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Editor: Paul L. Caron
Pepperdine University School of Law

Monday, January 4, 2016

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January 4, 2016 in About This Blog, Legal Education, Tax | Permalink | Comments (0)

The IRS Scandal, Day 970

IRS Logo 2American Center for Law and Justice, ACLJ Forces IRS to Comply with the Law in Major Federal Lawsuit:

The ACLJ has secured an important victory in our Freedom of Information Act (FOIA) case against the IRS on behalf of Citizens for a Strong New Hampshire. After a year of litigation, which followed over four months of waiting for the IRS to respond to its FOIA request, we finally succeeded in compelling the IRS to comply with its obligations under federal law.

As we have previously written, Citizens for a Strong New Hampshire issued a FOIA request to the IRS in June 2014 seeking communications between two New Hampshire legislators and certain IRS officials, including Lois Lerner, the IRS’s Exempt Organizations Director who was at the center of the IRS Tea Party targeting scandal. Rather than search for and provide responsive documents within the statutory time period, the IRS sat on the request for months as the November 2014 elections approached. This delay blatantly flouted the very purpose of the Freedom of Information Act, as it prevented Citizens for a Strong New Hampshire from knowing whether these legislators had engaged in any communications with the IRS in which the New Hampshire public might be interested—and, if so, disseminating that information to voters prior to the November elections.

In order to get a response from the IRS, we filed a federal lawsuit on behalf of Citizens for a Strong New Hampshire. While the IRS did perform a search and provide some responsive documents shortly thereafter, it was not at all clear that the agency had searched all sources reasonably likely to contain responsive records or that the records it refused to produce were properly withheld. After raising these issues with the court, we succeeded in forcing the IRS to provide the withheld documents to the court—essentially a means of providing the necessary assurances that the IRS had not withheld documents to which the organizations enjoyed a right of access. We also obtained an order from the court explaining that the IRS had failed to demonstrate the reasonableness (i.e., thoroughness) of its search for documents.

The upshot of the court’s order was that we would be heading to trial—a highly unusual occurrence in FOIA cases. On its own initiative, however, obviously realizing that its prior search was deficient, the IRS undertook two additional searches and provided the necessary information to Citizens for a Strong New Hampshire (and the court) to demonstrate the appropriateness of these new searches.

In short, the IRS finally decided to fully comply with its legal obligations under FOIA, providing Citizens for a Strong New Hampshire with the relief it had been seeking for nearly a year and a half.

We are pleased to have obtained this positive outcome for Citizens for a Strong New Hampshire and will continue to pursue litigation in federal appeals court on behalf of the numerous nonprofit organizations that are still seeking relief from the IRS’s unlawful targeting of conservative groups.

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January 4, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (2)

TaxProf Blog Holiday Weekend Roundup

Sunday, January 3, 2016

Hemel:  The Twilight Of Tax Sunsets?

Sunset 2University of Chicago Law Faculty Blog:  The Twilight of Tax Sunsets?, by Daniel Hemel:

Since the early 2000s, Congress has filled the Internal Revenue Code with numerous sunset provisions. These provisions by their terms apply for a limited period, although Congress regularly renews them through annual “extenders” legislation. Examples have included the tax credit for research and experimentation expenses, the Subpart F exception for active financing, the deduction for state and local sales taxes, and the American Opportunity Tax Credit for the first four years of postsecondary education. Interest groups have devoted significant resources toward ensuring that members of Congress extend these tax breaks from year to year. Tax law scholars, in turn, have channeled considerable energy toward explaining the prevalence of sunset provisions in tax law.

A leading explanation of the “sunset” phenomenon is that lawmakers use temporary tax legislation to extract rents from interest groups. Rebecca Kysar writes that “the continuous threat of expiration allows Congress to extract more rents from interest groups through the use of sunset provisions that require those groups repeatedly to return to the congressional floor to achieve their goals.” Edward McCaffery and Linda Cohen likewise hypothesize that lawmakers will maximize rents through a “stringing-along” strategy, using extenders bills to get “multiple bites at the apple.” Others have offered similar accounts.

The rent-extraction hypothesis might lead one to expect that temporary tax breaks will be a permanent feature of the Code, as lawmakers have little incentive to relinquish the rents they derive from the extenders game. But that prediction has proven wrong: earlier this month, Congress voted to make 22 once-temporary tax breaks permanent, including all four provisions mentioned above. Congress’s recent action gives rise to a puzzle: If temporary legislation allows lawmakers to maximize the rents they can extract from interest groups, why did Congress allow these tax breaks to become permanent? Did DC suffer a sudden outbreak of public spiritedness this holiday season? Or does the rent-extraction hypothesis need updating?

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January 3, 2016 in Tax | Permalink | Comments (1)

Weekly Tax Roundup

The Top 5 Tax Paper Downloads

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:

  1. [278 Downloads]  The Three Causes of Inversions: Reflections on Pfizer/Allergan and Notice 2015-79, by Reuven Avi-Yonah (Michigan)
  2. [204 Downloads]  The State Administration Of International Tax Avoidance, by Omri Y. Marian (UC-Irvine)
  3. [160 Downloads]  The Effect of Profit Shifting on the Corporate Tax Base in the United States and Beyond, by Kimberly A. Clausing (Reed College)
  4. [143 Downloads]  Transfer Pricing Challenges in the Cloud, by Orly Mazur (SMU)
  5. [66 Downloads]  Are Corporate Inversions Good for Shareholders?, by Anton Babkin (Wisconsin), Brent Glover (Carnegie Mellon) & Oliver Levine (Wisconsin)

January 3, 2016 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

The IRS Scandal, Day 969

IRS Logo 2Washington Examiner op-ed:  Congress Moves to Protect Free Speech From Bureaucratic Assault, by Luke Wachob (Center for Competitive Politics):

Tucked away in the 2,000 page omnibus tax and spending deal to fund the government is an early Christmas gift to proponents of free speech.

Seven provisions of the deal will help encourage more speech or put a halt to various efforts to increase regulation of political speech via the executive branch. After years of losing at the Supreme Court, in Congress and at the Federal Election Commission, those who wish to limit speech under the guise of campaign finance "reform" have increasingly focused their efforts on pressuring administrative agencies to achieve through regulation what could not be won via legislation. Through these seven provisions, Congress put a stop to much of this nonsense.

The riders may seem relatively unassuming, but they are in fact a major victory. Threats to speech increasingly originate from the executive branch, most prominently during the IRS targeting scandal. Years of urging from "reform" groups and thin-skinned politicians duped the IRS into playing the role of speech police, with predictably disastrous results. The agency discriminated against conservative groups applying for tax-exempt status on the basis of their names and political beliefs, with no regard for the First Amendment.

Congress sought to prevent such abuse in the future; the omnibus prohibits the agency from working on new speech regulations over the coming year.

The IRS was not alone, however, in being pushed outside its duties to regulate speech. ...

[The omnibus provisions] further prohibit the president from issuing an executive order requiring companies to report their federal election campaign donations, which are already publicly disclosed, as part of the process for bidding on government contracts; clarify that the IRS may not attempt to stifle speech by collecting the Gift Tax on donations to organizations advocating for social change; forbid IRS employees from conducting government business on personal email addresses; and require that employees be fired if they discriminate against groups or individuals on the basis of political belief.

Several of these provisions — most pointedly the requirement that government business be conducted over government email — are clearly a response to the actions of Lois Lerner, the IRS official at the center of the scandal whose use of a personal email address resulted in missing emails that frustrated investigators. But the IRS's hostility towards free speech did not end with Lerner's resignation. Instead, it sought to make restrictive speech rules official IRS policy, proposing harsh new rules that would have silenced many nonprofit advocacy groups during election years.

Those rules were withdrawn in the face of overwhelming, bipartisan opposition, but the IRS promised to try again and potentially apply the new rules to an even broader swath of groups. By denying funding for the development of new rules, Congress ensures that if new rules are written, it will be by the next president.

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January 3, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (0)

Saturday, January 2, 2016

This Week's Ten Most Popular TaxProf Blog Posts

Prof Suing Law School For Access To Admissions Data Asks Court To Stay Investigation Into His Alleged Bias Against Minority Students Initiated By Two 'Race-Baiting Professors'

UALRFollowing up on my previous posts (links below):

Arkansas Online, Professor Modifies Law School Challenge:

A professor suing the University of Arkansas at Little Rock law school over public records is now asking a judge to prevent the school from forcing him to participate in an investigation he refers to as "a witch hunt" before a hearing in his case takes place.

Law professor Robert Steinbuch sued the W.H. Bowen School of Law and the school's dean, Michael Schwartz, in November over Schwartz's refusal to turn over certain student admissions records.

Steinbuch amended his public records lawsuit earlier this month to add Associate Dean Theresa Beiner as a defendant, accusing her of retaliation over his litigation.

After two professors emailed complaints about Steinbuch's lawsuit -- questioning his grading practices and whether he is biased against minority-group students given his research conclusions that the school has lower admissions standards for black students -- an investigation into his grading and the bias complaint has begun.

A hearing over that retaliation complaint is set for Jan. 25. Steinbuch has sought relief from a judge from participating in the investigation, which he says is "based on nothing more than the baseless allegations of two rogue, race-baiting professors."

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January 2, 2016 in Legal Education | Permalink | Comments (4)

Weekly Legal Education Roundup

The IRS Scandal, Day 968

IRS Logo 2Phil Kerpen (President, American Commitment), The Free Speech Silver Lining in the Budget Cloud:

The massive omnibus package of tax and spending changes recently passed by Congress was mostly a defeat for free-market economics. ... But the deal is actually a triumph in the single most important policy area: the First Amendment. ...

In 2012, Democrats won a national election by turning the IRS into a political intimidation agency, systematically destroying the vitality of the tea party movement that delivered a conservative wave in 2010. Given the level of scrutiny the agency is now under as a consequence, you might think there was no way they could use the same playbook to tilt the playing field for 2016. But the IRS was actually poised to propose official rules that would have been facially neutral but would have had the effect of silencing precisely the same groups that were sidelined by targeting in 2012.

This deal takes that risk off the table by expressly prohibiting such rules.

The deal also includes a comprehensive package of IRS reforms authored by Rep. Peter Roskam of Illinois that enjoy broad support but that until now had failed many attempts to be attached to a legislative vehicle that would be signed by the president.

That package includes a prohibition on IRS employees using private email address, as we know Lois Lerner and her coconspirators often did when orchestrating targeting, a mechanism for nonprofit groups to challenge IRS determinations in court so that they cannot be held indefinitely in limbo, and a provision requiring any IRS employee engaged in political targeting to be fired. (In the recent scandal nobody was: Even Lois Lerner was allowed to retire with her full pension.)

Most significantly, Roskam's reform package bans the IRS from trying to assess gift tax on contributions to nonprofit organizations, which they infamously attempted against conservative donors.

In 2011, donors to conservative groups were told that despite decades of clear legal understanding and practice, they could be found liable for gift tax on their contributions. While the IRS never did impose such a tax, the threatening letters they sent likely had a chilling effect on contributions to conservative groups, which was the point.

Taxing contributions to nonprofits would do nothing to advance the intended purpose of the gift tax — enforcing compliance with the federal estate tax — and would serve to dramatically diminish the ability of nonprofit groups to educate and mobilize citizens in the public policy process. Yet some liberal advocates continued to praise these abusive letters and even call for more of them to be issued.

Now donors have an ironclad legal guarantee that their contributions to nonprofit groups will not be subject to threatening IRS audit letters and arbitrary taxation.

The bottom line is that on a wide range of issues the omnibus deal is deeply disappointing, but the First Amendment provisions are an enormous silver lining because they mean activists will not be IRSed in 2016 the way they were in 2012. And that assures conservatives an honest opportunity to effectively engage the political process and come back to win on all the other issues.

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January 2, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (1)

Friday, January 1, 2016

LexisNexis Sells Law School Publishing Business To Carolina Academic Press

LNCAPAs a LexixNexis author, I received the following email:  Law School Publishing News from LexisNexis Matthew Bender and Carolina Academic Press (posted with permission of LexisNexis):

Dear Author,

On December 31, LexisNexis® Matthew Bender® completed the sale of our law school publishing business to Carolina Academic Press. As part of this transaction, Matthew Bender® assigned all of the associated author agreements to Carolina Academic Press, and Carolina Academic Press agreed to assume all of the Matthew Bender obligations under such agreements. Therefore, Carolina Academic Press is now the publisher of your title(s).

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January 1, 2016 in Book Club, Legal Education, Tax | Permalink | Comments (0)

NLJ:  The Top 10 Legal Education Stories Of 2015

National Law JournalNational Law Journal, The Year in Law Schools:

Here are 10 of The National Law Journal’s top stories on law schools and legal education in 2015.

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January 1, 2016 in Legal Education | Permalink | Comments (0)

ABA:  The Top 10 Law Stories Of 2015

ABA Journal (2014)ABA Journal, 10 Most Important Legal Stories of 2015:

As the ABA Journal staff looked back over the past year, these were the 10 legal stories which seemed the most important and prominent. ABA Journal legal affairs writer Victor Li provides a summary of each below.

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January 1, 2016 in Legal Education | Permalink | Comments (0)

The IRS Scandal, Day 967

IRS Logo 2The Blaze op-ed:  Despite New Limits, The IRS is Not Yet Under Control, by Andrew F. Quinlan (President, Center for Freedom and Prosperity):

The massive omnibus spending package passed by Congress included new limits on the IRS, in particular on the agency’s ability to harass political non-profits. Congress is not done, however, as an ongoing dispute between the tax collection agency and Microsoft demonstrates that the IRS continues to operate outside the bounds of the law.

The IRS is in the midst of an almost nine-year audit of Microsoft. That’s unusual given the three-year statutory limit for audits. Sometimes they can be extended when necessary, but the IRS has asked and been granted permission by Microsoft to do so eight times already. Most notable, however, is the fact that Microsoft just wants to pay its bill and move on, but the IRS has refused to submit one. That might be due to the fact that the never-ending audit is proving quite profitable for a powerful, politically-connected law firm.

Again acting outside normal procedure, the IRS brought in lawyers from Quinn Emanuel Urquhart & Sullivan, a major contributor to Barack Obama and the Democrat Party. This despite the fact that the IRS already employs a veritable army of lawyers and accountants with more relevant expertise.

The use of outside lawyers raises serious concerns regarding taxpayer privacy and potential conflicts of interest. Namely, that a $1,000-per-hour firm is going to be less motivated to resolve a case quickly and efficiently than the taxpayers footing their bill.

The $2.2 million contract for Quinn Emanuel also comes at a time when the IRS is claiming poverty and a lack of sufficient funds for assisting taxpayers.

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January 1, 2016 in IRS News, IRS Scandal, Tax | Permalink | Comments (0)

Thursday, December 31, 2015

Tax Rate Of Top 400 Taxpayers Soared 37% In 2013, To Highest Rate Since 1997

On Tuesday, the New York Times published a front page article on How The Ultra Wealthy Buy Tax Policy, which contained this statement:

Two decades ago, when Bill Clinton was elected president, the 400 highest-earning taxpayers in America paid nearly 27 percent of their income in federal taxes, according to I.R.S. data. By 2012, when President Obama was re-elected, that figure had fallen to less than 17 percent, which is just slightly more than the typical family making $100,000 annually, when payroll taxes are included for both groups. 

On Wednesday, the IRS released updated data showing that in 2013 the Top 400 taxpayers bore the highest tax rate since 1997:

Top 400 - 2

Wall Street Journal, Tax Rate for Top 400 U.S. Taxpayers Climbed in 2013: Obama Administration Policies Reversed a Decadeslong Trend Toward Lower Tax Burdens for Wealthiest Americans:

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December 31, 2015 in IRS News, Tax | Permalink | Comments (2)

Ted Cruz’s Simple, Radical Tax Plan

CruzNew York Times:  Ted Cruz’s Simple, Radical Tax Plan, by Josh Barro:

Like Rand Paul before him, Ted Cruz is promoting a tax plan that relies heavily on a value-added tax, or VAT. And like Mr. Paul, Mr. Cruz is not calling his VAT a VAT.

He has good reason not to.

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December 31, 2015 in Political News, Tax | Permalink | Comments (1)

WSJ:  Japanese Law Schools Facing ‘Unprecedented Crisis’ Amidst 84% Applicant Decline

JapanWall Street Journal Law Blog: Japanese Law Schools Facing ‘Unprecedented Crisis’, by Jacob Gershman:

About a decade ago Japan embarked on an ambitious plan to groom more lawyers.

With its long tradition of out-of-court dispute resolution and lack of litigation, the country never had a lot of need for lawyers. But by 2004, a surge of civil suits and other court cases led the country to adopt a legal education system more like the one here. The country opened 68 new U.S.-style law schools within universities and set out to more than double its lawyer population, which stood at just 23,000. (The United States has more than one million lawyers, in comparison.)

Under the old system, you didn’t have to graduate from law school to become a lawyer in Japan, but had to pass an extremely difficult exam. Under the new system, a law degree was required. But it turned out that demand for lawyers and law degrees was much less than anticipated. And now, according to a new report, many of its government-subsidized law schools are shutting down or on the brink of closure.

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December 31, 2015 in Legal Education | Permalink | Comments (3)

The IRS Scandal, Day 966

IRS Logo 2Following up on my previous coverage (here, here, and here):  Breitbart, Koch Brothers May Have to Disclose Donor List to California:

The San Francisco Ninth Circuit Court of Appeals overruled a U.S. District Court judge to give authority to California Attorney General Kamala Harris to obtain the donor list from the Koch Brothers-backed Americans for Prosperity Foundation.  [Americans for Prosperity v. Harris, No.  15-55446 (9th Cir. Dec. 29, 2015)].

The Americans for Prosperity Foundation was founded by Charles and David Koch as a national foundation in 2004 and registered in all states, including California, as a nonprofit organization promoting limited government and free markets by educating individuals around the country about practical ways to improve their circumstances. It became one of the most influential American conservative political advocacy organizations after the 2009 inauguration of President Barack Obama. ...

But AFP became the number one target of elected Democrat officials and their constituencies for the role the organization played in breaking Democrat majority control of the House of Representatives in 2010 and the U.S. Senate in 2014.

AFP has complied with the filing requirements with the Internal Revenue Service each year for over a decade and disclosed its nationwide list of major donors’ names and addresses on tax form “Schedule B” for a nonprofit charity. Federal criminal statutes protect the constitutional right to privacy by forbidding the IRS to make any unauthorized disclosure of charity donors to a 501(c)4 non-profit.

For a decade, California accepted AFP’s charitable registrations and renewals without need for filing Schedule Bs. But in 20014, California Attorney General and candidate for U.S. Senate Kamala Harris suddenly began demanding Schedule Bs under threat of draconian sanctions, such as personal fines against a charity’s officers. ...

AFP in February was granted a preliminary injunction protecting against disclosure of the Foundation’s Schedule B by the district court after considering evidence of threats, violence, and harassment directed at the Foundation, as attested to in sworn affidavits and confirmed by accompanying documentation.

The court stated:“Public disclosure of [the Foundation’s] Schedule B, and thus the names and addresses of its donors, would open those persons up to harassment, retaliation, and chilling of free speech.” It added: “These negative consequences would objectively work to chill protected First Amendment speech.”

But a three-judge Ninth Circuit Court of Appeals panel overturned the lower court judge, allowing California Attorney General Kamala Harris access to information from the Americans for Prosperity Foundation while the group’s lawsuit is being decided. The appeals panel’s unanimous decision said that AFP failed to show reason to fear disclosure. ...

Derek Shaffer, Americans for Prosperity, said AFP will immediately appeal the ruling to the U.S. Supreme Court.

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December 31, 2015 in IRS News, IRS Scandal, Tax | Permalink | Comments (4)

Wednesday, December 30, 2015

Ohio State Republican Law Faculty Holiday Party Enjoyed By Both

5th Circuit:  Texas Can Deny Tax Breaks To Films It Doesn’t Like

MacheteWall Street Journal Law Blog:  Texas Can Deny Tax Breaks to Films it Doesn’t Like, Appeals Court Rules, by Jacob Gershman:

Texas has leeway under the First Amendment to deny tax breaks to films deemed insulting to the state, a federal appeals court ruled [Machete Prooductions LLC v. Page, No. 15-50120 (5th Cir. Dec. 28, 2015)] ...

Last year the producers behind the sequel to the 2010 gory action comedy “Machete” sued Texas for denying them tax breaks under a state program that encourages film production in the state. ...

The state denied it infringed on any constitutional speech rights. And a lower court agreed in a ruling handed down earlier this year. On Monday the Louisiana-based Fifth U.S. Circuit Court of Appeals affirmed that decision.

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December 30, 2015 in Celebrity Tax Lore, New Cases, Tax | Permalink | Comments (1)

The States With The Most (MT, VT, IA) And Least (NV, UT, AZ) Tax-Exempt Organizations

Tax Foundation, Which States Have the Most Tax-Exempt Organizations?:

Tax Exempt

The map above shows data from all 1,535,388 tax-exempt organizations in the fifty states that are registered with the IRS. ... Overall, across the United States, there are 5.36 tax-exempt organizations for every 1,000 people. However, the concentration of tax-exempt organizations varies greatly by state. In Montana, for instance, there are 9.71 tax-exempt organizations for every 1,000 residents – the highest out of all fifty states. On the other hand, Nevada is home to only 2.92 tax-exempt organizations for every 1,000 residents, the lowest concentration in the country. ...

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December 30, 2015 in Tax | Permalink | Comments (1)

McLaughlin:  Conservation Easements And The Valuation Conundrum

Florida Tax ReviewNancy A. McLaughlin (Utah), Conservation Easements and the Valuation Conundrum, 19 Fla. Tax Rev. ___ (2016):

For more than fifty years, taxpayers have been able to claim a federal charitable income tax deduction under Internal Revenue Code § 170(h) for the donation of a conservation easement or a façade easement. For just as long, the deduction has been subject to abuse, including valuation abuse. Dismayed by the expenditure of significant judicial and administrative resources to combat abuse in the easement donation context, the Treasury Department recently proposed reforms, including reforms to address valuation abuse. The reforms were proposed in somewhat of an analytical vacuum, however, because there has been no comprehensive analysis of the easement valuation case law. This article fills that void.

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December 30, 2015 in Scholarship, Tax | Permalink | Comments (0)

IRS Employee Whose Job Was Assisting Victims Of Identity Theft Charged In $1 Million Identity Theft Tax Fraud

Taxpayer Advocate (2016)Department of Justice Press Release, IRS Employee Charged in $1 Million ID Theft Tax Fraud Scheme:

Federal officials today announced arrests and charges in a stolen identity tax-refund scheme believed to involve more than $1 million in false claims and run by an IRS employee who was supposed to be assisting taxpayers experiencing problems resulting from identity theft.

A federal grand jury earlier this month indicted NAKEISHA HALL, JIMMIE GOODMAN and ABDULLA COLEMAN for their involvement in a 2008 to 2011 scheme operated out of Birmingham that involved stealing personal identity information from the Internal Revenue Service to create fraudulent tax returns and collecting the stolen refunds, announced U.S. Attorney Joyce White Vance, IRS Criminal Investigation, St. Louis Field Office, Special Agent in Charge Karl A. Stiften, and Treasury Inspector General for Tax Administration, Mid-States Field Division, Special Agent in Charge Ruben Florez. The indictment was unsealed with today’s arrests.

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December 30, 2015 in IRS News, Tax | Permalink | Comments (11)

NY Times:  How The Ultra Wealthy Buy Tax Policy

New York Times, For the Wealthiest, a Private Tax System That Saves Them Billions: The Very Richest Are Able to Quietly Shape Tax Policy That Will Allow Them to Shield Billions in Income:

The hedge fund magnates Daniel S. Loeb, Louis Moore Bacon and Steven A. Cohen have much in common. They have managed billions of dollars in capital, earning vast fortunes. They have invested large sums in art — and millions more in political candidates.

Moreover, each has exploited an esoteric tax loophole that saved them millions in taxes. The trick? Route the money to Bermuda and back.

With inequality at its highest levels in nearly a century and public debate rising over whether the government should respond to it through higher taxes on the wealthy, the very richest Americans have financed a sophisticated and astonishingly effective apparatus for shielding their fortunes. Some call it the “income defense industry,” consisting of a high-priced phalanx of lawyers, estate planners, lobbyists and anti-tax activists who exploit and defend a dizzying array of tax maneuvers, virtually none of them available to taxpayers of more modest means.

In recent years, this apparatus has become one of the most powerful avenues of influence for wealthy Americans of all political stripes, including Mr. Loeb and Mr. Cohen, who give heavily to Republicans, and the liberal billionaire George Soros, who has called for higher levies on the rich while at the same time using tax loopholes to bolster his own fortune.

All are among a small group providing much of the early cash for the 2016 presidential campaign.

Operating largely out of public view — in tax court, through arcane legislative provisions and in private negotiations with the Internal Revenue Service — the wealthy have used their influence to steadily whittle away at the government’s ability to tax them. The effect has been to create a kind of private tax system, catering to only several thousand Americans.

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December 30, 2015 in Tax | Permalink | Comments (1)

A More Practical Model For Law Schools: Medical School Residency Programs

Harvard Business Review LogoHarvard Business Review:  A More Practical Model for Law Schools, by Alice Armitage (UC-Hastings) & Robin Feldman (UC-Hastings):

The JD is no longer the ticket it once was to a stable career and high earnings. With skyrocketing levels of student debt and limited job opportunities, potential law students are foregoing legal careers. And with depleted budgets and enrollment at a 40-year low, law schools are scrambling to remain relevant.

Legal education needs a radical change. To do this, it is imperative that we rethink the standard law school model — a series of required classes, some of which have little connection to the work most students will actually do as lawyers. There is a need for scalable, affordable experiences that connect students to firms and the practice of law — similar to medical school residency programs. ...

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December 30, 2015 in Legal Education | Permalink | Comments (1)

NY Times:  The Bad Fortune Of Some Ultra Wealthy People

New York Times:  The Bad Fortune of Some Ultrawealthy People, by Paul Sullivan:

Dov Charney, the founder of the now-bankrupt retailer American Apparel, and Sam Wyly, who has bought and sold a dozen companies over the decades, from computer companies to steak houses, were both larger-than-life characters with checkbooks to match.

But the two self-made men have something else in common. In less than 18 months, their individual net worth fell by over 50 percent, according to research conducted for The New York Times by Wealth-X, which provides data and insights on the world’s wealthiest individuals.

They were not alone. Wealth-X found that from July 2014 to July 2015, 45 percent of the ultrawealthy in the United States lost some part of their wealth; 11 percent lost more than half of it.

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December 30, 2015 in Tax | Permalink | Comments (0)

Organ:  The 2015 Law School Transfer Market

TransferJerry Organ (St. Thomas) has a detailed blog post on the 2015 law school transfer market.  Interestingly, the number of transfer students (1,979) is down 9.5% from 2014 and 20.9% from 2013.  David Yellen (Dean, Loyola-Chicago) asks:  "[H]ow much lower do you think that number would be if transfer students were counted in U.S. News data?"  Arizona State continues to dominate the law school transfer market, enrolling 65 transfer students in 2015, 45.5% of its 1L class.  Other major players in the law school transfer market are Georgetown (110 students/19.0% of its 1L class), George Washington (109/20.2%), Emory (51/22.9%), Miami (44/19.2%), UC-Berkeley (49/17.9%), and Florida State (32/17.0%).

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December 30, 2015 in Legal Education | Permalink | Comments (2)

The IRS Scandal, Day 965

IRS Logo 2Following up on my previous posts, The Problem Is Not Just IRS Lawyers; The Problem Is All Federal Government Lawyers and A Cincinnati IRS Lawyer Speaks: We Are Democrats, But Nonpartisan Democrats:  The Daily Caller News Foundation, IRS Employees Fuel Democratic Candidates, Causes:

A Daily Caller News Foundation analysis of OpenSecrets.org data found Internal Revenue Service (IRS) employees have backed Democrats over Republicans by 2-1 in their political donations over the last 25 years.

Donors listing the IRS as their employer have donated roughly $453,800 to Democratic candidates and causes and $221,400 to Republican candidates and causes since 1990. About one in four of the dollars for Democrats, or roughly $117,500, went to President Barack Obama.

But IRS employees since 1990 have also donated $203,000 to the National Treasury Employees Union, which in turn has given about 95 percent of its $6 million in political contributions to Democrats over the last 25 years, OpenSecrets.org data shows.

Disclosure of the huge bias among IRS employees for Democrats won’t help an agency under fire for years for illegally targeting conservative groups applying for tax-exempt status. Federal tax officials illegally tried to silence hundreds of conservative and tea party non-profit applicants during the 2010 and 2012 election campaigns.

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December 30, 2015 in IRS News, IRS Scandal, Tax | Permalink | Comments (2)

Tuesday, December 29, 2015

Delta Loves To Save Taxes And It Shows

DeltaThe Street, Delta Needs Creativity to Avoid IRS Tax Liability Turbulence:

Delta Air Lines spent considerable time and cash in 2015 expanding its global footprint by making investments in foreign carriers. Next year, it might be more interested in moving some of its tax liabilities overseas.

Atlanta-based Delta has developed a reputation for creativity. For example, in 2012, it acquired a refinery in Trainer, Pa., to help ensure a steady, and cheaper, supply of jet fuel in the Northeast. ...

One thing U.S. airlines haven't had to worry about until recently is taxes, with the industry's long history of boom-and-bust cycles and bankruptcies creating billions in net operating loss, or NOL, carryforwards. But for suddenly thriving Delta, those NOLs are likely to run out by early 2018, if not sooner.

U.S. law requires airlines to be domestically owned, so there is no risk of the sort of tax inversion that has become popular in other sectors. But there are other ways to avoid taxes. Delta told the crowd assembled for its investor day earlier this month that it was considering reorganizing its trans-Atlantic business in such a way that would allow it to keep the revenues from foreign sales in the countries where they are booked.

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December 29, 2015 in Tax | Permalink | Comments (0)

How Yahoo’s Mayer Can Still Be A CEO Hero: Beat The IRS

YahooWall Street Journal:  Yahoo’s Mayer Can Still Be a CEO Hero: No Longer Expected to Produce Miracles, She Can Win for Shareholders by Beating the IRS, by Holman W. Jenkins, Jr.:

Ms. Mayer is now regarded as a failure because she didn’t levitate the stock, leading to an outpouring of news stories detailing her missed appointments, interest in haute couture and habit of speaking in riddles. Her real failing, though, was not getting lucky on any of her acquisitions, aimed at boosting Yahoo’s eyeball traffic and revenues. ...

Ms. Mayer now turns belatedly to the task of protecting Yahoo’s cash flows. This means cutting costs, shrinking payroll and implementing ruthlessness about which of Yahoo’s Web properties are worth continuing to invest in. This is the most taxing, grinding job that falls to CEOs. Never has it been a path to media lionization. It will be a more interesting (and realistic) test of Ms. Mayer’s CEO mettle, assuming she can hang on to her job.

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December 29, 2015 in Tax | Permalink | Comments (0)

The Problem With Hillary Clinton's Tax Plan: $250,000 A Year Is Not Middle Class

Hillary 2016New York Times op-ed:  $250,000 A Year Is Not Middle Class, by Bryce Covert (ThinkProgress):

Hillary Clinton has vowed not to raise taxes on the middle class.

It’s a pledge that has worked well for others on the campaign trail before her, a resonant assurance to voters who saw themselves as middle class or aspired to be. But it’s a bad promise.

Mrs. Clinton is using a definition of middle class that has long been popular among Democratic policy makers, from her husband to Barack Obama when he was a candidate: any household that makes $250,000 or less a year. Yet this definition is completely out of touch with reality. It also boxes her in.

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December 29, 2015 in Political News, Tax | Permalink | Comments (5)

Hellwig: The Constitutional Nature Of The U.S. Tax Court

Tax Court Logo 2Following up on Friday's post, Tax Extenders Bill Puts Tax Court In Constitutional Limbo:  see the discussion of the legislative history of the provision in Brant J. Hellwig (Dean, Washington & Lee), The Constitutional Nature of the United States Tax Court, 35 Va. Tax Rev. ___, ___ (2015) (blogged here):

Partially in response to the decision of the D.C. Circuit Court of Appeals in Kuretski, the Senate Finance Committee has cleared proposed legislation addressing a variety of procedural matters relating to the Tax Court. The final item of the proposed legislation provides for an amendment to the Tax Court’s chartering statute that is captioned as a “clarification relating to the United States Tax Court.” The proposed amendment would add a sentence at the end of section 7441 providing that “The Tax Court is not an agency of, and shall be independent of, the executive branch of the Government.”

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December 29, 2015 in Scholarship, Tax | Permalink | Comments (0)

Solove:  Guide To Grading Law School Exams

Check out Dan Solove's very funny Guide to Grading Exams, which endorses this tried-and-true method:

Guide

December 29, 2015 in Legal Education | Permalink | Comments (1)

Hemel:  Does Apple Have A 'Duty' To Minimize Taxes?

Apple LogoFollowing up on last week's post, Apple CEO Calls Overseas Tax Rap 'Political Crap':  University of Chicago Law Faculty Blog:  A "Duty" to Minimize Taxes?, by Daniel Hemel:

CNBC’s Jim Cramer came to the defense of Apple CEO Tim Cook yesterday, arguing that Apple’s CEO has a duty to minimize the company’s corporate tax liabilities. Cramer said on CNBC’s “Squawk on the Street”:

“One of the things I did take seriously when I was in law school was taxes. The main thing you learn is that tax avoidance is everybody’s . . . duty. You’re supposed to try to avoid.”

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December 29, 2015 in Tax | Permalink | Comments (1)

The Ethics Of Law Faculty Buyouts

Faculty BuyoutsJeff Redding (St. Louis), Revisiting Buyout Ethics:

I've written on this before, but even more so now than before, it’s buyout season in American legal academia.  While there are only a few law schools’ buyout programs which have been made public, many suspect that most law schools have tried to handle their declining enrollments, in part, by buying out tenured faculty.  For the most part, buyouts are handled confidentially, lending inscrutability to their parameters—and also their ethics.  In this post, I’d like to revisit this topic and suggest again some ethical queries that should be a part of the design of every law school’s buyout program.  The following set of queries is certainly not exhaustive;  I’m sure there’s many others that could be—and will be—raised!

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December 29, 2015 in Legal Education | Permalink | Comments (0)

Bluebook Seeks To Squelch Free Legal Citation Alternative: Does Harvard Own The Word 'Blue'?

Bluebook (20th edition)Following up on my previous post, Is The Bluebook Subject to Copyright Protection?:  Wall Street Journal Law Blog, ‘Bluebook’ Critics Incite Copyright Clash:

For close to a century "The Bluebook" has reigned as the “bible of legal citation," the guide that practicing lawyers, judges and law students turn to when they need to know the proper way to reference a case, a statute, book or article.

Now, a copyright clash is heating up between the Ivy League publishers of The Bluebook and legal activists who are preparing to post online what they describe as a simpler, free alternative to the manual’s punctilious precepts.

The latest turn came this month when open-records activist Carl Malamud tweeted about the coming release of “Baby Blue,” the name that he and his project partner New York University law professor Christopher Sprigman are calling their rival guide. ...

On Christmas Eve a consortium of four law reviews that publishes The Bluebook responded with a letter from a white-collar IP litigator [Peter M. Brody, Ropes & Gray] cautioning them about their plans.

TechDirt, Harvard Law Review Freaks Out, Sends Christmas Eve Threat Over Public Domain Citation Guide:

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December 29, 2015 in Legal Education | Permalink | Comments (4)

Louisville Law Prof Objects To 'Chinese Mind Control' Diversity Training

LouisvilleLouisville Courier-Journal op-ed:  U of L's Diversity Gone Awry, by Russell Weaver (Professor of Law and Distinguished University Scholar, Louisville):

A couple of years ago, the acting dean of the law school ordered all law faculty and staff to attend “diversity training” sponsored by the vice president for diversity. At that training, we were first asked to identify our religious preferences: Would everyone who is Catholic please stand up? Would everyone who is Jewish please stand up? Would everyone who is agnostic please stand up? Would everyone who is atheist please stand up? We were then asked to identify our sexual orientation. Would everyone who is gay please stand up? Would everyone who is a lesbian please stand up? We were asked then asked to stand if we were disabled.

The session was conducted like Chinese mind-control training. Before the first group was asked to stand up, we were instructed that we were expected to clap for each group, and we were told that polite clapping was simply insufficient. For each group, we were required to clap and affirm with a “woo-hoo” level of vigor. Thus, devout Catholics were required to go “woo-hoo” for agnostics and atheists, agnostics were required to do likewise for Catholics, and heterosexual individuals were required to go “woo-hoo” for gays and lesbians.

Group speak was the agenda of the day. Individuality and, indeed, diversity of thought were adamantly discouraged. ... Even more troubling, Brandeis law school’s acting dean and the vice president for diversity ordered students to undergo the same type of diversity training at orientation. ...

From faculty hiring to diversity training, the University of Louisville has veered badly off course in recent years. It is time for change.

Louisville Courier-Journal letter to the editor:  Why Air U of L Diversity Issues Publicly?, by Bruce Kleinschmidt (J.D. 1978, Louisville):

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December 29, 2015 in Legal Education | Permalink | Comments (11)

The IRS Scandal, Day 964

IRS Logo 2Robert W. Wood (Forbes), More Calls To Impeach IRS Chief Over Targeting, Bonuses, Obstruction:

Congress has kept the IRS in business with recent funding, including slight budget increases included in the Consolidated Appropriations Act. The IRS even got some specific mandates for fraud prevention and taxpayer service, two areas where Republicans claim work is needed. Yet the alleged use of the IRS as a political weapon, and the role its Chief John Koskinen had in that long running scandal, continues to grate on some Republicans.

On Christmas eve, Sen. Pat Roberts (R-KS) wrote in the Wall Street Journal that it’s time to hold the IRS accountable for unfairness, including new IRS moves to targets political donors. Recent appropriations of money for the IRS comes with conditions, such as prohibiting the IRS from issuing new rules on the political activities of Section 501(c)(4) organizations. There are even attempts to stop the White House from ordering the IRS to review tax exempt groups. But are these and other band aids on the IRS enough?

Not for Oversight Committee Chair Jason Chaffetz, R-Utah. He wants to continue pressure on IRS Commissioner John Koskinen, including impeachment. The resolution to impeach Commissioner Koskinen was introduced by Chairman Chaffetz (R-Utah) and 18 others. Months before, he and his colleagues wrote to President Obama requesting Koskinen’s removal. The resolution claims that the IRS chief violated the public trust. ...

As Sen. Pat Roberts (R-Kan.) put it, the Obama administration used the IRS as a political tool to actively work against conservative groups. Roberts claims that the IRS suppressed electoral activities of groups that did not agree with the Obama administration’s views. But now, any impeachment efforts against Koskinen are in the hands of the House Judiciary Committee, under the helm of Rep. Bob Goodlatte, R-Va.

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December 29, 2015 in IRS News, IRS Scandal, Tax | Permalink | Comments (3)

Monday, December 28, 2015

Hoffer & Walker:  The Tax Court And The Administrative State — Congress Responds To The D.C. Circuit

Hoffer & WalkerFollowing up on my previous posts (links below):  TaxProf Blog op-ed, The Tax Court and the Administrative State: Congress Responds to the D.C. Circuit’s Decision in Kuretski, by Stephanie Hoffer (Ohio State) & Christopher J. Walker (Ohio State):

Congress recently passed its annual “tax extender” legislation: the Protecting Americans from Tax Hikes Act of 2015 (PATH Act). Although the bulk of the PATH Act extends a variety of tax breaks, as Daniel Hemel notes over at the University of Chicago Law School Faculty Blog the last few pages of the more-than-two-hundred-page bill attempt to clarify the position of the United States Tax Court within the modern administrative state.

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December 28, 2015 in Congressional News, Tax | Permalink | Comments (0)

NY Times:  The Tax Sleuth Who Took Down A Drug Lord

Silk Road 2New York Times Deal Book, The Tax Sleuth Who Took Down a Drug Lord:

Gary L. Alford was running on adrenaline when he arrived for work on a Monday in June 2013, at the Drug Enforcement Administration office in the Chelsea neighborhood of Manhattan. A tax investigator, he had spent much of the weekend in the living room of his New Jersey townhouse, scrolling through arcane chat rooms and old blog posts, reading on well after his fiancée had gone to sleep.

The work had given Mr. Alford what he believed was the answer to a mystery that had confounded investigators for nearly two years: the identity of the mastermind behind the online drug bazaar known as Silk Road — a criminal known only by his screen name, Dread Pirate Roberts.

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December 28, 2015 in IRS News, Tax | Permalink | Comments (0)

Merritt:  Should Law Professors Know The Rules Of Professional Conduct?

MPREDeborah Jones Merritt (Ohio State), Should Law Professors Know the Rules of Professional Conduct?:

I graduated from law school before the ABA mandated courses in professional responsibility. I was also sworn into the bar before my jurisdiction required candidates to take the MPRE. As a judicial clerk and law firm associate, I knew a few of the most relevant (to my position) rules--but that wasn't many. For most of my tenure as a law professor, I ignored the rules; I figured they were the province of my colleagues who taught Professional Responsibility.

Then, when I waived into the Ohio bar a few years ago, I had to sign an affidavit swearing that I had read Ohio's rules. I don't like to lie, and I knew there must be a rule against that, so I spent a few days reading all of the rules and comments. Now I'm a convert: Every law professor should know her state's rules of professional conduct. In fact, I believe that every law professor (including those without law licenses) should (1) pass the MPRE and (2) participate regularly in workshops related to the rules of professional conduct. Why so? There are at least five reasons.

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December 28, 2015 in Legal Education | Permalink | Comments (9)

NY Times:  As Oil Money Melts, Alaska Mulls First Income Tax In 35 Years

Alaska (2015)New York Times, As Oil Money Melts, Alaska Mulls First Income Tax in 35 Years:

The governor, facing a profound fiscal crisis, has proposed the imposition of a personal income tax for the first time in 35 years. ... [A] state budget that was a point of Alaskan pride — and envy from around the nation — lies in tatters as revenue that flowed from selling crude oil from Prudhoe Bay over the past four decades has been swept away. With oil prices down along with oil production, the state is facing an Alaska-size shortfall: Two-thirds of the revenue needed to cover this year’s $5.2 billion state budget cannot be collected. ...

Mr. Walker’s recovery plan would take more from residents through the income tax and would give them less as well, by changing the formula under which the dividend is paid. The income tax would be 6 percent of the amount an Alaskan currently pays in federal taxes, so a person who owed $10,000 to the Internal Revenue Service would also need to write a $600 check to Alaska.

University of Chicago Law School Faculty Blog:  An Alaska Tax Puzzle, by Daniel Hemel:

On first glance, Walker’s plan seems like a rational response to the worldwide drop in petroleum prices, which has reduced revenues for the oil-dependent state. But when one considers the federal income tax consequences of Walker’s proposal, the logic becomes less clear.

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December 28, 2015 in Tax | Permalink | Comments (0)

A Harvard Medical School Professor Makes The Case For The Liberal Arts And Philosophy

Washington Post:  A Harvard Medical School Professor Makes the Case for the Liberal Arts and Philosophy, by David Silbersweig (Harvard Medical School):

Recently, when philosophy and America’s higher education system were devalued by Sen. Marco Rubio during the Republican presidential debate and in subsequent statements, my thoughts returned to my sophomore year at Dartmouth, when I went back to my childhood dentist during a school break.

In the chit-chat of the checkup, as I lay back in the chair with the suction tube in my mouth, he asked: “What are you majoring in at college?” When I replied that I was majoring in philosophy, he said: “What are you going to do with that?”

“Think,” I replied.

And what a continuously giving gift philosophy has been.

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December 28, 2015 in Legal Education | Permalink | Comments (4)

Hickman:  What Is The Tax Court? Congress Speaks.

Hickman 2014 2Following up on my previous posts (links below):  TaxProf Blog op-ed, What Is The Tax Court? Congress Speaks (or Attempts To, Arguably Unsuccessfully), by Kristin Hickman (Minnesota):

In the latest round in the Kuretski brouhaha, the new omnibus appropriations bill passed by Congress and signed by President Obama last week adds the following text to the Internal Revenue Code:

The Tax Court is not an agency of, and shall be independent of, the executive branch of the Government.

What does this amendment mean, and why does it matter—or not?

Exactly what the amendment really accomplishes is unclear.  The amendment arguably speaks to two ongoing conversations about the Tax Court.  One is constitutional, concerning separation of powers principles.  The second is statutory, addressing the interplay of the Internal Revenue Code and the Administrative Procedure Act.  In the end, however, the amendment offers little to resolve either one.

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December 28, 2015 in Congressional News, Tax | Permalink | Comments (0)

Hemel:  Taxes To Cause Vanguard Fund Fees To 'Quadruple'? Not So Fast.

VanguardFollowing up on last week's post, CBS News: Vanguard Investors, Your Fund Fees Could Quadruple If Michigan Tax Prof Reuven Avi-Yonah Is Right:  University of Chicago Law Faculty Blog:  Vanguard Fund Fees To "Quadruple"? (Not So Fast), by Daniel Hemel:

There is no plausible scenario in which tax law would require Vanguard to quadruple its fees. If the IRS chooses to enforce transfer pricing rules against Vanguard, the mutual fund company may have to increase its fees modestly—but nowhere close to the “quadrupling” suggested by media reports. ...

Professor Avi-Yonah expands on this argument in his article and in an expert report submitted to the IRS and SEC in connection with Danon’s whistleblower submission. Avi-Yonah’s basic logic strikes me as sound. VGI should be reporting income as if it were receiving arm’s length prices from Vanguard mutual funds. If it’s not, then VGI is underpaying the IRS and state tax authorities.

The harder question is: by how much is Vanguard underreporting its taxable income?

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December 28, 2015 in Tax | Permalink | Comments (3)

Chronicle:  At Harvard Law School, A Sex-Assault Case That Won't Go Away

HHChronicle of Higher Education, At Harvard Law, a Sex-Assault Case That Won't Go Away:

Nearly five years ago Kamilah Willingham, then a student at Harvard Law School, told university officials that a fellow student, Brandon Winston, had sexually assaulted her and a friend. Since then the case has been adjudicated several times, through both criminal and campus proceedings, and both parties have indicated that they are trying to move on. Ms. Willingham, who graduated in 2011, now works at a women’s law center; Mr. Winston, who was convicted of a misdemeanor charge but not of sexual assault, re-enrolled at Harvard this fall for his final year of school.

But the alleged assaults against the two women, which occurred after an evening of drinking in January 2011, continue to haunt Ms. Willingham, Mr. Winston, and the university. A continuing debate over the public’s perception of what happened that night has again flared up. And many law-school professors have joined in, raising a new round of questions about the university’s past and future handling of sexual-assault complaints.

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December 28, 2015 in Legal Education | Permalink | Comments (0)

The IRS Scandal, Day 963

IRS Logo 2Your News Now, Sen. Portman's Bill Would Give Americans More Power When Dealing With IRS:

Ohio Senator Rob Portman has introduced legislation that would give Americans more power when dealing with the Internal Revenue Service.

Senator Portman says the IRS scandal that unfolded following the 2012 election, caused him to consider the proposal.  Several conservative  groups alleged the IRS used its powers against them, making it difficult to organize and achieve tax exempt status.

IRS officials then claimed to have lost e-mails and other documentation in a subsequent investigation. Portman says the "Taxpayer Bill of Rights" would help address IRS abuse and ensure that federal employees at the IRS can be punished if found to have misused their power.

Portman's bill would allow for termination of any IRS employee caught injecting politics into IRS decisions. One IRS official, Lois Lerner, resigned from the IRS following the e-mail scandal.

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December 28, 2015 in IRS News, IRS Scandal, Tax | Permalink | Comments (1)

TaxProf Blog Holiday Weekend Roundup

Sunday, December 27, 2015

NY Times: The 2-Year J.D. Fails To Take Off

NY Times Dealbook (2013)New York Times Deal Book:  The 2-Year Law Education Fails to Take Off, by Elizabeth Olson:

A quicker, cheaper law degree — which got a major vote of confidence when President Obama, a lawyer and former law professor, unexpectedly endorsed it in August 2013 — has been widely promoted as an ideal way to slash growing student debt and give beginning lawyers a leg up in a difficult job market.

But one of the most visible experiments, the two-year law degree, has foundered so far. The only elite school to adopt it, the Northwestern University Pritzker School of Law, this fall ended its accelerated two-year juris doctor program after it failed to attract enough applicants.

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December 27, 2015 in Legal Education | Permalink | Comments (1)