TaxProf Blog

Editor: Paul L. Caron
Pepperdine University School of Law

Sunday, May 28, 2017

The 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, with new papers debuting on the list at #4 and #5:

  1. [323 Downloads]  The Offshore Tax Enforcement Dragnet, by Shu-Yi Oei (Tulane)
  2. [212 Downloads]  Can New York Publish President Trump's State Tax Returns? , by Daniel Hemel (Chicago)
  3. [194 Downloads]  A Global Treaty Override? The New OECD Multilateral Tax Instrument and Its Limits, by Reuven S. Avi-Yonah (Michigan) & Haiyan Xu (Michigan)
  4. [136 Downloads]  Recent Developments in Federal Income Taxation: The Year 2016 , by Martin J. McMahon Jr. (Florida) & Bruce A. McGovern (South Texas)
  5. [127 Downloads]  Why Don't White Supremacists Pay Taxes?, by Eric Franklin Amarante (UNLV)

May 28, 2017 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, May 26, 2017

Weekly SSRN Tax Article Review And Roundup

This week, Ari Glogower (Ohio State) reviews a new work by Chris William Sanchirico (Penn), Optimal Redistributional Instruments in Tax Policy and Law & Economics: Survey and Assessment, in The Oxford Handbook of Law & Economics, Vol. 1: Methodology and Concepts 321 (Francesco Parisi, ed., 2017)

Glogower (2016)In his new work, Chris Sanchirico surveys the current literature on the optimal redistributional instruments, which seeks identify the most efficient policy tool(s) for redistribution.

Sanchirico identifies three broad strands in the literature.  First, the tax substitution argument generally holds that redistribution is best accomplished through a tax on labor earnings, because redistribution through any other policy can be substituted for redistribution through the labor income tax, at a lower cost.  As Sanchirico has argued in prior work, however, the assumptions about labor income taxation underlying the tax substitution argument could similarly be used to justify optimal redistribution through other policies or instruments.

Continue reading

May 26, 2017 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (1)

Thursday, May 25, 2017

Kim:  'Citizenship Taxation' — In Defense Of FATCA

Florida Tax Review  (2015)Young Ran (Christine) Kim (Utah), Considering 'Citizenship Taxation': In Defense of FATCA, 20 Fla. Tax Rev. 335 (2017):

Inspired by Ruth Mason’s recent article, Citizenship Taxation, [89 S. Cal. L. Rev. 169 (2016),] which reaches a general conclusion against citizenship taxation, this Article also questions citizen taxation under the same normative framework, but with a particular focus on efficiency and administrability, and takes a much less critical stance towards the merits of citizenship taxation.

Continue reading

May 25, 2017 in Scholarship, Tax | Permalink | Comments (12)

Morrow:  Accelerating Depreciation In Recession

Florida Tax Review  (2015)Rebecca N. Morrow (Wake Forest), Accelerating Depreciation in Recession, 19 Fla. Tax Rev. 465 (2016):

What would you do if on January 13, 2016, you had won the $1.5 billion Powerball jackpot? The prize gives you the choice of a smaller lump sum now or the full jackpot parceled out for years to come. For the New York Times and numerous financial experts, the right choice is clear: take the money over time. While lump sums are nice, they are not worth a big discount when compared to “ultrasafe” income streams (like the Powerball annuity), especially in an “ultralow interest rate environment.”

What everyone understands about Powerball seems to elude us when it comes to the United States’ largest corporate tax expenditure. “Accelerated depreciation” rules give taxpayers a lump sum deduction now, rather than the gradual deductions they would normally claim. Called tax law’s “standard method for combating recessions,” accelerated depreciation has become the most important tax policy affecting businesses because it is thought to be an effective if costly way to stimulate the economy, particularly during tough economic times.

Continue reading

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

Shaheen:  Treaty Aspects Of The McDonald's State Aid Investigation

McDonaldsFadi Shaheen (Rutgers), Tax Treaty Aspects of the McDonald's State Aid Investigation, 86 Tax Notes Int'l 275 (Apr. 24, 2017):

Supporting the European Commission’s conclusion that Luxembourg was under no treaty obligation to exempt income attributable to a U.S. branch of a McDonald’s Luxembourgian subsidiary, this paper suggests two alternative methods for reaching the same result in ways that avoid possible obstacles in the commission’s approach.

Continue reading

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

Wednesday, May 24, 2017

Knoll Critiques Kleinbard's Influential Article Claiming That Competitiveness Has Nothing To Do With Inversions

Michael Knoll (Pennsylvania), Taxation, Competitiveness, and Inversions: A Response to Kleinbard, 155 Tax Notes 619 (May 1, 2017):

In a 2014 article [Competitiveness’ Has Nothing to Do With It, 144 Tax Notes 1055 (Sept. 1, 2014)], Professor Edward D. Kleinbard leaped into the center of [the inversion] debate. In that article, he contended that competitiveness arguments for corporate inversions are “almost entirely fact-free” and constitute “a false narrative,” and that “international business ‘competitiveness’ has nothing to do with the reasons for these deals.” He concluded that although the current U.S. tax system “is highly distortive and inefficient . . . one of the few deficiencies it has avoided is imposing an unfair international business tax competitive burden on sophisticated U.S. multinationals.”

Kleinbard and his article have played and continue to play a highly visible role in public policy debates over inversions.

Continue reading

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

Dodge:  The Personal Realization Income Tax

Florida Tax Review  (2015)Joseph M. Dodge (Florida State), The Fair Tax: The Personal Realization Income Tax, 19 Fla. Tax Rev. 522 (2016):

This article argues that the properly conceived fairness norm for taxation leads to a personal realization income tax. Fairness in taxation refers to “allocative tax fairness,” that is, the ethical/political standard according to which taxes are to be apportioned among the relevant population. In concrete terms, the standard constitutes the tax base for individual taxpayers. Allocative fairness is but one norm bearing on taxation, but it is one that (in academia, at least) has unjustifiably taken a back seat to economics and welfarist norms, largely due to the perception that allocative tax fairness lacks any specific content apart from the speaker's political and personal tastes and, therefore, by implication, is without independent normative grounding. The short riposte is that exclusive adherence to economic and/or welfarist norms is itself a matter of personal taste.

Continue reading

May 24, 2017 in Scholarship, Tax | Permalink | Comments (2)

SSRN Tax Professor Rankings

SSRN LogoSSRN has updated its monthly rankings of 750 American and international law school faculties and 3,000 law professors by (among other things) the number of paper downloads from the SSRN database.  Here is the new list (through May 1, 2017) 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.)

68,651

Reuven Avi-Yonah (Mich.)

12,639

2

Michael Simkovic (S. Hall)

36,246

Lily Batchelder (NYU)

9013

3

Paul Caron (Pepperdine)

33,093

Michael Simkovic (S. Hall)

4210

4

D. Dharmapala (Chicago)

30,734

D. Dharmapala (Chicago)

4114

5

Louis Kaplow (Harvard)

28,121

Michael Graetz (Columbia)

3508

6

Vic Fleischer (San Diego)

23,719

Richard Ainsworth (BU)

2870

7

James Hines (Michigan)

22,842

Ed Kleinbard (USC)

2768

8

Ed Kleinbard (USC)

22,536

David Weisbach (Chicago)

2531

9

Richard Kaplan (Illinois)

21,983

Dan Shaviro (NYU)

2374

10

Ted Seto (Loyola-L.A.)

21,950

Louis Kaplow (Harvard)

2271

11

Richard Ainsworth (BU)

20,684

David Gamage (Indiana)

2229

12

Katie Pratt (Loyola-L.A.)

20,176

William Byrnes (Texas A&M)

2110

13

David Weisbach (Chicago)

19,299

Paul Caron (Pepperdine)

2037

14

Robert Sitkoff (Harvard)

18,895

Robert Sitkoff (Harvard)

1981

15

Brad Borden (Brooklyn)

18,242

Jeff Kwall (Loyola-Chicago)

1731

16

Carter Bishop (Suffolk)

18,065

Omri Marian (UC-Irvine)

1671

17

Francine Lipman (UNLV)

17,526

Francine Lipman (UNLV)

1664

18

Jen Kowal (Loyola-L.A.)

17,441

Brian Galle (Georgetown)

1629

19

Chris Sanchirico (Penn)

17,402

Darien Shanske (UC-Davis)

1589

20

Dan Shaviro (NYU)

17,165

Jordan Barry (San Diego)

1535

21

Bridget Crawford (Pace)

17,091

Bridget Crawford (Pace)

1534

22

Dennis Ventry (UC-Davis)

16,465

Steven Bank (UCLA)

1472

23

David Walker (BU)

15,654

Brad Borden (Brooklyn)

1443

24

Steven Bank (UCLA)

14,786

Christopher Hoyt (UMKC)

1438

25

Gregg Polsky (Georgia)

13,890

Yariv Brauner (Florida)

1430

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.

Continue reading

May 24, 2017 in Scholarship, Tax, Tax Prof Rankings | Permalink | Comments (0)

Tuesday, May 23, 2017

3rd Annual Mid-Career Tax Professors Workshop Concludes Today At Arkansas

Arkansas Fayetteville LogoPanel #6

Susan Morse (Texas), Skewed Deference
Commentator:  Charlene Luke (Florida)

Jordan Barry (San Diego), Taxation and Innovation: The Sharing Economy as a Case Study
Commentator:  Shu-Yi Oei (Tulane)

Continue reading

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

Kades:  Reducing Inequality With A Progressive State Tax Credit

Eric A. Kades (William & Mary), Giving Credit Where Credit Is Due: Reducing Inequality with a Progressive State Tax Credit, 77 La. L. Rev. 359 (2016):

Widening economic inequality is fast becoming the defining social problem of this era. Although there are a number of policy mechanisms available for addressing the problem, taxation is the first and best tool for the job. The federal income tax code is already moderately progressive and thus partially counteracts growing inequality in before-tax incomes. State taxation, however, is an entirely different matter: every single state has some combination of sales, property, and income taxes that, taken together are regressive: average (“effective”) state tax rates fall as income rises. It is perverse that taxation in each and every state exacerbates instead of ameliorates the nation’s burgeoning income inequality.

Figure 8

Continue reading

May 23, 2017 in Scholarship, Tax | Permalink | Comments (2)

Weber:  Killing Zombie Mortgages With Differential Property Taxes

David P. Weber (Creighton), Taxing Zombies: Killing Zombie Mortgages with Differential Property Taxes, 2017  U. Ill. L. Rev. 1135 (2017):

Zombie mortgages and abandoned properties are costly problems for cities and counties across the country. The term “zombie mortgage” is meant to, and hopefully does, evoke images of undead mortgages that are nearly impossible to eliminate. In the legal literature, the term is used to describe the circumstance when a lender or mortgagee has initiated foreclosure proceedings, the homeowner has quit the premises, and the lender later abandons the foreclosure process, often without notifying the owner of record. The mortgages, accompanying fees, and real estate taxes are “zombies” because the affected homeowner cannot escape them by abandoning the property, even after notice of eviction. Generally, the affected homeowner cannot shed these “zombies” through bankruptcy, either.

Continue reading

May 23, 2017 in Scholarship, Tax | Permalink | Comments (1)

Monday, May 22, 2017

3rd Annual Mid-Career Tax Professors Workshop Kicks Off Today At Arkansas

Arkansas Fayetteville LogoPanel #1

Jennifer Bird-Pollan (Kentucky), Sovereignty, Tax, and BITs
Commentator: David Herzig (Valparaiso)

John Brooks (Georgetown), Income Tax as Wealth Tax
Commentator:  Rebecca Kysar (Brooklyn)

Emily Cauble (DePaul), Tax Law’s Inconsistent Treatment of Gains and Losses
Commentator:  Heather Field (UC-Hastings)

Continue reading

May 22, 2017 in Conferences, Scholarship, Tax | Permalink | Comments (1)

Sunday, May 21, 2017

The 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, with new papers debuting on the list at #3, #4, and #5:

  1. [306 Downloads]  The Offshore Tax Enforcement Dragnet, by Shu-Yi Oei (Tulane)
  2. [229 Downloads]  BEPS and the New International Tax Order, by Allison Christians (McGill)
  3. [202 Downloads]  Can New York Publish President Trump's State Tax Returns? , by Daniel Hemel (Chicago)
  4. [171 Downloads]  A Global Treaty Override? The New OECD Multilateral Tax Instrument and Its Limits, by Reuven S. Avi-Yonah (Michigan) & Haiyan Xu (Michigan)
  5. [149 Downloads]  Base Erosion by Intra-Group Debt and BEPS Project Action 4's Best Practice Approach: A Case Study of Chevron, by Antony Ting (Sydney)

May 21, 2017 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Saturday, May 20, 2017

Reinterpreting Corporate Inversions: Non-Tax Competitions And Frictions

Inho Andrew Mun (J.D. 2017, Yale), Note, Reinterpreting Corporate Inversions: Non-Tax Competitions and Frictions, 126 Yale L.J. 2152 (2017)

Corporate inversions have drawn outrage from all segments of society. In an inversion, a company reincorporates abroad to escape its U.S. tax burden. Regulators and academics have typically sought tax law solutions to curb tax inversions. However, the resulting tax regulations have been ineffective, while more radical tax reforms are not politically feasible. This Note argues that inversion is not a tax problem in isolation, but a problem of aligning tax paid with benefits conferred by a given country. By introducing non-tax dimensions into the equation, this Note refines the oft-ignored benefit tax theory. The benefit tax theory proposes that the U.S. corporate tax regime accounts for superior legal and nonlegal benefits that companies enjoy by incorporating or operating in the United States. While paying U.S. tax, corporations receive the benefits of corporate governance, securities regulation, intellectual property law, and other areas of law; furthermore, benefits include many nonlegal business factors such as access to a large consumption market, skilled labor pool, capital markets, and more.

Continue reading

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

Friday, May 19, 2017

Weekly SSRN Tax Article Review And Roundup

This week, Erin Scharff (Arizona State) reviews an article by Darien Shanske (Davis), The (Now Urgent) Case for State-Level Monitoring of Local Government Finances (or, One Way to Protect Localities from Trump's 'Potemkin Villages of Nothing'), forthcoming in the NYU Journal of Legislation and Public Policy: 

Scharff (2017)Darien Shanske’s forthcoming article on local government financing suggests reforms that might protect local governments from their own bad decisions.   The fiscal challenges facing local governments are enormous, and Shanske persuasively argues localities are ill equipped to deal with these problems on their own.  And his proposal responds to the variety of fiscal problems facing cities. There are problems both with the ways cities spend their revenue and also their revenue streams.  Too often, we foucs on only one side of this problem.

At the time Shanske wrote the paper, he was particularly worried about the possibility of a federal infrastructure plan that would flood local governments with public-private partnership opportunities that would fail to deliver promised benefits.  As Shanske’s title alludes to, Larry Summers denounced such infrastructure spending as a “Potemkin Village [] of nothing.”

Continue reading

May 19, 2017 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Houston Hosts Third Annual Texas Tax Faculty Workshop

Houston (2017)The University of Houston Law Center hosts the Third Annual Tax Faculty Workshop today:

Bryan Camp (Texas Tech), Application of Equitable Principles to Jurisdictional Time Periods
Commentator: Terri Helge (Texas A&M)

Calvin Johnson (Texas), Beckemeyer and the Tax Benefit Rule
Commentator: Johnny Buckles (Houston)

Susan Morse (Texas), The Dark Side of Safe Harbors?
Commentator: Bruce McGovern (South Texas)

Continue reading

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

Soled & Thomas:  Regulating Tax Return Preparation

Jay A. Soled (Rutgers) & Kathleen DeLaney Thomas (North Carolina), Regulating Tax Return Preparation, 58 B.C. L. Rev. 151 (2017):

Every year the U.S. government collects nearly $3 trillion of income and employment taxes, a large share of which is used to deliver social welfare benefits to the poor. With respect to these collections and deliveries, the Form 1040 (U.S. Individual Income Tax Return) seeks to ensure taxpayer accuracy. In the twenty-first century, there are two sets of key players that dominate the Form 1040 preparation and submission process, namely, tax return preparers and tax return preparation software companies. The former hand-hold taxpayers through the entire tax return preparation and submission process while the latter provide taxpayers with the necessary tools to complete and submit tax returns on their own. These two groups – tax return preparers and tax software companies – thus stand as vital intermediaries between the government and taxpayers, assisting in the preparation of over 90 percent of all individual tax returns.

Continue reading

May 19, 2017 in Scholarship, Tax | Permalink | Comments (1)

Thursday, May 18, 2017

Roin:  Retroactive Taxation, Unfunded Pensions, And Shadow Bankruptcies

Julie Roin (Chicago), Retroactive Taxation, Unfunded Pensions, and Shadow Bankruptcies, 102 U. Chi. L. Rev. 559 (2017):

Academics and journalists criticize politicians for the dismal financial situations of many state and local jurisdictions. And certainly, politicians routinely make inaccurate fiscal claims. However, the voting public bears some of the blame for continuing to vote for politicians peddling what amounts to fiscal “magic.” This Article suggests a mechanism for holding them at least partially accountable for their carelessness: retroactive taxation triggered by objective measures of fiscal distress.

Continue reading

May 18, 2017 in Scholarship, Tax | Permalink | Comments (1)

Barry & Pollman:  Regulatory Entrepreneurship

Jordan M. Barry (San Diego) & Elizabeth Pollman (Loyola-L.A.), Regulatory Entrepreneurship, 90 S. Cal. L. Rev. 383 (2017):

This Article examines what we term “regulatory entrepreneurship”—pursuing a line of business in which changing the law is a significant part of the business plan. Regulatory entrepreneurship is not new, but it has become increasingly salient in recent years as companies from Airbnb to Tesla, and from DraftKings to Uber, have become agents of legal change. We document the tactics that companies have employed, including operating in legal gray areas, growing “too big to ban,” and mobilizing users for political support. Further, we theorize the business and law-related factors that foster regulatory entrepreneurship. Well-funded, scalable, and highly connected startup businesses with mass appeal have advantages, especially when they target state and local laws and litigate them in the political sphere instead of in court.

Continue reading

May 18, 2017 in Scholarship, Tax | Permalink | Comments (0)

Grinberg:  The House GOP Blueprint Can Be Drafted To Comply With WTO Rules

Itai Grinberg (Georgetown), The House GOP Blueprint Can Be Drafted to Comply with WTO Rules:

The House GOP Blueprint can be drafted into legislation in a manner that would comply with the United States’ international trade obligations. This paper presents two alternative approaches that avoid the key WTO discrimination and subsidy issues often raised in discussions of destination-based cash flow tax proposals.

Continue reading

May 18, 2017 in Scholarship, Tax | Permalink | Comments (0)

NTA 47th Annual Spring Symposium On Taxation In The Trump Era

NTA

The NTA 47th Annual Spring Sympoisum on Taxation in the Trump Era: Reforms, Revenues and Repercussions kicks off today in Washington, D.C.  Tax Prof speakers include:

Exploring the Destination-Based Cash Flow Tax

Organizer: Itai Grinberg, Georgetown University Law Center
Moderator: Lily Faulhaber, Georgetown University Law Center

Destination-Based Cash Flow Taxation
Alan Auerbach, University of California, Berkeley, Michael P. Devereux, Oxford University Centre for Business Taxation, Michael Keen, International Monetary Fund, and John Vella, Oxford University Centre for Business Taxation

Problems with Destination-Based Corporate Taxes and the Ryan Blueprint
Kimberly Clausing, Reed College and Reuven Avi-Yonah, University of Michigan Law School

Can a Destination-Based Cash Flow Tax be Compatible with the WTO Commitments of the United States?
Itai Grinberg, Georgetown University Law Center

Is the Destination-Based Cash Flow Tax Easily Gamed?
John Vella, Oxford University Centre for Business Taxation

Using the Tax Code to Support Families: Past, Current and Future Policy

 

Continue reading

May 18, 2017 in Conferences, Scholarship, Tax | Permalink | Comments (2)

Hurt:  The Private Ordering Of Publicly Traded Partnerships

Christine Hurt (BYU), The Private Ordering of Publicly Traded Partnerships:

Publicly traded partnerships, or master limited partnerships as they are sometimes called, are hybrid entities. Attempting to achieve the perfect structure for organizing economic activity, new statutes added limited liability to entities that enjoy flow-through taxation. However, because of parallel refinements by federal regulators involving taxation and amendments by state legislatures involving fiduciary duties, a strange genetic mutation flourished: the publicly traded partnership (PTP). The PTP organized as a Delaware limited partnership combines limited liability and tax advantages with elimination of fiduciary duties and free transferability of shares. In what might be the pinnacle of separation of ownership and control, unitholders purchase limited partnership units on a public exchange representing equity interests in an entity whose managers have no fiduciary duties toward the purchasers or their investment. Furthermore, new proposals seek to expand the universe of firms that may choose this structure, creating interesting, or alarming, questions about the future of this once tiny but now growing population of firms.

Continue reading

May 18, 2017 in Scholarship, Tax | Permalink | Comments (0)

Wednesday, May 17, 2017

Watson:  Rethinking The Pell Program And Federal Tax Incentives For Education

Camilla E. Watson (Georgia), The Future of Lower-Income Students in Higher Education: Rethinking the Pell Program and Federal Tax Incentives:

As the costs of higher education have soared, the value of Pell grants has declined, making it more difficult for lower-income students to obtain an education without being hopelessly mired in debt. This article traces the evolution of the Pell program and discusses the diametrically opposed proposals of Presidents Obama and Trump to reform federal funding for higher education. The article proposes an alternative plan that would require a redirection of a portion of the funds from the Pell program and a reshuffling of the current tax incentives for higher education.

Continue reading

May 17, 2017 in Scholarship, Tax | Permalink | Comments (0)

Sanchirico:  Pass-Through, Public Trading, And The Dubious Obstacle Of Inside Basis Adjustments

Chris Sanchirico (Pennsylvania), Pass-Through, Public Trading, and the Dubious Obstacle of Inside Basis Adjustments (web appendix):

Elective “inside basis adjustments” are a central feature of partnership taxation, and their prospective infeasibility for publicly traded companies has played an important role in shaping leading corporate integration proposals.

Continue reading

May 17, 2017 in Scholarship, Tax | Permalink | Comments (0)

Taylor:  The U.S. Rules For Taxing Business Entities

Florida Tax Review  (2015)Willard Taylor (NYU), Can We Clean This Up? A Brief Journey Through the U.S. Rules for Taxing Business Entities, 19 Fla. Tax Rev. 323 (2016):

This article summarizes the 80-plus year history of the U.S. Federal income tax rules for classifying business entities, concluding that they result largely from administrative and/or legislative reactions to specific problems or legislative accommodations to industry lobbying efforts and do not reflect an effort to develop a comprehensive and coherent system for taxing (or not taxing) business income.

Continue reading

May 17, 2017 in Scholarship, Tax | Permalink | Comments (0)

Tuesday, May 16, 2017

Chang:  Inequality, Trusts And Estates, And Tax

Felix B. Chang (Cincinnati), Asymmetries in the Generation and Transmission of Wealth,  78 Ohio St. L.J. ___ (2017):

This Article assigns a redistributive role to the legal rules of trusts and estates. Unlike business law, trusts and estates has lagged in articulating a comprehensive theory on inequality. Consequently, income inequality is compounded intergenerationally as wealth inequality, with dire consequences for economic productivity and social stability. To move the discourse on wealth inequality, this Article explores the divergent approaches toward inequality in business law and trusts and estates.

Continue reading

May 16, 2017 in Scholarship, Tax | Permalink | Comments (2)

Kleinbard:  Capital Taxation In An Age Of Inequality

Edward Kleinbard (USC), Capital Taxation In An Age Of Inequality, 90 S. Cal. L. Rev. 593 (2017):

The standard view in the U.S. tax law academy remains that capital income taxation is both a poor idea in theory and completely infeasible in practice. But this ignores the first-order importance of political economy issues in the design of tax instruments. The pervasive presence of gifts and bequests renders moot the claim that the results obtained by Atkinson and Stiglitz in 1976 counsel against taxing capital income in practice.

Continue reading

May 16, 2017 in Scholarship, Tax | Permalink | Comments (1)

Manolakas:  The Mortgage Interest Deduction And Unmarried Co-Owners

Christine Manolakas (McGeorge), Qualified Residence Interest Deduction: A Win for Unmarried Co-Owners, 17 Nev. L.J. 199 (2016):

Despite the seemingly simple language of the statute, the interpretation of the home mortgage interest deduction has recently garnered much attention as the Internal Revenue Service and the courts grappled with its application to unmarried co-owners of a residence.

Continue reading

May 16, 2017 in Scholarship, Tax | Permalink | Comments (1)

Sunday, May 14, 2017

The Top 5 Tax Paper Downloads

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

  1. [430 Downloads]  Background and Current Status of FATCA, by William Byrnes (Texas A&M) & Robert J. Munro (Texas A&M)
  2. [380 Downloads]  House Plan's Bad Math: Over-Estimates of Revenue from a Border Adjustment, by David Kamin (NYU) & Brad Setser (Council on Foreign Relations)
  3. [298 Downloads]  The Offshore Tax Enforcement Dragnet, by Shu-Yi Oei (Tulane)
  4. [225 Downloads]  Should Robots Pay Taxes? Tax Policy in the Age of Automation, by Ryan Abbott (University of Surrey) & Bret N. Bogenschneider (University of Surrey)
  5. [215 Downloads]  BEPS and the New International Tax Order, by Allison Christians (McGill)

May 14, 2017 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Religiously Affiliated Law Schools, Olympianism, And Christophobia

Michael V. Hernandez (Dean, Regent), In Defense of Pluralism: Religiously Affiliated Law Schools, Olympianism, and Christophobia, 48 U. Tol. L. Rev. 283 (2017):

Daniel Webster observed that “Christianity, general, tolerant, Christianity, Christianity independent of sects and parties” was the foundation of our liberties and legal system. In the spirit of this tradition, I have explained in my scholarship that the law must zealously guard religious liberty for all, while the substance of law should be based on principles of truth knowable by and accessible to all and not on principles unique to one faith. In other words, a Christian-based jurisprudence does not inherently involve the imposition of uniquely Christian principles and, thus, is not theocratic.

Continue reading

May 14, 2017 in Legal Education, Scholarship | Permalink | Comments (1)

Friday, May 12, 2017

Weekly SSRN Tax Article Review And Roundup

This week, Daniel Hemel (Chicago) reviews a new paper by Fabio Gaertner (Wisconsin), Jeffrey Hoopes (North Carolina), and Edward Maydew (North Carolina), Shareholder Wealth Effects of Border Adjustment Taxation.

HemelWho wins and who loses from a border-adjusted cash flow tax like the one proposed by House Republicans? Fabio Gaertner, Jeffrey Hoopes, and Edward Maydew seek to shed light on that question by examining stock market reactions to news about the House Republicans’ plan. Their topline result is that on days when news events make a border-adjusted cash flow tax look more likely, share prices of firms in high-import industries perform worse than the rest of the market.

Gaertner, Hoopes, and Maydew contribute to a fast-growing literature on the trade balance effects of border-adjusted cash flow taxation. I imagine that most readers of this blog have been following that debate, but for those who haven’t, a brief primer: A pure cash flow tax would tax businesses on revenues minus expenses. A border-adjusted cash flow tax allows an exemption for revenues from exports but denies a deduction for the cost of imports. 

Continue reading

May 12, 2017 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Thursday, May 11, 2017

Why Are Law Professors So Unhappy?

PublishLaw Prof Blawg, Why Do Law Professors Write Law Review Articles?:

Publish or perish, but is there a point to it?

Why do I write law review articles?  Other professors are starting to ask the same question of themselves.  Or more precisely, others are trying to measure who is making a “scholarly impact.”  ...

This whole quest started with another bad idea.  Publish or perish.  The whole game of academia is to publish articles so that one can get tenure, get promoted, and be on top of the world.  This means publication in student-run law reviews, preferably at the highest U.S. News and World Report ranks. ...

Continue reading

May 11, 2017 in Legal Education, Scholarship | Permalink | Comments (8)

Herzig:  The Distributive Effects Of The House GOP's Destination Based Cash Flow Tax

David Herzig (Valparaiso), The Potential Distributive Effects of the Proposed Destination Based Cash Flow Tax (DBCFT):

The House GOP Blueprint for tax reform is the most ambitious corporate tax reform since the 1930s. It cuts business tax rates and allows immediate expensing of capital outlays. It accomplishes these goals by replacing the current corporate income tax which taxes profits to a destination based cash flow tax that taxes cash flow. The tax is a move from origin or production based to destination or consumption based. As Alan Auerbach said rather than figuring out “how do you measure income ... with cash flow you just follow the money.” The cash flow tax is designed to accomplish a couple big goals. First, stop the gaming done by companies like Facebook to reduce their corporate tax burden. Second, encourage equity investment over borrowing. Finally, encourage exports while increasing the tax burden on imports. To put it mildly, the plan has caused quite a reaction.

Continue reading

May 11, 2017 in Scholarship, Tax | Permalink | Comments (1)

Tax Presentations At The Mid-Atlantic Junior Faculty Forum

MAJFFMid-Atlantic Junior Faculty Forum:

  • Jonathan Grossberg (American), A Proposal for a Residency Dividend
  • Hayes Holderness (Richmond), Questioning Quill
  • James Puckett (Penn State), Temporary Treasury Regulations: A Tax Exceptionalist Perspective

Continue reading

May 11, 2017 in Conferences, Scholarship, Tax | Permalink | Comments (1)

Wednesday, May 10, 2017

Sanchirico:  Optimal Redistributional Instruments In Tax Policy And Law & Economics

Chris William Sanchirico (Pennsylvania), Optimal Redistributional Instruments in Tax Policy and Law & Economics: Survey and Assessment:

The literature on optimal redistributional instruments begins with the assumption that society has some preference for equality, leaving the precise degree unspecified. It then asks: How should society pursue that preference? More specifically, what kinds of policy instruments — whether categorized as “taxes,” “transfers,” “public goods,” “government programs,” “regulations,” or “legal rules” — should be informed by society’s distributional objectives? This paper reviews and assesses three strands of the literature on optimal redistributional instruments.

Continue reading

May 10, 2017 in Scholarship, Tax | Permalink | Comments (1)

Tuesday, May 9, 2017

Pepperdine Tax Policy Workshop Series (Spring 2017)

Thanks to the faculty and students who made our Spring 2017 Pepperdine Tax Policy Workshop Series such a rousing success:

Continue reading

May 9, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Kuehn:  Clinical Experience For All Students: It’s Not a Question of Cost

KuehnTax Prof Blog op-ed:  A Clinical Experience For All Students: It’s Not a Question of Cost, by Robert Kuehn (Associate Dean for Clinical Education, Washington University):

Unlike the education and licensing requirements for other professions, legal education and admission to the bar in the United States lack a mandated clinical experience in law school. American Bar Association Accreditation Standard 303(b) simply requires that a school provide “substantial opportunities” for its students to participate in law clinics or field placements (what are termed “clinical” courses) where they gain lawyering experiences from advising or representing clients. Under this permissive standard, only one quarter of schools ensure that each student can graduate with clinical training; five provide no opportunities to enroll in any law clinic; one provides positions in clinical courses for only 10% of its students.

Although lawyers agree that students need the training that comes from clinical courses, many legal educators and officials question the feasibility, particularly the cost, of ensuring that every student graduates with a clinical experience. However, the experiences of a growing number of schools and ABA data demonstrate that clinical education can be provided to all J.D. students without additional costs to students.

Continue reading

May 9, 2017 in Legal Education, Scholarship | Permalink | Comments (7)

Liscow:  Do Court Mandates Change The Distribution Of Taxes And Spending?

Zachary D. Liscow (Yale), Do Court Mandates Change the Distribution of Taxes and Spending? Evidence from School Finance Litigation:

Little is known about whether court mandates ultimately affect the distribution of taxes and spending or whether legislatures offset the distributional consequences of those court orders with other changes. To offer insight into this question, I use an event-study methodology to show how state revenues and expenditures respond to court orders to increase funding for schools for low-income students.

Continue reading

May 9, 2017 in Scholarship, Tax | Permalink | Comments (1)

Field:  A Taxonomy For Tax Loopholes

Heather M. Field (UC-Hastings), A Taxonomy for Tax Loopholes, 55 Hous. L. Rev. ___ (2018):

Democrats, Republicans, media commentators and even academics denounce “tax loopholes.” Speakers may think that they are talking about the same things, but this article demonstrates that people have widely divergent views about what tax loopholes are. Thus, people criticizing loopholes often talk past each other and engage in the tax equivalent of schoolyard name-calling. The response to this problem is not, however, to try to define the concept of “tax loopholes” with precision. Such an endeavor is pointless. Instead, this article provides a taxonomy for translating the rhetoric of “tax loopholes” into meaningful tax policy discourse. This taxonomy posits that any reference to a “tax loophole” should be understood in two dimensions — the tax policy objection and the target of the criticism. Using numerous examples from the popular/political discourse and the academic literature, this article catalogs alternatives on each dimension. Categorizing any purported “tax loophole” using this taxonomy provides a more productive framing of whatever critique is implied by any use of the “loophole” label, thereby enabling the elevation of the quality of the conversation about the individual tax preference. This taxonomy may be particularly useful now, as our political leaders embark on efforts to reform the tax law, because the taxonomy can help us better understand and advance the debate that will certainly surround those reform efforts.

Continue reading

May 9, 2017 in Scholarship, Tax | Permalink | Comments (3)

Monday, May 8, 2017

Why Don't White Supremacists Pay Taxes?

NPIEric Franklin Amarante (UNLV), Why Don't White Supremacists Pay Taxes?:

Many white supremacist groups enjoy tax-exempt status. As such, these hate groups do not have to pay federal taxes and people who give money to support these groups may take deductions on their personal taxes. This recognition not only results in potential lost revenue for government programs, but it also serves as a public subsidy of racist propaganda and operates as the federal government’s imprimatur of white supremacist activities. This is all due to an unnecessarily broad definition of “educational” that somehow encompasses the activities of universities, symphonies, and white supremacists. This Essay suggests a change in the Treasury regulations to restrict the definition of educational organizations to refer only to traditional, degree-granting institutions, distance learning organizations, or certain other enumerated entities.

Continue reading

May 8, 2017 in Scholarship, Tax | Permalink | Comments (9)

Sunday, May 7, 2017

The Top 5 Tax Paper Downloads

SSRN LogoThis week's list of the Top 5 Recent Tax Paper Downloads is the same as last week's list:

  1. [413 Downloads]  Background and Current Status of FATCA, by William Byrnes (Texas A&M) & Robert J. Munro (Texas A&M)
  2. [367 Downloads]  House Plan's Bad Math: Over-Estimates of Revenue from a Border Adjustment, by David Kamin (NYU) & Brad Setser (Council on Foreign Relations)
  3. [292 Downloads]  The Offshore Tax Enforcement Dragnet, by Shu-Yi Oei (Tulane)
  4. [205 Downloads]  The First McGee Annual Report on the Best and Worst States for Business, by Robert W. McGee (Fayetteville State University)
  5. [201 Downloads]  BEPS and the New International Tax Order, by Allison Christians (McGill)

May 7, 2017 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

The Accreditation Battle Over Canada's First Christian Law School: Does Religious Freedom To Ban Student Sex Outside Of Heterosexual Marriage Trump LGBTQ Rights?

Trinity WesternFollowing up on my coverage of the accreditation battle over what would be Canada's first Christian law school (links below):

John Boersma (Ph.D. Candidate, LSU), The Accreditation of Religious Law Schools in Canada and the United States, 2016 BYU L. Rev. 1081:

Ongoing litigation in Canada suggests that the legal status of religiously affiliated law schools could be in jeopardy. In Canada, regulatory authorities have sought to deny accreditation status to a religiously affiliated law school (Trinity Western University) due to its commitment to a traditional Christian understanding of marriage. According to Canadian provincial authorities, this commitment has a discriminatory effect on LGBT students. Similar events could potentially occur in the United States. It is possible that American regulatory bodies could seek either to rescind or withhold accreditation from a religiously affiliated law school because of the discriminatory effects of its policies.

Continue reading

May 7, 2017 in Conferences, Legal Education, Scholarship | Permalink | Comments (2)

Saturday, May 6, 2017

Roberts Presents Environmental Opportunities In Tax Reform At Columbia

RobertsTracey M. Roberts (Cumberland) presented Environmental Opportunities in Comprehensive Tax Reform at Columbia yesterday as part of its Fourth Annual Sabin Colloquium on Innovative Environmental Scholarship:

In addition to the many anticipated benefits associated with recent proposals for tax reform such as improved administration, increased saving, and higher growth, there may be one more: environmental protection. This article examines a recent proposal for corporate tax reform, identifies potential environmental benefits associated with that reform and discusses ways that the tax regime may be modified to further environmental goals. The article makes two contributions.

First, the article identifies the environmental benefits of tax reform in and of itself — the elimination of existing subsidies to the fossil fuel industry and other tax expenditures that support electricity generation, transportation, and housing development patterns that have significant adverse environmental impacts.

Continue reading

May 6, 2017 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Friday, May 5, 2017

Weekly SSRN Tax Article Review And Roundup

This week, Ari Glogower (Ohio State) reviews a new article by Daniel Hemel (Chicago), The Federalist Safeguards of Progressive Taxation, 93 N.Y.U. L. Rev. ___ (2017):

Glogower (2016)In his new work, Daniel Hemel considers the distributional consequences of federalism doctrines protecting states from congressional overreaches.  Hemel argues that the anti-commandeering doctrine (which prevents Congress from compelling states to administer federal programs), the anti-coercion doctrine (which prevents Congress from effectively compelling states to administer federal programs through coercive offers) and the sovereign immunity doctrine (which prevents Congress from abrogating state sovereign immunity) all provide the states with valuable entitlements, that can be bargained away in exchange for federal funding.  In other words, states can choose to cooperate with federal government programs, instead of refusing on the basis of these doctrines, but the federal government will have to pay.  

Continue reading

May 5, 2017 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Ventry:  Lawyers As Whistleblowers

Dennis J. Ventry, Jr. (UC-Davis), Stiches for Snitches: Lawyers as Whistleblowers, 50 U.C. Davis L. Rev. 1455 (2017):

This Article challenges the prevailing wisdom that ethics rules forbid lawyers from blowing the whistle on a client’s illegal conduct. While a lawyer is not free to disclose confidential information in every jurisdiction for every legal violation, the ethics rules in all jurisdictions permit disclosure of confidential information pertaining to a client’s illegal activities under certain conditions. Proving the lie of the prevailing wisdom, this Article examines a high profile case in the state of New York that ruled a lawyer whistleblower violated the state’s ethics rules by revealing confidential information to stop his employer-client from engaging in a tax fraud of epic proportions. The Article argues that the court undertook a deficient analysis of New York ethics rules pertaining to permissive disclosure of confidential client information. Even if the whistleblower had violated his ethical obligations, the New York False Claims Act (the statute under which he brought his action) expressly protects disclosure of confidential employer information made in furtherance of the statute. In addition to New York’s statutory shield, federal courts across the country have developed a public policy exception safeguarding whistleblowers for disclosing confidential information that detects and exposes an employer’s illegal conduct.

Continue reading

May 5, 2017 in Scholarship, Tax | Permalink | Comments (0)

Thursday, May 4, 2017

Lirette & Viard:  State Taxes, State Subsidies, And Trade Neutrality

Ryan Lirette & Alan D. Viard (American Enterprise Institute), Putting the Commerce Back in the Dormant Commerce Clause: State Taxes, State Subsidies, and Commerce Neutrality, 24 J.L. & Pol’y 467 (2016):

The unpredictability of the Supreme Court’s dormant Commerce Clause (“DCC”) jurisprudence continues to draw trenchant criticism from commentators and the Justices themselves, as the Court remains unable to explain which state taxes and subsidies impede interstate commerce. We show that these problems can be resolved by a Commerce Neutrality framework requiring that state taxes and subsidies provide a combined treatment of inbound and outbound transactions at least as favorable as their treatment of intrastate transactions. This simple test has an economic foundation because taxes and subsidies that violate it create incentives to engage in intrastate rather than interstate transactions. The Supreme Court recently took an important step toward implementing this framework in Maryland Comptroller v. Wynne, 135 S. Ct. 1787 (2015), when it invalidated Maryland’s income tax scheme based on economic analysis similar to that presented in this article.

Continue reading

May 4, 2017 in Scholarship, Tax | Permalink | Comments (0)

Wednesday, May 3, 2017

Drumbl:  Easing The Sting For Married Taxpayers Filing Separately

Florida Tax Review  (2015)Michelle Lyon Drumbl (Washington & Lee), Joint Winners, Separate Losers: Proposals To Ease the Sting for Married Taxpayers Filing Separately, 18 Fla. Tax Rev. 399 (2016):

A taxpayer who is “considered as married” according to the Internal Revenue Code’s definition must file either a joint income tax return or an individual return using the “married filing separately” filing status. Those married taxpayers who file a separate, rather than a joint, income tax return are denied valuable benefits and subjected to a host of other unfavorable limitations. Low-income taxpayers in particular are hurt by these limitations. Certain married taxpayers, including victims of domestic violence and abandoned spouses, may have no choice but to file using the married filing separately status. Low-income taxpayers in such situations could benefit tremendously from such benefits as the earned income credit as they begin to rebuild their lives, but they are denied it.

Continue reading

May 3, 2017 in Scholarship, Tax | Permalink | Comments (0)

Lepow:  Teenagers, Twenty Somethings, And Tax Inequality

G. Garrison Lepow (Loyola-New Orleans), Teenagers, Twenty Somethings, and Tax Inequality: A Proposal to Simplify the Age Requirements of the Dependency Exemption, 19 N.Y.U. J. Legis. & Pub. Pol'y 797 (2016):

The dependency exemption affects close to forty-eight million individual tax returns nationwide. Like many other tax provisions, the child’s age is the factor most likely to disqualify families. Generally, parents qualify for the dependency exemption if their child is eighteen years or younger. This benefit is extended for children up to age twenty-three if they are full time students. These divergent age requirements of the exemption do not link reliably to the other child-related benefits, creating unnecessary complexity for administrators and increased litigation. More injurious, however, is that the related benefits do not reach the families with the highest expenses, which are those with children in their teens and twenties.

Continue reading

May 3, 2017 in Scholarship, Tax | Permalink | Comments (0)

Thimmesch:  Tax, Privacy, And The New Economy

Adam Thimmesch (Nebraska), Transacting in Data: Tax, Privacy, and the New Economy, 94 Denv. L. Rev. 145 (2016):

The technological developments of recent decades have allowed data to emerge as the functional equivalent of a currency in the digital economy. One result is that individuals now have the ability to obtain a wide variety of benefits, from cash discounts to access to news, social media, and online software, in exchange for their personal data. Scholars in a variety of fields recognize these personal-data transfers as market exchanges and have questioned the functioning and impact of the personal-data market. That market is currently invisible, however, for tax purposes.

Continue reading

May 3, 2017 in Scholarship, Tax | Permalink | Comments (0)

Tuesday, May 2, 2017

BYU International Tax Symposium

BYU (2016)Symposium, Important Issues in International Tax Law and Policy, 2016 BYU L. Rev. 1603-1965:

Continue reading

May 2, 2017 in Conferences, Scholarship, Tax | Permalink | Comments (0)