TaxProf Blog

Editor: Paul L. Caron
Pepperdine University School of Law

Tuesday, January 31, 2017

Shaheen Presents Treaty Aspects Of The McDonald's State Aid Investigation Today At Georgetown

Shaheen (2017)Fadi Shaheen (Rutgers) presents Treaty Aspects of the McDonald's State Aid Investigation at Georgetown today as part of its Tax Law and Public Finance Workshop Series hosted by John Brooks and Itai Grinberg:

On December 3, 2015, The European Commission decided to initiate an official investigation into whether Luxemburg has selectively granted McDonald’s advantageous tax treatment in breach of EU state aid rules. The Commission’s decision is based on its conclusion that Luxembourg’s treaty-based exemption of the income attributable to the U.S. branch of a McDonald’s Luxembourgian subsidiary is contrary to the Luxembourg-U.S. treaty because that income was not taxable in the United States. This paper demonstrates that while the Commission’s conclusion and recourse to conflicts of qualification principles are correct, both the Commission’s reasoning on the one hand and Luxembourg’s and McDonald’s position on the other hand misapply the treaty.

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January 31, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

NYU Tax Law Review Symposium:  Tax And Entrepreneurship

NYU TaxSymposium, Tax and Entrepreneurship, 69 Tax L. Rev. 311-457 (2016):

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January 31, 2017 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Mazur:  Taxing Social Impact Bonds

SIBOrly Mazur (SMU), Taxing Social Impact Bonds, 20 Fla. Tax Rev. ___ (2017):

An exciting new way to fund social services has recently emerged. This new financing mechanism, called a social impact bond (SIB), has the potential to help us tackle some of our nation’s most challenging social problems. Broadly speaking, a SIB is a type of “pay for success” contract where private investors provide the upfront capital to finance a social program, but only recoup their investment and realize returns if the program is successful. Like any new financing instrument, SIBs create numerous regulatory challenges that have not yet been addressed. One unresolved issue is the tax implications of a SIB investment. This Article argues that the current law allows for multiple possible characterizations of the SIB arrangement for tax purposes.

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January 31, 2017 in Scholarship, Tax | Permalink | Comments (0)

2017 ABA Tax Section Janet Spragens Pro Bono Award

HallPress Release,  Wells Hall Receives 2017 ABA Section of Taxation Janet Spragens Pro Bono Award:

The American Bar Association Section of Taxation presented its annual Janet Spragens Pro Bono Award to C. Wells Hall III of Nelson Mullins Riley & Scarborough, during the Section’s Plenary Luncheon on January 21, 2017. ...

Wells served as Section Vice-Chair, Pro Bono and Outreach, from 2013 to 2016. During his tenure in that position, Wells championed programs to increase pro bono participation among Section membership and to increase access to tax assistance for low-income and underserved populations.

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January 31, 2017 in ABA Tax Section, Legal Education, Tax | Permalink | Comments (0)

SSRN Tax Professor Rankings

SSRN LogoSSRN has updated its monthly rankings of 750 American and international law school faculties and 3,000 law professors by (among other things) the number of paper downloads from the SSRN database.  Here is the new list (through January 1, 2017) of the Top 25 U.S. Tax Professors in two of the SSRN categories: all-time downloads and recent downloads (within the past 12 months):

 

 

All-Time

 

Recent

1

Reuven Avi-Yonah (Mich.)

62,680

Reuven Avi-Yonah (Mich.)

10,604

2

Michael Simkovic (S. Hall)

35,095

Lily Batchelder (NYU)

6851

3

Paul Caron (Pepperdine)

32,563

Michael Simkovic (S. Hall)

5016

4

D. Dharmapala (Chicago)

29,385

D. Dharmapala (Chicago)

4069

5

Louis Kaplow (Harvard)

27,407

Ed Kleinbard (USC)

2585

6

Vic Fleischer (San Diego)

23,323

Richard Ainsworth (BU)

2539

7

James Hines (Michigan)

22,532

Paul Caron (Pepperdine)

2464

8

Ed Kleinbard (USC)

21,773

Dan Shaviro (NYU)

2372

9

Richard Kaplan (Illinois)

21,585

William Byrnes (Texas A&M)

2234

10

Ted Seto (Loyola-L.A.)

21,566

Robert Sitkoff (Harvard)

2205

11

Katie Pratt (Loyola-L.A.)

19,646

Louis Kaplow (Harvard)

2155

12

Richard Ainsworth (BU)

19,520

Omri Marian (UC-Irvine)

1854

13

Robert Sitkoff (Harvard)

18,414

David Weisbach (Chicago)

1823

14

Brad Borden (Broklyn)

17,779

Jeff Kwall (Loyola-Chicago)

1808

15

Carter Bishop (Suffolk)

17,705

Steven Bank (UCLA)

1775

16

David Weisbach (Chicago)

17,549

Yariv Brauner (Florida)

1636

17

Chris Sanchirico (Penn)

17,178

Brad Borden (Brooklyn)

1626

18

Jen Kowal (Loyola-L.A.)

17,095

Brian Galle (Georgetown)

1517

19

Francine Lipman (UNLV)

16,921

Christopher Hoyt (UMKC)

1507

20

Dan Shaviro (NYU)

16,609

Vic Fleischer (San Diego)

1490

21

Bridget Crawford (Pace)

16,482

Bridget Crawford (Pace)

1484

22

Dennis Ventry (UC-Davis)

16,324

Richard Kaplan (Illinois)

1471

23

David Walker (Boston Univ.)

15,460

Michael Graetz (Columbia)

1469

24

Steven Bank (UCLA)

14,367

Francine Lipman (UNLV)

1450

25

Ed McCaffery (USC)

13,510

Jordan Barry (San Diego)

1442

Note that this ranking includes full-time tax professors with at least one tax paper on SSRN, and all papers (including non-tax papers) by these tax professors are included in the SSRN data.

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January 31, 2017 in Scholarship, Tax, Tax Prof Rankings | Permalink | Comments (0)

David Hubbert Named Acting Assistant Attorney General, U.S. Department Of Justice Tax Division

DOJ (2017)David A. Hubbert has been named Acting Assistant Attorney General, U.S. Department of Justice Tax Division:

Mr. Hubbert was named Acting Assistant Attorney General in January 2017. He was appointed Tax Division’s Deputy Assistant Attorney General (DAAG) for Civil Trial Matters in September 2012. As DAAG, Mr. Hubbert oversees the litigation functions and other operations of the six regional Civil Trial Sections, the Court of Federal Claims Section, and the Office of Civil Litigation for the Division.

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January 31, 2017 in Tax | Permalink | Comments (1)

NYU International Tax Program 20th Anniversary

NYUCelebrating Twenty Years of the International Tax Program of the New York University School of Law (562 pages):

Introduction, by H. David Rosenbloom (Faculty Director, International Tax Program), pp. 1-8:

This Volume marks the 20th year of the International Tax Program at New York University School of Law. The first academic year of the one-year Master of Laws program commonly referred to as the ITP was 1996-97. I succeeded the late Paul McDaniel for the academic year 2002-03, and have had the immense privilege and pleasure of serving as Director of the ITP for the following thirteen years. It is with pride and a sense of accomplishment that I introduce this Volume and provide a few observations about the Program.

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January 31, 2017 in Legal Education, Tax | Permalink | Comments (0)

The IRS Scandal, Day 1363:  The Final Chapter On The End Of My Daily Coverage

IRS Logo 2Peter J. Reilly (Forbes), IRS Scandal Daily Coverage The Final Chapter:

Last week, Paul Caron, the TaxProf, dean of the tax blogosphere, called an end to daily coverage of "The IRS Scandal" on Day 1352.  This was 552 days beyond the point that I had opined that the series had "jumped the shark". To be clear, I was not suggesting that the Prof stop covering the scandal, just that there be an occasional day here and there on which there was nothing to report.  So it just took another 552 posts for that to happen.  It is worth noting that there were more Happy Days episodes after Fonzie jumped the shark than before, so maybe it was not such a bad call on my part.

Regardless, in order to make case for shark jumping I went through the series in two posts which are here and here.  For the sake of completeness I thought it would be nice to go through the rest of the series to see how it is that the Prof managed to keep it going for over a year after my shark jumping call.  Over a year ago, on Day 943, Professor Caron indicated that he was running out of material and it might be ending soon.  Things changed on Day 984.  He had thought that it might end at 1,000, but the certification of a class action lawsuit - NorCal Tea Party Patriots v IRS  promised significant material for some time to come.

Just as a reminder.  Day 1, May 10, 2013, is where the TaxProf count starts with the headline - IRS Admits to Targeting Conservative Groups in 2012 Election. ...

Day 1024 is in a class all by itself as we learn that Donald Trump has been audited so many times perhaps because he is such a strong Christian. ...

Scattered among the days are full scale commentary pieces about the scandal.  I'm not going to give you a lot of links, but instead am putting out the three pieces that lay out the two extreme positions and a more intermediate one.  On Day 1008 in recognition of the scandal millennium (by TaxProf day count) Jennifer Kabbany wrote in the National Review one of the best summaries of the scandal true believer creed. ...

The series also contains reference to the counter narrative.  On Day 1144, we hear from Ralph Nader. ...

A more nuanced view, one that I find interesting although not persuasive, is put out by Joe Kristan. He believes what happens was a form of self-weaponization on the part of the IRS.

The self-weaponization of the bureaucracy against its political opponents is hugely depressing. The government workforce is overwhelmingly on the side of the political party that favors an ever-larger state. There are plenty of Lois Lerners in the IRS and throughout the Leviathan. The Tea Party scandal, and the complete lack of accountability for its perpetrators, gives no reason to hope those who don’t share that worldview can expect a fair shake. That’s especially true when the sitting president (referring to President Obama) shows no interest in discouraging such behavior

This view is buttressed by an entry on Day 965 with reports about federal employees giving more political donations to Democrats than Republicans.  ...

Most of the commenters on the coverage tended to support the anti-IRS narrative.  When I showed up, there would often be a brickbat thrown.  My favorite was from somebody who goes by Porkypine:

Peter J. Reilly's writings on this matter in Forbes have tended to be IRS/Administration apologias, under a thin cloak of reasonableness. Too thin to cover the way he hovers between disingenuousness and mendacity in these efforts, however.

There was one though who joined me in scandal skepticism. That is Publius Novus whose last supportive comment was:

I am a Reilly Agnostic. I too would like to see what's under the rocks. Specifically, I would like to hear testimony from LLerner after an immunity grant. And if the Republicons were honest about pursuing this mess, they would grant immunity. Why not Mr. Chaffetz?

It is interesting to note that Paul Caron himself called for Lerner immunity in a piece on USA Today which was featured way back on Day 369.  I have not had any luck in figuring out who Publius Novus actually is,  Paul Caron has told me that he doesn't know.  Joe Kristan suggested Judge Crater, a joke that was too obscure for me to get.  Well, he or she should not have any trouble finding me.

And those comments are probably an indication of one of the best things about the TaxProf's chronicle.  It took the people who follow it out of their bubbles.  It will be interesting to see whether the crusade picks up again.  I can see in the coming weeks as the practicality of the Obamacare replacement or the wall building becomes challenging, that representatives of the Trump administration and the Republican congressional majority will start pining for the days when the buck did not stop with them. Then they will recall that Lois Lerner was probably the best enemy that they ever had and the scandal will get another lease on life.

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January 31, 2017 in IRS News, IRS Scandal, Tax | Permalink | Comments (0)

Monday, January 30, 2017

Gergen Presents How To Tax Global Capital Today At NYU

Gergen (2017)Mark Gergen (UC-Berkeley) presents How to Tax Global Capital, 69 Tax L. Rev. ___ (2016), at NYU today as part of its Tax Policy Colloquium Series hosted by Daniel Shaviro and Rosanne Altshuler:

In an earlier paper I proposed a new approach to taxing capital owned by U.S. households and nonprofits. The heart of the new approach is a flat annual tax on the market value of publicly traded securities with a rate of around .8 percent (80 basis points) that is remitted by the issuer. A security issuer gets a credit for publicly traded securities it holds so that wealth that is represented by a string of publicly traded securities is taxed once. For example, a mutual fund remits the tax based on the market or redemption value of interests in the fund and gets a credit based on the market value of publicly traded securities it holds.

Income producing capital that is not subject to the securities tax, such as an interest in a closely held business or in a private equity fund, is covered by a complementary tax with the same rate as the securities tax.

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January 30, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (1)

Oei Presents The Law of the Leak Today At Washington & Lee

OeiShu-Yi Oei (Tulane; moving to Boston College) presents The Law of the Leak (with Diane Ring (Boston College)) at Washington & Lee today as part of its Faculty Workshop Series hosted by Michelle Drumbl:

Over the past decade, a number of well-publicized data leaks concerning the secret offshore holdings of high-net-worth individuals and multinational taxpayers have reverberated through tax circles worldwide, leading to a sea change in cross-border tax enforcement. Spurred by leaked data, tax authorities have prosecuted offshore tax cheats, attempted to recoup lost revenues, enacted new laws, and signed international agreements that promote “sunshine” and exchange of financial information between countries.

The conventional wisdom is that data leaks enable tax authorities to detect and punish offshore tax evasion more effectively, and that leaks are therefore socially beneficial from an economic welfare perspective. This Article argues, however, that the conventional wisdom is too simplistic.

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January 30, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Hackney Presents Labor Unions And Tax Exemption Today At UC-Irvine

HackneyPhilip Hackney (LSU) presents Subsidizing the Heavenly Chorus: Labor Unions and Tax Exemption at UC-Irvine today as part of its Tax Law and Policy Colloquium Series hosted by Omri Marian:

Labor interests are historically politically weak in our U.S. democracy. Laborers who desire to form an organization to advance their political interests face classic collective action problems. This presents a significant challenge for a modern democratic state that depends upon organized interests to represent the political voice of its citizens. This Article examines the impact of our federal income tax system on labor interests. It focuses upon the provision of tax exemption to labor unions and the deduction of labor union dues. I adopt a model that presumes in a democracy we should aim for one person one political voice. By political voice I mean more than the concept of one person one vote; it refers to the ability of citizens to participate in setting the political agenda and to vote on any final decision.

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January 30, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

California’s New Bar Exam Format And ABA’s Proposed 75% Bar Passage Requirement Will Adversely Impact Diversity, Women, And Access To The Legal Profession

TaxProf Blog op-ed:  California’s New Bar Exam Format in Conjunction with ABA’s Proposed Bar Pass Standard Will Adversely Impact Diversity, Women and Access to the Profession, by Dennis P. Saccuzzo & Nancy E. Johnson:

Considerable concern is being expressed concerning the effects on diversity and access to the profession due to proposed changes in ABA accreditation standards and changes in the format and scoring of the bar, such as those in California. According to Lawrence P. Nolan, President of the State Bar of Michigan, for example, ABA’s proposed amendments to the current accreditation standards will “adversely impact efforts to diversify the profession.”

Indeed, 90 law school Deans have asked the Council of the ABA Section on Legal Education and Admissions to the Bar to slow down and think about its proposal to tighten accreditation requirements on bar pass rates. Again, the effects on diversity and access to the profession are among the main concerns. Access not only includes women and minorities, but also non-traditional students such as those who have no family members who ever graduated from college. An important justification for lower tier law schools is that they increase access to the profession.

Now that the California State Bar has decided to change the format of the bar exam, it would seem prudent to ask if the changes will have any effect on access to the profession.

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January 30, 2017 in Legal Education | Permalink | Comments (12)

Helicopter Law Professors Are Hurting Their Students

Helicopter 2Emily Grant (Washburn), Helicopter Professors:

Helicopter professors, like their parenting counterparts, hover over students, guiding them precisely, and swooping in to rescue them from any hint of failure or challenge. Just as helicopter parenting can be harmful to children, helicopter professoring poses similar threats to students, not the least of which is creating disengaged students dependent on professors for all aspects of their learning and development.

The instinct to be a helicopter professor is understandable in light of several social and cultural circumstances of today’s legal education. First, law students today are largely Millennials who were helicoptered parented and educated in a system that often focused solely on test results. Second, law professors are at times overly focused are garnering positive student evaluation scores, which may be easier to do with a little extra spoon feeding. Professors too may themselves be helicopter parents in their non-work hours, a behavioral pattern that too easily can infiltrate the classroom. Finally, law schools today are seeing a rise in students that have a consumerist attitude and in some cases lower academic credentials; those types of students expect and perhaps need additional assistance. But satisfying that need, combined with the focus on quantifying assessment practices and on improving teaching techniques, may easily cross the line into helicopter behavior.

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January 30, 2017 in Legal Education | Permalink | Comments (3)

The Role Of State And Local Taxes In Income Inequality

Institute on Taxation and Economic Policy, Fairness Matters: A Chart Book on Who Pays State and Local Taxes:

There is significant room for improvement in state and local tax codes. Income tax laws are filled with top-heavy exemptions and deductions. Sales tax bases are too narrow and need updating. And overall tax collections are often inadequate in the short-run and unsustainable in the long-run. In this light, the growing interest in tax reform among state lawmakers across the country is welcome news.

Too often, however, would-be tax reformers have proposed policy changes that would worsen one of the most undesirable features of state and local tax systems: their lopsided impact on taxpayers at varying income levels. Nationwide, the bottom 20 percent of earners pay 10.9 percent of their income in state and local taxes each year. Middle-income families pay a slightly lower 9.4 percent average rate. But the top 1 percent of earners pay just 5.4 percent of their income in such taxes. This is the definition of regressive, upside-down tax policy.

Inequality

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January 30, 2017 in Tax, Think Tank Reports | Permalink | Comments (1)

Midcareer Professors Suffer From Middle-Child Syndrome: Are You Synergistic, Independent, Weary, Or Disgruntled?

Mid-CareerInside Higher Ed, Midcareer Professors Need Love, Too:

Midcareer, tenured faculty members power their institutions, but many also suffer from something like middle-child syndrome. Past the defined demands of achieving tenure but often still relative newbies, they can get lost in the institutional fray. Preliminary research to be presented here today at the annual meeting of the Association of American Colleges and Universities gives new insight into these professors’ thoughts and experiences and proposes a framework for thinking about them — one that cuts through stereotypes that they’re unmotivated.

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January 30, 2017 in Legal Education | Permalink | Comments (0)

TaxProf Blog Weekend Roundup

Sunday, January 29, 2017

Hickman:  Thoughts On Statutory Interpretation—For Tax Specialists, Too

Jotwell (Tax) (2016)Kristin Hickman (Minnesota), Thoughts On Statutory Interpretation—For Tax Specialists, Too, JOTWELL (2017) (reviewing Brett M. Kavanaugh (Judge, U.S. Court of Appeals for the D.C. Circuit), Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118 (2016) and Robert A. Katzmann (Chief Judge, U.S. Court of Appeals for the Second Circuit), Response to Judge Kavanaugh’s Review of Judging Statutes, 129 Harv. L. Rev. F. 388 (2016)):

Tax specialists are no strangers to the exercise of statutory interpretation. The Internal Revenue Code is an enormously complex statute, with all of the overlapping provisions, competing goals, and specificity interspersed with ambiguity that one would expect to accompany that complexity. And mastering the tax policy aspects of the Code is hard enough that tax specialists might be forgiven for reducing the exercise of statutory interpretation to short statements about considering the Code’s text, history, and purpose, or the “spirit” of the tax laws. A recent exchange between two prominent federal judges — Chief Judge Robert Katzmann of the Second Circuit and Judge Brett Kavanaugh of the D.C. Circuit — and the lengthier books highlighted within their exchange offer a highly readable reminder of the parallel complexity of statutory interpretation theory and jurisprudence. Tax specialists interested in seeing their policy preferences succeed in the real world would do well to take note.

Although tax specialists often like to think of the tax laws as unique, judges in tax cases routinely rely upon and debate about the same tools of statutory construction that they apply and discuss in interpreting other statutes. ...

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January 29, 2017 in Scholarship, Tax | Permalink | Comments (1)

Charlotte Law School Launches Food Drive For Students, Submits Teach-Out Plan To ABA; Is It Closing?

Charlotte Logo (2016)Charlotte Observer, Charlotte School of Law Starts Food Drive So Students Get Something to Eat:

Cut off from millions of dollars in federal loans because of their school’s chronic failings, students at Charlotte School of Law still don’t know how they’ll pay tuition, rent and utilities.

Now they are apparently running out of food.

In response, one of their professors announced Friday that some faculty and other law school employees have started a food drive to make sure students of the reeling school have enough to eat. Scott Sigman, director of the school’s clinical programs, sent out an email alerting students that the stockpiled food is available in the student commons.

Charlotte Business Journal, Does Charlotte Law’s Teach-Out Plan Mean its Closing?:

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January 29, 2017 in Legal Education | Permalink | Comments (1)

Taxing Citizens: Socio-legal Constructions Of Late Antique Muslim Identity

Lena Salaymeh (Tel Aviv University), Taxing Citizens: Socio-legal Constructions of Late Antique Muslim Identity, 23 Islamic L. & Soc'y 333 (2016):

The regulations pertaining to Islamic charity taxation illuminate underappreciated dimensions of how Muslims de󰁦􀁩ned identity boundaries in late antiquity. To demarcate the contours of a historical process of Muslim identity construction, I analyze Islamic jurisprudential debates about who is and who is not obligated to pay the charity tax. Most late antique and medieval jurists made the charity tax incumbent on minors or others lacking full legal capacity, even though these groups were exempt from “for-the-divine” practices. I suggest Muslim citizenship as a framework for understanding late antique Muslim identity.

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January 29, 2017 in Scholarship, Tax | Permalink | Comments (0)

The Top 5 Tax Paper Downloads

SSRN LogoThis week's list of the Top 5 Recent Tax Paper Downloads is the same as last week's list:

  1. [1,561 Downloads]  Problems with Destination-Based Corporate Taxes and the Ryan Blueprint, by Reuven S. Avi-Yonah (Michigan; moving to UC-Irvine) & Kimberly A. Clausing (Reed College)
  2. [411 Downloads]  A Guide to the GOP Tax Plan — The Way to a Better Way, by David A. Weisbach (Chicago)
  3. [221 Downloads]  Destination-Based Cash-Flow Taxation: A Critical Appraisal, by Wei Cui (British Columbia)
  4. [188 Downloads]  The Right Tax at the Right Time, by Edward Kleinbard (USC)
  5. [150 Downloads]  The Other Eighty Percent: Private Investment Funds, International Tax Avoidance, and Tax-Exempt Investors, by Omri Marian (UC-Irvine)

January 29, 2017 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Defending Churches By Narrowing The Definition Of 'Church' For Tax Purposes

Lidiya Mishchenko (J.D. 2016, George Washington), In Defense of Churches: Can the IRS Limit Tax Abuse by “Church” Impostors?, 84 Geo. Wash. L. Rev. 1361 (2016):

A large gap in our Tax Code allows certain religious organizations to amass extraordinary riches while preying on the faithful. Their conduct is causing damage to the church as an institution and is inconsistent with the purpose of tax exemptions—to provide a public good. This Essay proposes that the IRS create a narrower, more specific definition of what constitutes a “church” for tax purposes. This change would force more religious entities to file annual returns with the IRS, and would better define the IRS threshold for auditing such organizations.

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January 29, 2017 in Scholarship, Tax | Permalink | Comments (5)

Saturday, January 28, 2017

This Week's Ten Most Popular TaxProf Blog Posts

Northwestern Study: Excellent Teaching Is Unrelated To Excellent Research (And Vice Versa)

NorthwesternBrookings Institution: Are Great Teachers Poor Scholars?, by David Figlio (Northwestern) & Morton O. Schapiro (Northwestern):

Colleges and universities must balance many goals, and research universities in particular aspire to excellence in both teaching and research. University administrators and policymakers alike are interested in ensuring that publicly-supported private and public universities operate at high levels of instructional and scholarly quality, but to date we know little about whether scholarly excellence comes at a cost in terms of teaching quality, or vice versa.

We bring to bear unique matched student-faculty data from Northwestern University, a midsized research university that is one of the 26 private universities among the 62 members of the Association of American Universities, to investigate the relationship between teaching and scholarly quality. Using the full population of all first-year undergraduates enrolled at Northwestern between fall 2001 and fall 2008 (over 15,000 students in all), we empirically generate two new measures of teaching quality—one an indicator of inspiration (the rate of “conversion” of non-majors to majors) and the other an indicator of deep learning (the degree to which a professor adds lasting value to students’ learning that is reflected in success in future classes). We also investigate two measures of research quality—one based on a measure of the relative importance of a scholar’s research in the field, and the other a measure of national or international prominence as reflected by major awards.

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January 28, 2017 in Legal Education, Scholarship, Teaching | Permalink | Comments (5)

NY Times, Washington Post Demand Trump Release His Tax Returns, As Does Record-Setting Online White House Petition

TrumpFollowing up on Monday's post, Trump Won't Release Tax Returns, Despite Online Petition With Over 275,000 Signatures; WikiLeaks Hopes To Acquire And Publish Them:

Huffington Post, Petition Demanding Donald Trump Release His Tax Returns Breaks White House Record:

A petition on the White House website asking President Donald Trump to release information about his tax returns has now received more signatures [390,000] than any other petition in the system’s five-year history.

New York Times editorial, ‘We the People’ Demand Mr. Trump Release His Tax Returns:

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January 28, 2017 | Permalink | Comments (6)

An Update On The Charlotte Law School Faculty Firings

Charlotte Logo (2016)David Frakt, An Update on the Charlotte Law School Faculty Firings:

In my last post, I incorrectly reported that up to two-thirds of Charlotte Law Faculty had been terminated, based on early reports from other media sources. I have now had the opportunity to gather more reliable information, and can report that just under half of the instructional faculty were terminated, in what the school has described as a “reduction in force.”

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January 28, 2017 in Legal Education | Permalink | Comments (1)

The IRS Scandal, Day 1360: VP Pence, GOP House And Senate Push Trump To Fire Koskinen

IRS Logo 2Newsmax, Pence Will Urge Trump to Sack IRS Boss:

Responding to the urging of House Republicans, Vice President Mike Pence will soon call on President Trump to fire or force the resignation of controversial Internal Revenue Service Commissioner John Koskinen. Newsmax learned this Thursday afternoon from several lawmakers at the House Republican Retreat in Philadelphia. ...

Emerging from a closed-door meeting with the vice president Thursday morning at the House Republican Retreat in Philadelphia, Rep,. Chris Collins (R.-N.Y.) confirmed that the subject of sacking Koskinen was raised. "[Pence] said 'I can hear you,'" said Collins, who said the vice president "promised us" he would share with President Trump the strong belief of Republicans in Congress that "Koskinen must go."

Washington Examiner, Led by Republican Study Committee, 50 House GOPers Tell Trump to Fire IRS Chief:

A faction of conservatives is circumventing leadership brass and calling directly on President Trump to tell IRS Chief John Koskinen, "You're fired."

Rep. Mark Walker, R-N.C., will make the ask. The chairman of the Republican Study Committee has quietly but urgently been circulating a letter inside the GOP conference to build support. He's now got 50 congressmen signed onto the letter. 

The Hill, McConnell: Trump Should Replace IRS Commissioner:

Senate Majority Leader Mitch McConnell (R-Ky.) says President Trump should replace John Koskinen, the IRS commissioner who faced an impeachment vote in the House last year. “I think he’s been a disaster and I’d be shocked if we don’t have a new one,” McConnell told The Hill on Friday. ...

The Trump transition team said in December that the then-president-elect had not yet made a decision on whether to replace Koskinen immediately or allow him to serve out the remaining year of his term.

Politico, GOP Airs Old Grievances in Private Pence Meeting:

Congressional Republicans used a private audience with Vice President Mike Pence on Thursday to rehash years-old political controversies — even suggesting Pence fire the IRS commissioner, according to sources in the room.

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January 28, 2017 in IRS News, IRS Scandal, Tax | Permalink | Comments (12)

Friday, January 27, 2017

Weekly Tax Highlight And Roundup

This week, Joe Kristan (CPA & Shareholder, Roth & Company (Des Moines, Iowa); Editor, Tax Update Blog) describes a recent Tax Court decision rejecting the IRS's attempt to attribute wages to an attorney from his failing S corporation law firm.

KristanS corporation doesn’t have to pay salary for its destruction

If Judge Holmes is to be believed, a Minnesota attorney mismanaged his law firm into oblivion and tax disaster. It hardly seems fair to make the firm pay him a salary for doing that.

That’s how Judge Holmes ruled in a Tax Court opinion issued yesterday. I’ll alter the attorney’s name to “Mr. G” when quoting from the opinion. Much of the opinion is about issues arising from chaotic management practices. For example:

Mr. G had a clear vision of the type of law he wanted to practice, but he was a self-proclaimed micromanager without the know-how to manage. He testified that he had “no personal experience, education or background in accounting or the operation of a business or financial background.” He “micromanaged virtually about everything and * * * did not have the clarity of vision to * * * try to see how things should run.” He did not keep sufficient accounting records, and for the first four months of G&A’s existence, he didn’t even keep company funds in a corporate account. He kept track of cashflow and expenses on a legal pad, but the legal pads would pile up.

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January 27, 2017 in Tax, Weekly Tax Roundup | Permalink | Comments (0)

Weekly SSRN Tax Article Review And Roundup

This week, Daniel Hemel (Chicago) reviews a new article by Michael Doran (Virginia), Uncapping Executive Pay, 90 S. Cal. L. Rev. (forthcoming 2017).

HemelMichael Doran’s scholarship on the taxation of executive pay is consistently insightful, and his latest article on section 162(m) is no exception. That provision, enacted in 1993, disallows a deduction for amounts paid to CEOs and other top officers of publicly traded corporations in excess of $1 million unless such compensation is “performance-based.” Doran convincingly argues that section 162(m) has done little to stem the rise of CEO compensation and that it has not caused corporations to tie pay to performance in a meaningful way. And while I am less sure than Doran that section 162(m) should be scrapped, Doran certainly makes a strong case for getting rid of the provision.

According to Doran, section 162(m) has proven to be a failure for at least three reasons. First, firms can skirt the $1 million limit by paying CEOs in stock options or by tying compensation to performance goals that are easily met. Second, the provision applies only to current employees—and so does not impose any constraints on nonqualified deferred compensation paid out to former CEOs. And third, corporations can ignore the cap, pay their CEOs more than $1 million outright, and simply forgo the deduction for amounts over $1 million paid. Indeed, more than a quarter of publicly traded corporations in 2013 blew through the cap and gave up the deduction.

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January 27, 2017 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Weekly Legal Education Roundup

Tax Policy In The Trump Administration

Will Donald Trump Finally End The 100 Year War Over The Estate Tax?

Estate Tax LogoThe Hill op-ed: Trump vs. the Democrats: Is This the End of the 100-Year War over the Estate Tax?, by Darren T. Case (Tiffany & Bosco, Phoenix):

[The] 45th President of the United States will soon embark upon his descent into the battlefield on Capitol Hill to potentially end a century long war regarding the estate tax. Standing in opposition to Donald Trump’s political army, presently in firm control of the Executive and Legislative branches, is a Democratic Party that was severely wounded by the 2016 election. With the morale amongst Democrats arguably being at an all-time low, many may assume that the white flag will be raised in regard to the so-called “death tax.”

However, considering what is at stake while we’re in the midst of the greatest wealth transfer in human history, with over $30 trillion dollars set to transfer over the next few decades, and with the estate tax believed by some to be one of the most quintessential weapons against the growing wealth inequality in the United States, it would be foolish to assume that the Democrats will not attempt to go down fighting with vigor and valor. For a nation essentially founded upon a war over taxation, ultimately ending in 1776, perhaps this final battle over the estate tax should come as no surprise. ...

Throughout its 100 year history, liberal economists and academics have published considerable amounts of analysis arguing in favor of the estate tax, especially in regard to the economic principle of inequality.  Economic inequality, generally defined as the difference found in various measures of economic well-being, is believed by liberal schools of thought to be one of the greatest economic ills plaguing fairness in American society.  A recent work on the topic of the estate tax and inequality is that of Pepperdine University School of Law Professor and Editor of the most popular tax law blog on the Internet, Paul L. Caron, and Boston College Law School Professor James Repetti.

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January 27, 2017 in Scholarship, Tax | Permalink | Comments (4)

The Charlotte Law School Tapes: Dean Drops F-Bombs, Calls Faculty 'Delusional' About Their Power

Charlotte Logo (2016)Following up on Wednesday's post, Charlotte Law School Reopens: 33% Of Students Have Transferred, Prof Says 42% Bar Pass Rate Would Have Been In 20s But For Payments To Students Not To Take Bar:  Charlotte Observer, Recordings Shed Light on Charlotte School of Law’s Methods to Boost Bar Passage:

Last week, WFAE reported that the troubled Charlotte School of Law paid graduates deemed at-risk to delay taking the bar and enroll in a bar preparation course. This program came about a few years ago as it had become the state’s largest law school with the poorest record of graduates passing the bar.

Today, WFAE’s Lisa Worf reports on secret recordings of a law school official that shed light on how much the deferral program inflated bar passage statistics.

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January 27, 2017 in Legal Education | Permalink | Comments (2)

Columbia Journal Of Tax Law Publishes New Tax Matters:  Country By Country Reporting And Corporate Privacy

Columbia Journal of Tax Law LogoThe Columbia Journal of Tax Law has published a new issue of its Tax Matters feature, with three short pieces by tax practitioners responding to a specific cutting-edge tax law issue posed by a tax academic. Reuven S. Avi-Yonah (Michigan), Country by Country Reporting and Corporate Privacy: Some Unanswered Questions , 8 Colum. J. Tax L. Tax Matters 1 (2016):

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January 27, 2017 in Scholarship, Tax | Permalink | Comments (0)

Harvard Law Students Demand Greater Role In Dean Search Process

Harvard Law School (2016)Following up on my previous post, Martha Minow To Step Down As Harvard Law School Dean: Harvard Law School Record, Student Groups Seek Role in Law School Dean Search:

Just weeks after University President Drew G. Faust launched the search for the next Dean of Harvard Law School, student groups at the school have started organizing to make themselves “an indispensable part of the process.”

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January 27, 2017 in Legal Education | Permalink | Comments (1)

Thursday, January 26, 2017

Mehrotra Presents Japanese And U.S. Resistance To The VAT Today At Duke

Mehrotra (2017)Ajay Mehrotra (American Bar Foundation & Northwestern) presents The VAT Laggards: A Comparative History of Japanese and U.S. Resistance to the Value-Added Tax (with Hiroyasu Nomura (Dokkyo University, Japan)) at Duke today as part of its Tax Policy Workshop Series hosted by Lawrence Zelenak:

Since 1945 the fiscal histories of Japan and the United States have had a great deal in common. Not only have these two advanced industrial nations relied for decades on progressive income taxes as their main source of national revenue; in the process, both countries resisted for many years the global trend towards broad-based consumption taxes. Indeed, until the 1980s, Japan and the United States were among a very small group of highly developed and industrialized nations that avoided the worldwide embrace of the value-added tax (VAT) — one of the most popular forms of broad-based consumption taxes. The Japanese resistance to the VAT ended in 1989. In that year, Japan enacted a VAT and participated in the third and perhaps most widespread phase of VAT adoption across the globe. Yet, the United States has continued to resist this global trend.

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January 26, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (1)

The Law School That Crumbled: Triumph Or Tragedy?

Charlotte Logo (2016)The Atlantic, The For-Profit Law School That Crumbled:

The Charlotte School of Law may not be able to outrun the latest—and most damning—chapter of its at-times-scandalous existence. For years, the for-profit school was targeted by critics for its increasingly negative student outcomes: median LSAT scores in the low 140s, state bar-passage rates that hovered around 45 percent, high student indebtedness, and lackluster employment figures. In 2014, a routine re-accreditation site visit by officials from the American Bar Association led to closer scrutiny of the school’s admissions and teaching practices. That same year, it appears the school began offering $11,200 grants to students who delayed taking the bar. During October of last year, the school was placed on probation by the American Bar Association.

Then came the most damaging news: in mid-December, the Department of Education denied the law school’s application for recertification under Title IV of the Higher Education Act. This decision prevented Charlotte’s students from receiving federal loan money—an unprecedented decision for a law school that remains accredited, for-profit or otherwise. Now without a significant source of revenue, the school saw no choice but to fire up to two-thirds of its faculty and close several of its legal-aid clinics.

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January 26, 2017 in Legal Education | Permalink | Comments (0)

ABA Section of Legal Education And Admissions To The Bar 2015-2016 Annual Report

ABAABA Section of Legal Education and Admissions to the Bar, 2015-2016 Annual Report:

We invite you to read about the work of the Section over the past year including reports from the Section's leadership, law school approvals and site visits, enrollment statistics, the work of the Accreditation and Standards Review Committees, and information regarding the Section's most recent conferences and programs, membership and publications.

Barry A. Currier, From the Managing Director:

The year 2015-2016 was not “best of times and the worst of times.” But, there is much good to report while recognizing that fundamental challenges remain....

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January 26, 2017 in Legal Education | Permalink | Comments (0)

Section 1043 + Estate Tax Repeal = Hundreds Of Millions In Tax Savings To Trump Appointees (Including Jared + Ivanka)

TrumpWashington Post, For Trump’s Wealthy Appointees, Death May Be Certain But Taxes Aren’t:

There are times when two seemingly unrelated tax policies intersect to create windfalls for fortunate people who are in the right place at the right time.

That is likely to be the case when it comes to calculating the tax benefits that will go to the billionaires and other very rich people joining the Trump administration. Among those who stand to benefit but haven’t been identified until now is Donald Trump’s son-in-law, Jared Kushner, even though he’s not taking a formal government job.

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January 26, 2017 in Tax | Permalink | Comments (1)

Using Altmetrics To Measure The Impact Of Faculty Scholarship

AltmetricsThe 2017 RHSU Edu-Scholar Public Influence Scoring Rubric:

Tomorrow I’ll be posting the 2017 Rick Hess Straight Up (RHSU) Edu-Scholar Public Influence Rankings in this space, honoring the 200 university-based education scholars who had the biggest influence on the nation’s education discourse last year. Today, I want to run through the scoring rubric for those rankings. The Edu-Scholar rankings employ metrics that are publicly available, readily comparable, and replicable by third parties. This obviously limits the nuance and sophistication of the measures, but such is life. ...

Each scholar was scored in nine categories, yielding a maximum possible score of 200—although only a handful of scholars actually cracked 100. Scores are calculated as follows:

  • Google Scholar Score:  This figure gauges the number of articles, books, or papers a scholar has authored that are widely cited. ...  Points were capped at 50. This measure offers a quick way to gauge the expanse and influence of a scholar’s work.

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January 26, 2017 | Permalink | Comments (0)

Morse:  Important Developments In Federal Income Taxation

Edward A. Morse (Creighton), Important Developments in Federal Income Taxation (80 pages):

This outline covers significant developments in federal income taxation along with a few other interesting or noteworthy tax topics. It offers a selective treatment of items likely to interest practitioners and advisors within a broad range of professional practices and is not intended to provide comprehensive coverage.

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January 26, 2017 in Scholarship, Tax | Permalink | Comments (1)

Walker:  The Stages Of Tax Exceptionalism

The Surly Subgroup:  The Stages of Administrative Law Exceptionalism, by Christopher J. Walker (Ohio State):

At the American Bar Association’s annual Administrative Law Conference in December, I had the privilege of moderating a panel entitled Your Agency Is Not That Special: The Decline of Administrative Law Exceptionalism. The panel consisted of leading experts on administrative law exceptionalism from three distinct regulatory fields: Jill Family for immigration, Kristin Hickman for tax, and Melissa Wasserman for patent law. ...

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January 26, 2017 in Scholarship, Tax | Permalink | Comments (0)

The IRS Scandal, Day 1358: More Reflections On The End Of My Daily Coverage

IRS Logo 2

William Jacobson (Cornell), TaxProf Ends Daily Coverage of IRS Scandals:

After 1352 days, thank you for your service, Sir.

Pepperdine Law Professor Paul Caron, also known as TaxProf at the TaxProf blog, started daily coverage of the IRS scandal(s) several years ago. The College Fix has some good background on the endeavor.

TaxProf probably didn’t think it would last this long. But once you start to cover something daily, it’s hard to stop.

After 1352 days, Tax Prof stopped daily coverage. ...

Thank you for your service, Sir.

Mark Meckler, the man behind the Convention of States movement, writes that monitoring the IRS can’t stop, TaxProfBlog stops daily blog about IRS harassment of conservative groups, so now we need to do this:

Just because Donald Trump is now in office doesn’t mean conservatives can take their eyes off the federal government.

On this blog, I’ve written extensively about the IRS’s targeting of Tea Party groups and have often linked to Paul Caron who has kept a daily update on the scandal at the TaxProfBlog. Unfortunately, his coverage has come to an end ….

…. thank you for the amazing service you provided. But in the meantime, we can’t let up and allow this corruption to go unpunished and allow the tax agency to walk away free from its responsibility. Trump vowed to remove corruption from Washington, and we look forward to watching him make good on his promise.

I agree with Glenn Reynolds at Instapundit who wrote, “There hasn’t been sufficient accountability for the IRS’s gross misbehavior here, but I think that Caron has done a tremendous service by keeping the issue alive for so long. I remain deeply disappointed at how many of his fellow tax professors criticized him for doing so, because they didn’t want Obama and the Democrats to look bad.”

We must stay the fight.

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January 26, 2017 in IRS News, IRS Scandal, Tax | Permalink | Comments (0)

Wednesday, January 25, 2017

Chodorow Presents The Parsonage Exemption Today At Pepperdine

Chodorow (2014)Adam Chodorow (Arizona State) presents The Parsonage Exemption at Pepperdine today as part of our Tax Policy Workshop Series funded in part by a generous gift from Scott Racine:

The parsonage exemption allows “ministers of the gospel” to exclude the value of housing benefits from income, whether received in-kind or as a cash allowance. Critics argue that the provision is unconstitutional, and the dispute is likely to make it to the Supreme Court. This Article fills an important gap in the debate over the parsonage exemption by offering a nuanced explanation of how it and other housing provisions function within the tax code. Placing the parsonage exemption in its proper tax context makes clear that (1) other tax-free housing provisions and exemptions for religious organizations cannot provide the parsonage exemption constitutional cover; (2) the parsonage exemption involves significantly more entanglement than would the generally applicable housing provision; (3) permitting ministers to receive tax-free housing violates the core tax principles of horizontal and vertical equity; and (4) other exemptions for religious organizations cannot justify the parsonage exemption.

January 25, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Stewart Presents Transnational Tax Law And The Future Of The Tax State Today At Toronto

StewartMiranda Stewart (Australian National University & University of Melbourne) presents Transnational Tax Law and the Future of the Tax State at Toronto today as part of its James Hausman Tax Law and Policy Workshop Series:

There is a growing contemporary literature about transnational law. Until recently this has not been a concept adopted in the tax law context, although there is a substantial literature on international tax law, including in bilateral and multilateral treaties and even suggested as international customary law (Avi-Yonah 2006). Tax law has been a bastion and expression of national sovereignty, funding public goods in the nation state, which developed through the 20th century in many countries as a "tax state". Recently, Genschel and Rixen (2015) proposed and analysed the strengths and limitations of a “transnational legal order” of international tax. This paper asks whether transnational tax law really exists and if so, what does it mean for the tax state? What is the authority and legitimacy of transnational tax law? Who are its legislators, subjects, agents, interpreters and enforcers in national or international spheres?

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January 25, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Field:  Fostering Ethical Professional Identity In Tax

Heather M. Field (UC-Hastings), Fostering Ethical Professional Identity in Tax: Using the Traditional Tax Classroom, 8 Colum. J. Tax. L. ___ (2017):

Will a tax lawyer in private practice help taxpayers comply or help taxpayers cheat? Will a government tax lawyer respect or abuse taxpayer rights? Answers to these questions turn, at least in large part, on the lawyer’s ethical professional identity—the lawyer’s philosophy of lawyering, which reflects her values, her sense of responsibility to others, and her self-concept of who she is (and wants to be) as a member of the legal profession. According to recent reports on legal education reform, commentators, and the ABA, law schools must do more to help students develop their ethical professional identities. This is particularly important in tax law, where lawyers’ ethical professional identities can affect compliance and revenue collection, tax morale and taxpayer rights, and the reputation of the tax profession.

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January 25, 2017 in Scholarship, Tax | Permalink | Comments (1)

Speck:  The Social Boundaries Of Corporate Taxation

Sloan G Speck (Colorado), The Social Boundaries of Corporate Taxation, 84 Fordham L. Rev. 2583 (2016):

Historically, the tax law distinction between corporate and conduit treatment drew primarily on doctrinal understandings, treating state-law corporations as corporate for tax purposes and classifying unincorporated legal entities based on their resemblance to conventional state-law corporations. More recently, commentators and Treasury have abandoned these doctrinal touchstones in favor of efficiency, broadly construed, as the guiding principle in determining an entity’s tax classification. This Article argues that, while important, efficiency considerations should not function as the sole arbiter of the boundary between corporate and conduit tax treatment.

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January 25, 2017 in Scholarship, Tax | Permalink | Comments (0)

2017 SoFi Return on Education Law School Rankings

SoFiSoFi, 2017 Law School Rankings: Return on Education:

By analyzing more than 60,000 student loan refinancing applications over a 3-year period from Janu-ary 2014 to December 2016, SoFi has updated its Return on Education (ROED) Law School Rankings grounded in verified income and debt — not just reported figures. This represents the most objective, factually accurate and defensible data that can't be found or replicated anywhere else.

Graduating from law school can have a positive impact on lifetime earnings, but given the high cost of tuition and steep interest rates on graduate student loans, the ROED can vary significantly by school. Through SoFi's analysis, find out how the top JD programs — and those with the worst payoff — stack up when it comes to average salary and student debt load for graduates who are 3 years out of school.

Quartz, Charted: The American Law Schools Most—And Least—Worth Your Money:

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January 25, 2017 in Law School Rankings, Legal Education | Permalink | Comments (4)

CBO Projects Federal Debt To Grow 50% ($10 Trillion) Over Next Decade

New York Times, Federal Debt Projected to Grow by Nearly $10 Trillion Over Next Decade:

After seven years of fitful declines, the federal budget deficit is projected to begin swelling again, adding nearly $10 trillion to the federal debt over the next 10 years, according to projections from the nonpartisan Congressional Budget Office that reveal the strain that government debt will have on the economy as President Trump embarks on plans to slash taxes and ramp up spending.

Congressional Budget Office, The Budget and Economic Outlook: 2017 to 2027:

Table 1

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January 25, 2017 in Congressional News, Tax | Permalink | Comments (1)

Charlotte Law School Reopens: 33% Of Students Have Transferred, Prof Says 42% Bar Pass Rate Would Have Been In 20s But For Payments To Students Not To Take Bar

Charlotte Logo (2016)Charlotte Business Journal, Charlotte Law President Talks Enrollment, Layoffs — And the Future:

Charlotte Law President Chidi Ogene said in an interview with the Charlotte Business Journal that the education department’s decision was a “precipitous and extreme step” given that numerous schools have been placed on probation but not had funding pulled by the education department. He notes Charlotte Law is taking steps to address the ABA’s concerns regarding compliance with first-time bar passage rates and admission indicators. “We don’t have an answer to suggest why Charlotte is being treated in a way that’s very, very different than any other higher-education systems,” Ogene adds.

The loss of federal funds has forced Charlotte Law to make difficult choices, Ogene says.

Final enrollment figures for the spring semester won’t be available until later this week. But initial reports show that roughly 230 students have transferred — a 33% drop — from the about 700 students taking classes last fall. ...

WFAE, Law School Official: Bar Passage Would Have Been in 20s If Not For Paying Students Not To Take Exam:

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January 25, 2017 in Legal Education | Permalink | Comments (1)

Louisville Dean Finalists Include 5-Year Interim Dean And Associate Dean With Experience Addressing 50% Enrollment Decline

LouisvilleFollowing up on my previous posts on the troubles at Louisville Law School (links below):  The Provost at the University of Louisville has announced the four finalists for the law school deanship.  Two things jumped out at me:

First, one of the candidates is the Interim Dean, who has been in that position for five years.  I am not aware of any other interim dean that has served so long in that capacity in light of ABA Accreditation Standard 203 and Interpretation 203-3.  (Earlier this month, I blogged the selection of Rachel Janutis as Dean Of Capital University Law School following three years of service as interim dean.)  Not coincidentally, Louisville is scheduled for its seven-year ABA accreditation visit in Fall 2017, by which time presumably a permanent dean will be in place.

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January 25, 2017 in Legal Education | Permalink | Comments (2)