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Pepperdine University School of Law

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Sunday, August 31, 2014

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 on SSRN, with a new paper debuting on the list at #3.  The #1 paper is now #22 in all-time downloads among 10,264 tax papers:

  1. [2722 Downloads]  'Competitiveness' Has Nothing to Do with it, by Edward D. Kleinbard (USC)
  2. [467 Downloads]  Guide to FATCA Compliance (Chapter 1, Background and Current Status of FATCA) (LexisNexis 2d ed. 2014), by William Byrnes (Thomas Jefferson), Denis Kleinfeld, & Alberto Gil Soriano
  3. [311 Downloads]  2013 Developments in Connecticut Estate and Probate Law, by Jeffrey A. Cooper (Quinnipiac) & John R. Ivimey (Reid and Riege, Hartford)
  4. [181 Downloads]  The Futility of Tax Protester Arguments, by Allen D. Madison (South Dakota)
  5. [153 Downloads]  The Most Critical Issue Facing Tax Administration Today -- And What to Do About It, by George K. Yin (Virginia)

August 31, 2014 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, August 29, 2014

Weekly SSRN Tax Roundup

August 29, 2014 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Mehrotra: The Intellectual Roots of An Economic Interpretation of the Constitution

Ajay K. Mehrotra (Indiana), Charles A. Beard & The Columbia School of Political Economy: Revisiting the Intellectual Roots of the Beardian Thesis, 29 Const. Comment. 475 (2014):

BeardA century after it was first published, Charles A. Beard’s An Economic Interpretation of the Constitution remains a significant and controversial part of constitutional scholarship and history. Just as Beard sought to historicize the Founders as they drafted and adopted the Constitution, this article attempts to historicize Beard as he researched and wrote his classic text on the Constitution. Because Beard was both a graduate student and professor at Columbia University before and while he researched and wrote his book, this article explores the particular influence that Columbia University’s institutional and intellectual climate may have had on Beard and the writing of An Economic Interpretation of the Constitution.

This article contends that Charles Beard was the product of a unique Columbia tradition of inductive, proto-institutionalist research in political economy – a tradition that at its core sought to meld serious political and historical scholarship with progressive social activism. Yet, in many ways, Columbia’s influence on Beard was more reinforcing than it was revolutionary. Columbia, in other words, facilitated an evolution rather than a dramatic transformation in Beard’s thinking. His time at Columbia provided him with new scholarly perspectives and research methods, but ultimately these new views heightened his innate tension between scholarly objectivity and political advocacy, between his belief in social scientific research and his desires for social democratic reform. In short, Beard’s time at Columbia, as both a student and junior scholar, refined his personal predilections and his early upbringing and education, rather than radically converting him into a new thinker and writer.

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August 29, 2014 in Book Club, Scholarship, Tax | Permalink | Comments (0)

Thursday, August 28, 2014

Marian: Home-Country Effects of Corporate Inversions

Omri Y. Marian (Florida), Home-Country Effects of Corporate Inversions, 90 Wash. L. Rev. ___ (2015):

This article develops a framework for the study of the unique effects of corporate inversions (meaning, a change in corporate-residence for tax purposes) in the jurisdictions from which corporations invert (“home jurisdictions”). Currently, empirical literature on corporate inversions overstates its policy implications. It is frequently argued that in response to an uncompetitive tax environment, corporations may relocate their headquarters for tax purposes, which, in turn, may result in the loss positive economic attributes in the home jurisdiction (such as capital expenditures, R&D activity, and high-quality jobs). The association of tax-residence relocation with the dislocation of meaningful economic attributes, however, is not empirically-supported and is theoretically-tenuous. The article uses case studies to fill this gap. Based on observed factors, the article develops grounded propositions that may describe the meaningful effects of inversions in home jurisdictions. Such propositions may guide future empirical research aimed at identifying the meaningful effects of inversions. The case studies suggest that whether tax-relocation is associated with the dislocation of meaningful economic attributes in home-jurisdictions is a highly contextualized question. It seems, however, that inversions are more likely to be associated with dislocation of meaningful attributes when non-tax factors support the decision to invert.

August 28, 2014 in Scholarship, Tax | Permalink | Comments (0)

Brunson: The Taxation of Mutual Funds

Samuel D. Brunson (Loyola-Chicago), The Taxation of RICs: Replicating Portfolio Investment or Eliminating Double Taxation?:

Mutual FundsMutual funds and other regulated investment companies currently occupy a central space in American households’ financial lives. Is spite of their near-ubiquity, though, regulated investment companies occupy a strange tax limbo as quasi-pass-through entities, neither fully taxable nor fully tax-transparent. To qualify for this quasi-pass-through status, regulated investment companies must, among other things, distribute the bulk of their income to shareholders annually.

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August 28, 2014 in Scholarship, Tax | Permalink | Comments (1)

Vann: The Policy Underpinnings of BEPS

Richard J. Vann (Sydney), Policy Forum: The Policy Underpinnings of the BEPS Project-Preserving the International Corporate Income Tax?, 62 Canadian Tax J. 433 (2014):

BEPSThe OECD/G20 Action Plan on Base Erosion and Profit Shifting (BEPS) is receiving significant attention from taxpayers and national governments. Because the action plan is about action, it contains little discussion of the tax policy questions involved. One of the less-noticed aspects of the plan is action 11. From its heading and most of its content, action 11 seems to be largely about collecting data on BEPS, but it also involves the underlying policy. That is perhaps not surprising, since there is an inherent contradiction between the action plan and much of the policy work on corporate taxation undertaken by the OECD over the last 25 years. This article discusses the policy conflict and make the case for a more balanced view of the international corporate income tax.

August 28, 2014 in Scholarship, Tax | Permalink | Comments (0)

Wednesday, August 27, 2014

SSRN Tax Professor Rankings

SSRN LogoSSRN has updated its monthly rankings of 944 American and international law school faculties and 3,000 law professors by (among other things) the number of paper downloads from the SSRN database.  Here is the new list (through August 1, 2014) of the Top 25 U.S. Tax Professors in two of the SSRN categories: all-time downloads and recent downloads (within the past 12 months):

 

 

All-Time

 

Recent

1

Reuven Avi-Yonah (Mich.)

39,751

Reuven Avi-Yonah (Mich.)

6758

2

Paul Caron (Pepperdine)

26,455

Richard Ainsworth (BU)

2727

3

Louis Kaplow (Harvard)

22,821

Paul Caron (Pepperdine)

2672

4

D. Dharmapala (Chicago)

20,152

D.Dharmapala (Chicago) 

2537

5

Vic Fleischer (San Diego)

20,011

Richard Kaplan (Illinois)

1986

6

James Hines (Michigan)

19,710

Bridget Crawford (Pace)

1917

7

Ted Seto (Loyola-L.A.)

19,094

Omri Marian (Florida)

1868

8

Richard Kaplan (Illinois)

18,976

Katie Pratt (Loyola-L.A.)

1841

9

Katie Pratt (Loyola-L.A.)

16,044

Robert Sitkoff (Harvard)

1802

10

Dennis Ventry (UC-Davis)

15,375

Ed Kleinbard (USC)

1708

11

Carter Bishop (Suffolk)

15,025

Brad Borden (Brooklyn)

1596

12

Jen Kowal (Loyola-L.A.)

14,304

Jen Kowal (Loyola-L.A.)

1585

13

David Weisbach (Chicago)

14,244

Dick Harvey (Villanova)

1482

14

Chris Sanchirico (Penn)

14,190

Louis Kaplow (Harvard)

1474

15

David Walker (BU)

13,911

Jeff Kwall (Loyola-Chicago)

1448

16

Richard Ainsworth (BU)

13,907

James Hines (Michigan)

1436

17

Francine Lipman (UNLV)

13,819

Francine Lipman (UNLV)

1352

18

Bridget Crawford (Pace)

13,794

Ted Seto (Loyola-L.A.)

1338

19

Robert Sitkoff (Harvard)

13,744

Dan Shaviro (NYU)

1337

20

Brad Borden (Brooklyn)

13,725

David Gamage (UCBerkeley)

1330

21

Ed Kleinbard (USC)

12,950

Vic Fleischer (San Diego)

1268

22

Herwig Schlunk (Vanderbilt)

12,479

Carter Bishop (Suffolk)

1251

23

Dan Shaviro (NYU)

12,023

Dan Simmons (UC-Davis)

1248

24

Ed McCaffery (USC)

11,724

Brian Galle (Boston College)

1190

25

Wendy Gerzog (Baltimore)

11,715

David Weisbach (Chicago)

1179

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

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August 27, 2014 in Legal Education, Scholarship, Tax, Tax Prof Rankings | Permalink | Comments (0)

Tuesday, August 26, 2014

Rethinking the Temporary Taxation Debate

Frank Fagan (Erasmus University Rotterdam), The Fiscal Cliff as Reelection Strategy: Rethinking the Temporary Taxation Debate, 116 W. Va. L. Rev. 783 (2014):

Recent scholarship [Rebecca Kysar, Lasting Legislation, 159 U. Pa. L. Rev. 1007 (2011); Frank Fagan & Michael Faure, The Role of Lawmakers, Lobbyists, and Interest Groups in the Normative Evaluation of Timing Rules, 160 U. Pa. L. Rev. PENNumbra 61 (2011)] contends that temporary tax provisions are socially costly because they increase rent-seeking activity and create uncertain investment environments. This Article challenges that view, and shows that, while temporary tax provisions may increase rent-seeking activity, such activity is not always socially costly; and while temporary tax provisions may create uncertain investment environments, such environments are not always unfavorable for private investors. The real problem with temporary tax provisions, simply put, is that legislators use them to win reelection and externalize a number of costs in the process.

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August 26, 2014 in Scholarship, Tax | Permalink | Comments (0)

Call for Tax Papers and Panels: Law & Society Annual Meeting

SeattleNeil H. Buchanan (George Washington) has issued his annual call for tax papers and panels for next year's annual meeting of the Law & Society Association in Seattle (May 28-31, 2015):

For the eleventh consecutive year, I will organize sessions for the the Law, Society, and Taxation group (Collaborative Research Network 31).

Although there is an official call for papers, please remember that you are not bound by the official theme of the conference.  I will give full consideration to proposals in any area of tax law, tax policy, distributive justice, interdisciplinary approaches to tax issues, and so on.

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August 26, 2014 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Sunday, August 24, 2014

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 on SSRN, with a new paper debuting on the list at #1 and rocketing to #29 in all-time downloads among 10,253 tax papers:

  1. [2446 Downloads]  'Competitiveness' Has Nothing to Do with it, by Edward D. Kleinbard (USC)
  2. [409 Downloads]  Guide to FATCA Compliance (Chapter 1, Background and Current Status of FATCA) (LexisNexis 2d ed. 2014), by William Byrnes (Thomas Jefferson), Denis Kleinfeld, & Alberto Gil Soriano
  3. [216 Downloads]  Unconstitutional Perpetual Trusts, by Steven Horowitz (Sidley Austin, Chicago) & Robert Sitkoff (Harvard)
  4. [166 Downloads]  The Futility of Tax Protester Arguments, by Allen D. Madison (South Dakota)
  5. [142 Downloads]  The Most Critical Issue Facing Tax Administration Today -- And What to Do About It, by George K. Yin (Virginia)

August 24, 2014 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, August 22, 2014

Weekly SSRN Tax Roundup

August 22, 2014 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Weekly Legal Education Roundup

Weekly Student Tax Note Roundup

Faculty Development, Faculty Incentives, and Law School Innovation

Stephen Daniels (American Bar Foundation), William M. Sullivan (Denver) & Martin Katz (Dean, Denver), Analyzing Carnegie's Reach: The Contingent Nature of Innovation, 63 J. Legal Educ. 585 (2014):

Our interest is curricular innovation, with a focus on the recommendations of the 2007 Carnegie report – Educating Lawyers. Recognizing that meaningful reform requires an institutional commitment, our interest also includes initiatives in the areas of faculty development and faculty incentive structure that would support curricular innovation. Additionally, we are curious as to what might explain change and whether certain school characteristics will do so or whether external factors that challenge legal education offer an explanation. To explore these issues we surveyed law schools (a 60.5% response rate). The results show that while there is much activity in the area of curriculum – including the key matters of lawyering, professionalism, and especially integration – there is much less in the important areas of faculty development and faculty incentive structure. School characteristics, including rank, do not provide a sufficient explanation for the patterns emerging from the survey’s results. Additionally, activity by law schools with regard to curriculum, faculty development, and faculty professional activity is not simply a response to external challenges either. However, it appears that those pressures are providing a potential window of opportunity for innovation, reinforcing the need for change, and accelerating its pace.

Table 2

August 22, 2014 in Legal Education, Scholarship | Permalink | Comments (0)

Thursday, August 21, 2014

Measuring Merit: The Shultz-Zedeck Research on Law School Admissions

Kristen Holmquist, Marjorie Shultz, Sheldon Zedeck & David Oppenheimer (all of UC-Berkeley), Measuring Merit: The Shultz-Zedeck Research on Law School Admissions, 63 J. Legal Educ. 565 (2014):

Law schools profess a commitment to racial diversity both for the educational benefits diversity confers and for its contribution to the profession. But they admit students based on standards that, while not discriminatory in a legal sense, undeniably favor white applicants. Today the question of who belongs in any given law school, or law school at all, turns almost exclusively on an applicant’s score on the Law School Admission Test (LSAT). Law schools are not blind to the racial impact that accompanies this narrow measure of merit. But rather than taking a hard look at whether legal educators have adequately, or accurately, identified what qualities best qualify students for law school, the admissions process largely relies on affirmative action to ameliorate the current process's negative effects. That approach is imperfect for a whole host of reasons, not least of which is that affirmative action’s legal use in higher education may be about to end. Should race-conscious admissions practices be banned, every law school that truly values diversity will have to explore race-neutral means of achieving it. The good news is that research conducted by Marjorie Shultz and Sheldon Zedeck suggests that this is possible -- that qualities relevant to effective lawyering can be defined and predicted without recreating the LSAT's disparate impact [Predicting Lawyer Effectiveness -- A New Assessment for Use in Law School Admission Decisions]. This essay describes that research and the promise that it holds for improved, race-neutral, admissions processes.

August 21, 2014 in Legal Education, Scholarship | Permalink | Comments (0)

Tuesday, August 19, 2014

Perkins: Salience and Sin -- Designing Taxes in the New Sin Era

Rachelle Holmes Perkins (George Mason), Salience and Sin: Designing Taxes in the New Sin Era, 2014 BYU L. Rev. 143 (2014):

Tax salience reflects the extent to which consumers take into account the after-tax cost of a good or service prior to making their consumption decision. Recent empirical work on tax salience has revealed something that is perhaps intuitive, but nevertheless important to the design of sin taxes. Taxpayers are more likely to make consumption decisions based on pre-tax rather than post-tax prices when the salience, or visibility, of a tax is diminished. Thus, consumers are less likely to change their demand for a particular product if shelf prices are tax-exclusive rather than tax-inclusive. Economically, this makes low salience taxes mimic some of the benefits of taxes on inelastically demanded goods. Because a taxpayer’s demand change in response to a tax increase is diminished, the deadweight loss generated by the imposition of the tax can be reduced. Notwithstanding the potential for efficiency gains, politicians and academics alike have expressed various fairness, distributional, and normative concerns regarding the use of low salience taxes. In fact, a number of countries already require tax-inclusive pricing for consumer products in order to purportedly preserve consumer awareness and transparency.

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August 19, 2014 in Scholarship, Tax | Permalink | Comments (1)

Johnston: Kinder Morgan’s Evolving Tax Strategy

Tax Analysys Logo (2013)David Cay Johnston (Syracuse), Kinder Morgan’s Evolving Tax Strategy, 144 Tax Notes 881 (Aug. 18, 2014):

Johnston looks at Kinder Morgan’s recent announcement that it would be folding two master limited partnerships into a C corporation holding company.

August 19, 2014 in Scholarship, Tax, Tax Analysts | Permalink | Comments (0)

Monday, August 18, 2014

Ajay Mehrotra's Making the Modern American Fiscal State Wins 2014 U.S. Intellectual History Book Award

Ajay2014 Society for U.S. Intellectual History Book Award Winner:

We are pleased to announce our selection of Ajay K. Mehrotra’s Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877-1929 (Cambridge University Press, 2013) as this year’s winner of the S-USIH annual book award for 2014.

Mehrotra’s important and ambitious book chronicles the early 20th-century transformation in American tax policy and public finance. It analyzes the shift from the nineteenth-century “regime of indirect, hidden, partisan, and regressive taxes” to the “direct, transparent, professionally administered, and progressive tax system” we know today. A book on taxation may well seem a curious choice for an intellectual history prize, but we were struck by how successfully Mehrotra weaves together the intellectual, legal, administrative threads of his argument. Mehrotra takes ideas seriously. He traces legal and administrative change to a prior “conceptual revolution,” wrought primarily by a cohort of professionally trained intellectuals, including Henry Carter Adams, Richard Ely, and Edwin R.A. Seligman. And he shows how notions of economic justice, political obligation, ethical duty, and democratic reciprocity underwrote the new progressive conception of what Mehrotra aptly labels “fiscal citizenship.” He also shows what happened to those ideas as they traveled through a contested political process and were embodied in a complex administrative apparatus with paradoxical and often unintended consequences. Mehrotra’s book is thus a history of ideas in action. It makes a signal contribution to the field by demonstrating how even the most seemingly mundane features of our world have strikingly rich intellectual histories.

August 18, 2014 in Book Club, Scholarship, Tax | Permalink | Comments (0)

Financial Times Offers $25k Prize for Business Book of the Year

FTThe Bracken Bower Prize:

The Financial Times and McKinsey & Company, organisers of the Business Book of the Year Award, want to encourage young authors to tackle emerging business themes. They hope to unearth new talent and encourage writers to research ideas that could fill future business books of the year. A prize of £15,000 [$25,000] will be given for the best book proposal. ...

The inaugural prize will be awarded to the best proposal for a book about the challenges and opportunities of growth. The main theme of the proposed work should be forward-looking. In the spirit of the Business Book of the Year, the proposed book should aim to provide a compelling and enjoyable insight into future trends in business, economics, finance or management. The judges will favour authors who write with knowledge, creativity, originality and style and whose proposed books promise to break new ground, or examine pressing business challenges in original ways. Only writers who are under 35 on November 11 2014 (the day the prize will be awarded) are eligible.

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August 18, 2014 in Scholarship, Tax | Permalink | Comments (0)

WSJ: Meet the Law Professor Who’s Crashing the Inversion Party

Following up on my previous posts (here and here):  Wall Street Journal, Meet the Law Professor Who’s Crashing the Inversion Party:

ShayHarvard Law School professor Stephen Shay may have single-handedly crashed the corporate inversion party.

The U.S. Treasury Department has in recent days begun weighing how it could use its power to write regulations that would eliminate some of the key economic benefits U.S. corporations get when they acquire a non-U.S. company.

Mr. Shay, who served for seven years in the Treasury during two different administrations and spent 22 years as a tax partner at Ropes & Gray LLP, appeared to be the first person to make the government aware of its powers to crack down on the advantageous tax treatment of inversions in an article published on July 29, 2014 in Tax Notes, a publication closely followed by tax professionals.

“I just started asking the question, ‘What could be done with regulation rather than legislation’,” Mr. Shay said in an interview.

His answers — in the article entitled Mr. Secretary, Take the Tax Juice Out of Corporate Expatriations — have sent chills through corporate boardrooms and the law firms that have been profiting off the recent merger mania.

August 18, 2014 in Legal Education, Scholarship, Tax | Permalink | Comments (1)

Sunday, August 17, 2014

Top 5 Tax Paper Downloads

SSRN LogoThere is quite a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads on SSRN, with a new #1 paper and new papers debuting on the list at #4 and #5:

  1. [370 Downloads]  Guide to FATCA Compliance (Chapter 1, Background and Current Status of FATCA) (LexisNexis 2d ed. 2014), by William Byrnes (Thomas Jefferson), Denis Kleinfeld, & Alberto Gil Soriano
  2. [228 Downloads]  Desperate Retirees: The Perplexing Challenge of Covering Retirement Health Care Costs in a YOYO World, by Richard L. Kaplan (Illinois)
  3. [203 Downloads]  Unconstitutional Perpetual Trusts, by Steven Horowitz (Sidley Austin, Chicago) & Robert Sitkoff (Harvard)
  4. [153 Downloads]  The Futility of Tax Protestor Arguments, by Allen D. Madison (South Dakota)
  5. [128 Downloads]  The Most Critical Issue Facing Tax Administration Today -- And What to Do About It, by George K. Yin (Virginia)

August 17, 2014 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, August 15, 2014

Is Legal Scholarship Politically Biased?

Adam S. Chilton (Chicago) & Eric A. Posner (Chicago), An Empirical Study of Political Bias in Legal Scholarship:

Law professors routinely accuse each other of making politically biased arguments in their scholarship. They have also helped produce a large empirical literature on judicial behavior that has found that judicial opinions sometimes reflect the ideological biases of the judges who join them. Yet no one has used statistical methods to test the parallel hypothesis that legal scholarship reflects the political biases of law professors. This paper provides the results of such a test. We find that, at a statistically significant level, law professors at elite law schools who make donations to Democratic political candidates write liberal scholarship, and law professors who make donations to Republican political candidates write conservative scholarship. These findings raise questions about standards of objectivity in legal scholarship.

Figure 3

Professors who are Democrats (adjusted)—shown in the left panel—have an average article ideology of -2.67 with a 90% confidence interval of -3.13 to -2.21. Using a t-test, we can say that this is statistically different from zero (p-value < 0.00). Professors who are Republicans (adjusted)—shown in the right panel—have an average article ideology of 0.17 with a 90% confidence interval of -0.72 to 1.10. For these professors, we cannot reject the possibility that the true net ideology of their articles is zero (p-value = 0.72). In other words, our data suggest that Democrats in our sample do not write articles that are on balance neutral, but that Republicans in our sample may write articles that are on balance neutral. ...

[I]f it is in fact the case that Republicans write less ideologically biased scholarship than Democrats do, then one would naturally ask why. The most plausible explanation is that if the dominant ethos in the top law schools is liberal or left-wing,51 then Republicans are likely to conceal their ideological views in their writings. Republican professors might fear that scholarship that appears conservative may be rejected by leftleaning law review editors, and disparaged or ignored by their colleagues, which will damage their chances for promotions, research money, and lateral appointments. This would explain why even nondonors tilt left. Republicans could suppress their ideological views by avoiding controversial topics, taking refuge in fields that have little ideological valence, focusing on empirical or analytical work, or simply writing things that they don’t believe.

Table 4

The data presented in Table 4 suggest that constitutional rights scholars are less ideologically diverse than other legal scholars. Among constitutional rights scholars, 77% are net Democratic donors, and 4% are net Republican donors. In the rest of the sample, 40% are net Democratic donors, and 20% are net Republican donors. It also shows that constitutional rights scholars are more likely to produce biased research (mean of -3.85 conservative articles) than Republican and Democratic scholars in other fields (mean of -1.35 conservative articles).

August 15, 2014 in Legal Education, Scholarship | Permalink | Comments (3)

Weekly SSRN Tax Roundup

Weekly Student Tax Note Roundup

Johnson: Repealing the Tax Subsidies to Qualified Retirement Plans

Tax Analysys Logo (2013)Calvin H. Johnson (Texas),  Amazing Waste: Tax Subsidies To Qualified Retirement Plans, 144 Tax Notes 727 (Aug. 11, 2014):

The proposal would repeal the tax advantages given to qualified retirement plans. Qualified plans are ineffective or counterproductive for their given rationales, which makes them a rich source of revenue when the United States needs money. Johnson argues that qualified plans provide a safety net where there is little need for it and provide no safety net where it is needed. Qualified plans are said to improve the value of a dollar by moving it from high-income working years to low-income retirement years. However, the tax advantages are distributed under a reverse-Robin Hood pattern to high income groups (many with soaring salaries) and by negating the tax brackets. That distribution of benefits can be expected to reduce the utility of a dollar. Qualified plans are said to be an incentive for savings, but when government cost and deficits are considered, the plans reduce net national savings. It would be cost free and effective to increase retirement savings by mandating savings for retirement or by imposing default rules without a tax subsidy.

August 15, 2014 in Scholarship, Tax, Tax Analysts | Permalink | Comments (1)

Thursday, August 14, 2014

Ryznar: Incentivizing Parental Support for College Tuition through the Tax Code

Margaret Ryznar (Indiana-Indianapolis), Incentivizing Parental Support for College Tuition through the Tax Code, 2013 Mich. St. L. Rev. ___:

University tuition costs continue to increase, while education continues to be important. Efforts to alleviate this problem must be undertaken carefully as to not simply aggravate the problem. To this end, this Article proposes that parental contribution towards university tuition be treated more favorably by the tax code, and in particular, be treated as tax deductible. Universities already expect parental contributions as part of a child’s financial aid package, and this proposed tax deduction may help fulfill that expectation. Furthermore, this proposed deduction would spare students some reliance on the loan system, including the risk of default. This proposed deduction, finally, may be structured in a cost-neutral way. Specifically, the funds used for this deduction would be the taxpayer funds saved from the decrease in loan defaults and loan interest subsidies, which currently cost tens of billions of tax dollars.

August 14, 2014 in Scholarship, Tax | Permalink | Comments (0)

Wednesday, August 13, 2014

Colinvaux: Political Activity Limits and Tax Exemption

Roger Colinvaux (Catholic), Political Activity Limits and Tax Exemption: A Gordian's Knot, 33 Va. Tax Rev. ___ (2014):

The article considers the correct tax treatment of political activity by the tax system and discusses the problems that have arisen from political activity depending on whether the organization is a charity, a noncharitable exempt, or a political organization. The article then examines administrative and legislative options to the problems raised by political activity. Quantum-based solutions to the problem of political activity by noncharitable exempts do not provide a clear advantage over present law. Formally quantifying the “primarily” test would result in more certainty, but would also require that the Service be more, not less, involved in the regulation of political activity. If the policy goal is to curb political activity by noncharitable exempts, changing the test from “primarily” to something more restrictive like “substantially” or “exclusively” would be effective, but would create new categories of taxable nonprofits that are treated worse than political organizations for engaging in less political activity, which is irrational. Further, it is not clear, especially after the Citizens United decision, why as a matter of tax exemption the regulations decree that political activity may not further noncharitable exempt purposes. Before Citizens United, the political activity limits were not especially relevant, but at least helped to differentiate organization types. However, Citizens United largely rendered existing tax law limitations obsolete by making a new kind of multi-purpose organization possible. As a result, definitional political activity limits are no longer justified and should be eliminated, but only if the 527(f) tax on investment income remains vital and the differences in the disclosure regimes between political organizations and noncharitable exempts are erased. In addition, Congress should affirm that the gift tax does not apply with respect to political contributions, but also extend the income tax to transfers of appreciated property to noncharitable exempts. Further, Congress should acknowledge that the increase in political speech by noncharitable exempts will lead to abuse of charitable organizations, and take steps to prevent the laundering of independent expenditures through the charitable form. Congress also should recognize that Citizens United has led to a need to develop a new tax baseline for political activity conducted “for profit” or outside of section 527.

August 13, 2014 in Scholarship, Tax | Permalink | Comments (0)

Tuesday, August 12, 2014

Walker Reviews Hickman's Administering the Tax System We Have

JotwellChristopher Walker (Ohio State), Taking Administrative Law to Tax Exceptionalism (Jotwell), reviewing Kristin Hickman (Minnesota), Administering the Tax System We Have, 63 Duke L.J. 1717 (2014):

I’ll focus on the Duke Law Journal’s Taking Administrative Law to Tax Symposium, which was published in May. There is a lot to like about this symposium, starting with a refreshingly succinct foreword from Andy Grewal and followed by articles from Ellen Aprill, Bryan Camp, Kristin Hickman, Steve Johnson, Leandra Lederman, and Lawrence Zelenak. [Video of the symposium is available here, and the written issue is here.]

As the title suggests, the symposium focuses on tax exceptionalism, or “tax myopia” as Paul Caron coined the phenomenon two decades ago [Tax Myopia, or Mamas Don't Let Your Babies Grow Up to be Tax Lawyers, 13 Va. Tax Rev. 517 (1994)]. Tax exceptionalism is the misperception that tax law is so different from the rest of the regulatory state such that general administrative law principles do not apply. But tax exceptionalism is dying—something my tax colleague Stephanie Hoffer and I document in a forthcoming article on the Tax Court and the Administrative Procedure Act (“APA”). In Mayo Foundation v. United States, for instance, the Supreme Court refused to apply a standard less deferential than Chevron to the Treasury Department’s interpretation of the tax code, noting that it was “not inclined to carve out an approach to administrative review good for tax law only.” That same year (2011), in Cohen v. United States, the D.C. Circuit held that the judicial review provisions of the APA apply to IRS notices: “The IRS is not special in this regard; no exception exists shielding it—unlike the rest of the Federal Government—from suit under the APA.”

It is thus only fitting that Professor Hickman contributed to the symposium. After all, as a scholar at the intersection of administrative law and tax, she has spent nearly a decade calling for the reconsideration of tax exceptionalism.

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August 12, 2014 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Benshalom: Mechanisms to Promote Global Wealth Redistribution

Ilan Benshalom (Hebrew University of Jerusalem, Faculty of Law), How to Redistribute? A Critical Examination of Mechanisms to Promote Global Wealth Redistribution, 64 U. Toronto L.J. 317 (2014):

The literature on global redistributive justice deals primarily with the important, yet unresolved issues of why global wealth redistribution may be morally justified or beneficial. However, philosophers and economists who address these issues often do not address the question of how such redistribution should take place. This article seeks to rectify this deficiency and argues that, if a certain level of global wealth distribution is morally justified and, more importantly, beneficial, the question of how it should be promoted is far from trivial. In this context, the analysis opens a new discussion of what form of redistributive measures should be adopted in a multistate reality.

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August 12, 2014 in Scholarship, Tax | Permalink | Comments (0)

Zelinsky: Wynne and the Double Taxation of Dual Residents

Tax Analysys Logo (2013)Edward A. Zelinsky (Cardozo), Wynne and the Double Taxation of Dual Residents, 73 State Tax Notes 259 (July 28, 2014):

Zelinsky discusses Maryland State Comptroller of the Treasury v. Wynne [431 Md. 147 (2013), cert. granted (May 27, 2014)]. He writes that the U.S. Supreme Court should decide the case narrowly and in a way that does not prevent it from ruling later that the dormant commerce clause requires tax credits to abate the double taxation of individuals who are residents of two or more states but lack the ability to vote in a state that taxes them as residents on their worldwide income.

August 12, 2014 in Scholarship, Tax, Tax Analysts | Permalink | Comments (0)

Monday, August 11, 2014

Virginia Tax Review Publishes New Issue

Virginia Tax Review 2The Virginia Tax Review has published Vol. 33, No. 3 (Winter 2014):

August 11, 2014 in Scholarship, Tax | Permalink | Comments (0)

Schler: International Mismatches on Hybrid Instruments

Tax Analysys Logo (2013)Michael L. Schler (Cravath, New York), OECD vs. D/NI: International Mismatches on Hybrid Instruments, 75 Tax Notes Int'l 485 (Aug. 11, 2014):

Michael L. Schler discusses technical and policy issues, as well as unexpected results, that arise under the OECD's proposals to eliminate mismatches of income and deduction resulting from hybrid instruments.

August 11, 2014 in Scholarship, Tax, Tax Analysts | Permalink | Comments (0)

Sunday, August 10, 2014

Byrnes: Charity and the Jurisprudential Lessons from History

William Byrnes IV (Thomas Jefferson), The Development of Charity: Jurisprudential Lessons from History:

This article describes the ancient legal practices, codified in Biblical law and later rabbinical commentary, to protect the needy. The ancient Hebrews were the first civilization to establish a charitable framework for the caretaking of the populace. The Hebrews developed a complex and comprehensive system of charity to protect the needy and vulnerable. These anti-poverty measures, including regulation of agriculture, loans, working conditions, and customs for sharing at feasts, were a significant development in the jurisprudence of charity.

The article begins with a brief history of ancient civilizations, providing context for the development of charity by exploring the living conditions of the poor. The second half of the article provides a searching analysis of the rabbinic jurisprudence that established the jurisprudence of charity. This ancient jurisprudence is the root of the American modern philanthropic idea of charitable giving exemplified by modern equivalent provisions in the United States Tax Code.

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August 10, 2014 in Scholarship, Tax | Permalink | Comments (0)

Top 5 Tax Paper Downloads

Friday, August 8, 2014

Weekly SSRN Tax Roundup

August 8, 2014 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Weekly Student Tax Note Roundup

August 8, 2014 in Scholarship, Tax, Weekly Student Tax Note Roundup | Permalink | Comments (0)

94% of Academic Economists Admit to Unacceptable Research Practices, Including Sex for Co-authorship and Promotion

Inside Higher Ed, Sex, Lies, Economists:

SLVA small proportion of European economists have confessed to “acceptance or offering of sex” in exchange for co-authorship or promotion, as well as owning up to fabricating or manipulating data.

A survey of about 400 economists, conducted among members of the European Economic Association on an anonymous basis, is analyzed in the article Scientific Misbehavior in Economics, currently in press for the journal Research Policy.

Ninety-four percent of respondents reported having engaged in at least one “unaccepted research practice,” the paper says.

London School of Economics, Scientific Misbehavior in Economics: Unacceptable Research Practice Linked to Perceived Pressure to Publish:

Almost every economist reports having engaged in at least one practice considered unacceptable by peers. For example, one third of the participants admit to having cherry-picked results – the selective presentation of empirical results that confirm one’s argument is rejected by 84%. Even though 64% consider it unacceptable to divide one’s work into small units to maximize the number of publications, 20% confess salami slicing. Strategic behavior in the publication process is considered unjustifiable by two thirds. However, 39% admit that they have taken into account suggestions of referees or editors even though they thought that they were wrong. Even 60% report that they have cited strategically to raise publication prospects.

research practice

August 8, 2014 in Legal Education, Scholarship | Permalink | Comments (1)

Thursday, August 7, 2014

Kleinbard: 'Competitiveness' Has Nothing to Do With Inversions

Edward D. Kleinbard (USC), 'Competitiveness' Has Nothing to Do With It:

The recent wave of corporate tax inversions has triggered interest in what motivates these tax-driven transactions now. Corporate executives have argued that inversions are explained by an "anti-competitive" U.S. tax environment, as evidenced by the federal corporate tax statutory rate, which is high by international standards, and by its "worldwide" tax base. This paper explains why this competitiveness narrative is largely fact-free, in part by using one recent articulation of that narrative (by Emerson Electric Co.’s former vice-chairman) as a case study.

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August 7, 2014 in Scholarship, Tax | Permalink | Comments (2)

Oei & Ring: Human Equity? Regulating the New Income Share Agreements

Shu-Yi Oei (Tulane) & Diane M. Ring (Boston College), Human Equity? Regulating the New Income Share Agreements:

A controversial new financing phenomenon has recently emerged. New “income share agreements” (“ISAs”) enable an individual to raise funds by pledging a percentage of her future earnings to investors for a certain number of years. These contracts, which are offered by entities such as Fantex, Upstart, Pave, and Lumni, raise important questions for the legal system: Are they a form of modern-day indentured servitude or an innovative breakthrough in human financing? How should they be treated under the law?

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August 7, 2014 in Scholarship, Tax | Permalink | Comments (0)

Desai: Tax Withholding, Statutes and Constitutional Law

Anuj C. Desai (Wisconsin), What a History of Tax Withholding Tells Us About the Relationship between Statutes and Constitutional Law, 108 Nw. U. L. Rev. 859 (2014):

In this Article, I explain what a seemingly obscure statute, the Current Tax Payment Act of 1943, can tell us about the relationship between statutes and constitutional law. I use William Eskridge and John Ferejohn’s notion of a “superstatute” as a lens through which to view this relationship. A “superstatute,” in Eskridge and Ferejohn’s conception, is a statute that has small “c” constitutional emanations, emanations that both affect interpretations of the large “C” Constitution and are entrenched against subsequent legislative change. To better understand the precise contours of the notion of a superstatute, I look at the Current Tax Payment Act of 1943, which instituted the system of federal tax withholding for wage income. I describe the history of federal income tax withholding leading up to the passage of that Act, explaining in turn how that history sheds light on the underlying notion of a superstatute.

August 7, 2014 in Scholarship, Tax | Permalink | Comments (0)

Taylor: Closing the Gap Between Private Letter Rulings and Regulations

Tax Analysys Logo (2013)Willard Taylor (Sullivan & Cromwell & NYU), Closing the Gap Between Private Letter Rulings and Regulations, 144 Tax Notes 597 (Aug. 4, 2014):

In this article, Taylor summarizes and comments on proposed regulations that would redefine real property for real estate investment trusts, and he argues that there should be more (and earlier) guidance on these and similar issues to close the gap between private letter rulings and published guidance affecting REITs and publicly traded partnerships in the natural resources sector.

August 7, 2014 in Scholarship, Tax, Tax Analysts | Permalink | Comments (0)

Seto Reviews Tahk's Public Choice Theory & Earmarked Taxes

JotwellTheodore P. Seto (Loyola-L.A.), An Empirical Test of Public Choice Theory (Jotwell) (reviewing Susannah Camic Tahk (Wisconsin), Public Choice Theory & Earmarked Taxes, 68 Tax L. Rev. ___ (2015)):

In 1980, James Q. Wilson, in The Politics of Regulation, predicted that laws with diffuse costs and concentrated benefits would be relatively easy to enact, but that laws with concentrated costs and diffuse benefits would be relatively hard to enact and, once enacted, hard to maintain. This hypothesis, one of the pillars of public choice theory, has long been asserted without empirical verification. ...  In Public Choice Theory & Earmarked Taxes, Susannah Camic Tahk provides the first rigorous empirical support for Wilson’s hypothesis.

Her study explores the histories of 1497 state-level earmarked taxes between 1997 and 2005. Earmarked taxes, in general, produce more concentrated benefits than taxes the proceeds of which flow into a state’s general fund. Thus, we would expect earmarked taxes to perform strongly as revenue generators. And, indeed, Tahk finds that the earmarked taxes in her sample raised 58.39% more revenue in 2005 than in 1997—a larger percentage increase than any major federal tax over the same period. ...

It is hard to overstate the importance of this accomplishment.

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August 7, 2014 in Scholarship, Tax | Permalink | Comments (1)

Cooper & Ivimey: 2013 Developments in Connecticut Trusts & Estates Law

Jeffrey A. Cooper (Quinnipiac) & John R. Ivimey (Reid and Riege, Hartford), 2013 Developments in Connecticut Estate and Probate Law, 88 Conn. Bar J. ___ (2014):

This Article provides a summary of recent developments impacting Connecticut estate planning and probate practice. Part I discusses 2013 legislative developments. Part II surveys selected 2013 case law relevant to the field.

August 7, 2014 in Scholarship, Tax | Permalink | Comments (0)

Wednesday, August 6, 2014

Pittsburgh Tax Review Publishes New Issue

Pittsburgh Tax Review The Pittsburgh Tax Review has published Vol. 11, No. 2 (Spring 2014):

August 6, 2014 in Scholarship, Tax | Permalink | Comments (0)

Infanti: The House of Windsor: Accentuating the Heteronormativity in the Tax Incentives for Procreation

Anthony C. Infanti (Pittsburgh), The House of Windsor: Accentuating the Heteronormativity in the Tax Incentives for Procreation, 89 Wash. L. Rev. ___ (2014):

Following the Supreme Court’s decision in United States v. Windsor, many seem to believe that the fight for marriage equality at the federal level is over and that any remaining work in this area is at the state level. Belying this conventional wisdom, this essay continues my work plumbing the gap between the promise of Windsor and the reality that heteronormativity has been one of the core building blocks of our federal tax system. Eradicating embedded heteronormativity will take far more than a single court decision (or even revenue ruling); it will take years of work uncovering the subtle ways in which heteronormativity pervades our federal tax laws and of identifying means of eliminating that heteronormativity. To further this work and in keeping with the theme of this symposium issue, “Compensated Surrogacy After Windsor,” this essay explores the unremitting heteronormativity of the federal tax incentives for procreation as they apply to compensated surrogacy, which is the only practical option for gay couples wishing to procreate.

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August 6, 2014 in Scholarship, Tax | Permalink | Comments (0)

A Field Study of a Fat Tax and its Unintended Consequences

Brian Wansink, Andrew S. Hanks, John Cawley & David Just (all of Cornell), From Coke to Coors: A Field Study of a Fat Tax and its Unintended Consequences:

Fat TaxCould taxation of calorie-dense foods such as soft drinks be used to reduce obesity? To address this question, a six-month field experiment was conducted in an American city of 62,000 where half of the 113 households recruited into the study faced a 10% tax on calorie-dense foods and beverages and half did not. The tax resulted in a short-term (1-month) decrease in soft drink purchases, but no decrease over a 3-month or 6-month period. Moreover, in beer-purchasing households, this tax led to increased purchases of beer. To behavior scholars, this underscores the importance of investigating unexpected substitutions. To public health officials and policy makers, this presents an important empirical result and more generally points toward wide ranging contributions that marketing scholarship can make in their decisions.

August 6, 2014 in Scholarship, Tax | Permalink | Comments (0)

Christians: Regulating Return Preparers -- A Global Problem for the IRS

Tax Analysys Logo (2013)Allison Christians (McGill), Regulating Return Preparers: A Global Problem for the IRS, 75 Tax Notes Int'l 391 (Aug. 4, 2014):

The IRS is in charge of a juggernaut of a tax system, the likes of which there truly is no equal in the world. And as all too often appears to be the case, in the enthusiasm to improve the functioning of this regime, its authors and enforcers appear to have forgotten that this unique system is perfectly global in reach, thanks to its unique inclusion of citizens and others with legal residence status no matter where in the world they live.

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August 6, 2014 in Scholarship, Tax, Tax Analysts | Permalink | Comments (0)

Tahk: Public Choice Theory and Earmarked Taxes

Susannah Camic Tahk (Wisconsin), Public Choice Theory & Earmarked Taxes, 68 Tax L. Rev. ___ (2015):

The Article draws on public choice theory to argue that the manner in which the federal income tax distributes its costs and its benefits undergirds the massive fiscal crises that the federal government is now experiencing. Then, this Article offers recent historical evidence on 1500 state-level taxes to develop a way out of the current tax lawmaking paralysis at the federal level. At present, the federal income tax spreads its benefits widely among large yet diffuse groups, which makes the income tax easy to undermine and difficult to improve. The Article proposes, however, that restructuring the manner in which the federal income tax allocates its costs and benefits can circumvent its self-destructive shortcomings. For this purpose, state-level tax laws offer useful templates. In particular, states "earmark" tax revenues for specific purposes. That arrangement gives rise to fundamentally different tax lawmaking dynamics than those operating at the federal level. To understand how and why these dynamics succeed, the Article presents evidence on the cost-benefit structure of all state-level earmarked taxes from the 1997-2005 historical period. Analysis of this evidence demonstrates that how state-level earmarked taxes laws assign their costs and benefits relates to how revenue-productive and durable these tax laws are. This conclusion furnishes federal tax policymakers with a promising way of revising the federal income tax code to overcome its current defects. The analysis also opens new lines of research at the neglected intersection of public choice theory and scholarship on legal reform.

August 6, 2014 in Scholarship, Tax | Permalink | Comments (0)

How UC-Berkeley and UCLA Law Schools Responded to Ban on Affirmative Action

Inside Higher Ed, How Berkeley and UCLA Law Schools Responded to Ban on Affirmative Action:

UCA new study from the National Bureau of Economic Research [Danny Yagan (UC-Berkeley), Affirmative Action Bans and Black Admission Outcomes: Selection-Corrected Estimates from UC Law Schools] explores the impact of California's ban on consideration of race in admissions on admissions rates for black students to the law schools at the University of California at Berkeley and UCLA. The study finds a significant drop in the black admit rate -- from 61 to 31 percent, controlling for various factors. The 31 percent figure, the study finds, is still significantly higher than it would have been had the law schools focused largely on traditional admissions criteria such as test scores and grades, and the advantage for black applicants is greatest among the share of the applicant pool that is on the line between admission and rejection. The study suggests that the UC law schools have minimized the loss of black students by placing greater emphasis in admissions on race-neutral factors (such as economic disadvantage) that apply to many black applicants. Officials of the two law schools said that they were studying the report and could not comment on it Monday.

Table 1

Cheating: An Insider's Report on the Use of Race in Admissions at UCLA

August 6, 2014 in Legal Education, Scholarship | Permalink | Comments (1)

Tuesday, August 5, 2014

Hawley: The Jurisdictional Question in Hobby Lobby

Erin Morrow Hawley (Missouri), The Jurisdictional Question in Hobby Lobby, 123 Yale L.J. Forum ___ (2014):

Hobby LobbyBurwell v. Hobby Lobby Stores may well be the biggest case of the term. And by its own rules, the Supreme Court lacked jurisdiction. An obscure statute, the Anti-Injunction Act of 1867 (“the AIA”), imposes a pay-first requirement for federal tax challenges. The deeply held conventional wisdom is that the AIA is a jurisdictional statute, and there is a good argument that the AIA applies to the contraception mandate. As we learned from National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566 (2012), the best evidence of whether Congress intended the AIA to apply is the text. The mandate at issue in Hobby Lobby, 26 U.S.C. § 4980D, expressly refers to the employer assessment as a tax—24 times. In light of NFIB, the Supreme Court’s failure to address the AIA was a serious mistake.

(Hat Tip: Josh Blackman.)

August 5, 2014 in Scholarship, Tax | Permalink | Comments (0)