TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Friday, August 31, 2018

Weekly SSRN Tax Article Review And Roundup: Eyal-Cohen Reviews Black's Section 511, Innovation, And Jobs

This week, Mirit Eyal-Cohen (Alabama) reviews Steve Black (Texas Tech), Do You Want Innovation and Jobs? Repeal § 511, 57 Washburn L.J. 431 (2018).

Mirit-Cohen (2018)This essay begins with a provocative title. In the name of innovation and job growth, the author advocates for the elimination of tax on unrelated business income (UBIT) imposed under § 511. UBIT is essentially tax on income of an exempt organization that if the organization is involved in the trade or business that is not substantially related to its exempt purpose.

The author provides helpful history on the passage of UBIT noting that in the past many universities were engaged in commercial activities while still pursuing their charitable purposes. In the late 1940s, educational institutions were involved in fields like banking, real estate, and mainstream commerce. They invested in enterprises such as department stores, factories, and real estate holdings. They owned citrus groves, movies theatres, and cattle ranches. For example, Mueller Macaroni Company, a pasta business that was donated to NYU, created “macaroni profits” that went untaxed by the University. Yet, soon after competitors and pasta rivals (the “macaroni monopoly”) uproared against unfair competition portraying nonprofits as having an unfair advantage with those entities that paid their full share of tax. 

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August 31, 2018 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Weekly Legal Education Roundup

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August 31, 2018 in Legal Education, Scott Fruehwald, Weekly Legal Education Roundup | Permalink | Comments (2)

Tax Policy In The Trump Administration

'The Ability to Pay' In Tax Law: Egalitarian And Utilitarian Justifications

Michael Pressman (USC), 'The Ability to Pay' in Tax Law: Clarifying the Concept's Egalitarian and Utilitarian Justifications and the Interactions between the Two, 21 N.Y.U. J. Legis. & Pub. Pol'y 141 (2018):

A vast amount of tax literature appeals to the premise that a system of taxation should assign tax burdens according to taxpayers’ “ability to pay.” Despite the broad-based assent to the importance of “ability to pay,” however, there has been far from a consensus on why it is important, or even on what the term means. These confusions are frequently overlooked, though, because many of the characterizations of and justifications for “ability to pay” come out the same way on various issues — thus masking the differences among the viewpoints. In this Article, I attempt to unpack and shed much-needed light on the term “ability to pay.”

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August 31, 2018 in Scholarship, Tax | Permalink | Comments (0)

Christians: Taxing According To Value Creation

Allison Christians (McGill), Taxing According to Value Creation, 90 Tax Notes Int'l 1379 (June 18, 2018):

Currently at the forefront of internationals discourse is the notion that income should be taxed “where value is created.” Far from being a well-worn tax mantra, this paper shows that the intuitively appealing but deceptively misleading claim plays on approximately a century of political compromise, equating the goal of assigning a ‘primary’ right to tax to assigning an economically ‘correct’ jurisdiction to tax. In so doing, the claim camouflages as neutral and apolitical the highly political and distributive nature of the international tax system. The paper therefore observes that promoters of the value creation mantra are seeking to garner agreement on what is an essentially distributive exercise with likely significant disparate impact across countries. Demonstrating with the so-called “smile curve” supply chain valuation model, the paper explains why the logic of value creation will always assign virtually all of the credit for international cooperation to wealthy countries.

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August 31, 2018 in Scholarship, Tax | Permalink | Comments (0)

A Comprehensive Approach To Law School Access Admissions

Jeffrey Minneti (Seattle), A Comprehensive Approach to Law School Access Admissions, 18 U. Md. L.J. Race Relig. Gender & Class 189 (2018):

This article provides a theoretical framework for building an effective law school access admission program and it gives that framework flesh, color, and voice through a description of the access admission program at Seattle University School of Law.

Table 1

The framework describes the neurobiology of learning, links that neurobiology to the self-regulated learning cycle, summarizes the learning challenges that students from underrepresented populations frequently face and provides strategies law school faculty and administers can implement to address those challenges. The article then demonstrates how the framework operates in a law school setting through a description of the Academic Resource Center's work at Seattle University School of Law.

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August 31, 2018 in Legal Education, Scholarship | Permalink | Comments (3)

Gamage & Shanske:  The Future of Salt — A Broader Picture

David Gamage (Indiana) & Darien Shanske (UC-Davis), The Future of Salt: A Broader Picture, 88 State Tax Notes 1275 (June 25, 2018):

In this essay, we evaluate the new cap on the state and local tax (SALT) deduction. We argue that the structure of the new cap is not consistent with any theory as to what the SALT deduction is or should be. In canvassing these theories, we further evaluate how future reforms to the SALT deduction might proceed.

August 31, 2018 in Scholarship, Tax | Permalink | Comments (0)

New 2018 Edition Of Partnership Income Taxation

Partnership TaxationJames R. Repetti  (Boston College), William H. Lyons (Nebraska) & Charlene D. Luke (Florida), Partnership Income Taxation (amazon) (Foundation Press 6th ed. 2018):

This book attempts the simplest possible introduction to an intricate body of law. Any “simplified” description of the rules of partnership taxation would be so misleading as to be useless. We have therefore tried to make the subject accessible not by paraphrasing the rules, but by including numerous illustrations that are as straightforward as possible. The text focuses on simple partnerships holding few assets and engaging in routine transactions. It places the rules in context by pointing out the purposes of the statute and regulations and presenting background information about practical matters such as how partnerships maintain capital accounts and how nonrecourse financing works. Using many examples, it then shows the operation of the rules in everyday cases encountered by practitioners.

This is not a reference book: many interesting and difficult issues have been ignored. Some matters, such as the application of § 736 to noncash distributions and the taxation of tiered partnerships, are not discussed at all. Most of the points that are addressed, however, are discussed at considerable length. Changes may be on the horizon; as this edition is going to press, tax professionals are grappling with understanding and implementing 2017 tax legislation, which included a reduction to the tax rate for some types of pass-through income. Numerous proposed regulations have been issued in recent years, and new regulatory projects interpreting the recent legislation are likely. Our goal has been to give students background material and illustrations so that they can begin to understand and work with a statute that was drafted for (and by) experienced practitioners and so that they can be prepared to make sense of any future changes.

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August 31, 2018 in Book Club, Scholarship, Tax | Permalink | Comments (0)

Thursday, August 30, 2018

Mazur: Taxing The Robots

Orly Mazur (SMU), Taxing the Robots, 46 Pepp. L. Rev. ___ (2018):

Robots and other artificial intelligence-based technologies are increasingly outperforming humans in jobs previously thought safe from automation. This has led to growing concerns about the future of jobs, wages, economic equality and government revenues. To address these issues, there have been multiple calls around the world to tax the robots. Although the concerns that have led to the recent robot tax proposals may be valid, this Article cautions against the use of a robot tax. It argues that a tax that singles out robots is the wrong tool to address these critical issues and warns of the unintended consequences of such a tax, including limiting innovation. Rather, advances in robotics and other forms of artificial intelligence merely exacerbate the issues already caused by a tax system that under-taxes capital income and over-taxes labor income.

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August 30, 2018 in Scholarship, Tax | Permalink | Comments (2)

Cotropia & Rozema: Who Benefits From Repealing Tampon Taxes?

Christopher Anthony Cotropia (Richmond) & Kyle Rozema (Chicago), Who Would Benefit from Repealing Tampon Taxes? Empirical Evidence from New Jersey, 15 J. Empirical Legal Stud. 620 (2018):

Many state and local governments exclude some medical products from the sales tax base, including some that are primarily used by men such as hair growth products. However, tampons and other menstrual hygiene products are subject to sales taxes in most states. A recent social movement advocates for the repeal of these “tampon taxes” on the grounds that tampon taxes (a) create an unequal tax burden between men and women because only menstruating women must pay a tax on products that men do not use, and (b) decrease the affordability of these necessary products, particularly for lower income women. To date, however, no empirical research has documented the extent that repealing tampon taxes would benefit women by lowering consumer prices, and how any tax benefit is distributed among women of different socio-economic backgrounds. It is possible that eliminating tampon taxes would lead to an increase in before-tax retail prices such that consumer prices for the products do not decrease by the full size of the repealed tax. This would imply that consumers and producers share the benefit of the tax repeal.

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August 30, 2018 in Scholarship, Tax | Permalink | Comments (0)

Should the IRS Know Your Race? The Challenge Of Colorblind Tax Data

Jeremy Bearer-Friend (NYU), Should the IRS Know Your Race? The Challenge of Colorblind Tax Data, 71 Tax L. Rev. ___ (2018):

This Article draws from original archival sources to document a century of colorblindness in federal tax data. It traces the omission of race and ethnicity from IRS statistical publications since 1913, Joint Committee on Taxation publications since 1926, and Treasury Office of Tax Analysis publications since 1974. It shows how these omissions are exceptional relative to other areas of public policy where federal data on race and ethnicity are readily available, such as student achievement or healthcare exchange enrollments. It then evaluates the merits of colorblind tax data and argues that tax data should include race and ethnicity in order to meet goals of transparency, democracy, and equality. Colorblind tax data obscure racial inequality and prevent its remedy. Colorblind tax data also undermine the democratic accountability of tax policy.

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August 30, 2018 in Scholarship, Tax | Permalink | Comments (3)

The Empirical Case For Increasing Assessments And Individualized Feedback In Law School Classes

Karen M. Henning (Detroit Mercy) & Julia Belian (Detroit Mercy), If You Give a Mouse a Cookie: Increasing Assessments and Individualized Feedback in Law School Classes, 95 U. Det. Mercy L. Rev. 35 (2017):

Our law school students and graduates need to have sophisticated critical thinking, writing, and problem-solving abilities to tackle the increasingly complex and higher-level thinking demanded of them in law school and the practice of law. Yet, a large number of law students are arriving at law school without those skills, and even more alarmingly, many of those students do not even realize that they are missing these skills or actually believe themselves to be more skilled than they are. Many law students are coming to law school with an inflated view of their own competency, and this overconfidence interferes with their learning by both encouraging them to belief that they know more than they actually do know and by limiting their ability to use feedback effectively. Thus, while the American Bar Association now mandates that law schools incorporate formative assessments into their courses, the formative assessments may not accomplish the goal of developing students’ critical thinking and communication skills unless these assessments are designed to address students’ shortcomings and to assist them in effectively using this feedback. This Article examines the authors’ attempt to address these issues by incorporating regular, bi-weekly short essay quizzes with individualized written feedback into traditional podium law school classes.

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August 30, 2018 in Legal Education, Scholarship | Permalink | Comments (0)

Brooklyn Seeks To Hire A Tax Prof

Brooklyn Logo (2016)Brooklyn Law School seeks to hire two full-time, tenure-track or tenured faculty members:

We are interested in outstanding candidates in all fields, including civil procedure, constitutional law, labor law, tax law, business law and regulation, antitrust, and torts. Applicants should have a strong academic record and demonstrated commitment to scholarly activity and publication. We are interested in both entry-level and lateral candidates, and we are especially interested in candidates who will enhance the diversity of our faculty. Entry-level and lateral candidates should apply via the Faculty Appointments Register or by email to Professor Minor Myers, Chair, Faculty Appointments Subcommittee.

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August 30, 2018 in Legal Education, Tax, Tax Prof Jobs | Permalink | Comments (1)

Crawford: Tax Talk And Reproductive Technology

Bridget J. Crawford (Pace), Tax Talk and Reproductive Technology, 98 B.U. L. Rev. ___ (2018):

The tax system both reacts to and helps create attitudes about the value of certain behaviors and choices. This Article makes three principal claims — one empirical, one normative, and one interpretative.

The Article demonstrates empirically that a representative sample of fertility clinics in the United States do not make publicly available information about the tax consequences of compensated human egg transfers — commonly called egg “donation.” The United States Tax Court recently decided in a case of first impression, Perez v. Commissioner, that a compensated egg transferor must report as income any amount she receives for her eggs. Although the Tax Court missed an opportunity to clarify further complex questions about the tax consequences of transfers of human bodily materials, the basic holding of Perez was clear. Even so, a content-based analysis of public Internet forums and bulletin boards suggests that compensated egg transferors remain unclear about their tax obligations. This confusion is due in large part to the absence of what this Article calls “tax talk” on the part of the fertility clinics themselves. Women who receive compensation for providing eggs reject the idea they are engaged in any sort of commercial activity, and think of themselves as altruistic actors who do receive money, but only because of their generosity and willingness to endure discomfort and inconvenience. Intended parents benefit from construing egg transferors as “givers,” because that allows the intended parents to relegate compensation to a secondary role in any negotiations with the egg transferor. The absence of tax talk also allows intended parents to minimize the specter of “baby buying.” That cloud hovers over any assisted reproductive technology involving compensation for either gestational services or activity resulting in gamete transfers. The altruism narrative is reinforced by fertility clinics and is the foundation on which a multi-billion-dollar industry stands. The absence of tax talk depresses the price of eggs and allows most of the industry profits to go to the drug manufacturers, fertility clinics, and the doctors who own the clinics. They all profit handsomely from the reproductive work of others.

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August 30, 2018 in Scholarship, Tax | Permalink | Comments (1)

Aretha Franklin Died Without a Will, Bequeathing Estate Issues To Her Heirs

RespectNew York Times, Aretha Franklin Died Without a Will, and Estate Issues Loom:

Aretha Franklin left no will when she died last week at the age of 76, according to documents filed on Tuesday in a Michigan court, which could result in details of her personal finances being made public. ... According to Michigan law, the assets of an unmarried person who dies without a will are divided equally among their children. Ms. Franklin had been married twice, but was long since divorced. ...

[H]igh-profile probate proceedings can drag on for years and lead to infighting among families, lawyers and others. Such estates can become especially complicated when it comes to issues like music rights. The case of Prince, who died two years ago and left no will, has led to numerous family disputes and even the revocation of a multimillion-dollar music deal.

Amanda DiChello, an estate lawyer at the firm of Cozen O’Connor in Philadelphia, said that a surprising number of celebrities and wealthy people die without a will.

Robert W. Wood (Forbes), Like Prince, Aretha Franklin Died Without A Will. Why You Should Have One:

Aretha Franklin, the Queen of Soul, died without a will. Papers have already been filed in court by Franklin’s four sons and niece. That means there will be public proceedings. There could be court battles too, depending on who claims what. Unexpected celebrity deaths can make the rest of us think about what documents we need to have in place. The tax and financial hassle of probate or intestacy can be huge, even for normal sized estates. When you add the extra zeros that go with a successful entertainer, the failures can seem much more palpable.

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August 30, 2018 in Celebrity Tax Lore, Tax | Permalink | Comments (2)

Is The University Of California Approaching A Tipping Point?

UCJohn Aubrey Douglass (UC_Berkeley) & Zachary Bleemer (UC-Berkeley), Approaching a Tipping Point? A History and Prospectus of Funding for the University of California:

This year marks the University of California’s (UC) 150th anniversary. In part to reflect on that history, and to provide a basis to peer into the future, the following report provides a history of the University of California’s revenue sources and expenditures. The purpose is to provide the University’s academic community, state policymakers, and Californians with a greater understanding of the University’s financial history, focusing in particular on the essential role of public funding.

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August 30, 2018 in Legal Education | Permalink | Comments (2)

Wednesday, August 29, 2018

Florida Tax Review Publishes New Issue

Florida Tax Review (2018)The Florida Tax Review has published Vol. 21, No. 2:

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August 29, 2018 in Scholarship, Tax | Permalink | Comments (0)

Student Price Sensitivity to Law School Tuition

Amy Li (Northern Colorado), Dollars and Sense: Student Price Sensitivity to Law School Tuition:

Law school tuition prices have been on a steady upward trajectory over the past decade, leading to declining affordability. Using institution-level data on 194 law schools from 2006 to 2015, this study investigates whether students are price sensitive to increasing costs. Incorporating two-way fixed effects models, results suggest that higher tuition and fee prices are not associated with fewer applications to law school. However, higher estimated net costs of attendance are associated with greater numbers of first-year enrollments, particularly among private schools.

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August 29, 2018 in Legal Education, Scholarship | Permalink | Comments (0)

Tax Tips From Paul Manafort's Conviction

Robert W. Wood (Forbes), Tax Tips From Manafort Conviction That Might Keep IRS Away:

The conviction of former Trump campaign chairman Paul Manafort on eight counts of financial crimes nets the first conviction for Special Counsel Robert Mueller.

Political commentators on both sides are jabbering over this. They also have the guilty plea by former Trump fixer Michael Cohen to talk about. But aside from politics, there are some serious tax lessons here for everyone. And they are surprisingly simple.

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August 29, 2018 in Celebrity Tax Lore, Tax | Permalink | Comments (1)

Why All Law Schools Should Offer A 'Coding For Lawyers' Course

Mark Fenwick (Kyushu), Wulf A. Kaal (St. Thomas) & Erik P. M. Vermeulen (Tilburg), Legal Education in a Digital Age: Why 'Coding for Lawyers' Matters:

In this paper, we explain the benefits of introducing a “Coding for Lawyers” course in the legal curriculum and present our initial experiences with the course in Europe and the United States. The paper outlines the broader context of the transformation of education in a digital age; describes the importance of computer code in a legal context, particularly in terms of on-going changes in the legal profession; and, introduces the main features of the course and its initial reception.

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August 29, 2018 in Legal Education | Permalink | Comments (3)

The 10 Most-Cited Tax Faculty

Brian Leiter (Chicago) has updated his ranking of the Ten Most-Cited Tax Faculty to now cover the 2013-2017 period (see prior rankings:  2000-2007, 2005-20102009-2013, 2010-2014):

Rank

Name

School

Citations

Age

1

Michael Graetz

Columbia

390

74

2

Reuven Avi-Yonah

Michigan

370

61

 

David Weisbach

Chicago

370

55

4

Daniel Shaviro

NYU

340

61

5

Victor Fleischer

UC-Irvine

300

47

 

Lawrence Zelenak

Duke

300

60

7

Leandra Lederman

Indiana

240

52

8

Edward McCaffery

USC

220

60

 

Edward Zelinsky

Cardozo

220

68

10

Alan Auerbach

UC-Berkeley

215

67

Leiter also lists four highly-cited scholars who work partly in tax:

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August 29, 2018 in Legal Education, Scholarship, Tax, Tax Prof Rankings | Permalink | Comments (1)

Tenured Emory Law Prof Removed From Teaching Torts After Using N-Word In Class

ZwierLaw.com, Lawyers Speak Out Over Emory Law Prof's In-Class 'N-Bomb':

An Emory Law School professor is drawing fire from students and legal peers alike for his use of the “N-word” during a lesson with students during a first-year torts class.

Dean James Hughes Jr. stripped the instructor, Paul Zwier, of his class assignments pending an investigation following the incident. Zwier also released a three-page letter explaining how he came to apparently use the slur when discussing a 1967 case involving a black man who sued after being denied service at a Texas restaurant by a manager who “shouted that he, a Negro, could not be served in the club.”

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August 29, 2018 in Legal Education | Permalink | Comments (7)

IRS Clears Path For Student Loan Repayment Tied To 401(k)

Bloomberg Law, IRS Clears Path for Student Loan Repayment Tied to 401(k):

An IRS decision allowing an employer to offer a student loan repayment benefit as an element of its retirement plan could open the door to other employers interested in offering similar benefits.

The Internal Revenue Service Aug. 17 gave the go-ahead to an unnamed employer’s plan to tie 401(k) contributions to student loan repayment contributions. The private letter ruling [2018-33-012], while not precedential, likely will quell concerns from employers interested in offering a student loan benefit through their 401(k) programs, but worried about complying with the law.

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August 29, 2018 in IRS News, Tax | Permalink | Comments (0)

How Online Learning Can Transform Legal Education

David I. C. Thomson (Denver), How Online Learning Can Transform Legal Education:

Legal Education in the United States has been under significant pressure since the Great Recession of 2008. The recession created new and significant pressures on law firms, which previously had absorbed many law school graduates but no longer could at the same rates. Complaints of graduates being insufficiently prepared for practice preceded the post-2008 shift, but reached a fever pitch afterwards. Particularly in the years 2010-13, graduates of law schools had a significantly harder time getting jobs than they had in the past. At many schools, nearly 50% of graduates were unable to obtain employment in a “J.D. Required” job. All of this led to the legal academy being criticized broadly in blogs and in the press for offering a law degree at considerable cost without providing what many considered to be appropriate employment outcomes. Further, law practice changed significantly in the last decade, with (in particular) corporate clients — themselves subject to digital transformations and the pressures of global competition — demanding a level of efficacy and efficiency that had not previously been required of their outside law firms. In sum, digital transformations in the outside world are finally putting pressure on the legal academy, which until the recent financial crisis had been mostly immune.

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August 29, 2018 in Legal Education, Scholarship | Permalink | Comments (0)

Tuesday, August 28, 2018

NYU Tax Law Review Publishes New Issue

NYU Law (2016)The Tax Law Review has published a new issue (Vol. 71, No. 1 (Fall 2017)):

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August 28, 2018 in Scholarship, Tax | Permalink | Comments (0)

U.S. Appeals Court Urged to Curb IRS Sway Over Cannabis Industry

National Law Journal, US Appeals Court Urged to Curb IRS Sway Over Cannabis Industry:

A Colorado law firm is pressing claims that the Internal Revenue Service wields too much power over the cannabis industry, urging a federal appeals court to curb the agency’s authority to unilaterally determine that state-legal businesses are breaking federal law.

Thorburn Walker, a firm that has become go-to tax counsel for many Colorado dispensaries, has asked the U.S. Court of Appeals for the Tenth Circuit to reconsider a panel decision in Alpenglow Botanicals v. United States of America. The three-judge panel on July 3 said a taxpayer does not have to be convicted of a drug crime for the IRS to revoke its ability to deduct marijuana business expenses.

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August 28, 2018 in New Cases, Tax | Permalink | Comments (0)

The Secret To 85% First-Time Bar Passage Rates

85%Jeffrey Kinsler (Belmont) & David L. Hudson, Jr. (Belmont), The Secret to 85% First-Time Bar Passage Rates, 40 N.C. Cent. L. Rev. 92 (2017):

Many law schools have implemented bar preparation courses either as free-standing courses or as an integral part of their academic support program. On April 1, 2016, the ABA Journal published an article on the subject of law school bar preparation courses. Three law schools were featured in that article: Belmont University College of Law ("Belmont"), Florida International University College of Law ("FIU"), and the University of Missouri-Kansas City School of Law ("UMKC"). According to the ABA Journal, these law schools are out-performing their peers on bar exams due in part to in-house bar preparation courses. The story in the ABA Journal, however, was published several months before the ABA released complete bar exam results for calendar-year 2015; those results were released on December 15, 2016. With complete 2015 bar exam results now available, the purpose of this article is to substantiate the thesis of the ABA Journal article and to provide more information about these three successful bar exam programs. The article will also show that these three schools did outperform their peers on the bar exam in 2015. Belmont, FIU, and UMKC each had a first-time bar passage rate of 85% or higher, a remarkable accomplishment in this era of plummeting bar passage rates.

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August 28, 2018 in Legal Education, Scholarship | Permalink | Comments (0)

Colinvaux: State Tax Benefits And The Federal Charitable Deduction

Roger Colinvaux (Catholic), Failed Charity: Taking State Tax Benefits into Account for Purposes of the Charitable Deduction,  66 Buff. L. Rev. 779 (2018):

The Tax Cuts and Jobs Act (TCJA) substantially limited the ability of individuals to deduct state and local taxes (SALT) on their federal income tax returns. Some states are advancing schemes to allow taxpayers a state tax credit for contributions to a charity controlled by the state. The issue is whether state tax benefits are deductible as a charitable contribution for purposes of the federal income tax. Under a general rule of prior law — the full deduction rule — state tax benefits were ignored for purposes of the charitable deduction. If the full deduction rule is applied to the state workaround schemes, then the SALT limitation can successfully be avoided. This Article explains that after the TCJA, the legal basis for the full deduction rule is undermined. 

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August 28, 2018 in Scholarship, Tax | Permalink | Comments (0)

Building A Culture Of Assessment In Law Schools

Larry Cunningham (St. John's), Building a Culture of Assessment in Law Schools:

A new era of legal education is upon us: Law schools are now required to assess learning outcomes across their degrees and programs, not just in individual courses. Programmatic assessment is new to legal education, but it has existed in higher education for decades. To be successful, assessment requires cooperation and buy-in from faculty. Yet establishing a culture of assessment in other disciplines has not been easy, and there is no reason to believe that it will be any different in legal education. A survey of provosts identified faculty buy-in as the single biggest challenge towards implementing assessment efforts. This article surveys the literature on culture of assessment, including conceptual papers and quantitative and qualitative studies. It then draws ten themes from the literature about how to build a culture of assessment:

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August 28, 2018 in Legal Education, Scholarship, Teaching | Permalink | Comments (0)

Will The Sharing Economy Increase Inequality?

Gregory M. Stein (Tennessee), Will the Sharing Economy Increase Inequality?:

The rise of the sharing economy benefits consumers and providers alike. Consumers can access a wider range of goods and services on an as-needed basis and no longer need to own a smaller number of costly assets that sit unused most of the time. Providers can engage in profitable short-term ventures, working on their own schedule and enjoying many new opportunities to supplement their income. Sharing economy platforms often employ dynamic pricing, which means that the price of a good or service varies in real time as supply and demand change. Under dynamic pricing, the price of a good or service is highest when demand is high or supply is low. Just when a customer most needs a good or service – think bottled water after a hurricane – dynamic pricing may price that customer out of the market. This Article examines the extent to which the rise of the sharing economy may exacerbate existing inequality.

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August 28, 2018 in Scholarship, Tax | Permalink | Comments (0)

8 Colleges Benefited From Misreported Data In Recruiting Fall 2018 Class; U.S. News Pulled Their Rankings Last Week, But They Will Be Included In New Rankings Released Sept. 10 For Recruiting Fall 2019 Class

US News 2U.S. News & World Report, Updates to 8 Schools' 2018 Best Colleges Rankings Data:

Eight schools notified U.S. News & World Report that they misreported data used to calculate their rankings for the 2018 edition of Best Colleges. The schools are Austin Peay State University, Dakota Wesleyan University, Drury University, Hampton University, Oklahoma City University, Randolph College, Saint Martin's University and St. Louis University.

The misreporting by each school resulted in their numerical ranks being higher than they otherwise would have been. Because of the discrepancies, U.S. News has moved the schools to the "Unranked" category, meaning they do not receive numerical ranks.

All eight schools' Unranked status will last until the publication of the next edition of the Best Colleges rankings [Sept. 10] and until the schools confirm the accuracy of their next data submission in accordance with U.S. News' requirements. All other schools' rankings in the 2018 Best Colleges will remain the same on usnews.com.

Inside Higher Ed, 8 More Colleges Submitted Incorrect Data for Rankings:

The eight new colleges are blaming human error, not malice, for the flaws in their data. And the colleges themselves told U.S. News about the errors.

A summary by U.S. News of rankings problems is as follows:

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August 28, 2018 in Law School Rankings | Permalink | Comments (1)

Luke: Captivating Deductions

Charlene D. Luke (Florida), Captivating Deductions, 46 Hofstra L. Rev. 855 (2018) (reviewed by Sloan Speck (Colorado) here):

This Article examines the technique of converting non-deductible savings into deductible insurance premiums. This savings conversion mechanism is generally labeled “captive insurance,” but as this Article explains, the issue extends beyond the use of related insurance subsidiaries to include insurance contracts that are, in substance, designer investment contracts. This Article explores how moving away from reliance on a particular definition of insurance and towards normative income tax principles provides a clearer path for policing the boundary between savings and insurance contracts for income tax purposes.

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August 28, 2018 in Scholarship, Tax | Permalink | Comments (0)

Monday, August 27, 2018

Morse Presents International Cooperation And The 2017 Tax Act Today At San Diego

Morse (2018)Susan C. Morse (Texas) presents International Cooperation and the 2017 Tax Act, 128 Yale L.J.F. ___ (2018), at San Diego today as part of its Tax Speaker Series hosted by Jordan Barry:

In 2017, House Speaker Paul Ryan, Representative Kevin Brady and Senator Mitch McConnell accomplished something that many others, including Barack Obama, had aimed for. They lowered the federal corporate tax rate so that the U.S. rate now falls within the range used in most of the rest of the world. The Tax Cuts and Jobs Act of 2017 (“TCJA”) has attracted just criticism for its deficit financing, for its abysmal craftsmanship, and for the misguided policy objectives of some provisions.1 But the TCJA deserves credit for international corporate tax provisions that move the United States closer to the framework used by other nations. The TCJA may help establish a minimum tax rate globally, thus arguably saving the corporate income tax.

The characters in this Essay’s story are multinational corporations (“MNCs”) and the states that seek to tax them. We may think of a certain multinational corporation as a “U.S.” firm—for instance, because its publicly traded parent company is incorporated in the State of Delaware. Yet, by definition, a multinational firm does business in two or more national jurisdictions. When setting corporate tax policy, states may pursue “cooperation,” to help each other maintain a positive corporate tax rate. They also may pursue “competitiveness,” which in the context of tax policy means to lower tax burdens in hopes of attracting investment. The TCJA features both.

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August 27, 2018 in Colloquia, Scott Fruehwald, Tax | Permalink | Comments (0)

Treasury Rulemaking And Administrative Law: A Middle Ground Between Tax 'Exceptionalism' And 'Anti-Exceptionalism'

David Berke (Skadden, Washington, D.C.), Reworking the Revolution: Treasury Rulemaking & Administrative Law, 7 Mich. J. Envtl. & Admin. L. 353 (2018):

How administrative law applies to tax rulemaking is an open and contested question. The resolution of this question has high stakes for the U.S. tax system. The paradigm is shifting away from so-called “tax exceptionalism”—where Treasury action is considered effectively exempt from the Administrative Procedure Act (the “APA”) and related administrative law doctrines. This paradigm-shift is salutary. However, currently prevailing anti-exceptionalist theory—an administrative framework for tax that is rapidly gaining credence within both the federal judiciary and the legal academy—threatens to destabilize the U.S. tax system. This formalistic approach to administrative law in tax rulemaking has the potential to invalidate a wide swath of existing Treasury regulations and to preclude the timely promulgation of new tax rules.

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August 27, 2018 in Scholarship, Tax | Permalink | Comments (0)

Meet Your New College Roommate: Alexa

SLU EchoInside Higher Ed, Meet The New Kid on Campus:

All students moving into residence halls at Saint Louis University this week will find a corner of their desks already taken up by a new roommate. Her name is Alexa.

Housed in a SLU-branded Amazon Echo Dot, Alexa is the anthropomorphic personal assistant every 21st-century student needs, or so says David Hakanson, chief innovation officer at SLU.

SLU purchased 2,300 Echo Dots from Amazon to put in students’ dorm rooms.

The devices are preloaded with an Alexa voice app or skill, called "SLU", which enables students to easily access information about what’s going on on-campus. Alexa can currently answer around 130 campus-related questions, and more questions and answers will be added at students’ request, said Hakanson. The SLU skill was developed with n-Powered — an ed-tech company spun out of Northeastern University.

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August 27, 2018 in Legal Education | Permalink | Comments (1)

Tax Lawyer's Lawsuit Over Georgetown Tax LL.M. Job Fair Ban Is Tossed

Texas Lawyer, Texas Tax Lawyer's Suit Over Georgetown Job Fair Ban Is Tossed:

A federal judge has thrown out a Texas tax attorney’s lawsuit against his alma mater, Georgetown University Law Center, that claimed the school unlawfully banned him from  a job fair after concerns arose over discrepancies on his resume.

Judge Barbara Lynn of the U.S. District Court for the Northern District of Texas dismissed John Anthony Castro’s suit Tuesday on the grounds that the court lacked personal jurisdiction over the law school in Washington, D.C.  “Defendants’ only alleged contact with Texas is that Castro, a Texas resident, placed a phone call, on an unidentified date, to Georgetown University’s Career Services Office,” Lynn wrote in her opinion. “This single contact is not evidence that Defendants purposefully directed any activities to Texas.”

Castro, who is Hispanic, sued the law school in March claiming that Georgetown’s decision to bar him from its tax hiring fair constituted racial discrimination and retaliation. ...

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August 27, 2018 in Legal Education | Permalink | Comments (1)

Balkin: The Most Cited Women In American Legal Scholarship

Following up on my previous posts:

Jack Balkin (Yale), The Most Cited Women in American Legal Scholarship:

This is my very rough attempt at a list of the most cited women in American legal scholarship today. It looks at citation counts on Westlaw between 2013 and 2017. ...

Balkin lists the 32 most-cited women.  Here are the Top 10:

 

Name

School

Citations

Age in 2018

1

Reva Siegel

Yale

1340

62

2

Michelle Alexander

Union

1030

50

3

Judith Resnik

Yale

1000

68

4

Deborah Rhode

Stanford

980

66

5

Martha Nussbaum

Chicago

930

71

6

Lee Epstein

Washington U.

840

60

7

Martha Minow

Harvard

820

63

8

Jody Freeman

Harvard

800

54

9

Catharine MacKinnon

Michigan

780

71

10

Rachel Barkow

NYU

775

47

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August 27, 2018 in Law School Rankings, Legal Education | Permalink | Comments (0)

Lesson From The Tax Court: The Misunderstood Trust Fund Recovery Penalty

Tax Court (2017)A recent Tax Court case teaches a lesson about the §6672 Trust Fund Recovery Penalty (TFRP), and about the proper scope of a Collection Due Process hearing.  In Kathy Bletsas v. Commissioner, T.C. Memo. 2018-128 (Aug. 14, 2018), the IRS found Ms. Bletsas to be a responsible person who willfully failed to turn over trust fund taxes.  So the IRS assessed a §6672 penalty against her and filed a Notice of Federal Tax Lien (NFTL) to encumber all her property and rights to property.  Ms. Bletsas asked for and received a Collection Due Process (CDP) hearing about the NFTL. 

Represented by the indefatigable Frank Agostino (and by Malinda Sederquist), she argued that the collection decision to file an NFTL was an abuse of discretion because the IRS was getting steadily paid through an Installment Agreement (IA) with the employer and so did not need to file the NFTL against the Ms. Bletsas.  And, hey, she wasn’t really a responsible person anyway!

Trust fund taxes?  Responsible person?  TFRP?  To learn what that’s all about and what lesson Judge Lauber teaches, read on.  No one would blame you, however, if you instead clicked over to YouTube to watch this old Johnny Carson clip with Robin Williams and Jonathan Winters...

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August 27, 2018 in Bryan Camp, New Cases, Tax | Permalink | Comments (2)

Call for Papers: The Tax Profession In The Spotlight

JOTA LogoCall for Papers: The Tax Profession In The Spotlight

The current climate in relation to taxation, particularly in the context of multinationals, has created significant challenges for tax professionals, including closer scrutiny of their activities and practices. Against this backdrop, in February 2018, the Journal of Tax Administration (JOTA) hosted an event in London at which researchers and practitioners shared their views on the Tax Profession in the current climate. The event was chaired by Lynne Oats (University of Exeter) and Penelope Tuck (University of Birmingham) and papers were presented by Steve Edge (Slaughter and May), Michelle Lyon Drumbl (Washington and Lee University), David Quentin (Queen Mary University of London), Rasmus Corlin Christensen (Copenhagen Business School), Rodrigo Ormeño Perez (University of Chile), Jane Frecknall-Hughes (University of Nottingham), Hans Gribnau (Tilburg University), David Southern (Temple Tax Chambers), Till-Arne Hahn (Queens University, Canada) and Elaine Doyle (University of Limerick).

We now invite contributions to a special issue of JOTA on all aspects of the Tax Profession, to be edited by Lynne Oats and Penelope Tuck.

Topics could include, for example:

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August 27, 2018 in Scholarship, Tax | Permalink | Comments (0)

TaxProf Blog Weekend Roundup

Sunday, August 26, 2018

Why Prosperity Has Increased, But Happiness Has Not: Inequality Is Immiserating

HappinessNew York Times op-ed:  Why Prosperity Has Increased but Happiness Has Not, by Jonathan Rauch (Author,  The Happiness Curve: Why Life Gets Better After 50 (2018)):

In 1990, Prime Minister Margaret Thatcher of Britain was challenged by a Labour member of Parliament on the subject of growing inequality. “All levels of income are better off than they were in 1979,” she retorted. “The honorable member is saying that he would rather that the poor were poorer, provided the rich were less rich. … What a policy!”

That slap-down was an iconic formulation of a premise of the Thatcher-Reagan conservative revolution: Poverty is a social problem, but inequality, as such, is not. Governments should aim to increase the incomes and opportunities of all, especially the poor, but to worry about the gap between the rich and the rest is “the politics of envy.”

Morally speaking, Mrs. Thatcher and Ronald Reagan should have been right. As long as I am better off, why should I begrudge your doing better still? Yet something was amiss with this consensus — something that goes far to explain why Reagan-Thatcher conservatism has caved in under pressure from the populisms of President Trump on the right and Senator Bernie Sanders of Vermont on the left.

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August 26, 2018 | Permalink | Comments (3)

Yin: It Would Take Only One Senator To Get Trump’s Taxes

Trump Tax ReturnsPolitico op-ed:  It Would Take Exactly One Senator to Get Trump’s Taxes, by George Yin (Virginia):

For all the attention given to the felonies committed by Michael Cohen and Paul Manafort, the Mueller investigation still hasn’t shined a light on the central mystery surrounding Donald Trump's presidency thus far: Just what, if anything, he owes to Russia. If he has no Russian connection, why is the president so deferential to Russian President Vladimir Putin and so intent on silencing Russian accusers like former CIA Director John Brennan? There could be innocent explanations, of course, but many Americans, including some Republicans, are puzzled.

The answer may lie inside documents we’ve been talking about for two years: his tax returns. If Trump does have a clear connection to Russians—if he owes them money, or if he has business partnerships with Putin allies—the returns may provide useful clues and would certainly be a worthwhile place to look.

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August 26, 2018 in Tax | Permalink | Comments (6)

Charlene Luke Named Associate Dean For Tax Programs At Florida

Luke (2018)University of Florida Press Release:

Dean Laura Rosenbury is very happy to announce that Professor Charlene Luke has agreed to serve as the Associate Dean for Tax Programs at the University of Florida Levin College of Law. In this role, Dean Luke will work with Professor Fred Murray, Director of the Graduate Tax Program, and Professor Mindy Herzfeld, Director of the International Tax Program.

Dean Luke joined the University of Florida in 2008 and currently serves as a UF Research Foundation Professor (2017–2020). She became the editor-in-chief of the Florida Tax Review in 2016.

Dean Luke’s research primarily focuses on the problem of tax avoidance and evasion and has appeared in the Virginia Tax Review, Tax Lawyer, Buffalo Law Review, Hofstra Law Review, Seattle University Law Review, and Connecticut Insurance Law Journal. She also recently became a co-author of the McDaniel, McMahon, and Simmons’s series of business entity taxation casebooks, as well as Repetti and Lyons’s Partnership Income Taxation (Concepts and Insights) (6th ed. 2018).

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August 26, 2018 in Legal Education, Tax, Tax Prof Moves | Permalink | Comments (0)

Florida State Launches Student Resilience Project: No 'Snowflake' Seminoles

FSU 2

Inside Higher Ed, No 'Snowflakes' at Florida State:

As Florida State University rolls out a massive new campaign designed to help students weather stress and cope with childhood traumas, Jim Clark, the dean of the College of Social Work, fears that the public might buy in to a damaging but common stereotype of college students: that they are fragile “snowflakes” in need of coddling.

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August 26, 2018 in Legal Education | Permalink | Comments (0)

Saturday, August 25, 2018

This Week's Ten Most Popular TaxProf Blog Posts

Appeals Court Affirms Denial Of Richard Sander's Request To Access California Bar Data To Study Racial Implications Of Bar Passage Rates

Sander Book CoverFollowing up on my previous posts (links below):  the California Court of Appeals on Thursday affirmed the trial court's denial of UCLA Prof Richard Sander's request to access California bar admissions data to study the racial implications of bar passage rates. Sander v. State Bar of California, Nos. A150061, A150625 (Cal. Ct. App. Aug. 23, 2018):

Appellants and petitioners Richard Sander and the First Amendment Coalition (Petitioners) challenge the trial court’s denial of their petition for writ of mandate seeking to obtain information from the State Bar of California’s bar admissions database. Specifically, Petitioners seek individually unidentifiable records for all applicants to the California Bar Examination from 1972 to 2008 in the following categories: race or ethnicity, law school, transfer status, year of law school graduation, law school and undergraduate GPA, LSAT scores, and performance on the bar examination. Making these records available to the public in a manner that protects the applicants’ privacy and anonymity, they believe, will allow researchers to study the potential relationship between preferential admissions programs in higher education and a gap in bar passage rates between racial and ethnic groups.

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August 25, 2018 in Legal Education | Permalink | Comments (10)

Britain's Labour Party Leader Proposes Tax On Big Tech To Fund BBC, Public Interest Journalism

FAANGThe Guardian, Jeremy Corbyn: I'll Tax Tech Firms to Subsidise the BBC Licence Fee:

Jeremy Corbyn is to propose a tax on big technology firms such as Facebook, Google and Netflix, to subsidise the BBC licence fee as part of a sweeping range of measures to reform the British media industry.

The Labour leader will warn that a “few tech giants and unaccountable billionaires will control huge swathes of our public space and debate” and that intervention is now required.

Bloomberg, A Facebook Tax Is a Good Way to Kill Dying Newspapers:

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August 25, 2018 in Tax | Permalink | Comments (0)

Employee Accused Of $1.3 Million Theft From ABA In Cellphone Scheme

ABA Journal (2014)Following up on my previous post, ABA Reveals $1.3M Theft By Former Staffer On Tax Form:  ABA Journal, Former ABA Employee Is Accused of Cellphone Theft Scheme That Cost the Association Nearly $1.3M:

Former ABA employee Karen M. Healy of Chicago has been charged with felony theft by deception for the alleged theft of cellphones and iPads worth nearly $1.3 million that she ordered in the name of the association. ...

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August 25, 2018 in Legal Education | Permalink | Comments (0)

Friday, August 24, 2018

Weekly SSRN Tax Article Review And Roundup: Elkins Reviews Shaviro's The New Non-Territorial U.S. International Tax System

This week, David Elkins (Netanya) reviews two new papers by Daniel N. Shaviro (NYU), The New Non-Territorial U.S. International Tax System, Part 1, 160 Tax Notes 57 (July 2, 2018); and The New Non-Territorial U.S. International Tax System, Part 2, 160 Tax Notes 171 (July 9, 2018).

Elkins (2018)Commentators discuss two different models of international tax regimes. Under a worldwide system, residents are taxed on their foreign-source income and receive a credit for any foreign income taxes paid. Under a territorial system, foreign-source income is exempted and foreign taxes are ignored. Regimes that contain elements of a worldwide regime along with elements of a territorial regime are often described as hybrid systems. It has been claimed that the Tax Cuts and Jobs Act (TCJA) moved the United States from a worldwide system to a territorial system and thereby aligned the U.S. tax regime with that of its major trading partners. 

In a two-part report on the international tax aspects of TCJA, Professor Daniel Shaviro argues that not only is this before-and-after description of U.S. tax regime inaccurate but also that the categories themselves are analytically useless.

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August 24, 2018 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Weekly Legal Education Roundup