]ased on financial filings, experts say, it was likely tens of millions in income tax and far more in estate tax -- at least $700 million at current values and tax rates.
Here is why: The Facebook co-founder holds 2% of the company's stock, worth more than $2 billion at $38 a share. By renouncing his citizenship last September, before the public offering, he limited his 15% "exit tax" to the gains in his shares and other assets up to that point. Appreciation in the shares after that escapes the tax. Depending on how Mr. Saverin valued his holdings, which were illiquid at the time, he might have lowered his bill even more. If those two moves shaved even $10 a share from the IPO price of $38, then Mr. Saverin's early exit saved him more than $80 million; likely it was more, says independent tax expert Robert Willens.
[David Miller (Cadwalader, New York)] says the Facebook co-founder's real tax worry should have been estate and gift taxes -- even though Mr. Saverin is only 30 years old. That's because the top rate is 35% and is set to rise next year to 55%, more than twice the 15% exit tax on appreciation. On a net worth of $2 billion, that tax would amount to $700 million. Singapore has no estate tax. "On wealth that great, it's far harder to avoid U.S. estate and gift tax than to avoid income tax, especially if you are unmarried," Mr. Miller says.
That's the headline of a story in the Sunday edition of The Age, one of Australia's leading daily newspapers. Here is the nut:
Almost two-thirds of Australia's law graduates are not working as lawyers four months after they have completed their degrees, according to a study.
The Graduate Careers Australia survey of 1313 recent graduates from all over the country found that 64% were not practising law between 2010 and 2011.
There was ''no way'' law firms could accommodate all the graduates from Australia's 31 law schools, La Trobe University's director of undergraduate studies, Heather King, said. ''It's a well-acknowledged fact that 40-50 per cent will not end up in a traditional law practice.''
These statistics may seem even bleaker than those that describe the U.S. legal market. Yet, for two key reasons, these Australian students are far better off. First, the Australias follow the LLB model, which has some substantial advantages. According to my Australian colleagues, a law undergraduate degree is often combined with a major in another field or discipline, such as business, accounting, sociology, or literature. So a student's commitment to law as career is often tentative and, in many cases, hedged by another career interest. Second, higher education in Australia enjoys a large national subsidy. So law graduates typically graduate wiht little or no debt.
Gene Magidenko (J.D. 2012, Michigan) has published two notes in the University of Michigan Journal of Law Reform Online:
- Tax Exceptionalism: Wanted Dead or Alive (Mar. 12, 2012): "Tax law has just not been the same since January 2011. Did Congress pass earthshaking legislation affecting the Internal Revenue Code? Did the IRS dramatically change regulations? If only it were that exciting. Instead, eight jurists sitting at One First Street in our nation’s capital transformed tax law in a less bloody, but no less profound, way. The thought must have gone through many a tax mind – is tax exceptionalism dead?"
- Reforming the Tax Code: A Tale of Two Purposes and Paralysis (Mar. 28, 2012): "Though the presidential election of 2012 is still some time away, national politics have been in the thick of one for several months now. One of the top issues being debated is the tax code. Most agree that the tax code should be simplified, but to say that the proposals to do this are various is an understatement. This perennial question of reform has been a fixture of the national debate for a long time, so little of what can be said about it is particularly novel. All the same, a brief overview of the purposes behind our system of taxation and how they inform the present debate about tax reform is useful. The ultimate conclusion, unsatisfying as it may be, is that there are serious systemic obstacles to any substantive changes to the tax code."
Friday, May 18, 2012
Jason A. Sacks (J.D. 2012, Washington University), Note, Effective Taxation of Carried Interest: A Comprehensive Pass-through Approach, 89 Wash. U. L. Rev. 449 (2012):
Taxation of “carried interest” has been the subject of much recent scholarship. Articles have discussed the unfairness of taxing carried interest differently than other compensation for services, and addressed the dangers inherent in subjecting an intrinsically mobile tax base to rates higher than those presently applied to carried interest by the Internal Revenue Code. Most of this scholarship, however, erroneously ignores that fund managers who receive carried interest income are often in a position to significantly impact the U.S. economy. Ignoring this fact thereby forecloses an opportunity for Congress to utilize an efficient carried interest taxation regime as an instrument to promote its general economic goals, by means of rate differentials associated with policy objectives.
This Note will briefly discuss what constitutes carried interest and general tax policies and considerations. It will then discuss carried interest tax legislation recently proposed by Congress, address the legislation’s shortcomings, and propose an alternative carried interest taxation regime. Lastly, it will address opportunities available to Congress for utilizing carried interest tax legislation as a means to obtain policy objectives.
Luxury taxes are increasingly used by major sports leagues, such as Major League Baseball and the National Basketball Association, to raise revenue and affect behavior. This brief article lists three lessons that general tax policy can take from the sport world’s taxes, helping to make the case for a progressive spending tax on a national scale.
Tax Court: TP Can't Deduct $23k Contribution to Church That Failed to Include No Property/Service Statement in Acknowledgment
The Tax Court yesterday again reiterated that a taxpayer cannot deduct a charitable contribution without complying with the § 170(f)(8)(A) substantiation requirements. Durden v. Commissioner, T.C. Memo. 2012-140 (May 17, 2012).
Mr. & Mrs. Durden contributed $22,517 to their church in 2007. Although the church provided them with a timely statement acknoweldging the $22,517 contribution, it did not state whether they had received any goods or services as required by § 170(f)(8)(A) (the “first acknowledgment”). After being notified by the IRS of this deficiency, the Durdens obtained another statement from the church acknowledging the $22,517 contribution and stating that they received no goods or services (the “second acknowedgment”)..
The Tax Court accepted the IRS’s position that both acknowledgments failed § 170(f)(8)(A): (1) the first acknowledgment did not include the required goods or services statement; and (2) the second acknowledgment was not contemporaneous within the meaning of Reg. § 1.170A-13(f)(2) because it was not received by the Durdens before they filed their 2007 return. The Durdens conceded that they did not strictly comply with the statute, and the Tax Court rejected their attempt to prove substantial compliance.
Indiana Tech is one step closer to opening its new law school. The Fort Wayne, Ind., university planned to break ground on May 18 on the $15 million, 70,000-square-foot building that will house its law school, which is projected to open in the fall of 2013. ... [T]he plans call for 100 students to enroll during the first year, with a five-student increase during each of the next four years. ...
Indiana Tech will be the fifth law school in the state [joining Indiana-Bloomington, Indiana-Indianapolis, Notre Dame, and Valparaiso] and the seventh within a three-hour drive of Fort Wayne. However, university officials say a feasibility study concluded that Indiana is underserved by lawyers.
[M]any local attorneys and other interested parties have warmed to the law school after learning more about its educational approach. For one thing, tuition for the 2013-14 year will be a relatively low $29,500, ... The curriculum will highlight collaborative learning ... and incorporate a significant amount of experiential learning; at least half of every upper-level course will comprise "real world" instruction such as simulations. ... The program is loosely modeled after existing programs at Northeastern and Drexel. ... J.D. students at Indiana Tech will also have the option to concentrate in one of four areas of the law: advocacy and dispute resolution, intellectual property, transactional law, and global law and leadership,
Tuan Samahon (Villanova), Blackmun (and Scalia) at the Bat: The Court's Separation-of-Powers Strike Out in Freytag, 12 Nev. L.J. 691 (2012):
This contribution to the "worst Supreme Court cases" symposium examines Erwin Griswold's role in the litigation of Freytag v. Commissioner [501 U.S. 868 (1991)] and the majority's holding that the U.S. Tax Court is a part of "the Courts of Law." The Author concludes that the Freytag majority created the risk of a further separation-of-powers challenge to the Tax Court predicated on the President's qualified power to remove tax court judges (§ 7443(f)), officers who per Freytag exercise "the judicial power of the United States." Assuming, arguendo, the Tax Court judges do exercise "the judicial power of the United States" (and not executive power), Congress impermissibly granted to the President a cross-branch power to remove these judges. The Author argues that even a qualified power to remove affords a degree of control, and an executive's qualified power to remove a judicial officer represents an executive's power to control to some degree the exercise of judicial power. In this context, the article considers newly released presidential archival sources on the non-transparent "resignation" of Judge Albert Fletcher of the U.S. Court of Military Appeals as, in effect, a precipitated but disguised removal "for cause."
The Author also offers a critique of Scalia's concurring opinion. It suggests that although an officer's attributes are necessary for the proper characterization of the exercise of power (whether legislative, executive or judicial), they are not alone sufficient to characterize the same. Instead, some resort must be made to some definition or conception of what is encompassed within the scope of "the judicial power of the United States."
Wall Street Journal editoiral: The Saverin Lesson : A Punitive Exit Tax on the Facebook Expat Isn't Worthy of America:
Facebook on Thursday priced the IPO it expects to launch Friday at $38 a share, valuing the social media company at $104 billion. But so much for that welcome sign of confidence in American entrepreneurship and capital markets. This being the age of envy, the bigger story in some circles seems to be the decision by Facebook co-founder Eduardo Saverin to renounce his U.S. citizenship in favor of Singapore.
Democratic Senators Chuck Schumer and Bob Casey, a pair of envy specialists, pounced on the news by announcing Thursday that they will introduce a plan to tax capital gains at 30% for any wealthy Americans who try to escape from U.S. shores. No doubt they hope to score political points by punishing the fleeing rich who will strike most Americans as unpatriotic, but the Senators are doing far more harm than Mr. Saverin is to the U.S. and its global reputation.
Not that we have any sympathy for Mr. Saverin, whose citizenship decision is a remarkable act of ingratitude toward the country that welcomed him as a child from Brazil. America's rule of law and relatively open markets have allowed him to take $30,000 in savings and turn it into Facebook shares that after Friday may be worth more than $2 billion. ...
Singapore has no capital gains tax, while President Obama wants to raise America's rate to nearly 24%—and 30% if his Buffett Rule becomes law. Then there is Mr. Obama's plan for a 44% dividend tax and 45% estate tax.
Whatever Mr. Saverin's motivation, the more important point is that it is his decision, however misguided. America was built on millions of similar individual decisions to come to our shores. It is precisely that ability to decide for oneself that has made America such a magnet for two centuries.
The way to continue to be a magnet for the best and brightest is not to impose Soviet-style exit taxes to punish people who want to leave the country. That is what oppressive and demagogic regimes do, and it's humiliating to see U.S. Senators posture in such fashion. The way to punish Mr. Saverin is to make the U.S. so appealing and dynamic again that he'll be sorry he ever left.
- The Atlantic, Why the Ex-Patriot Act Is a Creepy Law
- CNBC, Chasing Saverin's Winnings Is a Losing Battle
- Forbes, Expats Face Steep Exit Tax Courtesy of Facebook
Prior TaxProf Blog posts:
- Facebook Co-Founder Renounces U.S. Citizenship in Advance of IPO, Saving Millions in U.S. Taxes (May 11, 2012)
- Will Facebook Co-Founder's Renunciation of U.S. Citizenship Increase His U.S. Tax Bill? (May 12, 2012)
- Seto, Kleinbard Explain Tax Consequences of Facebook Co-Founder's Renunciation of U.S. Citizenship (May 13, 2012)
- Sen. Schumer Proposes 30% Tax on Facebook Co-Founder, Others Who Renounce U.S. Citizenship for Tax Purposes (May 17, 2012)
I am heading back to Cincinnati today after spending the spring semester at Pepperdine University School of Law. My wife and I (and dog) had a wonderful time in Malibu and are grateful to Dean Deanell Tacha and the Pepperdine faculty, staff, and students for making our stay so enjoyable. The highlight of our stay was hosting fifteen Southern Califoria Tax Profs for a wonderful dinner. I am looking forward to rejoining my Cincinnati faculty colleagues for the Fall 2012 semester and teaching Introduction to Law to the incoming 1L class and Federal Income Tax and Federal Estate & Gift Tax to the returning 2Ls and 3Ls, before returning to Pepperdine for the Spring 2013 Semester for my fourth stint as the D & L Straus Distinguished Visiting Professor of Law.