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Editor: Paul L. Caron
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Friday, April 17, 2015

Weekly SSRN Tax Roundup

Thursday, April 16, 2015

Omri Marian Leaves Florida For UC-Irvine

Marian (2015)Omri Marian, a rising tax scholar at Florida, has accepted a lateral offer from UC-Irvine. Omri spent three years as a tax associate at Sullivan & Cromwell and joined the Florida tax faculty in 2012. His recent tax scholarship includes (in addition to reviews and op-eds):

Omri joins Sarah Lawsky in giving UC-Irvine a powerhouse tax faculty and strengthening my not entirely disinterested view that Southern California boasts the strongest collection of tax scholars of any region in the country, which includes, among others:  UCLA (Steve Bank, Jason Oh, Kirk Stark, Eric Zolt), USC (Tom Griffith, Ed Kleinbard, Ed McCaffery), San Diego (Howard Abrams, Jordan Barry, Victor Fleischer, Miranda Perry Fleischer, Bert Lazerow), and Loyola-L.A. (Ellen Aprill, Ted Seto, Katie Pratt), not to mention (ahem) the tax faculty at Pepperdine.

April 16, 2015 in Scholarship, Tax, Tax Prof Moves | Permalink | Comments (3)

North Carolina Law Review Festschrift In Honor Of Bill Turnier

TurnierJohn Charles Borger (Dean, North Carolina), An Issue in Tribute to a Splendid Career William J. Turnier: UNC Law Colleague, 1973–2014, 93 N.C. L. Rev. 643 (2015):

It is not every senior faculty member whose fondest wish upon retirement is less a dinner hosted in his honor or a public celebration in the Rotunda of Van Hecke-Wettach, but rather an issue of the North Carolina Law Review devoted to tax scholarship. Yet it seems completely fitting that William J. Turnier, a member of the University of North Carolina law faculty for the past forty-one years, has acquiesced in the tribute that appears in these pages, a series of tax articles his scholarly colleagues have assembled in this issue of the Review to mark his departure from full-time academic life. ...

There is always some sadness in watching the departure from our halls of learning of someone who has built such a rich career and commanded such gratitude from more than two generations of students. Yet Bill Turnier’s impact on Carolina Law will remain, and by suggesting this special issue, designed in tribute to his chosen field, Bill has afforded us one last gift that will endure as long as readers strive to read, research, and understand law and its potential for ordering the commonweal.

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April 16, 2015 in Legal Education, Scholarship, Tax | Permalink | Comments (1)

Wednesday, April 15, 2015

Shay Presents Designing a U.S. Minimum Tax on Foreign Business Income Today at Penn

Shay (2014)Stephen Shay (Harvard) presents Designing a U.S. Minimum Tax on Foreign Business Income (with Cliff Fleming (BYU) & Robert Peroni (Texas)) at Pennsylvania today as part of its Tax Law and Policy Workshop Series hosted by Chris William Sanchirico and Reed Shuldiner:

This paper continues an exploration of second best international tax reforms, in this case, how a U.S. minimum tax on foreign income earned by a controlled foreign corporation should be designed to protect the U.S. against erosion of its corporate income tax base and combat tax competition by low-tax intermediary countries. A minimum tax should be an interim tax that preserves the residual U.S. tax on foreign income. Such a tax would more effectively limit incentives to seek low-taxed foreign income while ameliorating pressure to retain excess earnings abroad. Corresponding changes should be made to the U.S. corporate residence definition, to the residence taxation of U.S. portfolio investors in foreign corporations and to the source taxation of foreign MNCs to reduce tax advantages under current law for investments in foreign corporations. These changes would reduce tax advantages for foreign parent corporate groups and incentives for U.S. corporations to expatriate as a consequence of increased U.S. taxation of foreign income.

April 15, 2015 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Call for Book Reviews: Michigan Law Review

Michigan The Michigan Law Review has asked me to post its solicitation of book reviews for its 2016 Survey of Books Related to the Law:

The Michigan Law Review publishes an Annual Survey of Books. These book reviews are not included in any other issue of the Law Review. Typically, the Survey includes only reviews of books published in the past year. The Volume 114 Book Review issue will be published in spring 2016.

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April 15, 2015 in Book Club, Legal Education, Scholarship, Tax | Permalink | Comments (1)

Tuesday, April 14, 2015

Eissa Presents The Technology of Tax Collection and Compliance Today at Georgetown

EissaNada Eissa (Georgetown) presents The Technology of Tax Collection and Compliance: Electronic Billing Machines and The VAT at Georgetown today as part of its Tax Law and Public Finance Workshop Series hosted by John BrooksItai Grinberg, and David Schizer:

The expansion of the tax base in developing countries is increasingly recognized as an important policy goal, as an increase in domestic revenue sources promises to reduce aid dependence and reduce distortionary consequences of taxes on externally traded goods. This paper analyzes the adoption rate and tax compliance impacts of an innovative program in Rwanda, which introduced Electronic Billing Machines to strengthen VAT compliance. To do so, we combine quarterly data on all VAT payments from 2012 through 2014q3 with data on EBM activation over the same period.

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April 14, 2015 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Zelenak Presents The Differing Income Tax Treatments of Marriage at Different Income Levels Today at NYU

Zelenak (2014)Lawrence Zelenak, (Duke) presents For Better And Worse: The Differing Income Tax Treatments of Marriage at Different Income Levels, 93 N.C. L. Rev. 783 (2015), at NYU today as part of its Tax Policy Colloquium Series hosted by Daniel Shaviro and Alan Viard:

Although both marriage penalties and marriage bonuses exist at all income levels under the federal income tax, the system is tilted toward penalties for lower-income couples, toward bonuses for middle-income couples, and back toward penalties for upper-income couples. This Article begins by explaining how the tax rules produce these differing treatments of marriage at different points in the income distribution. It then argues that the increase in recent decades in the social acceptability and prevalence of cohabitation makes tax marriage effects a more serious concern—in terms of both behavioral effects and fairness—than in earlier decades.

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April 14, 2015 in Colloquia, Scholarship, Tax | Permalink | Comments (1)

Tacha: Who Needs a Lawyer Anyway?

Deanell Reece Tacha (Dean, Pepperdine), Who Needs a Lawyer Anyway?, 66 Rutgers L. Rev. 729 (2014):

You are the people who must be the spokespersons for the enduring and essential need for well-trained lawyers who can guide the nation and the world through the challenging and exciting issues and disputes that lie ahead. The lawyers’ ability to focus on germane issues, negotiate reasoned practical resolutions, and settle and litigate disputes, will be in high demand in this complex society. The debate about the value of legal education goes to the core of our understanding of what it is to prepare legal professionals for a world we cannot see with any particularity. That is what lawyers do. What we must foresee clearly, is that the legacy of freedom and of people governed by the rule of law is our highest calling and the source of our professional responsibility. The modes of delivering legal services, and even the understanding of what is a legal service, will change. What will not change is the need for lawyers who are problem solvers, client servers, articulators of the American ideal of self-government, models of the rule of law, and servants of the common good. We will always need lawyer-patriots.

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April 14, 2015 in Legal Education, Scholarship | Permalink | Comments (0)

Monday, April 13, 2015

Blair-Stanek: Crisis-Proofing Tax Law

Andrew Blair-Stanek (Maryland), Crisis-Proofing Tax Law, 57 Wm. & Mary L. Rev. __ (2016):

While Congress and the Federal Reserve battled the 2008-09 financial crisis with high-profile bailouts, the IRS fought a parallel, little-noticed battle to ensure that many harsh tax rules did not deepen the crisis. Remarkably, the IRS’s crisis responses cost the government more money than the bailouts, with a handful of companies receiving huge tax windfalls. Yet the IRS also kept its responses too narrowly tailored, causing preventable layoffs and foreclosures.

This Article proposes a novel framework for tax law to handle future crises efficiently and equitably, using the law-and-economics concept of property rules and liability rules.

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April 13, 2015 in Scholarship, Tax | Permalink | Comments (0)

Kerr: New (And Free) Legal Research Tool From Google

Google Scholar (2015)Orin Kerr (George Washington), New (and Free) Legal Research Tool:

If you use the Google Chrome browser, and you do legal research online, you should add the new Google Scholar Button to your browser. It’s really easy to do. Just click here and add the button. At that point you can use the button to research academic articles using Google Scholar’s database.

 

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April 13, 2015 in Legal Education, Scholarship | Permalink | Comments (0)

Sunday, April 12, 2015

The Top 5 Tax Paper Downloads

Friday, April 10, 2015

Weekly SSRN Tax Roundup

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April 10, 2015 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Weekly Student Tax Note Roundup

Grewal: The Un-Precedented Tax Court

Tax Court Logo 2Andy Grewal (Iowa), The Un-Precedented Tax Court:

Around the turn of this century, a "highly-charged" debate erupted over unpublished federal appellate court opinions. Some argued that the common prohibition against citation to those opinions posed no constitutional problems, while others argued that no-citation rules improperly eliminated a significant check on the judicial power.

This debate might have been expected to reach, but has not yet reached, issues related to the purportedly nonprecedential nature of most Tax Court opinions. Under court practices, Memorandum Opinions nominally lack precedential value. And by Congressional fiat, Summary Opinions cannot be cited as precedent.

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April 10, 2015 in Scholarship, Tax | Permalink | Comments (0)

Brunson: Tax and Utopia

UtopiaSamuel Brunson (Loyola-Chicago), Accommodating (Economic) Diversity: Applying the Income Tax to Utopian Communities:

Communalism has a long history in the United States. Throughout the nineteenth century, the country was seemingly dotted with utopian groups. Most were Christian groups, trying to follow the New Testament model of a body of believers that held all property in common. While these groups generally fell apart quickly, in response to inside or outside pressures, several large groups survived the turn of the century.

In the early twentieth century, though, these religious communal groups had to contend with something new: an income tax. Communalism did not fit into the individualistic economic system envisioned by the drafters of the income tax. So Congress designed a special tax regime, now codified in section 501(d) of the Internal Revenue Code, which exempts religious communal holding companies from tax, while imputing the holding companies’ income to the members of the group. Section 501(d) provides communitarian groups with flexibility to reflect their unusual economics.

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April 10, 2015 in Scholarship, Tax | Permalink | Comments (0)

Thursday, April 9, 2015

Kahng Presents The Taxation of Women in Same-Sex Marriages Today at Fordham

Kahng (2015)Lily Kahng (Seattle) presents The Not-So-Merry Wives of Windsor: The Taxation of Women in Same-Sex Marriages, 101 Cornell L. Rev. __ (2015), at Fordham today as part of its Faculty Workshop Series:

In United States v. Windsor, the Supreme Court invalidated the Defense of Marriage Act definition of marriage as “between one man and one woman” and is now poised to recognize a constitutional right to same-sex marriage. Windsor cleared the way for same-sex couples to be treated as married under federal tax laws, and the Obama administration promptly announced that it would recognize same-sex marriages for tax purposes. Academics, policymakers, and activists lauded these developments as finally achieving tax equality between gay and straight married couples. This Article argues that the claimed tax equality of Windsor is illusory and that the only way to achieve actual equality is to eliminate taxation on the basis of marital status.

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April 9, 2015 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Judges Are Far Less Biased Than Law Students

Dan Kahan (Yale), David Hoffman (Temple), Danieli Evans (Yale), Neal Devins (William & Mary), Eugene Lucci (Judge. Ohio Court of Common Pleas) & Katherine Cheng (Yale), 'Ideology' or 'Situation Sense'? An Experimental Investigation of Motivated Reasoning and Professional Judgment, 163 U. Pa. L. Rev. ___ (2015):

This paper reports the results of a study on whether political predispositions influence judicial decisionmaking. The study was designed to overcome the two principal limitations on existing empirical studies that purport to find such an influence: the use of nonexperimental methods to assess the decisions of actual judges; and the failure to use actual judges in ideologically-biased-reasoning experiments. The study involved a sample of sitting judges (n = 253), who, like members of a general public sample (n = 800), were culturally polarized on climate change, marijuana legalization and other contested issues. When the study subjects were assigned to analyze statutory interpretation problems, however, only the responses of the general-public subjects and not those of the judges varied in patterns that reflected the subjects’ cultural values. The responses of a sample of lawyers (n = 217) were also uninfluenced by their cultural values; the responses of a sample of law students (n = 284), in contrast, displayed a level of cultural bias only modestly less pronounced than that observed in the general-public sample. Among the competing hypotheses tested in the study, the results most supported the position that professional judgment imparted by legal training and experience confers resistance to identity-protective cognition — a dynamic associated with politically biased information processing generally — but only for decisions that involve legal reasoning. The scholarly and practical implications of the findings are discussed.

Wall Street Journal Law Bog, Study: Judges Are Far Less Biased Than Law School Students:

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April 9, 2015 in Legal Education, Scholarship | Permalink | Comments (0)

NBER Public Economics Program Meeting

NBERThe National Bureau of Economic Research's two-day Public Economics Program Meeting kicks off today in Boston with several tax papers:

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April 9, 2015 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Thomas: The Psychic Cost of Tax Evasion

Kathleen DeLaney Thomas (North Carolina), The Psychic Cost of Tax Evasion, 56 B.C. L. Rev. 617 (2015):

Each year, the government loses hundreds of billions of dollars in tax revenue due to underreporting by individual taxpayers. According to standard deterrence theory, policymakers should be able to reduce tax evasion by increasing tax penalties, raising the audit rate, or some combination of the two. This Article refers to these strategies as increasing the “monetary cost” of tax evasion. To date, budgetary limitations and political hurdles have made these strategies difficult for the government to employ.

There is, however, another potential means by which the government can improve tax compliance, apart from raising the monetary cost of evasion. Empirical evidence shows that people experience some form of psychological discomfort when they are dishonest, which may deter them from cheating. This Article proposes employing subtle behavioral interventions that encourage more honest tax reporting by raising the level of psychological discomfort experienced from underreporting. I refer to this approach as increasing the “psychic cost” of tax evasion.

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April 9, 2015 in Scholarship, Tax | Permalink | Comments (0)

Wednesday, April 8, 2015

Kane Presents A Defense of Source Rules in International Taxation Today at Penn

Kane (2015)Mitchell Kane (NYU) presents A Defense of Source Rules in International Taxation,  32 Yale J. on Reg. ___ (2015), at Pennsylvania today as part of its Tax Law and Policy Workshop Series hosted by Chris William Sanchirico and Reed Shuldiner:

The concept of “source” is central to the functioning of the current international tax system. To the extent the “source” of income is meant to reflect the spatial location of income, however, many academic commentators have come to regard the concept as completely incoherent. Further, that incoherence is viewed as a partial explanation of the perceived artificiality and frailties of current instantiations of source rules. In this essay I make three basic claims.

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April 8, 2015 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

SSRN Tax Faculty Rankings

SSRN LogoSSRN has updated its monthly rankings of 750 American and international law school faculties and 3,000 law professors by (among other things) the number of paper downloads from the SSRN database.  Here is the new list (through April 1, 2015) of the Top 25 U.S. Tax Professors in two of the SSRN categories: all-time downloads and recent downloads (within the past 12 months):

 

 

All-Time

 

Recent

1

Reuven Avi-Yonah (Mich.)

44,724

Reuven Avi-Yonah (Mich.)

6244

2

Paul Caron (Pepperdine)

28,356

Ed Kleinbard (USC)

5725

3

Michael Simkovic (S. Hall)

26,707

Michael Simkovic (S. Hall)

4175

4

Louis Kaplow (Harvard)

23,914

Gregg Polsky (N. Carolina)

3113

5

D. Dharmapala (Chicago)

22,287

D. Dharmapala (Chicago)

2906

6

Vic Fleischer (San Diego)

20,700

Paul Caron (Pepperdine)

2868

7

James Hines (Michigan)

20,529

Richard Ainsworth (BU)

2231

8

Ted Seto (Loyola-L.A.)

19.791

Omri Marian (Florida)

1916

9

Richard Kaplan (Illinois)

19,515

Katie Pratt (Loyola-L.A.)

1753

10

Ed Kleinbard (USC)

18,005

Robert Sitkoff (Harvard)

1703

11

Katie Pratt (Loyola-L.A.)

17,220

David Gamage (UC-Berkeley)

1656

12

Carter Bishop (Suffolk)

15,748

Jeff Kwall (Loyola-Chicago)

1611

13

Dennis Ventry (UC-Davis)

15.645

Louis Kaplow (Harvard)

1586

14

Richard Ainsworth (BU)

15,295

Brad Borden (Brooklyn)

1490

15

Jen Kowal (Loyola-L.A.)

15,291

Jen Kowal (Loyola-L.A.)

1473

16

David Weisbach (Chicago)

15,015

Dick Harvey (Villanova)

1406

17

Chris Sanchirico (Penn)

14,970

William Byrnes (T. Jefferson)

1353

18

Robert Sitkoff (Harvard)

14,883

Dan Shaviro (NYU)

1282

19

Brad Borden (Brooklyn)

14,779

Francine Lipman (UNLV)

1233

20

Francine Lipman (UNLV)

14,509

James Hines (Michigan)

1214

21

Bridget Crawford (Pace)

14,388

Vic Fleischer (San Diego)

1199

22

David Walker (BU)

14,215

Carter Bishop (Suffolk)

1172

23

Dan Shaviro (NYU)

13,015

Chris Sanchirico (Penn)

1150

24

Herwig Schlunk (Vanderbilt)

12,719

Ted Seto (Loyola-L.A.)

1115

25

Wendy Gerzog (Baltimore)

11,994

Christopher Hoyt (UMKC)

1091

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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April 8, 2015 in Legal Education, Scholarship, Tax, Tax Prof Rankings | Permalink | Comments (0)

Brown: The IRS Should Report on Tax Returns Filed by All 535 Members of Congress

535National Journal, Congressional Tax Returns Could Tell Us a Lot:

Dorothy Brown, a professor at Emory University who specializes in tax law, has proposed an idea to finally spur tax reform: examining the tax returns of all 535 members of Congress. I recently spoke with her about the proposal, which she calls "The 535 Report." Our conversation has been edited and condensed. ...

How long have you been talking about the 535 Report?

I spoke about this at a Pepperdine University Law School symposium in January 2013 [Tax Advice for the Second Obama Administration] and wrote a law-review article for the symposium that was published that April. [The 535 Report: A Pathway to Fundamental Tax Reform, 40 Pepp. L. Rev. 1155 (2013)] I study presidential tax returns, which are voluntarily disclosed, and I started thinking: Imagine what I'd find if I had congressional tax returns.

What needs to be done to take this idea further?

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April 8, 2015 in Conferences, Congressional News, Scholarship, Tax | Permalink | Comments (0)

Tuesday, April 7, 2015

Morse Presents Tax Savings for U.S. Headquartered, Non-U.S.-Incorporated Multinational Firms Today at Georgetown

Morse (2015)Susan C. Morse (Texas) presents Tax Savings for U.S. Headquartered, Non-U.S.-Incorporated Multinational Firms (with Eric J. Allen (USC)) at Georgetown today as part of its Tax Law and Public Finance Workshop Series hosted by John BrooksItai Grinberg, and David Schizer:

To summarize, we find that non-U.S.-incorporated profitable firms have better tax results compared to U.S.-incorporated profitable firms. Loss firms incorporated in tax havens tend to have worse tax results compared to U.S.-incorporated loss firms. This suggests that some non-U.S.-incorporated multinationals with efficient tax planning structures face the problem that their losses, as well as their profits, must be allocated to low-tax jurisdictions. Their transfer pricing and other tax planning strategies, in other words, may be sticky.

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April 7, 2015 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Mills Presents Managerial Characteristics and Corporate Taxes Today at NYU

Mills 2Lillian Mills (Texas) presents Managerial Characteristics and Corporate Taxes at NYU today as part of its Tax Policy Colloquium Series hosted by Daniel Shaviro and Alan Viard:

Motivated by literature and anecdotal evidence, we identify a salient managerial characteristic that is associated with higher tax compliance. We find that managers with military experience pursue less aggressive tax planning than other managers, and pay an estimated $1-$2 million more in corporate taxes per firm-year. These managers also undertake less aggressive tax strategies with smaller reserves for uncertain tax benefits and fewer tax havens. However, they perform better in several gray areas in corporate reporting. We conclude that boards hiring these managers gain the benefit of less aggressive financial reporting that would require more governance to constrain.

April 7, 2015 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

NLRB v. Northwestern: Cultivating a New Era for Taxing Qualified Scholarships

Northwestern 2Kathryn Kisska-Schulze (North Carolina A&T) & Adam Epstein (Central Michigan), The National Labor Relations Board v. Northwestern University: Cultivating a New Era for Taxing Qualified Scholarships, 49 Akron L. Rev. ___ (2016):

On March 26, 2014 the National Labor Relations Board (NLRB) ruled that Northwestern University’s scholarship football players are employees of the institution and can unionize and bargain collectively. From a federal income tax perspective, the significance of the NLRB decision could redefine the principal that select student-athletes are no longer unpaid amateurs receiving qualified scholarships, but instead are employees of their institutions earning scholarship funds in exchange for services rendered as college athletes.

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April 7, 2015 in Scholarship, Tax | Permalink | Comments (0)

Monday, April 6, 2015

Fleischer Presents Libertarianism and the Charitable Tax Subsidies Today at Pepperdine

MirandaMiranda Perry Fleischer (San Diego) presents Libertarianism and the Charitable Tax Subsidies at Pepperdine today as part of our Tax Policy Colloquium Series:

Although many Americans claim to subscribe to libertarian theories of justice, tax scholarship is largely silent about the interaction between libertarian principles and the structure of our tax system. This is not surprising, for what springs to mind when a legal academic hears the word “libertarianism” is Robert Nozick’s argument that taxation is slavery. If all taxation is indeed slavery, why bother analyzing libertarian principles for insights into our tax system? This dismissal, however, ignores the diversity of libertarian thought. To that end, this Article mines the nuances of libertarian theory for insights into one feature of our tax system: the charitable tax subsidies.

Exploring the nuances of libertarian theory yields some surprising results. Some strands of libertarian thought suggest that the charitable tax subsidies are in and of themselves illegitimate. These strands of libertarianism forbid not only redistribution but also anything except the most minimal provision of public goods needed to protect life and property, such as defense. Yet several other strands do see a role for the state to engage in a varying amount of redistribution or to provide varying amounts of public goods. On one spectrum are interpretations that admit that the state should play a role in providing public goods (strictly defined) and/or provide a provide a safety net to the very poorest but no more, and on the other is an interpretation of left-libertarianism that might support something akin to our current structure.

Update:  Post-presentation lunch:

Fleischer Lunch

April 6, 2015 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Morse Reviews Bird, Edwards & Shevlin's Does the U.S. System of Taxation on Multinationals Advantage Foreign Acquirers?

JotwellSusan Morse (Texas), Non-U.S. Acquirers: Clients for U.S. Targets' "Locked Out" Earnings? (Jotwell) (reviewing Andrew Bird (Carengie Mellon), Alexander Edwards (Toronto) & Terry Shevlin (UC-Irvine), Does the U.S. System of Taxation on Multinationals Advantage Foreign Acquirers?:

Did Burger King submit to acquisition by a Canadian donut chain for tax reasons? Or, at least, once Burger King and Tim Hortons decided to merge, did they choose to have a Canadian parent for tax reasons? A recent empirical study by Andrew Bird, Alexander Edwards and Terry Shevlin suggests that one tax factor—the existence of “locked out” offshore earnings—increases the likelihood that a non-U.S. acquirer will acquire a U.S. target. Bird, Edwards and Shevlin analyze thousands of merger transactions, without regard to whether the transactions might be labeled “inversions.” Their paper contributes to the considerable literature that tests the idea that accounting and tax disparities affect firm prices and transaction decisions. ...

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April 6, 2015 in Scholarship, Tax | Permalink | Comments (0)

Sunday, April 5, 2015

The Top 5 Tax Paper Downloads

Saturday, April 4, 2015

18th Annual Critical Tax Theory Conference Concludes Today at Northwestern

Northwestern (2014)The 18th Annual Critical Tax Theory Conference concludes today at Northwestern:

Critical tax scholarship aims at looking beyond the language of the Code and regulations to examine what the tax law actually does. It has roots in critical legal studies generally, and therefore Critical tax scholars frequently ask why the tax laws are the way they are and what impact tax laws have on historically disempowered groups, such as people of color; women; lesbian, gay, bisexual, and transgendered individuals; low-income and poor individuals; the disabled; and nontraditional families. But Critical tax scholarship is not limited either to those topics or to any particular methodology.

Critical tax scholarship shares the following goals: (1) to uncover bias in the tax laws; (2) to explore and expose how the tax laws both reflect and construct social meaning; and (3) to educate nontax scholars and lawyers about the interconnectedness of taxation, social justice, and progressive political movements. Critical tax scholars employ a variety of methods to achieve these goals such as bringing "outsider" perspectives to the study of tax law; using historical material, contemporary case studies, and personal or fictional narratives to illustrate the practical impact of the tax laws on individuals and groups; interpreting social science and economic data to show how the tax laws impact groups differently; and exploring the interconnectedness of tax laws with economic forces such as the labor market and international financial and political development.

Panel #6:  General Tax Base (Moderator: Alice Abreu (Temple))

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April 4, 2015 in Conferences, Scholarship, Tax | Permalink | Comments (1)

Weekly SSRN Tax Roundup

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April 4, 2015 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Friday, April 3, 2015

18th Annual Critical Tax Theory Conference Kicks Off Today at Northwestern

Northwestern (2014)The 18th Annual Critical Tax Theory Conference kicks off today at Northwestern:

Critical tax scholarship aims at looking beyond the language of the Code and regulations to examine what the tax law actually does. It has roots in critical legal studies generally, and therefore Critical tax scholars frequently ask why the tax laws are the way they are and what impact tax laws have on historically disempowered groups, such as people of color; women; lesbian, gay, bisexual, and transgendered individuals; low-income and poor individuals; the disabled; and nontraditional families. But Critical tax scholarship is not limited either to those topics or to any particular methodology.

Critical tax scholarship shares the following goals: (1) to uncover bias in the tax laws; (2) to explore and expose how the tax laws both reflect and construct social meaning; and (3) to educate nontax scholars and lawyers about the interconnectedness of taxation, social justice, and progressive political movements. Critical tax scholars employ a variety of methods to achieve these goals such as bringing "outsider" perspectives to the study of tax law; using historical material, contemporary case studies, and personal or fictional narratives to illustrate the practical impact of the tax laws on individuals and groups; interpreting social science and economic data to show how the tax laws impact groups differently; and exploring the interconnectedness of tax laws with economic forces such as the labor market and international financial and political development.

Panel #1:  Exemptions and Subsidies (Moderator: Evelyn Brody (Chicago-Kent))

  • Neil Buchanan (George Washington), Social Security Is Fair to Future Generations
  • Darryll Jones (Florida A&M), Payments in Lieu of Taxes: The Canary in the Mine of Charitable Property Tax Exemption
  • Richard Schmalbeck (Duke), Declaratory Judgments and Charitable Borders
  • Nancy Shurtz (Oregon) & Maria Di Miceli (IRS), Tax-Exempt Status of Hospitals: Addressing Accountability after the ACA

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April 3, 2015 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Thursday, April 2, 2015

Hickman Presents Treasury's Retroactivity Today at Northwestern

Hickman 2014 2Kristin Hickman (Minnesota) presents Treasury's Retroactivity at Northwestern today as part of its Tax Colloquium Series hosted by Lawrence Zelenak:

In Bowen v. Georgetown University Hospital, the Supreme Court described retroactivity as "not favored in the law" and generally rejected allowing federal administrative agencies to adopt regulations "altering the past legal consequences of past actions."  Unlike most regulatory agencies, Treasury and the IRS are expressly authorized by Congress to adopt regulations with precisely such primary retroactive effect.  Specifically, IRC § 7805(b) grants Treasury and the IRS the power to backdate tax regulations under a variety of circumstances.  Preliminary analysis shows that Treasury and the IRS utilize this authority regularly with little judicial oversight for abuse of discretion.  Using empirical data, this article will explore more fully Treasury and IRS utilization of the authority to adopt retroactively effective regulations interpreting the Internal Revenue Code.

April 2, 2015 in Colloquia, Scholarship, Tax | Permalink | Comments (1)

Lederman Presents Does the IRS Need Reform? Or Does IRS Oversight? Today at DePaul

LedermanLeandra Lederman (Indiana) presents Does the IRS Need Further Reform? Or Does IRS Oversight? at DePaul today as part of its Faculty Workshop Series:

The IRS has a difficult mission and sometimes has failed quite publicly. It last underwent a major structural reform in the late 1990s, in accordance with the Internal Revenue Service Restructuring and Reform Act of 1998. The restructuring imposed major costs on the IRS’s tax collection mission. The reform was spurred in part by horror stories solicited by Congress, to which the IRS could not respond for fear of disclosing confidential taxpayer information. More recently, the IRS did not respond effectively to accusations that it inappropriately scrutinized and delayed the tax-exemption applications of right-wing organizations. Numerous Congressional committees held hearings regarding the alleged targeting, and Congress’s rhetoric was quite partisan.

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April 2, 2015 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

The Historical Origins of the Debt-Equity Distinction

Florida Tax ReviewCamden Hutchison (Wisconsin), The Historical Origins of the Debt-Equity Distinction, 16 Fla. Tax Rev. ___ (2015):

The U.S. tax code favors corporate debt over corporate equity, a distinction long criticized by economists, legal scholars, and other tax commentators as both theoretically and practically unsound. For decades, academics and policymakers from a variety of disciplinary and political backgrounds have argued that this so-called “debt-equity distinction” distorts corporate financing decisions, encourages excess borrowing, and invites troublesome tax-avoidance behavior. Surprisingly, despite widespread critical attention, the origins of this policy remain a mystery. Primarily focused on its contemporary significance, scholars have disregarded the distinction’s past.

This article uses historical evidence to trace the debt-equity distinction’s origins, development, and continuing evolution.

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April 2, 2015 in Scholarship, Tax | Permalink | Comments (0)

Parrillo Reviews Mehrotra's Law, Politics, and the Rise of Progressive Taxation

AjayNicholas R. Parrillo (Yale), Book Review, 101 J. Am. Legal Hist. 1225 (2015) (reviewing Ajay Mehrotra (Indiana), Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877-1929 (Cambridge University Press, 2013)):

This book deserves to be (and, I predict, will become) the standard account of a major transition in the history of American governance: from a tax regime that was predominantly regressive, indirect, and centered on federal customs duties to one far more progressive, direct, and centered on the federal income tax.

Ajay K. Mehrotra's story opens with a survey of American taxation circa 1877. Federal taxation consisted of customs duties on imported goods to protect domestic producers, plus excises on liquor and tobacco. These levies fell (or at least were understood to fall) largely on consumers. At the state and local levels, taxation consisted mainly of a general property tax that nominally covered all property but, in practice, fell on land while allowing financial assets to escape.

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April 2, 2015 in Book Club, Scholarship, Tax | Permalink | Comments (0)

Motro: Scholarship Against Desire

Shari Motro (Richmond), Scholarship Against Desire, 27 Yale J.L. & Human. 115 (2015):

How do ego-driven fears and ambitions influence intellectual life in our law schools? How do law review placements, promotion applications, and faculty workshops skew the questions we law professors ask and the conclusions we reach? In my own case, they led me to frame my last project before tenure — which at its heart is about intimate relationships — through a tax policy analysis. Instead of writing about “sex against desire” I wrote about “preglimony.”  [Preglimony, 63 Stan. L. Rev. 647 (2011).]  I stand behind the result, but the exercise also left me feeling incomplete. This article reflects on the price of strategically motivated scholarship and articulates a vision for what a more authentic ethos may bring to students, to the profession, and to the world we help shape.

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April 2, 2015 in Legal Education, Scholarship, Tax | Permalink | Comments (1)

Marian: Reconciling Tax Law and Securities Regulation

Omri Y. Marian (Florida), Reconciling Tax Law and Securities Regulation, 48 U. Mich. J.L. Reform 1 (2014):

IRS SECIssuers in registered securities offerings are required to disclose, among other tax matters, the expected tax consequences to investors that result from investing in the offered securities (“nonfinancial tax disclosure”). I advance three arguments in this regard. First, nonfinancial tax disclosure practice, as sanctioned by the SEC, does not achieve its intended regulatory purposes. Nonfinancial tax disclosures provide irrelevant information, sometimes fail to provide material information, create unnecessary transactions costs, and divert valuable administrative resources to the enforcement of largely-meaningless requirements. Second, I suggest that the practical reason for this regulatory failure is an unsuccessful attempt by tax practitioners and the SEC to address investors’ heterogeneous tax preferences. Specifically, nonfinancial tax disclosure practice assumes the existence of a “reasonable investor” who is also an “average taxpayer”, and tax disclosures are drafted for the benefit of such average taxpayer. The “average taxpayer”, however, is not a defensible construct. Third, the theoretical reason for the dysfunctionality of the regulatory regime is misapplication of mandatory disclosure theory to tax rules. I argue that given the special nature of tax laws, mandatory disclosure theory — even if accepted at face value — does not support current regulatory framework. To remedy this failure, I describe the types of tax-related disclosures that would be supported by mandatory disclosure theory. Under my suggested regulatory reform, nonfinancial tax disclosure will only include issuer-level tax items, (namely, items at the company level not otherwise disclosed in the financial statements), that affect how “reasonable investors” calculate their own individual tax liabilities. Under such a regime, there is no need to rely on the “average taxpayer” construct.

April 2, 2015 in Scholarship, Tax | Permalink | Comments (0)

Wednesday, April 1, 2015

Robson: Enhancing Reciprocal Synergies Between Teaching and Scholarship

Ruthann Robson (CUNY), Enhancing Reciprocal Synergies between Teaching and Scholarship, 64 J. Legal Educ. 480 (2015):

This essay confronts the canard that one can be a good law teacher or a good legal scholar, but not both. It contends that many legal academics are good teachers and scholars, even as increasing demands can make institutional and individual balancing acts difficult. This essay first considers the empirical studies about the relationship between teaching and scholarship in legal academia. It then turns toward the experiential, with the simple overarching suggestion that individual legal academics can enhance the synergies between our scholarly and pedagogical endeavors by paying attention to them. The essay highlights four categories — the doctrinal, the theoretical, the methodological, and the professional — and discusses ways to strengthen their mutually reinforcing aspects. The essay ends by offering three techniques to assist legal scholars and teachers in paying attention regardless of the category and thus enhance the reciprocal synergies between scholarship and teaching.

April 1, 2015 in Legal Education, Scholarship | Permalink | Comments (0)

Tuesday, March 31, 2015

Hayashi Presents Phantom Income and the Simple Economics of Paying In Kind Today at Georgetown

HayashiAndrew T. Hayashi (Virginia) presents Taxing Committed Consumption and the Simple Economics of Paying in Kind at Georgetown today as part of its Tax Law and Public Finance Workshop Series hosted by John BrooksItai Grinberg, and David Schizer:

This article explores the effects of taxing committed consumption, that is, consumption which can only be adjusted at a cost. Two examples of committed consumption, housing services from homeownership and future consumption from savings, make up a significant share of many households’ consumption profile. In the presence of adjustment costs, the form in which a tax is remitted—whether the tax is paid “in kind” or not—affects both behavioral responses to and welfare effects of the tax. My analysis quantifies and evaluates these effects, which have been introduced in many tax policy contexts under the heading of taxpayer liquidity concerns. These concerns have shaped tax law and loom large in current debates about wealth taxation, tax accounting, and mark-to-market reforms, but have not been analyzed for their welfare effects.

March 31, 2015 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Oei Presents Can Sharing Be Taxed? Today at NYU

OeiShu-Yi Oei (Tulane) presents Can Sharing Be Taxed?, 93 Wash. U. L. Rev. ___ (2016) (with Diane M. Ring (Boston College)), at NYU today as part of its Tax Policy Colloquium Series hosted by Daniel Shaviro and Alan Viard:

The past few years have seen the rise of a new model of production and consumption of goods and services, often referred to as the “sharing economy.” Fueled by startups such as Uber and Airbnb, sharing enables individuals to obtain rides, accommodations, and other goods and services from peers via the Internet or mobile application in exchange for payment. The rise of sharing has raised questions about how it should be regulated, including whether existing laws and regulations can and should be enforced in this new sector or whether new ones are needed.

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March 31, 2015 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Monday, March 30, 2015

Thomas Presents User-Friendly Taxpaying Today at Indiana

Thomas (2015)Kathleen DeLaney Thomas (North Carolina) presents User-Friendly Taxpaying at Indiana today as part of its Tax Policy Colloquium hosted by Leandra Lederman:

Our income tax system is notoriously complex. The sheer volume of the tax code, along with the technical nature of its provisions, means that many individuals don’t fully understand the tax rules that apply to them. This Article refers to this type of tax complexity as “substantive complexity.” Although many commentators have argued for reforms that would simplify the substance of our tax laws, others have argued that substantive complexity is necessary if we want to tax each person according to his or her individual circumstances.

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

Mehrotra Presents Corporate Taxation and the Regulation of Early 20th Century American Business Today at Indiana

MehrotraAjay K. Mehrotra (Indiana) presents Corporate Taxation and the Regulation of Early Twentieth-Century American Business (with Steven A. Bank (UCLA)) at Indiana today as part of its Ostrom Political Theory and Policy Analysis Workshop Series:

In the early twentieth century, the taxation of modern business corporations became increasingly important to the development of American democracy. During that time, governments at all levels began to view business corporations not only as sources of badly needed public revenue, but also as potentially dangerous wielders of concentrated economic power. To combat the growing dominance of corporations, many fiscal reformers sought to use corporate taxation as a mode of regulatory governance. This paper explores the motives and intentions of fiscal reformers during critical junctures in the development of early twentieth-century U.S. corporate taxation. It seeks to explain how changing historical conditions shaped corporate tax law and policy. More specifically, this paper investigates why activists at certain times turned to taxation as a mode of corporate control, and why at other times they used tax policy to promote corporate growth. By focusing on the pivotal ideas and actions of key political economists, social commentators, and lawmakers, this paper attempts to answer the question: why did reformers see taxation as a viable form of public control over corporate power?

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

Hayashi: The Legal Salience of Taxation

Andrew T. Hayashi (Virginia), The Legal Salience of Taxation, 81 U. Chi. L. Rev. 1443 (2014):

Before an injury becomes a legal dispute, the injury must be named, a party must be blamed, and a right against that injury must be claimed. What motivates people to do these things and use legal institutions to seek redress? I provide a partial answer to this question, using a unique dataset to identify the effect that the salience of a tax—that is, its psychological prominence—has on whether a taxpayer will use legal means to lighten the tax’s burden. I term this effect its “legal salience.” I find that reducing property tax salience makes homeowners less likely to appeal their property-value assessments, making it more likely that homeowners will remain overassessed and overtaxed. These overtaxed homeowners never perceive—are never able to “name”—their injury and consequently never obtain the relief to which they might be entitled. Moreover, I show that the selective use of appeals caused by legal salience shifts the tax burden to racial minorities, immigrants, and working families with children. Scholars and lawmakers operate as if only substantive law drives the distribution of a tax burden. But I show that legal salience is one of a number of factors that also affects the tax distribution by motivating only certain individuals to seek tax relief, and I argue that tax laws should be evaluated after taking into account the effects of legal salience.

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

Bird & Zolt: Fiscal Contracting in Latin America

Richard M. Bird (Toronto) & Eric M. Zolt (UCLA), Fiscal Contracting in Latin America, 67 World Dev. 323 (2015):

Latin America has long been characterized as a region of high income inequality. In recent years, however, many countries have seen a decrease in income inequality and poverty levels and an increase in economic mobility. Fiscal policies have played a role in achieving these results. One important explanation for changing fiscal policies is the increasing economic and political role played by the growing middle class in shaping the level and quality of collective goods and services and the types of taxes and relative tax burdens to fund these expenditures. Through a process we call “fiscal contracting,” less unequal societies may be willing to pay more in taxes for expanded, relatively universal public services.

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

Schenk: The Role for Subchapter S in Entity Tax Reform

Deborah Schenk (NYU), Reforming Entity Taxation: A Role for Subchapter S?, 146 Tax Notes 1237 (Mar. 9, 2015):

The article asks whether a role remains for subchapter S in reforming the taxation of corporations. It considers whether all three approaches to taxing entities — subchapters C, K, and S — remain necessary and whether as part of reform, some simplification is possible or desirable. The conclusions are summarized as follows: (1) Corporate tax reform for large publicly held corporations cannot be divorced from individual tax reform — the relationship of rates matters. (2) In the absence of corporate integration (that is, two levels of tax are retained), conduit taxation for some business entities is desirable. (3) While ideally, one uniform system of conduit taxation for entities not subject to subchapter C might be highly attractive, any uniform system complex enough to deal with complicated business arrangements is too complex for simple arrangements. Thus, a two-track conduit system is appropriate. (4) While subchapter S might not have been the design choice ex ante, it has become a coherent and administrable version of a simpler conduit system. (5) Subchapter S should not be turned into subchapter K. 

March 30, 2015 in Scholarship, Tax | Permalink | Comments (2)

Sunday, March 29, 2015

The Top 5 Tax Paper Downloads

Friday, March 27, 2015

Weekly Student Tax Note Roundup

Minnesota Hosts Symposium Today on Reforming the IRS

Minnesota LogoMinnesota hosts a Tax Policy Symposium today on Reforming the IRS:

Congress asks the IRS to handle a variety of government functions—not just collecting taxes, but also implementing the Affordable Care Act, monitoring the activities of tax-exempt organizations, and administering refundable tax credits designed to accomplish various social welfare goals, among other myriad tasks. Even beyond the controversy over its scrutiny of conservative political organizations, the IRS faces criticism for its handling of many of its congressionally-assigned functions, from its declining ability to handle routine taxpayer phone calls to its efforts to address fraud in the Earned Income Tax Credit program. Meanwhile, Congress has reduced the IRS’s budget, making it difficult for the IRS to accomplish all of its myriad tasks successfully. But even if Congress gave the IRS better funding, could the IRS accomplish all that Congress asks of it effectively? Or has the IRS reached a point institutionally at which it simply cannot do its many jobs well, irrespective of the funding that Congress provides? If it cannot, then what might IRS reform look like? [The symposium papers will be published in the Spring 2016 issue of the Columbia Journal of Tax Law.]

Keynote Address:   Nina Olson (National Taxpayer Advocate), The IRS and Taxpayer Trust: Recent Research on Promoting Compliance

Panel #1:

  • Steve Johnson (Florida State), Law From the Sublime to the Ridiculous and Most Things in Between: Options for Tax Administration in an Era of Growing Responsibilities for Shrinking Budgets
  • Leandra Lederman (Indiana), Does the IRS Need Further Reform? 
  • Commenters:  Andy Grewal (Iowa), Joe Thorndike (Tax Analysts)
  • Moderator:  Morgan Holcomb (Hamline)

Panel #2:

  • Lloyd Mayer (Notre Dame), The Better Part of Valour is Discretion: Should the IRS Surrender Its Oversight of Tax-Exempt Organizations?
  • Amy Monahan (Minnesota), The IRS as Health Care Agency
  • Commenters:  Paul Caron (Pepperdine), Chris Walker (Ohio State)
  • Moderator:  Claire Hill (Minnesota)

Panel #3:

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March 27, 2015 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Thursday, March 26, 2015

Taxation of Entertainers, Athletes, and Artists

ABALionel Sobel, Taxation of Entertainers, Athletes, and Artists (ABA Press, 2015):

As entertainers, athletes, and artists are often treated differently by the public, tax law also distinguishes between them and people who earn their living in more traditional ways. Their unique forms and sources of income; where the income is earned; and the sometimes uncertain ways that it is compensated require careful understanding and special handling

Taxation of Entertainers, Athletes, and Artists discusses the complex issues affecting the income taxation of these professionals. In this clearly written book, author Lionel S. Sobel provides numerous examples, calculations, charts and graphs to illustrate the material. He explains how taxation affects them in two sections:

Part I: U.S. domestic taxation policies and procedures, addressing how the United States taxes income earned in the United States by entertainers, athletes and artists who are United States citizens and resident aliens.

Part II: International taxation, covering the way that the United States taxes income earned in the U.S. by entertainers, athletes, and artists who are nonresident aliens, and how other countries tax income in those countries when these performers and artists are U.S. citizens and U.S.-resident aliens. This part also considers how the U.S. has provided some tax relief for those of its citizens and resident aliens who pay tax in other countries.

March 26, 2015 in ABA Tax Section, Book Club, Scholarship, Tax | Permalink | Comments (0)

Kahn & Kahn: The Agency Exception to the Anticipatory Assignment of Income Doctrine

Douglas A. Kahn (Michigan) & Jeffrey H. Kahn (Florida State), The Agency Exception to the Anticipatory Assignment of Income Doctrine:

One consequence of having graduated income tax rates is that it becomes advantageous to shift income from a high bracket taxpayer to a person in a lower tax bracket. A number of different vehicles have been tried to shift the incidence of the income tax to another person, and the courts and Congress have adopted a number of rules to prevent that from occurring. As early as 1930, the Supreme Court adopted the anticipatory assignment of income doctrine to prevent a person who anticipates earning income from his services from shifting that income to another person in a lower tax bracket. Income is taxed to the person whose services produced it rather than to the person who has the beneficial right to possess the income once it is earned.

This article discusses the tax treatment of an employee whose services create income for his employer. The anticipatory assignment of income doctrine does not apply in these circumstances under the so-called agency exception. This article explains the policy justification of the agency exception and uses examples to help illustrate when and when not the agency exception should apply.

March 26, 2015 in Scholarship, Tax | Permalink | Comments (1)