TaxProf Blog

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

Thursday, October 26, 2017

An Inside Look At Wayne State's Push To Fire Five Underperforming Tenured Professors

Wayne State University LogoFollowing up on my previous posts:

Chronicle of Higher Education, What It Looks Like When a University Tries to Revoke a Professor’s Tenure:

Over the past year, Wayne State University officials have been taking the rare step of trying to strip tenure from five medical-school professors. The transcript from one former professor’s hearing offers an inside view into how that process plays out.

Administrators argue the faculty members in question haven’t been doing their jobs well for years and are therefore abusing their tenure. Faculty union representatives dispute that, and argue that the attempt to revoke tenure is a result of a perverse shift in priorities among the university’s leadership. According to union leaders, M. Roy Wilson, the president, and several senior administrators drastically ramped up the pressure on medical-school faculty members to bring in outside grant funding a couple of years ago. Officials then deemed those who fell short "unproductive" and began trying to dismiss some of them.

Union leaders say such an approach undermines academic freedom. But Mr. Wilson told The Chronicle that at most medical schools there’s an expectation that professors earn at least part of their salary by generating grants. He added that the academic-freedom argument was "nonsense." "In my view, we risk further eroding the public trust in higher ed if we continue to protect and pay tenured professors who check out and stop working," he said.

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October 26, 2017 in Legal Education | Permalink | Comments (3)

Call For Tax Papers And Panels: SEALS 2018 (Fort Lauderdale, Florida)

SEALs Logo (2013)Now that we are deep into the fall semester, it's time to think about SEALS 2018! The conference will be held August 6-12, 2018 in Fort Lauderdale, Florida. The conference submission tool is now open, and I am eager to coordinate people who are interested in presenting tax work at the SEALS conference into relevant panel groups. In addition, we have also had a very successful Tax Policy Discussion Group in recent years.

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October 26, 2017 in Conferences, Legal Education, Tax | Permalink | Comments (0)

Abreu & Greenstein: The U.S. Taxpayer Bill of Rights — Window Dressing Or Expression Of Justice?

Alice G. Abreu (Temple) & Richard K. Greenstein (Temple), The U.S. Taxpayer Bill of Rights: Window Dressing or Expression of Justice?:

The subject of taxpayer rights is receiving increasing attention worldwide. Tax scholars, practitioners, and administrators are grappling with the challenges of delivering on the promise of taxpayer rights, the benefits of success, and the price of failure. Nevertheless, a fundamental question has escaped pointed examination: What does the concept of taxpayer rights offer?

In this paper we suggest an answer to that question. Our focus is the U.S. Taxpayer Bill of Rights (TBOR).

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

Wednesday, October 25, 2017

Maag Presents Two Tax Papers Today At Penn

MaagElaine Maag (Tax Policy Center) presents two papers at Pennsylvania today as part of its Tax Policy Workshop Series hosted by Chris Sanchirico and Reed Shuldiner:

Increasing Family Complexity and Volatility: The Difficulty of Determining Child Tax Benefits (with H. Elizabeth Peters and Sarah Edelstein)

The American family is changing. Individuals marry later, divorce more frequently, or live together without being married (cohabit). Non-marital births, complex custody arrangements, and multiple generations of families living together are more common, but the tax system has not kept pace. Although tax benefits are an important pillar of support for children, understanding who in a complex family should claim them can be difficult. We document demographic trends and explain their importance with respect to tax filing and eligibility for child related benefits such as the earned income tax credit, child tax credit, dependent exemption and others.

Income Volatility: New Research Results with Implications for Income Tax Filing and Liabilities (with H. Elizabeth Peters, Anthony Hannagan, Cary Lou & and Julie Siwicki):

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

The Deceptive Linearity Of Law Review Rankings

We're at that time of year - the fall law review placement season, the FRC and hiring, tenure applications and review - when the question of the value of the placement of an article in a particular journal raises its questionably meaningful head.

The point I am raising here is related to but somewhat different than that made by Paul in his 2006 essay, The Long Tail of Legal Scholarship.   That was about the top-end loading of citations. Along the lines of the 20-80 principle, not only do 20% of the articles account for 80% of the citations (in concept), but the tail of seldom or never cited work stretches out a long, long way.  I add to it something I observed about US News "peer assessment" rankings around the same time:  the rankings masked the underlying distribution curve under which the ordinal rankings were significantly less meaningful once you got beyond the very top ranked schools (and apart from all the other issues with the meaningfulness of those rankings).

Somebody in my hearing raised the question of the relative value of a law review article placement based on the Washington & Lee law school library's ranking system.  So I took a closer look at it.

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

The Tax Court As An Excellent Conversationalist

Tax Court (2017)It is always a pleasure to read a well-crafted opinion and I am writing this post to give a shout-out to Judge David Gustafson’s work in Palmolive Building Investors v. Commissioner, 149 T.C. No. 18, filed October 10, 2017. For the substance of the case, see Peter Reilly’s great post last week. He also links to other coverage in the blogosphere. What I want to point out, however, is how well this opinion is written and, more importantly, why.

I try to teach my students to think of law as a slow-moving conversation between the various sources of law: courts, legislatures, agencies. In particular, I encourage them to focus on trial court opinions when they seek to understand a particular area of law because trial courts are in conversation with the particular Court of Appeals that will review them. So trial courts tend to give very thorough explanations of their decisions when they believe the decision addresses an important point of law that will probably be the subject of Appellate review. True, their conversation with their supervising court is kind of one way in that trial courts are bound the decisions made by their supervising Courts of Appeals.

In performing its trial court function the Tax Court is unlike any other trial court in the United States because its decisions are potentially reviewable by every single one of the 12 geographic federal Courts of Appeals. In effect, it has 12 supervising courts. Brutal. 12 Bosses??

That brutal fact creates a problem. What should the Tax Court do when one Court of Appeals reverses the Tax Court on a legal issue and then the legal issue comes up again? This opinion by Judge Gustafson is a beautiful illustration of the Tax Court’s answer, an answer that may surprise you, even if you think you know the Golsen rule. To learn the one weird trick the Tax Court uses, I invite you to dive beneath the fold. Gee, I hope that click-bait works.

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October 25, 2017 in Bryan Camp, New Cases, Tax | Permalink | Comments (7)

'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 ___ (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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October 25, 2017 in Scholarship, Tax | Permalink | Comments (1)

Deaning in LA: The World Series, Hamilton, And Memories Of 1967

What could be better than watching the Dodgers beat the Astros last night in Game 1 of the World Series?  Watching it with Michael Luwoye, who is playing Alexander Hamilton in the Los Angeles production of Hamilton!  Thanks to Mark Hiepler, co-chair of our board of visitors, for his generosity in sharing a special night with several Pepperdine faculty, staff, students, and alumni.


The only other time I attended a World Series game was in 1967, when my father somehow got one ticket to Game 6 and drove me to Fenway park and walked me to the gate as a scared and excited 10 year old.  I watched the Red Sox win 8-4 while he waited in a bar across the street and drove me home after the game.  I wish I could have returned the favor last night (he died in 2007, and I miss him more each passing year). 

For more on my obsession with interest in Hamilton, see here and:

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

Beale: Reining In Intellectual Property Tax Avoidance

Linda M. Beale (Wayne State), Reining in Intellectual Property Tax Avoidance, 155 Tax Notes 1877 (June 26, 2017):

Although many politicians suggest that the primary purpose of any tax reform should be cutting taxes and achieving simplicity, the main problems of our tax system do not stem from either lack of simplicity or over-taxation. They have to do with provisions that have outlived their purpose, such as the various permanent subsidies in the tax code for fossil fuels, in an era of extraordinary climate change, and the privileged rate for capital gains, in an era of increasing inequality from tax loopholes and subsidies available to the wealthy. Much of the treatment of intellectual property (IP) requires updating, and this article evaluates the suggestions of a number of key academic and practitioner commentators that appeared in law review articles over the last year, looking at proposals for a new capitalization scheme, taxation of virtual economies, rethinking corporate restructurings, and ways to achieve innovation without permitting the kind of IP profit shifting that has driven offshoring of profits.

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

The IRS Scandal, Day 1630: The Real Scandal Is The IRS's Budget

IRS Logo 2Philip Hackney (LSU), The IRS Targeting Scandal Was Fake, but IRS Budget Woes Are a Real Problem:

Conservatives have been seething since 2013 over what they say was an unfair and imbalanced effort by the IRS to scrutinize right-leaning organizations more closely than other groups seeking nonprofit status.

As a new report from the Treasury Department’s inspector general for tax administration shows, the IRS did flag some conservative groups out of concern that they might be problematic. But it also paid the same kind of extra attention to liberal organizations with words like “occupy” and “progressive” in their names between 2004 and 2013.

So it’s now official. There was extra scrutiny but there was no liberal bias among the federal employees who determine whether new organizations that want to operate as nonprofits are legitimate – and therefore eligible for the tax-exempt status that goes with that designation.

As a former IRS lawyer who now researches nonprofit regulation, I am relieved to see the claim that the government exclusively targeted conservative organizations officially debunked. I believe this new report ought to usher in a serious discussion about a very real problem: The IRS is too cash-strapped to conduct its oversight of nonprofits of all kinds. ...

The Government Accountability Office, a nonpartisan congressional agency, recognized in 2014 that the tax agency’s budget and staff were too small to handle its nonprofit oversight responsibilities. The situation has only deteriorated since then.

The overall IRS budget fell by about 18 percent in inflation-adjusted terms from 2010 to 2017, from US$14 billion to roughly $11.5 billion. Today, the agency employs fewer people than it did in 2010. The number of its employees dedicated to auditing and vetting the nonprofit sector fell about 5 percent from 2010 to 2013, the GAO found.

This long-term trend, which began two decades ago, has eroded oversight. The number of aspiring nonprofits gaining tax-exempt status rose over the past decade as rejections fell. The number of denials plummeted from 1,607 in 2007 to merely 37 in 2016.


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October 25, 2017 in IRS News, IRS Scandal, Tax | Permalink | Comments (10)

Tuesday, October 24, 2017

Barry Presents Tax And The Boundaries Of The Firm Today At Florida

Barry (2017)Jordan Barry (San Diego) presents Tax and the Boundaries of the Firm (with Victor Fleischer (San Diego)) at Florida today as part of its Graduate Tax Speaker Series:

How does the income tax shape the boundaries of the firm? This Article goes back to foundational ground — Coase’s inquiry into the nature of the firm— to gain some traction on this elementary question. ...

Part II revisits the literature on Coase and the boundaries of the firm, setting the stage for a discussion of how transaction cost economics can inform tax policy. Part III explores some of the ways in which the income tax distorts the boundary of the firm. In doing so, it provides numerous examples of provisions that can grow or shrink firms at the margin or alter the relative size of their components. It also discusses how firms can respond to income tax law incentives without significantly changing their economic behavior by engaging in regulatory arbitrage.

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October 24, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Milligan Presents Disability Insurance In Canada And The U.S. Today At Columbia

MilliganKevin Milligan (University of British Columbia) presents Push and Pull: Disability Insurance, Regional Labor Markets, and Benefit Generosity in Canada and the United States (with Tammy Schirle (Wilfrid Laurier University)) at Columbia today as part of its Davis Polk & Wardwell Tax Policy Colloquium Series hosted by Alex Raskolnikov and Wojciech Kopczuk:

Disability insurance take-up has expanded substantially in the past twenty years in the United States while shrinking in Canada. We empirically assess these trends by measuring the strength of the ‘push’ from weak labor markets versus the ‘pull’ of more generous benefits.

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October 24, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Brooks, Galle & Maher: Cross-Subsidies May Be More Efficient Than Taxes

John R. Brooks (Georgetown), Brian D. Galle (Georgetown) & Brendan S. Maher (Connecticut), Cross-Subsidies: Government's Hidden Pocketbook, 106 Geo. L.J. ___ (2018):

Governments can use regulation to pay for public goods out of the pockets of consumers, rather than taxpayers. For example, the Affordable Care Act underwrites care for women and the infirm through higher insurance premium payments by healthy men. Building on a classic article from Richard Posner, we show that these “cross-subsidies” between consumers are a common feature of modern law, ranging from telecommunications to intellectual property to employee benefits.

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October 24, 2017 in Scholarship, Tax | Permalink | Comments (0)

Indiana-Indianapolis Receives $250k Grant From ABA For Online Pathway To Law School Program For 50 Underrepresented Undergraduates

Indiana Indianapolis LogoABA, IU McKinney School of Law to Co-launch Pathway to Law Online Program:

The American Bar Association Office of Diversity and Inclusion has partnered with the Indiana University Robert H. McKinney School of Law in Indianapolis to co-launch the Pathway to the Law online program, a three-year pilot project to create a pipeline for underrepresented students into legal education and ultimately the profession.

The program, funded with a $250,000 grant from the ABA, begins next spring and will be based at the McKinney School of Law with an initial class of 50 students. The program’s intent is to help undergraduate students develop their skills in critical thinking, reading comprehension as well as study and test preparation strategies.  It also aims to broaden their understanding of the legal profession and give them access to mentors and networking opportunities as early as possible.

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October 24, 2017 | Permalink | Comments (0)

Stark & Zolt: We Don’t Need Tax Cuts For The Middle Class

Kirk Stark (UCLA) & Eric Zolt (UCLA), We Don’t Need Tax Cuts for the Middle Class:

Amid the partisan rancor surrounding the framework for tax reform developed by GOP congressional leaders, there is one area of remarkable consensus: lower taxes for the middle class. The political logic is not hard to understand. The middle class continues to struggle, and, with midterm elections just around the corner, both parties need the support of middle-class voters.

But missing from the tax debate is an appreciation that lawmakers have already crafted a tax-friendly regime for middle-income taxpayers. The result is a more progressive tax system that raises less revenue. Unless Congress is willing to dramatically cut major entitlement programs and eschew new social programs to address poverty and declining economic mobility, we need moretax revenue from the middle class, not less.

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October 24, 2017 in Tax, Tax Policy in the Trump Administration | Permalink | Comments (4)

Cumberland Seeks To Hire A Tax Prof

CumberlandSamford University Cumberland School of Law  invites applications for experienced or entry level tenure track faculty positions to begin in the 2018-2019 academic year:

We have a particular need for candidates interested in teaching in the area of tax. All applicants must have a strong academic record and be committed to outstanding teaching and scholarship. We particularly welcome applications from persons of diverse background. Salary and rank are negotiable based on qualifications. All applications should include a letter of application, resume, references and teaching evaluations (if available) to:

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October 24, 2017 in Legal Education, Tax, Tax Prof Jobs | Permalink | Comments (0)

2018 Business Tax Climate: Chilliest In Blue States, Warmest In Red States

Tax Foundation logoThe Tax Foundation has released the 2018 State Business Tax Climate Index, which ranks the fifty states according to five indices: corporate tax, individual income tax, sales tax, unemployment insurance tax, and property tax. Here are the ten states with the best and worst business tax climates:




Rhode Island


South Dakota




















New Hampshire










New York




New Jersey

Interestingly, eight of the ten states with the worst business tax climates voted for Hillary Clinton in the 2016 presidential election, and seven of the ten states with the best business tax climates voted for Donald Trump.

Tax Foundation

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October 24, 2017 in Tax, Think Tank Reports | Permalink | Comments (1)

Maureen O’Rourke To Step Down After 14 Years As Dean Of BU Law School

BUMaureen O’Rourke to Step Down as Dean of the School of Law:

From Dr. Jean Morrison, University Provost and Chief Academic Officer

Professor Maureen O’Rourke, who has served with distinction as Dean of the School of Law (LAW) since 2004, has announced that she plans to step down from her administrative role in June 2018 and return to the faculty, following a sabbatical leave.

O’Rourke has been an exceptional leader at LAW since her appointment, first in an interim role for two years and then as permanent Dean beginning in 2006. She has led advances in the quality, relevance, and accessibility of the School’s academic programs, as well as in its national reputation among top law schools. She spearheaded the launch of several innovative new programs – including the Executive LLM in International Business Law, Legal English Certificate Program, and an online version of the LLM in Taxation. Among Dean O’Rourke’s most notable recent accomplishments was overseeing the successful completion of a state of the art law school complex, including the Sumner M. Redstone Building, a nearly 100,000-square-foot, five-story classroom building that opened in 2014, and the 17-story LAW tower, which re-opened in 2015 after a complete renovation.

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October 24, 2017 in Legal Education | Permalink | Comments (1)

The Troubling Expansion Of The Criminal Offense Of Obstructing The IRS

Kathryn Ward Booth (Vanderbilt), Obstructing by Omission: The Troubling Expansion of the Criminal Offense of Obstructing the IRS and How DOJ Internal Policy Has Played a Role:

A majority of circuits hold that it is possible to be convicted of corruptly obstructing the administration of the Internal Revenue laws even if there is no pending IRS proceeding to obstruct. Even more strikingly, the Second Circuit recently held that making an omission is sufficient to obstruct the IRS, which means that it is a federal felony to corruptly not maintain records or to corruptly not provide records to an accountant. Despite the obvious potential problems with these issues, there is very little recent scholarship addressing them. In June, the Supreme Court granted certiorari to consider these issues.

This article examines the circuit split over whether 26 U.S.C. § 7212(a), interfering with the administration of the Internal Revenue laws, requires that the defendant obstructed a known IRS proceeding.

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October 24, 2017 in Scholarship, Tax | Permalink | Comments (0)

Monday, October 23, 2017

Pichhadze Presents Transfer Pricing In Canada Today At McGill

AmirAmir Pichhadze (Deakin University, Australia) presents Canada’s Federal Income Tax Act: The Need for a Principle (Policy) Based Approach to Legislative (Re)drafting of Canada’s Transfer Pricing Rule at McGill today as part of its Spiegel Sohmer Tax Policy Colloquium Series at McGill covened by Allison Christians:

Pichhadze's new paper builds on his prior work with Reuven Avi-Yonah on GAARs and the Nexus Between Statutory Interpretation and Legislative Drafting Lessons for the U.S. From Canada and draws on insights from Judith Freedman's work on Interpreting Tax Statutes: Tax Avoidance and the Intention of Parliament. The working draft explores the evolution of arm's length transfer pricing in Canada and makes the case for Canada’s parliament to adopt and apply a more explicit principle/policy-based approach to legislative drafting.

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October 23, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Toder Presents How Do We Tax The Income Of Entrepreneurs? Today At Loyola-L.A.

Toder (2017)Eric Toder (Tax Policy Center) presents How Do We Tax the Income of Entrepreneurs? at Loyola-L.A. today as part of its Tax Policy Colloquium Series hosted by Katie Pratt and Ted Seto:

Entrepreneurs create successful enterprises that generate substantial value through the innovations they introduce. They typically must wait many years before their firms generate net operating profits. The tax system favors entrepreneurial activity by allowing deferral of tax on the accrual of wealth within new firms and by taxing the gains of entrepreneurs when realized at favorable capital gains rates. But taxes on the income of mature enterprises offset some of this benefit by reducing the value of the firms that entrepreneurs create. Taxation of entrepreneurial income matters because of the important contributions the innovations entrepreneurs introduce make to economic growth.


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October 23, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Georgia State Launches Legal Analytics Lab To Apply Big Data To Several Areas Of Law

LAAGSLegal Analytics Lab Tackles Projects at the Intersection of Business, Law and Big Data:

A groundbreaking new lab at Georgia State University is bringing business and legal scholars together with data scientists to analyze millions of litigation filings and outcomes, corporate financial disclosures, patent applications and other legal documents to identify patterns and evaluate how the law operates to predict future outcomes.

The Legal Analytics Lab, an initiative of the J. Mack Robinson College of Business with support from Georgia State’s College of Law, will be housed in Robinson’s big data analytics facility, the Institute for Insight. The lab will first focus on three subject areas: civil litigation, intellectual property, and compliance and corporate social responsibility.

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October 23, 2017 in Legal Education | Permalink | Comments (0)

McGill Hosts Symposium On 100 Years Of Tax Law In Canada

100 YearsMcGill hosted a symposium earlier this month on 100 Years of Tax Law in Canada:

Keynote:  Kim Brooks (Dalhousie University)

Roundtable 1:  The Intertwined Evolution of Corporate Law and Corporate Tax in Canada
Kim Brooks (Dalhousie University), Marc Barbeau (McGill), Jakub Adamsky (McGill)

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October 23, 2017 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Lesson From The Tax Court: Tax Protesting Is A Hobby That Eats

Tax Court (2017)Everyone needs a hobby. Psychology Today explained why here. But some hobbies grow and grow until they become all-consuming. As Benjamin Franklin reportedly put it: beware the hobby that eats. Protesting your taxes for stupid reasons is one of those hobbies that eat.

Bob Wood once wrote a great blog post about stupid tax protest arguments. The legal term for “stupid” is, of course, “frivolous.” Bob rightly says it’s one of the worst names you can be called in the tax world. I really love his line: “In IRS lingo, it’s about as bad as you can get, just shy of the other “f” word, fraudulent.”

The case of Henry M. Jagos and Kathy A. Jagos v. Commissioner, T.C. Memo. 2017-202 (Oct. 16, 2017), teaches such a lesson. It appears from the opinion that the Jagoses are among those lucky taxpayers who do not have to work for their money because their money works for them. Of their total taxable income in 2012 of $544,000, $520,000 seems to have come from investments. At least it came from payments they received from Fidelity Investments and Fidelity withheld about $98,000 in taxes.

With that kind of income, one has plenty of time for hobbies. It appears from this case the Jagoses decided that tax protesting would be a good hobby to have. In 2012 they filed a return to get back the $98,000 in withheld taxes. They reported zero income, claiming the payments they received were not taxable income because they “are private-sector citizens (non-federal employee) employed by a private-sector company (non-federal entity) as defined in 3401(c)(d).”

In old-fashioned texting parlance my reaction to that statement vacillates between OMG, LOL and WTF. For the more measured IRS and Tax Court reaction, see below the fold.

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October 23, 2017 in Bryan Camp, New Cases, Tax | Permalink | Comments (0)

Elizabeth Warren Says A Senior Faculty Member Sexually Harassed Her When She Was A 'Baby Law Professor', Presumably At Rutgers

WarrenBoston Globe, Elizabeth Warren Recalls Story of Sexual Harassment by Law School Colleague:

U.S. Sen. Elizabeth Warren is joining the growing chorus of women talking about their experiences with sexual harassment in the wake of allegations against Hollywood mogul Harvey Weinstein.

The Massachusetts Democrat shared a story from when she was a “baby law professor” during a videotaped interview session with three other female senators that aired Sunday on NBC’s “Meet The Press.”

Warren says a senior faculty member had asked her to stop by his office one day. When she did, he slammed the door and “lunged” for her. He then chased her around a desk, trying to get his hands on her.


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October 23, 2017 in Legal Education | Permalink | Comments (3)

Victoria Schwartz Receives Pepperdine University's Highest Teaching Honor

SchwartzCongratulations to my friend and colleague Victoria Schwartz, who has received Pepperdine University's highest teaching honor, the Howard A. White Award for Teaching Excellence:

The Howard A. White Award for Teaching Excellence recognizes outstanding teachers who embody Pepperdine University's commitment to excellence. The award honors teachers who inspire, stimulate, challenge, and motivate their students; teachers who develop in students the ability to think critically and creatively about the world; teachers who instill in their students a lifelong love of learning.

Victoria was awarded tenure this year and received the law school's 2016 Faculty Scholarship Award.  Victoria's recent articles include:

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October 23, 2017 in Legal Education | Permalink | Comments (0)

TaxProf Blog Weekend Roundup

Sunday, October 22, 2017

Tax Panel At Midwestern Law & Economics Association Annual Meeting At Marquette

Marquette LogoTax Panel at this weekend's Midwestern Law & Economics Association Annual Meeting at Marquette:

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October 22, 2017 | Permalink | Comments (0)

WSJ: Can Evangelicals And Academics Talk to Each Other?

Wall Street Journal Essay:  Can Evangelicals and Academics Talk to Each Other?, by Alan Jacobs (Baylor):

Last year, as the fire and fury of the presidential election were intensifying and people all around me were growing more and more hostile to one another, I was struck by the familiarity of the situation. For all my adult life, I’ve been dealing with the kinds of hostilities and misunderstandings that now dominate American politics, because I belong to two very different and mutually suspicious groups. I am an academic, but I am also an evangelical Christian.

When I hear academics talk about Christians, I typically think, “That’s not quite right. I don’t believe you understand the people you think you’re disagreeing with.” And when I listen to Christians talk about academics, I have precisely the same reaction.

I have spent decades trying to figure out how these pervasive misunderstandings arise and looking for ways to correct them. But they are very hard to combat, because academics and Christians (like the rest of us) treasure their enmities. And where your treasure is, there will your heart be also.

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October 22, 2017 in Legal Education | Permalink | Comments (2)

Brunson: Brigham Young v. The Bureau of Internal Revenue — Tithing And The Income Tax

Samuel D. Brunson (Loyola-Chicago), Brigham Young vs. The Bureau of Internal Revenue:

In 1871, Brigham Young, the president and trustee-in-trust of the Mormon church, decided to end the church’s practice of tithing, a significant source of revenue for the Mormon church. This decision was the culmination of more than a year of conflict with the Bureau of Internal Revenue, which had decided that tithing was taxable under the Civil War income tax.

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October 22, 2017 in Scholarship, Tax | Permalink | Comments (0)

The Top Five New Tax Papers

SSRN LogoThere is a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with a new paper debuting on the list at #5. The #1 papers is #53 among 13,040 tax papers in all-time downloads.

  1. [2,669 Downloads]  Private Benefits in Public Offerings: Tax Receivable Agreements in IPOs, by Gladriel Shobe (BYU)
  2. [291 Downloads]  Background and Current Status of FATCA and CRS, by William Byrnes (Texas A&M)
  3. [243 Downloads]  The Rise of Trust Decanting in the United States, by Robert Sitkoff (Harvard)
  4. [227 Downloads]  Rejecting Charity: Why the IRS Denies Tax Exemption to 501(C)(3) Applicants, by Terri Lynn Helge (Texas A&M)
  5. [150 Downloads]  Slicing and Dicing: The Structural Problems of the Tax Reform Framework, by Reuven Avi-Yonah (Michigan)

October 22, 2017 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Saturday, October 21, 2017

This Week's Ten Most Popular TaxProf Blog Posts

Clausing & Kleinbard: Trump’s Economists Say A Corporate Tax Cut Will Raise Wages by $4,000. It Doesn’t Add Up.

Following up on Tuesday's post, Council of Economic Advisers: Reducing Corporate Tax Rate From 35% To 20% Would Increase Household Income By $4,000/Year:  Kimberly Clausing (Reed) & Edward Kleinbard (USC), Trump’s Economists Say a Corporate Tax Cut Will Raise Wages by $4,000. It Doesn’t Add Up.:

The President’s Council of Economic Advisers claims that slashing the corporate tax rate to 20 percent would boost the average American’s wages by $4,000 per year (“very conservatively”) — and perhaps by as much as $9,000. If true, that would be a remarkable gain for working Americans.

Unfortunately, it’s extraordinarily unlikely to be true.

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October 21, 2017 in Tax, Tax Policy in the Trump Administration | Permalink | Comments (9)

How Faculty Can Publicize Their Research And Increase Their Scholarly Metrics And Reputation

BlogsChronicle of Higher Education, Publicize Your Research:

Legislators and the public are often skeptical that higher-education tax dollars are being put to good use. Colleges see it as more important than ever, then, for academics to be able to explain their research in lively, accessible ways. At Michigan State University, a group of faculty members recently gathered to learn how.

The leaders of a three-hour workshop outlined a number of ways to to communicate beyond academic peers. Among them: 30-second elevator speeches, jargon-free writing, linking your work to real-world problems, and cultivating a certain level of media savvy. Equally important is a sense of urgency. "We need everyone to understand," says Stephen Hsu in a video that kicks off the training, "why what we do is important."

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October 21, 2017 in Legal Education | Permalink | Comments (0)

Sukhsimranjit Singh Named Managing Director Of Pepperdine's #1 Ranked Straus Institute For Dispute Resolution

SinghSukhsimranjit Singh Named Managing Director of the Straus Institute for Dispute Resolution:

Professor Singh came to the Institute in 2016 as an Associate Director of the Institute and Director of the LL.M. program. He brought with him nearly a decade of teaching and administrative experience as the founding Associate Director of Willamette School of Law’s Center for Dispute Resolution, where he ran the LL.M. program and also taught at the school of management. He is an excellent trainer, teacher and mediator. Singh will now take on expanded responsibilities, managing the day-to-day operations of Straus and joining the leadership team.

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October 21, 2017 in Legal Education | Permalink | Comments (0)

Friday, October 20, 2017

Weekly SSRN Tax Article Review And Roundup

This week, Erin Scharff (Arizona State) reviews a new article by Rebecca Morrow (Wake Forest), Government as Investor: The Case for Immediate Expensing, 105 Ky. L. Rev. ___ (2017).

Scharff (2017)In her forthcoming article, Government as Investor:  The Case for Immediate Expensing, Rebecca Morrow enters the thicket of existing academic and policy debates about how our tax system should treat business investment.  With clear writing and voluminous footnotes, she surveys the capitalization versus immediate expensing debate, and she emerges with some interesting suggestions for reforming our current system. 

Morrow’s chief insight is to focus on the federal government, rather than the taxpayer.  As she writes, “since the government already, by operation of immediate expensing tax policies, acts like an indirect investor in long-standing, expensive, and expanding ways, it should expressly acknowledge and begin to be deliberate about this role.” 

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October 20, 2017 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Weekly Legal Education Roundup

Tax Policy In The Trump Administration

Law School Responses To Speech Protests, From Best (Georgetown) To Worst (Seattle, Thurgood Marshall)

GSTFollowing up on my previous posts:

American Lawyer, At Law Schools, Rowdy Protests Provide Teachable Moments:

Since February, when violent protests canceled a speech by provocative writer Milo Yiannopoulos at the University of California, Berkeley, colleges and universities nationwide have faced criticism for caving to opposition by canceling events.

Law schools have not escaped the clashes. The nationwide free-speech-on-campus debate took root at three law schools this fall as protesters opposed speakers or events, prompting widely different responses from schools.

Those reactions from law school administrators provide examples of best and worst practices in the free-speech realm, and they come at a time when First Amendment advocates say it’s more important than ever for law schools to be role models in upholding free speech. ...

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October 20, 2017 in Legal Education | Permalink | Comments (3)

Does A Professor's Scholarly Productivity Decline With Age?

Inside Higher Ed, Productivity: Age Is Just a Number:

Conventional wisdom on faculty research productivity, backed by decades of studies, says that it’s all downhill after tenure. A new paper challenges that paradigm, suggesting great variability in peak research activity among individual scientists — even if their aggregate productivity curve still feeds the posttenure “dead weight” myth.


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October 20, 2017 in Legal Education, Scholarship | Permalink | Comments (4)

Virginia Tax Review Publishes New Issue

Virginia Tax Review (2016)The Virginia Tax Review has published Vol. 36, No. 3 (Summer 2017):

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October 20, 2017 in Scholarship, Tax | Permalink | Comments (1)

Recent Trends In Like-Kind Exchanges

Gerald Auten (U.S. Treasury Department, Office of Tax Analysis), David Joulfaian (U.S. Treasury Department, Office of Tax Analysis & Romen Mookerjee (Dartmouth), Recent Trends in Like-Kind Exchanges:

Like-kind exchanges enable taxpayers to defer capital gains taxes when certain types of property are exchanged rather than sold. The deferred gains from such exchanges have grown over the years, peaking at over $100 billion before the onset of the Great Recession. Equally noteworthy, the share of corporations of these exchanges has increased in recent years, with much of the corporate deferred gain concentrated in certain sectors and accounted for by a relatively small number of firms.

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October 20, 2017 in Scholarship, Tax | Permalink | Comments (0)

Rethinking Fiscal Federalism’s Tax-Assignment Problem

Lord of the RingsPeter A. Prescott (Butler), One Tax to Rule Them All: Rethinking Fiscal Federalism’s Tax-Assignment Problem, 96 Neb. L. Rev. 1 (2017):

In J.R.R. Tolkien’s The Lord of the Rings, the Dark Lord Sauron created the One Ring to enslave the leaders of the elves, dwarves, and humans. On it, Sauron inscribed the latter half of this poetic warning: “One ring to rule them all, one ring to find them; One ring to bring them all and in the darkness bind them.” The intergovernmental tax system proposed here for the United States might well be described in the same way — one federal-level tax structure to “rule” (and largely replace) the fifty states’ current tax structures. Because the proposed structure is centralized, it would better “find” multi-state taxpayers and it would more efficiently and effectively “bring” and “bind” their corresponding tax bases (e.g., taxable income) before converting those bases into tax revenue that would feed expenditures at the federal and state government levels. To develop and support that proposal, this Article revisits fiscal federalism’s tax-assignment problem using traditional tax policy considerations and with an eye toward reevaluating the conventional wisdom disfavoring centralized taxation in light of recent developments in the field of behavioral economics. ...

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October 20, 2017 in Scholarship, Tax | Permalink | Comments (0)

Thursday, October 19, 2017

Toder Presents Replacing Corporate Revenues With A Mark-to-Market Tax On Shareholder Income Today At San Francisco

Toder (2017)Eric Toder (Tax Policy Center) presents Replacing Corporate Revenues With a Mark to Market Tax on Shareholder Income (with Alan D. Viard) at San Francisco today as part of its Tax Policy Lecture Series:

We propose reducing the corporate tax rate to 15 percent and replacing the foregone revenue with a tax at ordinary income rates on the accrued, or mark-to-market, income of American shareholders of publicly traded corporations, accompanied by an imputation credit for U.S. corporate income taxes paid. The proposal would dramatically reduce the tax significance of the source of corporate profits and the residence of corporations, both of which can be easily manipulated. Lowering the corporate tax rate to 15 percent would encourage a flow of capital into the United States and reduce incentives to shift reported profits overseas and to engage in inversion transactions, while continuing to impose tax on foreigners who earn economic rents from investing in the United States.

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October 19, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (2)

McCaffery Launches The People's Tax Page

PTPHuffington Post:  The Deep Problem with Tax Policy: No One Understands It, by Edward McCaffery (USC):

As America once again considers tax reform, with President Trump promising the greatest tax cut ever, the nation faces many choices. We could attempt to shore up the individual income tax, or move to a more consumption-based system. We could lower all rates, or just raise the standard deduction. We could cut the payroll tax instead of or in addition to the income tax. We could flatten tax rates or make them more progressive. We could reform and make corporate taxes more sensible, or even eliminate them altogether. And so on: there are many options.

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October 19, 2017 in Tax | Permalink | Comments (4)

McMahon: Pre-Enforcement Litigation Needed For Taxing Procedures

Stephanie Hunter McMahon (Cincinnati), Pre-Enforcement Litigation Needed for Taxing Procedures, 92 Wash. L. Rev. 1317 (2017):

Courts have opened tax guidance to procedural attack. Consequently, taxpayers who are found to owe tax may challenge the validity of the guidance implementing the tax if the procedure used by the Treasury Department in adopting the guidance failed to comply with the Administrative Procedure Act, in particular, with notice-and-comment. This increased willingness to consider tax guidance’s procedural defects offers little to most taxpayers unless they are also given a better means to raise procedural challenges. Under current law and in most circumstances, generally, taxpayers can bring a challenge only after they have been found to owe taxes in an audit and completed an internal IRS appeal process. This delay in the ability to challenge guidance reduces the likelihood taxpayers will challenge the procedure used to create a particular rule. Moreover, delayed litigation requires taxpayers to plan their affairs under the umbrella of guidance that might not survive a procedural challenge. To the extent procedural challenges are accepted in the tax context, this Article argues Congress should narrowly repeal its prior limitations on pre-enforcement litigation of those procedures.

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October 19, 2017 in Scholarship, Tax | Permalink | Comments (0)

Engler: Goodwill Hunting Gone Bad — Tax Law's Outmoded Treatment Of Goodwill

Goodwill HuntingMitchell L. Engler (Cardozo), Goodwill Hunting Gone Bad: Tax Law's Outmoded Treatment of Goodwill, 96 Neb. L. Rev. ___ (2017):

Goodwill reflects the positive consumer association with a business. Goodwill thus overlaps with trademarks and other related assets. This close association impedes the separation of goodwill value from such related assets. Difficulties thus arise when the tax law treats goodwill more (or less) favorably than related intangible assets.

For instance, the tax law previously denied any depreciation deductions for goodwill. Business buyers thus often allocated their costs away from goodwill and towards related assets like depreciable customer lists. The IRS responded with the initial “goodwill hunting” wave, challenging taxpayers’ low goodwill valuations. Congress addressed this litigious area in 1993 with new, matching depreciation rules for purchased goodwill and related intangible assets.

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October 19, 2017 in Scholarship, Tax | Permalink | Comments (0)

The One Percent Across Two Centuries: Piketty Presents Misleading Picture Of The Dynamics Of Wealth Inequality In The United States

PikettyRichard Sutch (UC-Riverside), The One Percent Across Two Centuries: A Replication of Thomas Piketty's Data on the Concentration of Wealth in the United States, 41 Soc. Sci. Hist. 587 (2017) (free earlier online version):

This exercise reproduces and assesses the historical time series on the top shares of the wealth distribution for the United States presented by Thomas Piketty in Capital in the Twenty-First Century. Piketty's best-selling book has gained as much attention for its extensive presentation of detailed historical statistics on inequality as for its bold and provocative predictions about a continuing rise in inequality in the twenty-first century. Here I examine Piketty's US data for the period 1810 to 2010 for the top 10 percent and the top 1 percent of the wealth distribution. I conclude that Piketty's data for the wealth share of the top 10 percent for the period 1870 to 1970 are unreliable. The values he reported are manufactured from the observations for the top 1 percent inflated by a constant 36 percentage points. Piketty's data for the top 1 percent of the distribution for the nineteenth century (1810–1910) are also unreliable. They are based on a single mid-century observation that provides no guidance about the antebellum trend and only tenuous information about the trend in inequality during the Gilded Age. The values Piketty reported for the twentieth century (1910–2010) are based on more solid ground, but have the disadvantage of muting the marked rise of inequality during the Roaring Twenties and the decline associated with the Great Depression. This article offers an alternative picture of the trend in inequality based on newly available data and a reanalysis of the 1870 Census of Wealth. This article does not question Piketty's integrity. ...

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October 19, 2017 in Tax | Permalink | Comments (1)

California Keeps Bar Exam Cut Score At 144, Second Highest In Nation

California Bar ExamCalifornia Courts News Release:

In view of the rising costs of legal education and the financial hardship potentially resulting from non-admission to the California bar, the court determined last February to assess whether the current pass score (cut score) of 1440 for the California bar exam is appropriate for evaluating the minimum competence necessary for entering attorneys to practice law in this state. 

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October 19, 2017 in Legal Education | Permalink | Comments (3)

Nevada Lowers Bar Exam Cut Score From 140 to 138, Pass Rate Increases By 23%

UNLV Logo (2016)Following up on my previous post, Oregon Lowers Bar Exam Cut Score From 142 to 137, Pass Rate Increases By 36%:  Las Vegas Review-Journal, UNLV Law School Sees Big Jump in Bar Exam Passage:

The verdict for Nevada’s most recent bar exam is in, and it’s a positive outcome for UNLV’s Boyd School of Law. Boyd students who sat for the test for the first time in July passed at a rate of 81 percent, 15 percentage points higher than in July 2016. ...

Nevada’s bar exam, which is administered twice a year, is notorious for being one of the nation’s toughest. But this year, the state Supreme Court made several decisions to make the test more user-friendly.

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October 19, 2017 in Legal Education | Permalink | Comments (1)