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Friday, June 26, 2015

The IRS Scandal, Day 778

IRS Logo 2Wall Street Journal, Former IRS Official’s Email Lost When Backup Tapes Routinely Erased:

Thousands of missing emails from former Internal Revenue Service official Lois Lerner, a central focus of lawmakers’ probes into the alleged targeting of tea-party groups starting in early 2010, were lost when backup digital tapes were erased last year, the agency’s inspector general has found in an investigation.

The emails were first lost when Ms. Lerner—then the head of the tax-exempt division of the IRS—suffered a hard-drive crash in mid-2011.

Investigators had hoped to find the missing emails in backup tapes.

Now it turns out that 422 backup tapes from the crucial period were routinely erased by IRS workers. The tapes were destroyed in March 2014, according to the Treasury inspector general for the IRS, J. Russell George. That is long after lawmakers started trying to obtain all of Ms. Lerner’s emails, and long after the IRS issued instructions for employees to cease routine destruction of documents that might relate to the probes.

The finding means that much of the mystery surrounding alleged IRS targeting of tea party groups likely will continue. It could also raise difficult new questions for IRS managers, including Commissioner John Koskinen.

“There was a [document] preservation order in place” that the IRS “never complied with,” said Rep. Jason Chaffetz (R., Utah), the chairman of the House Oversight and Government Reform Committee, at a hearing on Thursday morning. “They destroyed evidence. That’s what they did.”

The tapes could contain as many as 24,000 additional emails, Mr. George said in

Mr. George’s probe also showed that the IRS didn't search for several potential sources of emails, including the backup tapes, after the hard-drive crash became known. Even some Democrats said they were troubled.

“I’m concerned too as to why things were not looked into,” said Rep. Elijah Cummings (D., Md.), the top Democrat on the panel. “That really does concern me.”

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June 26, 2015 in IRS News, IRS Scandal, Tax | Permalink | Comments (0)

Thursday, June 25, 2015

Grewal: King v. Burwell — The IRS Isn’t An Expert?

Grewal (2015)Tax Prof Blog Op-Ed:  The IRS Isn’t an Expert?, by Andy Grewal (Iowa):

Today, the Supreme Court issued its much-anticipated decision in King v. Burwell, holding that the Section 36B premium tax credit extends to taxpayers who acquire healthcare policies on federally established exchanges.  The decision probably will not bear much on core tax provisions, but the Court’s reasoning could have major implications for the IRS’s administration of the various social programs littered throughout the tax code.

To uphold the government’s position, the Court might have been expected to employ the familiar Chevron framework, under which it generally defers to agency interpretations of ambiguous statutory provisions.  However, in King, the Court refused to offer the IRS any deference on the question presented, even though it acknowledged the ambiguity in the contested statutory provision.  The meaning of the contested phrase, referring to credits for policies purchased on an Exchange established by the State, implicated major questions of health care policy, and “[t]his is not a case for the IRS.”  The IRS “has no expertise in crafting health insurance policy,” so the Court believed that it should resolve the ambiguity in the statutory scheme.  It ultimately did so through an examination of Section 36B and various related Affordable Care Act provisions.

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June 25, 2015 in New Cases, Tax | Permalink | Comments (9)

NY Times: Schools Fear Impact Of Gay Marriage Ruling On Their Tax-Exempt Status

Gay MarriageNew York Times:  Schools Fear Impact of Gay Marriage Ruling on Tax Status, by Laurie Goodstein & Adam Liptak:

Conservative religious schools all over the country forbid same-sex relationships, from dating to couples living in married-student housing, and they fear they will soon be forced to make a wrenching choice. If the Supreme Court this month finds a constitutional right to same-sex marriage, the schools say they will either have to abandon their policies that prohibit gay relationships or eventually risk losing their tax-exempt status.

The religious schools are concerned that if they continue to bar gay relationships, the Internal Revenue Service could take away their tax-exempt status as a violation of a “fundamental national public policy” under the reasoning of a 1983 Supreme Court decision that allowed the agency to revoke the tax-exempt status of schools that banned interracial relationships.

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June 25, 2015 in Tax | Permalink | Comments (0)

Are Professors Taxable On Review Copies Of Books?

Review CopyIra Stoll, Taxing Review Copies:

Professors who receive review copies of expensive textbooks from publishers, beware. Amazon wrote today to reviewers who participate in its Vine program that provides free review copies of books and sometimes other products. The reviewers aren't paid by Amazon for their writing:

Starting July 1, 2015 you will be required to provide valid tax information by completing Amazon's tax questionnaire to continue participating in the Vine program. ... As of that date, we will be tracking the value of products you order through Amazon Vine. If you exceed the threshold of $600 in aggregated product value within a calendar year, you will be issued a 1099-MISC at the end of that year.

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June 25, 2015 in Tax | Permalink | Comments (2)

What Goes Around Comes Around: Tax Man May Repo Atlanta's 20-Story Ferris Wheel

SkyViewAtlanta Journal-Constitution, Atlanta’s SkyView Ferris Wheel Target of Florida Tax Lawsuit:

It would take one heck of a repo man, but a tax collector in western Florida is suing to take possession of one of Atlanta’s newest attractions – the 20-story Skyview Ferris wheel.

In a suit filed in Fulton County Superior Court earlier this month, Escambia County Tax Collector Janet Holley asked that Fulton’s sheriff be ordered to “surrender” SkyView to the Florida county “for its retention and/or disposition.”

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June 25, 2015 in Tax | Permalink | Comments (0)

The Patent Box Tax Break's Winners And Losers

Patent Box (2015)Bloomberg, Latest U.S. Tax Break Fad Means Today’s Winners Would Score Anew:

U.S. lawmakers are exploring a new corporate tax break that would benefit companies already adept at avoiding taxes.

The idea -- known as a patent box or innovation box -- would impose a lower tax rate on income generated from patents and other intellectual property housed in the U.S. This would aid technology and pharmaceutical companies trying to maintain low tax rates that they’ve achieved by booking income in overseas tax havens.

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June 25, 2015 | Permalink | Comments (0)

2015 Vault Law Firm Tax Rankings

VaultVault has released its annual ranking of the Top 100 Law Firms, based on prestige as voted on by associates (methodology here). The Top Tax Practices are:

Rank

Firm

Home City

% Vote

1

Skadden

New York

35.29%

2

Cleary Gottleib

New York

24.75%

3

Davis Polk

New York

22.55%

4

Baker & McKenzie

Chicago

20.34%

5

McDermott, Will & Emery

Chicago

19.12%

6

Sullivan & Cromwell

New York

18.38%

7

Cravath, Swaine & Moore

New York

16.67%

8

Wachtell, Lipton

New York

15.69%

9

Caplin & Drysdale

D.C.

10.29%

10

Kirkland & Ellis

Chicago

  9.80%

11

Simpson Thacher

New York

  7.60%

11

Weil Gotshal & Manges

New York

  7.60%

13

Miller & Chevalier

D.C.

  6.62%

14

Latham & Watkins

New York

  6.13%

15

Morrison & Foerster

San Fran

  5.64%

For the sixth year in a row, Skadden is #1. The city rankings are:

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June 25, 2015 in Law Firm Tax Rankings, Tax | Permalink | Comments (0)

The Second Best Legal Job: Law Professor

2Lawyer & Statesman, The 10 Best Legal Jobs:

Salary and prestige only go so far when it comes to making lawyers happy. We look at the jobs that combine good compensation with work that is meaningful and less stressful. ...

1. Judge or magistrate. ...
2. Law professor. While not everyone is cut out for academic life, it is without questions a comfortable job. Law professors have significant autonomy, low workloads and minimal time demands. (Workloads can be more significant for professors who publish on a regular basis, but deadlines do not compare with private practice deadlines.

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June 25, 2015 in Legal Education | Permalink | Comments (2)

Tax Analysts Sues IRS For Refusing To Release Information On Bonuses Paid To Top Employees

FOIATax Analysts Sues IRS Over Executive Bonus Awards Records:

Tax Analysts filed suit against the IRS on June 23, asking the U.S. District Court for the District of Columbia to compel the agency to release records of bonus awards it paid to high-level executives since 2010.

Tax Analysts originally requested the bonus awards records in early February through a Freedom of Information Act filing, but the IRS has not said when or whether it would comply with the request.

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June 25, 2015 in IRS News, Tax | Permalink | Comments (8)

Cardozo Program Lets Firms Hire Law Grads For $38k/Year

Cardozo (2015)Above the Law, This Is How One Law School Is Trying To Game Its Job Statistics:

While the ABA first began requiring law schools to separate out their employment data by specific job type and duration several years ago, U.S. News & World Report, the magazine that ranks law schools, only recently started assigning different weights to different subsets of attorney employment placements. In the most recent rankings, for example, U.S. News assigned greater weight to employment placements not funded by law schools that were full-time, long-term (lasting at least a year), and for which bar passage was required or a J.D. was considered an advantage.

Keeping those facts in mind, one law school is attempting to get traction for its latest graduate employment program — a program that will fulfill all of the U.S. News requirements for a greater employment-placement weight come rankings time. ...

Cardozo Law ...  is rolling out a brand-new jobs program for its unemployed 2015 graduates, and it’s targeting small to mid-size firms in the process. Here’s the school’s email pitch from a career services officer, with a subject line that reads “$38k — Hire a Junior Attorney”:

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June 25, 2015 in Legal Education | Permalink | Comments (7)

The IRS Scandal, Day 777

IRS Logo 2Minneapolis Star-Tribune, Investigator: IRS Erased Computer Backups After Officials Realized Tea Party Emails Were Lost:

IRS employees erased computer backup tapes a month after officials discovered that thousands of emails related to the tax agency's tea party scandal had been lost, according to government investigators.

The investigators, however, concluded that employees erased the tapes by mistake, not as part of an attempt to destroy evidence.

As many as 24,000 emails were lost because 422 backup tapes were erased, according to J. Russell George, the Treasury inspector general for tax administration. George says those tapes "most likely" contained emails to and from former IRS official Lois Lerner, who has emerged as a central figure in congressional investigations.

The revelation is likely to fuel conspiracy theories among conservatives who say the IRS has obstructed investigations into the scandal.

George is scheduled to testify before the House Oversight Committee Thursday morning about his investigation into the emails. The Associated Press obtained a copy of his prepared testimony.

TIGTAThe House Committee on Oversight and Government Reform holds a hearing today on Missing IRS Emails: An Update From the Inspector General:

PURPOSE:

  • To focus on the Treasury Inspector General for Tax Administration’s (TIGTA) findings with respect to Lois Lerner’s recovered e-mails and to examine the Internal Revenue Service’s (IRS) response to the congressional investigations on the targeting program. 

BACKGROUND:

  • From February 2010 to May 2012, the IRS subjected conservative applicants for tax-exempt status to systematic scrutiny and delays. On May 10, 2013, Lois Lerner, former Director of IRS Exempt Organizations, publicly acknowledged the targeting and apologized.
  • The Committee requested documents and communications from the IRS to assist in its investigation of the targeting program. The IRS did not cooperate voluntarily and two subpoenas were eventually issued—one to Treasury Secretary Jacob Lew on August 2, 2013, and the second to then-new IRS Commissioner John Koskinen on February 14, 2014. At a hearing on March 26, 2014, Koskinen testified that all Lerner’s e-mails would be provided to the Committee.
  • Less than three months later, on June 13, 2014, the IRS informed Congress that it had lost or destroyed almost two years’ worth of e-mails to and from Lerner. On November 21, 2014, TIGTA notified congressional investigators that it located approximately 30,000 of Lerner’s “missing” e-mails. Recently, TIGTA informed the Committee it had recovered as many as 80,000 of Lerner’s e-mails, including duplicates, which were found among hundreds of “disaster recovery tapes” that were used to back up the IRS e-mail system.

WITNESSES AND TESTIMONIES

  • Russell George (Inspector General,  Treasury Inspector General for Tax Administration)
  • Tim Camus (Deputy Inspector General for Investigations,  Treasury Inspector General for Tax Administration)

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June 25, 2015 in IRS News, IRS Scandal, Tax | Permalink | Comments (3)

Wednesday, June 24, 2015

Northwestern JD/MBA Racks Up $350k In Student Loan Debt

Northwestern

Fortune, How This MBA Racked Up an Incredible $350,000 in Student Debt:

For Kellogg MBA Cacky Calderon, far more is at stake than money when it comes to paying off her staggering student debt. And staggering it is: Calderon earned an MBA and a law degree simultaneously from Northwestern University. Both the Kellogg School of Management and law school are among the most highly selective schools in the nation.

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June 24, 2015 in Legal Education | Permalink | Comments (2)

WSJ: Too Busy For A Vacation This Summer? Try A 'Workcation'

WorkWall Street Journal, This Summer, How About a Workcation?:

Rare is the modern professional who can fully disconnect from the office during time off, so a small but growing number of workers are instead petitioning the boss to combine work and vacation: time away from the office that includes a few days working from an exotic locale.

Workers often pay for lodging and travel, but may take conference calls or write project updates from a resort or rental home, spending off-hours sightseeing or being with family, without having the time counted against their vacation days.

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June 24, 2015 in Legal Education, Tax | Permalink | Comments (0)

Amazon Collects Sales Tax In 25 States (Covering 77% Of U.S. Population)

Tax Justice Blog, Sales-Tax-Free Purchases on Amazon Are a Thing of the Past for Most:

Amazon is now collecting sales taxes in fully half the states that are collectively home to over 247 million people, or 77 percent of the country’s population.  In other words, more than three out of every four Americans now live in a state where Amazon willingly collects the sales taxes its customers owe.

Amazon

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June 24, 2015 in Tax, Think Tank Reports | Permalink | Comments (4)

TIGTA: IRS Violated Federal Law By Awarding Millions In Contracts To Businesses With Unpaid Federal Taxes

TIGTAThe Treasury Inspector General for Tax Administration today released Existing Procurement Practices Allowed Corporations With Federal Tax Debt to Obtain Contract Awards (2015-10-011):

Beginning with Fiscal Year (FY) 2012, Federal law has prohibited the IRS from using appropriated funds to enter into a contract with a corporation that has certain Federal tax debt and/or felony convictions.  ...

The IRS did not have effective controls in place to prevent the award of contracts to corporations with certain Federal tax debt and/or felony convictions.  TIGTA identified 17 corporations that were awarded a total of 57 contracts valued at about $18.8 million (including nearly $18 million for contract modifications)during FYs 2012 and 2013, while they had Federal tax debt.  The IRS has not established a definition of Federal tax debt for this purpose and does not perform proactive tax checks to comply with this Federal law.

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June 24, 2015 in Gov't Reports, IRS News, Tax | Permalink | Comments (1)

I Am An Adjunct Law Professor Who Teaches Five Classes. I Earn Less Than A Pet-Sitter

Hall 2The Guardian:  I Am an Adjunct Professor Who Teaches Five Classes. I Earn Less Than a Pet-Sitter, by Lee Hall (Adjunct Professor, Widener)

Like most university teachers today, I am a low-paid contract worker. Now and then, a friend will ask: “Have you tried dog-walking on the side?” I have. Pet care, I can reveal, takes massive attention, energy and driving time. I’m friends with a full-time, professionally employed pet-sitter who’s done it for years, never topping $26,000 annually and never receiving health or other benefits.

The reason I field such questions is that, as an adjunct professor, whether teaching undergraduate or law-school courses, I make much less than a pet-sitter earns. This year I’m teaching five classes (15 credit hours, roughly comparable to the teaching loads of some tenure-track law or business school instructors). At $3,000 per course, I’ll pull in $15,000 for the year. I work year-round, 20 to 30 hours weekly – teaching, developing courses and drafting syllabi, offering academic advice, recommendation letters and course extensions for students who need them. As I write, in late June, my students are wrapping up their final week of the first summer term, and the second summer term will begin next week.

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June 24, 2015 in Legal Education | Permalink | Comments (8)

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 June 1, 2015) 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 (Michigan)

46,303

Reuven Avi-Yonah (Michigan)

6594

2

Paul Caron (Pepperdine)

28,757

Ed Kleinbard (USC)

5583

3

Michael Simkovic (Seton Hall)

27,841

Michael Simkovic (Seton Hall)

4472

4

Louis Kaplow (Harvard)

24,245

D. Dharmapala (Chicago)

3789

5

D. Dharmapala (Chicago)

23,576

Gregg Polsky (N. Carolina)

3236

6

Vic Fleischer (San Diego)

20,920

Paul Caron (Pepperdine)

2687

7

James Hines (Michigan)

20,729

Richard Ainsworth (BU)

2239

8

Ted Seto (Loyola-L.A.)

19.983

Omri Marian (Florida)

1963

9

Richard Kaplan (Illinois)

19,752

Robert Sitkoff (Harvard)

1878

10

Ed Kleinbard (USC)

18,340

Katie Pratt (Loyola-L.A.)

1706

11

Katie Pratt (Loyola-L.A.)

17,484

Jeff Kwall (Loyola-Chicago)

1620

12

Carter Bishop (Suffolk)

15,929

Louis Kaplow (Harvard)

1592

13

Dennis Ventry (UC-Davis)

15.712

David Gamage (UC-Berkeley)

1550

14

Richard Ainsworth (BU)

15,601

Brad Borden (Brooklyn)

1498

15

Jen Kowal (Loyola-L.A.)

15,511

William Byrnes (Texas A&M)

1449

16

Robert Sitkoff (Harvard)

15,278

Jen Kowal (Loyola-L.A.)

1446

17

Chris Sanchirico (Penn)

15,165

Dan Shaviro (NYU)

1381

18

David Weisbach (Chicago)

15,158

Dick Harvey (Villanova)

1370

19

Brad Borden (Brooklyn)

15,020

James Hines (Michigan)

1187

20

Francine Lipman (UNLV)

14,714

Francine Lipman (UNLV)

1159

21

Bridget Crawford (Pace)

14,513

Vic Fleischer (San Diego)

1138

22

David Walker (BU)

14,321

Carter Bishop (Penn)

1130

23

Dan Shaviro (NYU)

13,298

Chris Sanchirico (Penn)

1119

24

Herwig Schlunk (Vanderbilt)

12,774

Richard Kaplan (Illinois)

1074

25

Wendy Gerzog (Baltimore)

12,059

David Weisbach (Chicago)

1074

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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June 24, 2015 in Scholarship, Tax, Tax Prof Rankings | Permalink | Comments (0)

Darryll Jones Named Interim Dean Of Florida A&M Law School

Darryll-JonesPress Release, Florida Agricultural and Mechanical University Names Associate Dean Darryll K. Jones as Interim Dean of College of Law:

Florida Agricultural and Mechanical University Provost Marcella David today announced that associate dean for Academic Affairs Darryll K. Jones, J.D., LL.M., has been appointed to serve as the interim dean of the FAMU College of Law in Orlando, Fla. He replaces former Dean LeRoy Pernell, J.D., who stepped down, effective June 30, 2015, to return to the faculty.

Jones joined the College of Law in July 2009 as associate dean for Research and Faculty Development.  In that role, he helped successfully guide the College through its first post-accreditation review. Prior to becoming a full-time tax law scholar, he served as general counsel at Columbia College Chicago and associate general counsel at the University of Florida. From 1993 to 2006, he taught at the University of Pittsburgh School of Law, where he earned tenure and also served as associate dean for Academic Affairs from 2003 until 2006. From 2006 to 2009, Jones was professor of law at Stetson University College of Law.  He also served for five years in the United States Army Judge Advocate General’s Corp.

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June 24, 2015 in Legal Education, Tax | Permalink | Comments (1)

House Holds Hearing Today On Repatriation of Foreign Earnings

House LogoThe Subcommittee on Select Revenue Measures of the House Ways & Means Committee holds a hearing today on Repatriation of Foreign Earnings as a Source of Funding for the Highway Trust Fund.  In connection with the hearing, the Joint Committee on Taxation has released Present Law And Selected Proposals Related To The Repatriation Of Foreign Earnings (JCX-96-15):

Part I of this document ... provides a description of present law related to the repatriation of foreign earnings as well as the financial accounting treatment of undistributed earnings of foreign subsidiaries under U.S. generally accepted accounting principles (“GAAP”). Part II describes two recent tax reform proposals that have included a deemed repatriation as part of a transition to a new international tax system: former House Ways and Means Committee Chairman Dave Camp’s Tax Reform Act of 2014 and the Administration’s Fiscal Year 2016 Revenue Proposals. Part III provides a discussion of the economic impact and design of a one-time tax on historic foreign earnings. This part of the document highlights some issues concerning whether the one-time tax is mandatory or voluntary, and whether it is enacted as part of broader reform of the international tax system, but for sake of simplicity confines most of the analysis to the hypothetical case of a mandatory one-time tax enacted outside the context of international tax reform.

June 24, 2015 in Congressional News, Tax | Permalink | Comments (0)

Concordia Law School Launches Media Campaign To Attract Students

ConcordiaIdaho Statesman, Concordia Law School Launches Media Campaign to Attract Students, Inform Community:

Boise’s Concordia University School of Law is raising its profile just weeks after the American Bar Association gave it provisional approval, which means graduates are eligible to take the bar exam.

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June 24, 2015 in Legal Education | Permalink | Comments (0)

The IRS Scandal, Day 776

IRS Logo 2New York Observer:  A Shameless IRS Is STILL Withholding Lois Lerner Emails, by Sidney Powell:

In the continuing saga of the IRS, the Department of Justice, and their efforts to hide evidence and obstruct justice to protect Lois Lerner and the administration’s targeting of its political opposition, the IRS now claims that thousands of emails found on backup tapes Commissioner Koskinen told Congress did not exist are not IRS records, the IRS has no control over them, and they can’t produce them. In fact, the IRS won’t even say whether it has the thousands of additional “lost” emails. And down the rabbit hole we head—where “up means down” and “stop means go.”

Knowledge of Ms. Lerner’s abuse of power within the IRS to target conservative groups for harassment and denials of tax-exempt status surfaced more than two years ago, along with apparent links to the White House. Congress has been investigating, but the IRS has repeatedly lied and stonewalled. The Treasury Inspector General issued a report, acknowledging the abuse and improprieties and is now in the midst of a criminal investigation. The Department of Justice has done nothing.

In one of its more stunning developments, IRS asserted that Lois Lerner’s computer had crashed, preventing any ability to recover her emails. Even more shocking, soon the claimed crashed expanded to everyone in the IRS who was involved with Lerner—more than 20 computers. Of course, we all knew that there are backups and copies on servers, Blackberry, and other devices.

Nonetheless, Commissioner Koskinen told Congress that the IRS did not have backup tapes of Lois Lerner’s emails. He claimed the IRS had worked hard to try to find them, but they had been destroyed.

Watchdog non-profit Judicial Watch filed a Freedom of Information Act lawsuit that landed in the court of federal judge Emmett G. Sullivan. ... [T]he Treasury Inspector General for Tax Administration (TIGTA) belied Mr. Koskinen’s claims within a day—finding the first 744 “non-existent” backup tapes containing thousands of emails exactly where they should have been. Upon further review, the Inspector General identified a missing document, which quickly led to an additional 424 tapes of backup emails—all from the IT department of the IRS in West Virginia. Mr. Koskinen had not even asked them about the tapes.

The Department of Justice did nothing. Many people have been prosecuted, convicted and imprisoned for far less in the way of perjury. ...

Now, according to the most recent filing by Judicial Watch, the IRS asserts that the emails are not records of the IRS. Being a Texan, I’m not 100 percent sure how to pronounce it, but “chutzpah” is the only word to describe this latest assertion. To borrow from Lewis Carroll, “Imagination is the only weapon in the war against reality.”

The IRS and its Department of Justice lawyers must be imagining that these emails were not repeatedly sought by Congress and Judicial Watch while in the possession of the IRS. The IRS must be imagining that its own commissioner never lied to Congress, the court and the public about their existence and purported efforts to find them. And it must be imagining that each of its seven filings in Judge Sullivan’s court did not fail to reveal the existence of the backup tapes. It must be imagining that Judge Sullivan won’t remember the lengths to which he and the magistrate went to try to find the emails and any backups. And it is imagining that it can continue stalling and lying indefinitely, while no one in the government is held accountable for far more serious legal infractions than those for which ordinary citizens have been imprisoned.

It took Judge Sullivan only two days to grant Judicial Watch’s request to require IRS to disclose whether all emails the inspector general found have been turned over to the IRS, where it stands in the review process, and how many of the 1,268 tapes have been processed for recovery or when that process will be complete.

Stunningly, in its response the IRS again said nothing. It simply punted to the Inspector General. It claims that because of that investigation, it cannot disclose more Lois Lerner or other emails. It just stalls. ...

If the IRS won’t provide information, set and meet a deadline, perhaps Judge Sullivan will turn to the Inspector General to answer his questions. If neither does, Judge Sullivan still has the option of naming a special prosecutor.

President Obama was right when he said there isn’t “a smidgeon of corruption in the IRS.” Rather, it is rife with it. Someone needs to end the madness, and teach the IRS that stop means stop.

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June 24, 2015 in IRS News, IRS Scandal, Tax | Permalink | Comments (5)

Tuesday, June 23, 2015

Tax Presentations At The 16th Harvard/Stanford/Yale Junior Faculty Forum

JuniorTax presentations at the 16th Harvard/Stanford/Yale Junior Faculty Forum held last week at Harvard Law School (abstracts below the fold):

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June 23, 2015 in Conferences, Scholarship, Tax | Permalink | Comments (1)

Disgruntled Charlotte Law School Grad Spreads Tale Of Debt Woes Via Hundreds Of Windshield Flyers

Above the Law reports that a Charlotte Law School grad placed this flyer on hundreds of cars in a residential neighborhood in Charlotte:

Charlotte

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June 23, 2015 in Legal Education | Permalink | Comments (5)

Borden: Reforming REIT Taxation (Or Not)

REITBradley T. Borden (Brooklyn), Reforming REIT Taxation (Or Not), 53 Hous. L. Rev. ___ (2015):

Tax law treats the income of real estate investment trusts (REITs) differently from the income of regular corporations. Income distributed by regular corporations is subject to an entity-level tax and a shareholder-level tax, while taxable income distributed by REITs is subject to tax only at the shareholder level. To qualify for that single-level of tax, REITs must hold primarily real estate assets, and their income must be primarily from such assets. After being a relatively insignificant part of the economy for the first three decades of their existence, REITs have become relevant over the last twenty years, with the market capitalization of publicly traded REITs eclipsing 5% of U.S. GDP at the end of 2014. Reports about REITs appear frequently in major media outlets, with an emphasis on corporate-tax-base erosion that results from REIT taxation. Calls for REIT reform have been answered with proposed legislation that would change various aspects of REIT taxation. Recent work in this area shows that even though REITs do erode the corporate tax base, the requirement that they distribute income and the higher tax rates of REIT shareholders offset corporate-tax-base erosion and minimize the tax-revenue effects of REIT taxation.

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June 23, 2015 in Scholarship, Tax | Permalink | Comments (1)

Michael Lewis: A 'Moneyball' Approach To Harvard Admissions

MoneyballNew York Times Sunday Review:  Harvard Admissions Needs ‘Moneyball for Life’, by Michael Lewis:

To: Harvard Management Company

From: Harvard Admissions

It’s been several painful weeks since Steve Schwarzman revealed that we denied him admission to the Harvard Class of 1969. As we now all know, the private equity billionaire (net worth: $13 billion and climbing) appeared on the Bloomberg channel and said that the dean of admissions at Harvard wrote to him a few years ago and said, “I guess we got that one wrong.” He also announced his $150 million gift to Yale, to erect a monument to our idiocy.

We in admissions have finished your requested review of the circumstances that led to our catastrophic error. We conclude a) we must improve our attempts at self-abasement and b) Harvard’s admissions process must be overhauled. It has proved imperfectly designed to identify and smile upon those children most likely to become extremely rich.

Projecting the future dollar value of a 17-year-old high school student is not a simple matter. We now all agree that the problem cannot be left to unaided human judgment. We in admissions have followed the Harvard Management Company’s suggestion, read the book about statistics that you kindly sent over, and created an algorithm. Tested retroactively on a generation of college graduates, it has proved far more efficient in identifying “high yield targets” than any other known college selection process.

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June 23, 2015 in Legal Education | Permalink | Comments (1)

J.D. Advantage Jobs Paint Rosy Picture For Law School Graduates

JDHuffington Post op-ed:  The Hidden Truth About Law School Employment Stats, by Tamesha Keel (Assistant Dean for Career Services, Penn State-Dickinson):

The perception of law graduates is that they are standing solemn holding a law degree, resumes, and a heavy burden of loan debt they can't pay off. However, this isn't the case for all graduates. Many are becoming savvier and using their versatile J.D. beyond the traditional practice of law.

With an increase of nontraditional legal careers and the industry shift to utilize more outside resources, there has been a surge in what employers deems as "J.D. advantage" positions. And while the largest percentage of jobs secured are those where bar passage is required, this growth has helped to ease the swell of unemployed graduates. ...

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June 23, 2015 in Legal Education | Permalink | Comments (3)

The Winning Papers In The 2014 Tannenwald Tax Writing Competition

TannenwaldThe co-winning papers in the 2014 Tannenwald Tax Writing Competition, have been published by the Florida Tax Review:

Here are the abstracts:

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June 23, 2015 in Scholarship, Tax | Permalink | Comments (0)

Second Trial Begins In Unsuccessful Conservative Faculty Candidate's Discrimination Suit Against University of Iowa Law School

WagnerFollowing up on my previous posts (links below):  Dubuque News, 2nd Trial Begins in Conservative's Bias Case Against U. Iowa:

After years of arguing that liberal Iowa law professors illegally derailed her career, a conservative lawyer will get a second chance to prove her claim to a jury.

Selection of jurors began Monday in federal court in Davenport in a lawsuit filed by anti-abortion activist Teresa Manning, who contends that the University of Iowa College of Law refused to hire her for teaching jobs because of her beliefs and associations.

Jurors will decide whether Manning, who recently changed her last name from Wagner, faced discrimination and if so, how much she deserves in damages. Opening statements are expected Tuesday.

The long-running lawsuit has been closely watched in higher education. Manning has reached a deal with a publisher to write a book about her experience, and has said the retrial provides a "historic moment" for social conservatives to expose what they claim is political discrimination against them in higher education.

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June 23, 2015 in Legal Education | Permalink | Comments (0)

Sokol: Teaching Compliance

Compliance 2D. Daniel Sokol (Florida), Teaching Compliance, 84 U. Cin. L. Rev. ___ (2015):

Compliance is a growing field of practice across multiple areas of law. Increasingly companies put compliance risk among the most important corporate governance issues facing them. Moreover, as “JD plus” jobs proliferate, the demand for hiring both at the entry level and for former students currently in practice who are experienced in the compliance field will continue to grow. The growth in compliance jobs comes at a time in shifting demand for legal jobs for law school graduates. Traditional law firm entry level jobs at large law firms, which were the staple of on campus recruiting before 2007, have not returned to pre-2007 levels even with the end of the recession. Technological changes, greater in-house hiring, and better creation of efficiencies have reduced demand for large law firms, which were the traditional training ground for in-depth legal skills and soft skills.

Law schools have responded to the demand shift in entry level hiring with a supply side response - classes in compliance. In some cases, law schools have set up compliance certificates or degrees in areas such as health care and business law. There is now even a casebook devoted to compliance. Yet, with all of these efforts at creating opportunities for careers in compliance, many programs and classes in compliance are nothing other than dressed up versions of classes in white collar crime or regulation or lectures on latest case developments that one might find in a continuing legal education program. These courses do not focus on the substantive areas needs practice with the highest demand for compliance (in-house legal and JD plus jobs) and do not teach the analytical skills necessary to succeed in such jobs. Nor do they focus on the special context within which compliance operates – ideally independent of the “business” but always a part of it. Essentially, law schools have misdiagnosed the demand side - it is not merely the particular type of class (compliance) but also the substance of such classes with the type of quality offering necessary to maximize student short term (entry level hiring) and long term (preparation for ever-shifting analytically complex practice challenges).

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June 23, 2015 in Legal Education, Scholarship | Permalink | Comments (2)

After Provisional Accreditation Denial, Indiana Tech Law School To Reapply Despite Strong Headwinds

Indiana Tech (2014)Following up on last week's post, Indiana Tech Law School Denied Provisional ABA Accreditation:  Indiana Lawyer, Indiana Tech to Reapply for Accreditation:

The official ruling from the ABA may not have been unexpected, but it still landed a blow to Indiana Tech Law School. Just four days after meeting with law school officials and hearing their presentation about their approach to legal education, the ABA Council of the Section of Legal Education and Admissions to the Bar denied granting provisional accreditation to the Fort Wayne school.

Although the denial can be appealed, the Fort Wayne school is bypassing that option and focusing instead on the reapplication process. Dean Charles Cercone said with the support of the local bar and the university, he is very confident the law school will be accredited. ...

Legal education experts say Indiana Tech is going to have to work hard on multiple fronts to overcome this setback. The denial of provisional accreditation is not a death blow, but the school will have to enrich its course offerings, maintain good financial health and show that its graduates can pass the bar exam. All of that hinges on the law school being able to keep the students currently enrolled and recruit more to attend. ...

Indiana Tech Law School’s curriculum is likely not a problem since the ABA in general is pushing for schools to teach more practical skills to its students, said Paul Caron, professor at Pepperdine University School of Law and writer of the popular TaxProf Blog, which covers a range of legal topics including education. Still, adding to the course offerings and improving academic support cost money, which puts the young institution in a tough place.

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June 23, 2015 in Legal Education | Permalink | Comments (0)

The IRS Scandal, Day 775

IRS Logo 2Wall Street Journal editorial, The IRS Loses Again: Z Street May Soon Get to See Why the Agency Sat on its Application:

The story of IRS targeting of conservative groups that disagreed with Obama Administration policy isn’t over. On Friday the IRS lost another big battle, as the D.C. Circuit Court of Appeals ruled that a viewpoint discrimination lawsuit against the agency can proceed. Next stop, discovery.

The lawsuit began when the Pennsylvania-based pro-Israel group Z Street applied for tax-exempt status in 2009. When Z Street called to inquire about its application, it says an IRS agent said the agency had a policy that required Israel-related applications to get extra scrutiny in a special unit in Washington. Z Street sued in federal court but the IRS claimed the Anti-Injunction Act prevents suits meant to evade the collection of taxes and because the IRS was protected by the doctrine of sovereign immunity. The IRS lost in district court but appealed. ...

We already know from the IRS’s Be On the Lookout lists that the agency was flagging groups having to do with “occupied territory advocacy.” Soon we may see what else no good the agency was up to.

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June 23, 2015 in IRS News, IRS Scandal, Tax | Permalink | Comments (0)

Monday, June 22, 2015

Oxford Hosts Business Tax Conference This Week

The 'Second Wave' Of The Law School Crisis

Second WaveDavid Barnhizer (Cleveland State), Law Schools, Law Jobs and the “Second Wave” of Applicant Decline:

There is widespread speculation about how low enrollments in US law schools will drop. A recent report indicated another 5% decline in applications and another indicated 2.5% causing commentators to voice hope that the bottom had been reached. Along with the gross numbers there is an added and very troubling issue of the quality of the applicant pool and admissions as data suggest that many of the most intellectually talented applicant types are now shunning law school and pursuing other career tracks. In any event, the problem with analyses focusing primarily on gross applicant and enrollment numbers is that what has been happening to this point is only the crude “first wave” in the transformation of legal education, the legal profession and how law-related services are delivered. ...

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June 22, 2015 in Legal Education | Permalink | Comments (6)

NY Times: Tech Companies Fly High on Fantasy Accounting

FantasyFollowing up on last week's post, WSJ: Tech Companies Woo Investors With Unconventional Financial Metrics, Inflating Their Valuations:  New York Times, Tech Companies Fly High on Fantasy Accounting, by Gretchen Morgenson:

Technology shares have been powering the stock market recently, outperforming the broader stock indexes by wide margins. The tech-heavy Nasdaq 100, for example, is up 19 percent over the last 12 months, almost twice as much as the Standard & Poor’s 500-stock index, which has risen 10 percent.

Investor enthusiasm for all things tech is understandable, given the disruptions the industry is bringing to so many businesses and the potential profits associated with that upheaval.

But there’s a more troubling aspect of the current exuberance for technology stocks: the degree to which so many of the popular companies with premium-priced shares promote financial results and measures that exclude their actual costs of doing business.

These companies, in effect, highlight performance that is based more on fantasy than on reality.

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June 22, 2015 in Tax | Permalink | Comments (0)

Harrison: The State Of Florida Only Needs One Law School

Florida 2Gainesville Sun op-ed:  The State of Florida Only Needs One Law School, by Jeffrey L. Harrison (Florida):

The state of Florida operates four law schools. Last year, the schools sent out a total of 2,577 letters of acceptance to applicants and 701, or about 31 percent, accepted the invitation. ...

Florida’s publicly supported law schools operate expensive programs to compete against each other for the very same students. Does it sound like football? Sure, but football is a product that generates revenue, especially when the state’s schools compete against each other. ...

What we have is different departments of the state that do the same thing, competing with each other on the dime of people who get nothing back. If you were a business, would you open a store across the street from the other store you own in order to lure your own customers away? Let’s hope not.

It’s time for the irrational way that Florida delivers legal education to change. There can be four campuses but one set of admissions guidelines, one acceptance letter per applicant, one admissions office, one PR department and one diploma that does not distinguish among campuses.

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June 22, 2015 in Legal Education | Permalink | Comments (5)

Sanchirico: Tax Inertia And Business Tax Reform

Chris William Sanchirico (Pennsylvania), Tax Inertia: A General Framework with Specific Application to Business Tax Reform (appendix):

A surprising degree of bipartisan consensus has lately formed in the United States around two propositions of business tax reform: that something should be done about the “lockout” of US multinationals’ foreign earnings; and that the corporate income tax rate should be reduced. This paper questions whether these two propositions are really consistent. In the process of attempting to provide an answer, it develops a framework for relating and measuring various forms of “tax inertia”: tax-based disincentives to alter investments. Applying this framework, the paper concludes that the current agreement on business tax reform is substantially in disagreement with itself. 

June 22, 2015 in Scholarship, Tax | Permalink | Comments (0)

The IRS Scandal, Day 774: The D.C. Circuit Continues To Chip Away At The Anti-Injunction Act

Hickman 2014 2TaxProf Blog op-ed:  Z Street v. Koskinen: The D.C. Circuit Continues To Chip Away At The Anti-Injunction Act, by Kristin E. Hickman (Minnesota):

In Z Street v Koskinen, the D.C. Circuit considered the justiciability of a claim raised by Z Street, a nonprofit organization, that the IRS delayed considering Z Street’s application for tax exempt status under IRC § 501(c)(3) based solely upon the fact that Z Street’s activities contradicted government policy vis a vis Israel, and that the IRS thus violated Z Street’s First Amendment rights. IRC § 7428 allows an organization to seek declaratory judgment if the IRS fails to act upon its exemption application within 270 days. Z Street brought its challenge 32 days short of that date, prompting the IRS to claim that the Anti-Injunction Act, § 7421 precluded Z Street’s suit until the 270-day period for relief under IRC § 7428 had elapsed. 

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June 22, 2015 in IRS News, IRS Scandal, New Cases, Tax | Permalink | Comments (0)

How To Cut Law School Tuition By 35%: Cap Overhead Tax At 15%, Cut Faculty Salaries By 20%, Eliminate Sabbaticals And Summer Stipends, Increase Teaching Loads to 3/3

Jay Sterling Silver (St. Thomas), Responsible Solutions: Reply to Tamanaha and Campos, 2 Tex. A&M L. Rev. 215 (2014):

The following five measures will help curb the forces that drive up law school tuition annually, substantially reduce tuition, and limit the number of newly minted attorneys cast into a contracting legal job market. At the same time, the measures will help preserve the considerable private, pedagogical good in the present model as well as the public good of competent legal representation and the independent critique of law and the legal system. ...

The first measure would tighten, rather than loosen, the ABA accreditation standards to prevent university administrations, through an inflated “overhead” formula, from subsidizing university shortfalls or other poor performing programs. Presently, ABA Standard 202 governing law school resources requires only that a university give an accounting of the law school revenues it diverts to other programs; take all you want, just tell us what you took. Standard 202 should be supplanted by language clearly limiting the central university's take to actual overhead expenses, and requiring an independent accounting to ensure accuracy. Doing so would lower tuition and disincentivize universities with law schools from raising tuition as high as possible each year, and those without law schools from opening new ones up as revenue centers.

The second measure would tighten the ABA Standards to require start-up law schools to show, prior to a grant of provisional accreditation, that their graduates will serve an underserved population and will not exacerbate lawyer unemployment. ...

The third is to cut the salaries of full-time faculty and deans by twenty percent and do away with sabbaticals and research stipends. ...

The fourth measure is to increase teaching loads by one course per semester-- meaning the vast majority of law professors will teach three courses per semester, rather than the two that represents the current course load at most law schools. ...

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June 22, 2015 in Legal Education | Permalink | Comments (6)

30% Of Law School Deans (And 40% Of New Deans) Are Women

NLJNational Law Journal, Rise in Number of Women Deans at U.S. Law Schools:

Since 1989, women who run law schools have dined together during an annual American Bar Association workshop for leaders in legal education. Tradition dictates that each attendee talk about her greatest success and failure during the year. They share support and ideas.

When Katherine Broderick assumed the deanship of the University of the District of Columbia David A. Clarke School of Law in 1998, the 14 female law deans could fit at a relatively small table. Today, 59 women run American Bar Association-accredited law schools, comprising 30 percent of all law deans. That's up from under 21 percent in 2008, according to a survey of law faculty by the Association of American Law Schools (AALS).

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June 22, 2015 in Legal Education | Permalink | Comments (2)

TaxProf Blog Weekend Roundup

Sunday, June 21, 2015

A Bittersweet Father's Day

IMG_1386

My father died nearly eight years ago, and I find myself thinking of him more and more with each passing year.   My eulogy at his funeral did not fully capture the towering presence he was in my life, and he remains so in death.  Al Sturgeon (Pepperdine) captures my thoughts this Father's Day, including this wonderful song from Chet Atkins:

 

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June 21, 2015 in Legal Education, Tax | Permalink | Comments (1)

Forgiveness In Charleston (And Beyond)

Incredible stories of forgiveness arising out of the horrific Charleston church shooting

It brought to mind my previous post on the powerful song by Matthew West (click on YouTube button on bottom right to view video directly on YouTube to avoid interruption caused by blog's refresh rate):

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June 21, 2015 in Legal Education, 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:

  1. [357 Downloads]  Taxation of E-Commerce, by Orkhan Abdulkarimli (Baku State)
  2. [281 Downloads]  Trust Decanting: A Sale Without Gain Realization, by Jason Kleinman (Herrick, New York)
  3. [180 Downloads]  Reducing Inequality With A Retrospective Tax On Capital, by James Kwak (Connecticut)
  4. [164 Downloads]  Citizenship Taxation, by Ruth Mason (Virginia)
  5. [143 Downloads]  What Does Voluntary Tax Compliance Mean?: A Government Perspective, by J. T. Manhire (U.S. Treasury Department)

June 21, 2015 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

The IRS Scandal, Day 773

IRS Logo 2Fox, The IRS Mystery Man Calling the Shots:

When it comes to the targeting of conservative groups by the Internal Revenue Service, the media has focused its attention on Lois Lerner, who oversaw the tax agency’s Exempt Organizations Unit. But they may want to pay more attention to William Wilkins, the IRS chief counsel, whose office, according to sources, had unprecedented involvement in applications for tax exempt status and the special scrutiny of conservative applications.

Wilkins is one of just two of the tax agency’s roughly 90,000 employees who was appointed by the White House, according to reports.  He came to the IRS in 2009 from Wilmer Cutler Pickering Hale and Dorr LLP, where he had worked as a lobbyist since 1988. At WilmerHale, as the firm is now called, he was part of the tax practice group and as part of his responsibilities he advised nonprofit organizations on tax compliance. Prior to that, Wilkins served as staff counsel to the Democratic side of the Senate Finance Committee from 1981 to 1988.

Tom Fitton, president of Judicial Watch, who is suing the IRS to force the issuance of emails related to the tax exempt scandal, is highly critical of Wilkins. He says, “The counsel’s office was up to its neck in tea party targeting. I don’t understand why he is still there.” Wilkins also led the defense team of former Obama pastor Jeremiah Wright and Trinity United Church of Christ in 2008, when it faced an IRS probe regarding its tax exempt status.

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June 21, 2015 in IRS News, IRS Scandal, Tax | Permalink | Comments (3)

Saturday, June 20, 2015

This Week's Ten Most Popular TaxProf Blog Posts

ABA Task Force On The Financing Of Legal Education Issues Final Report

ABA Logo 2The ABA Task Force on the Financing of Legal Education yesterday released its final 62-page report with three recommendations:

  1. Help students take full advantage of the current federal loan programs by mandating enhanced financial counseling and "plain English" disclosures of loan repayment programs;
  2. Serve transparency, accountability, and better planning by mandating that the ABA collect detailed data for each law school on expenditures, revenue, and financial aid (including discounting information and proportions of need vs. merit-based aid) and make all of the data publicly available; and
  3. Develop new ways of balancing responsible curricula and pedagogies, cost-effectiveness, and alternative revenue streams by strongly encouraging and supporting experimentation and innovation among law schools.

The ABA House of Delegates will vote on the adoption of the task force's recommendations at its Aug. 3-4 meeting in Chicago.

National Law Journal, ABA Task Force: Bring Law School Costs Down:

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June 20, 2015 in Legal Education | Permalink | Comments (0)

Law School Financial Aid Rankings

Business Insider, The 25 US Law Schools That Offer the Best Financial Aid:

The online graduate school guide GraduatePrograms.com polled over 10,000 former and current law school students to find out which US schools offer the best financial aid packages and the smoothest application processes.

They rated their schools on a scale from 1-10, 10 being the strongest. The scores were then averaged and ranked to determine the top law schools for financial aid.

BI

Pepperdine is #21, with a 7.40 financial aid score.

Methodology:

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June 20, 2015 in Law School Rankings, Legal Education | Permalink | Comments (4)

The IRS Scandal, Day 772: D.C. Circuit Refuses To Dismiss Z Street's Claim That The IRS Delayed Tax-Exempt Status Due To Its Pro-Israel Views

SmithTaxProf Blog op-ed: D.C. Circuit Opinion in Z Street v. Koskinen Denies Application of Anti-Injunction Act in Suit over Delay in Processing Application for Tax Exemption, by Patrick J. Smith (Ivins, Phillips & Barker, Washington, D.C.):

On Friday, June 19, 2015, the D.C. Circuit issued its opinion in Z Street v Koskinen.  In this suit, an organization that had filed an application for tax-exempt status with the IRS brought suit against the IRS in U.S. district court alleging that the IRS was delaying processing of the application because the organization’s activities related to Israel and because, according to the organization’s allegations, the IRS has an “Israel Special Policy” requiring delayed processing for such organizations if their views on Israel do not coincide with the policies of the Obama Administration.  The government filed a motion to dismiss, relying primarily on the argument that the suit was barred by the Anti-Injunction Act.  Based on the procedural posture, the district court assumed the truth of the organization’s allegations, and denied the motion, holding that the suit was not about assessment or collection of taxes but rather about allegations of unconstitutional discrimination in the processing of the application for tax-exempt status.

The oral argument in the case took place on May 4 of this year, and during this oral argument the panel of three D.C. Circuit judges was clearly extremely hostile to the position taken by the IRS and the Justice Department on behalf of the IRS.  A significant part of the questioning by the judges related to the Supreme Court’s recent decision in Direct Marketing Association v. Brohl, 135 S. Ct. 1124 (2015).  The judges on the panel suggested in their questions to the attorney representing the IRS that the Direct Marketing decision would strongly support the conclusion that the Anti-Injunction Act should not apply under the circumstances of this case. 

As I discussed in a recent Tax Notes article, Challenges to Tax Regulations: the APA and the Anti-Injunction Act, while the Direct Marketing decision related to the Tax Injunction Act, which imposes limitations on the types of suits relating to state taxes that may be heard in federal district court, while the Anti-Injunction Act imposes limitations on the types of suits relating to federal taxes that may be brought in federal district court, nevertheless, because of the strong similarities between these two provisions, and because the Supreme Court in Direct Marketing relied on these parallels to read the words “assessment,” “collection,” and “levy” in the Tax Injunction Act in a narrow, technical way, based on the meaning these words have in the Internal Revenue Code, the narrow reading the Court gave the Tax Injunction Act in Direct Marketing would suggest that the Anti-Injunction Act should be given a similarly narrow reading, contrary to the broad reading given to the Anti-Injunction Act in the 1974 Supreme Court decision Bob Jones University v. Simon, 416 U.S. 725 (1974).

However, while the opinion issued by the D.C. Circuit in Z Street affirmed the district court and held that the Anti-Injunction Act did not apply to bar the suit, nevertheless, the tone of the opinion was much milder than might have been expected based on the tone of the oral argument.  In addition, while the opinion noted that the court’s conclusion “finds support in” the Direct Marketing decision, it was not on this basis that the court decided the Anti-Injunction Act did not apply.  Instead, the court relied on the Supreme Court’s 1984 decision in South Carolina v. Regan, 465 U.S. 367 (1984), which held that the Anti-Injunction Act does not apply to bar a suit in cases where the party bringing the suit has no alternative way of bringing its challenge to IRS action in court.  The court held this principle applied in this case because the alternative remedies suggested by the government, a tax refund suit, or a challenge in Tax Court under section 7428 for a determination relating to qualification for tax-exempt status, would not give the organization a way to make its challenge to the delay in processing its application on allegedly unconstitutional grounds.

Thus, while the outcome in the case is welcome, this decision is somewhat disappointing in that it leaves for another day a determination of the effect of the Direct Marketing decision on the scope of the Anti-Injunction Act and the Bob Jones decision.  The court notes that while the D.C. Circuit’s earlier en banc decision in Cohen v. United States, 650 F.3d 717 (D.C. Cir. 2011) (en banc), rejected the IRS position that because of the Anti-Injunction Act, the only way to litigate tax issues is through the types of tax litigation specifically authorized in the Internal Revenue Code, such as tax refund suits and Tax Court deficiency actions, nevertheless, the Cohen decision, which preceded the Direct Marketing decision by several years, also noted that the Anti-Injunction Act means that a suit’s “implications” for assessment and collection must be considered. 

Another currently pending D.C. Circuit case, Florida Bankers Association v. Treasury, No. 14-5036 (D.C. Cir.), is likely to address more directly the issue of what Direct Marketing means for the Anti-Injunction Act.  I discussed the Anti-Injunction Act issue in this case in my recent Tax Notes article, and I discussed the merits issue in the case in two earlier Tax Notes articles.  Although the briefing and the oral argument in this case preceded the issuance of the Direct Marketing decision, nevertheless, the plaintiffs filed a submission with the D.C. Circuit after the Direct Marketing decision notifying the court of the relevance of this case.  This case involves a challenge to the validity of IRS regulations requiring banks to file information returns with the IRS reporting interest earned by non-resident aliens on accounts at the reporting banks.  In addition to arguments on the merits, the government argues the suit is barred by the Anti-Injunction Act.  The district court held the Anti-Injunction Act did not apply, both because the case involves information reporting regarding income that would not in any event be subject to U.S. tax and because the penalty that would be imposed on the banks for failing to comply with the reporting requirements was not sufficient to implicate the Anti-Injunction Act because none of the banks had violated this requirement and none had indicated an intention to do so.

During the D.C. Circuit oral argument, one of the judges on the panel, Judge Brett Kavanaugh, who wrote the opinion in Loving v IRS, 742 F.3d 1013 (D.C. Cir. 2014), holding invalid the IRS regulations imposing restrictions on tax return preparers, was particularly interested in the Anti-Injunction Act issue.  The fact that there has been a somewhat long delay since the oral argument without the opinion in this case being issued (over four months, compared to six weeks between oral argument and opinion in Z Street), suggests that the opinion when it comes out should illuminate the D.C. Circuit’s view on the significance of the Direct Marketing decision for the Anti-Injunction Act.  There is no overlap in the panels between Z Street and Florida Bankers.

Prior TaxProf Blog coverage:  

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June 20, 2015 in IRS News, IRS Scandal, Tax | Permalink | Comments (0)

Friday, June 19, 2015

Atanassov Presents Corporate Income Taxes, Financial Constraints And Innovation Today At Northwestern

SearleJulian Atanassov (Oregon) presents Corporate Income Taxes, Financial Constraints and Innovation (with Xiaoding Liu (Oregon)) at the Eighth Annual Conference on Innovation Economics today at Northwestern's Searle Center on Law, Regulation, and Economic Growth:

We examine exogenous changes in state corporate income taxes over the 1988-2006 period and find that tax decreases significantly boost both the quantity, measured by the number of patents, and the quality, measured by citations per patent, of innovative output, while tax increases have little impact on innovation. Most of the impact of tax changes on innovation occurs two or more years after the tax change, which alleviates concerns of reverse causality. Further tests examine the channels through which tax decreases affect innovation. We document that tax decreases have stronger impact on innovation for more financially constrained firms, for firms with weaker governance and for firms that engage in tax avoidance to a greater extent. The latter result suggests that, after a tax decrease, firms can allocate more resources to innovative activities rather than to tax avoidance. We conduct numerous additional tests to demonstrate that our results are not spurious and subject to endogeneity biases.

June 19, 2015 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Weekly Tax Roundup