TaxProf Blog

Editor: Paul L. Caron
Pepperdine University School of Law

Tuesday, February 28, 2017

Osofsky Presents Regulating By Example Today At Georgetown

Osofsky (2016)Leigh Osofsky (Miami) presents Regulating by Example, 35 Yale J. on Reg. ___ (2017) (with Susan C. Morse (Texas)), at Georgetown today as part of its Tax Law and Public Finance Workshop Series hosted by John Brooks and Itai Grinberg:

Agency regulations are full of examples. Regulated parties and their advisors parse the examples to develop an understanding of the applicable law and to determine how to conduct their affairs. However, neither the legal nor theoretical literature contains any study of regulatory examples or explains how they might be interpreted. This Article fills this gap.

In this Article, we explore regulatory examples and set forth a theory for how to interpret them. We examine how regulatory examples, like common law cases, serve as data points that help communicate legal content. We argue that regulatory examples are best understood through analogical, or common law, reasoning, and illustrate this through a variety of examples.

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February 28, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

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 February 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.)

64,760

Reuven Avi-Yonah (Mich.)

11,584

2

Michael Simkovic (S. Hall)

35,349

Lily Batchelder (NYU)

8184

3

Paul Caron (Pepperdine)

32,687

Michael Simkovic (S. Hall)

4840

4

D. Dharmapala (Chicago)

29,703

D. Dharmapala (Chicago)

4123

5

Louis Kaplow (Harvard)

27,662

Ed Kleinbard (USC)

2790

6

Vic Fleischer (San Diego)

23,417

Richard Ainsworth (BU)

2598

7

James Hines (Michigan)

22,600

Paul Caron (Pepperdine)

2394

8

Ed Kleinbard (USC)

22,077

Dan Shaviro (NYU)

2380

9

Richard Kaplan (Illinois)

21,670

Louis Kaplow (Harvard)

2276

10

Ted Seto (Loyola-L.A.)

21,637

William Byrnes (Texas A&M)

2213

11

Katie Pratt (Loyola-L.A.)

19,759

David Weisbach (Chicago)

2204

12

Richard Ainsworth (BU)

19,714

Robert Sitkoff (Harvard)

2193

13

Robert Sitkoff (Harvard)

18,500

Omri Marian (UC-Irvine)

1861

14

David Weisbach (Chicago)

18,145

Jeff Kwall (Loyola-Chicago)

1789

15

Brad Borden (Brooklyn)

17,882

Steven Bank (UCLA)

1786

16

Carter Bishop (Suffolk)

17,785

Yariv Brauner (Florida)

1638

17

Chris Sanchirico (Penn)

17,229

David Gamage (Indiana)

1626

18

Jen Kowal (Loyola-L.A.)

17,182

Jordan Barry (San Diego)

1546

19

Francine Lipman (UNLV)

17,068

Francine Lipman (UNLV)

1544

20

Dan Shaviro (NYU)

16,725

Brad Borden (Brooklyn)

1543

21

Bridget Crawford (Pace)

16,583

Bridget Crawford (Pace)

1529

22

Dennis Ventry (UC-Davis)

16,362

Michael Graetz (Columbia)

1520

23

David Walker (Boston Univ.)

15,499

Brian Galle (Georgetown)

1506

24

Steven Bank (UCLA)

14,446

Christopher Hoyt (UMKC)

1499

25

Gregg Polsky (Georgia)

13,551

Vic Fleischer (San Diego)

1469

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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February 28, 2017 in Scholarship, Tax, Tax Prof Rankings | Permalink | Comments (0)

Mason:  Tax Rulings As State Aid FAQ

Ruth Mason (Virginia), Tax Rulings as State Aid FAQ, 154 Tax Notes 451 (Jan. 23, 2017):

In this report, the first in a series of reports on EU state aid, Mason provides background on state aid law as it applies to income taxes, including the legal standard, recovery mechanism, and case selection by the Commission.

February 28, 2017 in Scholarship, Tax | Permalink | Comments (0)

Monday, February 27, 2017

Manhire:  Unknowable Unknowns Of Tax Reform — Wicked Systems, Cloud Seeding, And The Border Adjustment Tax

Better Way (2017)Jack Manhire (Texas A&M), Unknowable Unknowns of Tax Reform: Wicked Systems, Cloud Seeding, and the Border Adjustment Tax:

This brief comment explores just one of the "unknowable unknowns" concerning the border-adjustment tax proposal in the House Republican Blueprint.

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February 27, 2017 in Scholarship, Tax | Permalink | Comments (2)

Call For Proposals: Association For Mid-Career Tax Law Professors (March 1 Deadline)

The Association for Mid-Career Tax Law Professors (“AMT”) has issued a Call for Proposals:

MCThe AMT organizing committee — Jennifer Bird-Pollan (Kentucky), Miranda Fleischer (San Diego), Will Foster (Arkansas), Brian Galle (Georgetown), and Susie Morse (Texas) — welcomes proposals for our annual conference.

AMT is a recurring conference intended to bring together relatively recently-tenured professors of tax law for frank and free-wheeling scholarly discussion. Our third annual meeting will be held on Monday and Tuesday, May 22 and 23, 2017, on the campus of the University of Arkansas School of Law in Fayetteville, Arkansas. We’ll begin early on Monday and adjourn by noon on Tuesday.

2015 Conference at Ohio State (Day 1, Day 2)
2016 Conference at UC-Davis (Day 1, Day 2)

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February 27, 2017 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Sunday, February 26, 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 #1 paper and a paper returning to the list at #4:

  1. [1,277 Downloads]  The Known Unknowns of the Business Tax Reforms Proposed in the House Republican Blueprint, by Michael J. Graetz (Columbia)
  2. [713 Downloads]  A Guide to the GOP Tax Plan — The Way to a Better Way, by David A. Weisbach (Chicago)
  3. [347 Downloads]  Accounting for Behavioral Considerations in Business Tax Reform: The Case of Expensing, by Lily L. Batchelder (NYU)
  4. [336 Downloads]  Destination-Based Cash-Flow Taxation: A Critical Appraisal, by Wei Cui (British Columbia)
  5. [317 Downloads]  How Donald Trump can Keep His Campaign Promises, Grow the Economy, Cut Tax Rates, Repatriate Offshore Earnings, Reduce Income Inequality, Keep Jobs in the United States, and Reduce the Deficit, by David S. Miller (Proskauer, New York)

February 26, 2017 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, February 24, 2017

Weekly SSRN Tax Article Review And Roundup

This week, Daniel Hemel (Chicago) reviews a new working paper by David M. Schizer (Columbia), Subsidies and Nonprofit Governance: Comparing the Charitable Deduction with the Exemption for Endowment Income (Columbia Univ. Sch. of Law, Ctr. for Law & Econ. Studies, Working Paper No. 558, 2017).

HemelDavid Schizer’s new paper offers a fresh take on two long-running debates in tax law: should we allow a deduction for charitable contributions, and should we exempt the passive investment income of charities from tax? Schizer’s central claim is that the exemption (but not the deduction) distorts donors’ decisions as to the timing of charitable contributions—and, specifically, that the exemption inefficiently encourages donors to accelerate their giving. This post summarizes Schizer’s argument and then offers a reason why the deduction, at least in its current form, might distort donors’ decisions as to the timing of charitable contributions in the opposite direction.

The tax exemption for passive investment income earned by charities “creates an important inconsistency,” writes Schizer: “If donors keep an investment, their return (generally) is taxable. But if they donate the investment to charity, the return is no longer taxed” (p. 16). This gives the donor “a tax incentive to transfer assets to charities, and thus to give up control of these resources” (p. 20). That “can have two unfortunate effects,” according to Schizer: “it can erode the motivation and ability of charities to change with the times, and also can impede the ability of donors to monitor the performance of managers.” And while acknowledging that endowments might be desirable under some circumstances, Schizer writes that “it is hard to see why the tax law should put a thumb on the scale” (p. 24). 

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February 24, 2017 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (2)

Fleischer Presents Subsidizing Charity Liberally Today At Columbia

Fleischer (Miranda)Miranda Perry Fleischer (San Diego) presents Subsidizing Charity Liberally at Columbia today as part of its Public Law Workshop Series hosted by David Pozen:

When visiting America over 150 years ago, Alexis De Tocqueville was amazed by the role of charities in American society. Since De Tocqueville’s visit, the sector’s size and influence have grown enormously. So too have the legal benefits accorded them, the most important of which are governmental subsidies in the form of exemption from the corporate income tax and the ability to receive tax-deductible contributions. Given the sector’s importance and the cost of these benefits, whether the sector’s legal treatment reflects our society’s broader ideals merits examination. More specifically, our Constitution enshrines two bedrock principles of Western liberal democracies: limited government and equal opportunity. Does the legal treatment of the charitable sector further these ideals, or undermine them?

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

Thursday, February 23, 2017

Osofsky Presents Regulating By Example Today At Duke

Osofsky (2016)Leigh Osofsky (Miami) presents Regulating by Example, 35 Yale J. on Reg. ___ (2017) (with Susan C. Morse (Texas)), at Duke today as part of its Tax Policy Workshop Series hosted by Lawrence Zelenak:

Agency regulations are full of examples. Regulated parties and their advisors parse the examples to develop an understanding of the applicable law and to determine how to conduct their affairs. However, neither the legal nor theoretical literature contains any study of regulatory examples or explains how they might be interpreted. This Article fills this gap.

In this Article, we explore regulatory examples and set forth a theory for how to interpret them. We examine how regulatory examples, like common law cases, serve as data points that help communicate legal content. We argue that regulatory examples are best understood through analogical, or common law, reasoning, and illustrate this through a variety of examples.

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

Mehrotra Presents Law, Politics And The Rise Of Progressive Taxation (1877-1929) Tonight At UNLV

Mehrotra (2017)Ajay Mehrotra (American Bar Foundation & Northwestern) delivers the Philip Pro Lectures in Legal History at UNLV tonight on Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877-1929 (Cambridge University Press, 2013) (reviews)  (awards):

At the turn of the twentieth century, the U.S. system of public finance underwent a dramatic transformation. The late-nineteenth-century regime of indirect, hidden, partisan, and regressive taxes was eclipsed in the early twentieth century by a direct, transparent, professionally administered, and progressive tax system. This book uncovers the contested roots and paradoxical consequences of this fundamental shift in American tax law and policy. It argues that the move toward a regime of direct and graduated taxation marked the emergence of a new fiscal polity — a new form of statecraft that was guided not simply by the functional need for greater revenue but by broader social concerns about economic justice, civic identity, bureaucratic capacity, and public power.

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February 23, 2017 in Book Club, Colloquia, Scholarship, Tax | Permalink | Comments (0)

Hayashi & Murphy:  Savings Externalities In A Second-Best World

Andrew T. Hayashi (Virginia) & Daniel Patrick Murphy (Virginia), Savings Externalities in a Second-Best World:

The debate among legal scholars about individuals’ failure to save enough for retirement happens on a “micro” level. It focuses on the causes and consequences of undersaving from the perspective of individuals and analyzes how legal interventions, such as tax subsidies and nudges, can best address individual saving mistakes. This debate depends on certain assumptions about how the macroeconomy operates. When these assumptions do not hold, neither do the implications of the micro analysis, turning the conventional analysis of undersaving on its head. In fact, in a variety of circumstances, saving imposes a negative externality. Consequently, what looks like undersaving at the individual level may result in oversaving in the aggregate, and private vice may become a public virtue.

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

Soled:  The $250 Billion Price Tag Associated With Gift Tax Repeal

Jay A. Soled (Rutgers), The $250 Billion Price Tag Associated with Gift Tax Repeal, 154 Tax Notes 429 (2017):

For close to a century, many commentators, academics, and politicians have considered the gift tax as an important backstop to preserve the integrity of the nation’s estate tax. Indeed, in the absence of a viable gift tax, taxpayers could easily circumvent their estate tax obligations. But what these very same people often fail to realize is that the gift tax also serves an entirely different, yet significant purpose as well: it acts as an integral backstop to ensure the progressive nature of the nation’s income tax. Indeed, in the absence of a viable gift tax, taxpayers could easily circumvent their income tax obligations.

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

Tuesday, February 21, 2017

Oh Presents Are the Rich Responsible for Progressive Marginal Rates? Today At NYU

OhJason Oh (UCLA) presents Are the Rich Responsible for Progressive Marginal Rates? at NYU today as part of its Tax Policy Colloquium Series hosted by Daniel Shaviro and Rosanne Altshuler:

Why do income tax systems across the world consistently feature progressive marginal rates? The existing literature tells a political story focusing on the top of the rate schedule and the preferences of the poor and middle class. According to the standard view, higher rates at the top result from the poor and middle class using the political process to “soak the rich.” However, this explanation is inconsistent with research showing that public policy is generally more responsive to the preferences of the rich. Explaining marginal rate progressivity as a universal (and exceptional) triumph of the poor and middle class rings hollow.

This Article resolves this tension in the extant literature by showing how progressive marginal rates are in fact consistent with the preferences of the rich.

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February 21, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (1)

Fleming:  The EU Apple Case

J. Clifton Fleming Jr. (BYU), The EU Apple Case: Who Has a Dog in the Fight?, 154 Tax Notes Int'l 251 (Jan. 9, 2017):

This is a reductionist article. It provides a simplified diagram and explanation of Apple's foreign tax planning that eliminates complexities not necessary to an understanding of either the relevant EU or U.S. tax issues. The primary focus of the article is identification of the stakeholders in the controversy over the EU Commission's Apple decision, analysis of their interests, and evaluation of the impact of the Apple decision on those interests.

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February 21, 2017 in Scholarship, Tax | Permalink | Comments (0)

Oei & Ring:  Leak-Driven Tax Law

Shu-Yi Oei (Tulane; moving to Boston College) & Diane M. Ring (Boston College), Leak-Driven Law:

Over the past decade, a number of well-publicized data leaks have revealed the secret offshore holdings of high-net-worth individuals and multinational taxpayers, leading to a sea change in cross-border tax enforcement. Spurred by leaked data, tax authorities have prosecuted offshore tax cheats, attempted to recoup lost revenues, enacted new laws, and signed international agreements that promote “sunshine” and exchange of financial information between countries.

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February 21, 2017 in Scholarship, Tax | Permalink | Comments (0)

Monday, February 20, 2017

Blank Presents The Timing Of Tax Transparency Today At Pepperdine

Blank (2017)Joshua Blank (NYU) presents The Timing of Tax Transparency, 90 S. Cal. L. Rev. ___ (2017), at Pepperdine today as part of our Tax Policy Workshop Series funded in part by a generous gift from Scott Racine:

Fairness in the administration of the tax law is the subject of intense debate in the United States. As recent headlines reveal, the Internal Revenue Service has been accused of failing to enforce the tax law equitably in its review of tax-exempt status applications by political organizations, the international tax structures of multinational corporations, and the estate tax returns of millionaires, among other areas. Many have argued that greater “tax transparency” would better empower the public to hold the IRS accountable and the IRS to defend itself against accusations of malfeasance. Mandatory public disclosure of taxpayers’ tax return information is often proposed as a way to achieve greater tax transparency. Yet, in addition to concerns regarding exposure of personal and proprietary information, broad public disclosure measures pose potential threats to the taxing authority’s ability to enforce the tax law.

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

Ball & Viswanathan:  From Business Tax Theory To Practice

Alina S. Ball (UC-Hastings) & Manoj Viswanathan (UC-Hastings), From Business Tax Theory to Practice:

The past decade has seen a dramatic increase in the number of business law clinics in legal academia. This increase in clinical transactional courses has not, however, resulted in a proliferation of transactional tax clinical offerings. Although tax issues, including federal, state, and local tax matters, are an integral consideration of nearly every business transaction, most business law clinics explicitly exclude tax representation from their client services. For clients of business law clinics that are social enterprises — companies that combine market-based business strategies and social mission — this lack of tax-focused representation is problematic for two reasons.

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

Sunday, February 19, 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 #2:

  1. [2,131 Downloads]  Problems with Destination-Based Corporate Taxes and the Ryan Blueprint, by Reuven S. Avi-Yonah (Michigan; moving to UC-Irvine) & Kimberly A. Clausing (Reed College)
  2. [1,019 Downloads]  The Known Unknowns of the Business Tax Reforms Proposed in the House Republican Blueprint, by Michael J. Graetz (Columbia)
  3. [677 Downloads]  A Guide to the GOP Tax Plan — The Way to a Better Way, by David A. Weisbach (Chicago)
  4. [326 Downloads]  Accounting for Behavioral Considerations in Business Tax Reform: The Case of Expensing, by Lily L. Batchelder (NYU)
  5. [274 Downloads]  How Donald Trump can Keep His Campaign Promises, Grow the Economy, Cut Tax Rates, Repatriate Offshore Earnings, Reduce Income Inequality, Keep Jobs in the United States, and Reduce the Deficit, by David S. Miller (Proskauer, New York)

February 19, 2017 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, February 17, 2017

Weekly SSRN Tax Article Review And Roundup

This week, David Gamage (Indiana) reviews a new piece by Michael Graetz (Columbia), The Known Unknowns of the Business Tax Reforms Proposed in the House Republican Blueprint, Columbia Law and Economics Working Paper No. 557.

Gamage (2017)How should we evaluate the House Republicans’ proposals for adopting a destination-based cash-flow tax (“DBCFT”)?  This is among the most important tax policy question currently facing the United States.  Yet this question is difficult to analyze, in part, because of uncertainty about what the proposed DBCFT might turn out to be if implemented.

To survey this quagmire, Graetz offers what is essentially just a list of questions, presented on PowerPoint slides printed to PDF.  Nevertheless, I found Graetz’s work to be by far the most helpful document for understanding the House Republicans’ DBCFT proposal that has been made available to date.

To highlight just a couple points raised by Graetz’s list of questions: 

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February 17, 2017 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Hickman Presents Restoring The Lost Anti-Injunction Act At BYU

Hickman (2017)Kristin Hickman (Minnesota) presented Restoring the Lost Anti-Injunction Act (with Gerald Kerska (J.D. 2017, Minnesota)) yesterday at BYU as part of its Faculty Workshop Series:

Should Treasury regulations be eligible for pre-enforcement review? The D.C. Circuit’s recent decision in Florida Bankers Association puts its interpretation of the Anti-Injunction Act at odds with both general administrative law norms in favor of pre-enforcement review of final agency action and also the Supreme Court’s interpretation of the nearly identical Tax Injunction Act in Direct Marketing Association v. Brohl. In fact, cases interpreting the Anti-Injunction Act more generally are fragmented and inconsistent.

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

Thursday, February 16, 2017

Book Presents Taxpayer Rights, Behavioral Economics And The EITC Today At Indiana

BookLeslie Book (Villanova) presents Thinking About Taxpayer Rights and Behavioral Economics to Improve Administration of the EITC (with David Williams (Chief Tax Officer, Intuit)) at Indiana-Bloomington today as part of its Tax Policy Colloquium Series hosted by Leandra Lederman:

The IRS is a reluctant but key player in delivering social benefits to the nation’s working poor. Yet it administers one of the nation’s largest anti-poverty programs: the earned income tax credit (EITC). The EITC is generally praised for its role in reducing poverty and incentivizing low-wage work. While the credit has generally received bipartisan support, the IRS continues to face strong criticism over EITC compliance issues.

The IRS has generally focused on tax return characteristics in identifying and preventing erroneous EITC claims. We believe that shifting the focus from tax return characteristics to taxpayer characteristics may offer additional opportunities to improve EITC compliance (and perhaps other areas where there is systemic noncompliance).

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February 16, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Grewal:  Can Congress Get President Trump’s Tax Returns?

Trump Tax ReturnsFollowing up on my previous post, George K. Yin (Virginia), Congress Already Has The Power To Obtain And Release Trump’s Tax Returns: Andy Grewal (Iowa), Can Congress Get President Trump’s Tax Returns?, Yale J. on Reg.: Notice & Comment (Feb. 13, 2017):

The statutory authority for any congressional requests would probably come from Sections 6103(f)(1) & (2) of the tax code. Under (f)(1), some committees of Congress can request disclosure of Trump’s returns and can examine those returns privately. Under (f)(2), a non-partisan career official, the Chief of Staff of the Joint Committee on Taxation (JCT), may also request and privately examine those returns. Professor Yin argues that information obtained through Section 6103(f) can be subsequently disclosed to the public, when public disclosure serves a legitimate legislative purpose. ...

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

Schizer:  The Charitable Deduction And The Exemption For Endowment Income

David M. Schizer (Columbia), Subsidies and Nonprofit Governance: Comparing the Charitable Deduction with the Exemption for Endowment Income:

Charitable subsidies are supposed to encourage positive externalities from charity. In principle, the government can pursue this goal by evaluating specific charitable initiatives and deciding how much each should receive. But this Article focuses on two income tax rules that leave the government very little discretion about which charities to fund: the deduction for donations to charity (“the deduction”) and the exemption of a charity’s investment income (“the exemption”). Under each rule, as long as charities satisfy very general criteria, federal dollars flow automatically. While both of these sibling subsidies delegate key decisions to private individuals, they create very different incentives and effects. This Article breaks new ground by showing their different effects on the governance of nonprofits.

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February 16, 2017 in Scholarship, Tax | Permalink | Comments (0)

John Plecnik Discusses His Tax Scholarship

February 16, 2017 in Scholarship, Tax | Permalink | Comments (0)

Wednesday, February 15, 2017

The Tax Lawyer Publishes New Issue

The Tax Lawyer (2013)The Tax Lawyer has published Vol. 70, No. 1 (Fall 2016):

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February 15, 2017 in ABA Tax Section, Scholarship, Tax | Permalink | Comments (0)

Morse & Osofsky:  Regulating By Example

Susan C. Morse (Texas) & Leigh Osofsky (Miami), Regulating by Example,  35 Yale J. on Reg. ___ (2017):

Agency regulations are full of examples. Regulated parties and their advisors parse the examples to develop an understanding of the applicable law and to determine how to conduct their affairs. However, neither the legal nor theoretical literature contains any study of regulatory examples or explains how they might be interpreted. This Article fills this gap.

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February 15, 2017 in Scholarship, Tax | Permalink | Comments (0)

Tuesday, February 14, 2017

Toder Presents Taxing Entrepreneurial Income Today At Georgetown

Toder (2017)Eric Toder (Tax Policy Center) presents Taxing Entrepreneurial Income at Georgetown today as part of its Tax Law and Public Finance Workshop Series hosted by John Brooks and Itai Grinberg:

This paper applies the Schumpeterian view of entrepreneurship to estimate the tax rate on entrepreneurial income under alternative assumptions about the pattern of returns from innovations, the tax rules applied to different types of income (wages, interest, capital gains, dividends, corporate profits), and the effects of taxes on the market value of successful enterprises. We model the tax rate on entrepreneurial income as the tax burden on an individual who establishes a new firm and then sells her interest in the business once it becomes an established enterprise. The paper finds the effective tax rate on entrepreneurial income depends on both the tax rate imposed on the entrepreneur’s income during the firm’s growth phase and on the effects of the tax system on the price at which the entrepreneur can cash in her investment when the firm reaches maturity.

February 14, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Call For Business Tax Papers:  Oxford University Symposium

OxfordThe Oxford University Centre for Business Taxation has issued a call for papers for its annual symposium:

The 11th Annual Academic Symposium will take place between 26 and 28 June 2017.  A call for papers will be issued in due course. The symposium will be held at Saïd Business School, Park End Street, Oxford.

The call for papers is now live. If you wish to make a submission the deadline is Monday 27 February 2017. Papers will be selected, and invitations extended, by Monday 27 March 2017.

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February 14, 2017 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Blank, Osofsky & Zelenak On Tax Simplexity

Joshua D. Blank (NYU) & Leigh Osofsky (Miami), Simplexity: Plain Language and the Tax Law, 66 Emory L.J. 189 (2017):

In recent years, federal government agencies have increasingly attempted to use plain language in written communications with the public. The Plain Writing Act of 2010, for instance, requires agencies to incorporate “clear and simple” explanations of rules and regulations into their official publications. In the tax context, as part of its “customer service” mission, the Internal Revenue Service bears a “duty to explain” the tax law to hundreds of millions of taxpayers who file tax returns each year. Proponents of the plain language movement have heralded this form of communication as leading to simplicity in tax compliance, more equitable access to federal programs, and increased open government.

This Article casts plain language efforts in a different light. As we argue, rather than achieving simplicity, which would involve reform of the underlying law, the use of plain language to describe complex legal rules and regulations often yields “simplexity.”

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February 14, 2017 in Scholarship, Tax | Permalink | Comments (0)

Monday, February 13, 2017

Christians Presents Human Rights At The Borders Of Tax Sovereignty Today At NYU

Christians (2017)Allison Christians (McGill) presents Human Rights at the Borders of Tax Sovereignty at NYU today as part of its Tax Policy Colloquium Series hosted by Daniel Shaviro and Rosanne Altshuler:

Tax scholarship typically presumes the state' s power to tax and therefore rarely concerns itself with analyzing which relationships between a government and a potential taxpayer normatively justify taxation, and which do not. This paper presents the case for undertaking such an analysis as a matter of the state' s obligation to observe and protect fundamental human rights.

It begins by examining existing frameworks for understanding how a taxpayer population is and ought to be defined. It then analyzes potential harms created by an improperly expansive taxpayer category, and those created by excluding from consideration those beyond the polity even if directly impacted by the tax regime. It concludes that a modified membership principle is a more acceptable framework for normative analysis of the jurisdiction to tax, even while acknowledging the overwhelming weight of existing perceptions about the bounds of the polity and the state-citizen relationship as significant barriers to acceptance.

February 13, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Polsky Presents Elite Tax Professionals Behaving Badly Today At UC-Irvine

Polsky (2015)Gregg Polsky (Georgia) presents Elite Tax Professionals Behaving Badly: The Sad and Sordid Management Fee Waiver Saga at UC-Irvine today as part of its Tax Law and Policy Colloquium Series hosted by Omri Marian:

For at least the past 15 years, many private equity fund managers have used a technique—known as a management fee waiver—to try to claim what is effectively their weekly paycheck as a capital gain. Recently, the Treasury and IRS explained that, at least in the government’s view, the vast majority of fee waivers do not actually provide the claimed tax result. Recent reports of significant audit activity relating to fee waivers suggest that the fee waiver saga may finally be coming to an end, but not before billions of tax revenues that are beyond the statute of limitations have been lost forever.

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February 13, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (1)

Marriage Penalty Relief After Obergefell

Mitchell Engler (Cardozo) & Edward Stein (Cardozo), Not Too Separate or Unequal: Marriage Penalty Relief after Obergefell, 91 Wash. L. Rev. ___ (2016):

Joint tax returns have generated controversy for many years. Married couples with the same joint income pay the same tax under our current system regardless of the earnings distribution between the spouses. This approach primarily rests on the idea that married couples share resources and operate as a single economic unit. Critics typically challenge this assumption and lament how marriage might significantly change a couple’s taxes. Depending on their earnings breakdown, a couple’s taxes could be reduced (a marital bonus for uneven earners) or increased (a marital penalty for even earners). These possibilities exist because the joint brackets are typically larger – but not twice as large – as the unmarried brackets.

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February 13, 2017 in Scholarship, Tax | Permalink | Comments (1)

Call For Tax Papers:  First Mid-Atlantic Junior Faculty Forum

Richmond (2017)Mid-Atlantic Junior Faculty Forum: Call for Papers:

The University of Richmond School of Law invites submissions for the inaugural Mid-Atlantic Junior Faculty Forum. This workshop will be held on Wednesday, May 10 and Thursday, May 11, 2017 in Richmond, Virginia.

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February 13, 2017 in Conferences, Legal Education, Scholarship, Tax | Permalink | Comments (0)

Mini-Symposium:  The Future Of Tax Administration And Enforcement

Christopher J. Walker (Ohio State), Surly Subgroup Mini-Symposium on The Future of Tax Administration and Enforcement, Yale J. on Reg.: Notice & Comment (Feb. 11, 2017):

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February 13, 2017 in Conferences, Scholarship, Tax | Permalink | Comments (0)

ACTEC Law Journal Exclusive Review

ACTECThe American College of Trust and Estate Counsel Law Journal will be conducting exclusive reviews over the next few weeks. Any contribution submitted to the ACTEC Law Journal between February 13, 2017 and February 28, 2017 will be evaluated for publication purposes within four (4) business days of submission.  By submitting an article or essay, the author agrees to immediately accept a publication offer with the ACTEC Law Journal should one be extended. 

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February 13, 2017 in Scholarship, Tax | Permalink | Comments (0)

Sunday, February 12, 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 #5:

  1. [2,001 Downloads]  Problems with Destination-Based Corporate Taxes and the Ryan Blueprint, by Reuven Avi-Yonah (Michigan; moving to UC-Irvine) & Kimberly Clausing (Reed College)
  2. [619 Downloads]  A Guide to the GOP Tax Plan — The Way to a Better Way, by David Weisbach (Chicago)
  3. [292 Downloads]  Accounting for Behavioral Considerations in Business Tax Reform: The Case of Expensing , by Lily Batchelder (NYU)
  4. [279 Downloads]  Destination-Based Cash-Flow Taxation: A Critical Appraisal, by Wei Cui (British Columbia)
  5. [235 Downloads]  How Donald Trump can Keep His Campaign Promises, Grow the Economy, Cut Tax Rates, Repatriate Offshore Earnings, Reduce Income Inequality, Keep Jobs in the United States, and Reduce the Deficit, by David S. Miller (Proskauer, New York)

February 12, 2017 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, February 10, 2017

Weekly SSRN Tax Article Review And Roundup

This week, Ari Glogower (Ohio State) reviews a new article by Chris Sanchirico (Penn), Business Investment in the Tax Reform Blueprint

Glogower (2016)Since its release last June, the business tax provisions of the GOP House’s tax reform plan (“the reform plan”) have garnered intense interest, and improbably trending hashtags.  Much of the focus has centered on the border adjustment, which taxes imports but exempts exports, and its implications for the dollar and trade agreements.  (For example, Problems with Destination-Based Corporate Taxes and the Ryan Blueprint, by Reuven Avi-Yonah (Michigan/UC-Irvine) and Kimberly Clausing (Reed)).  Sanchirico’s new work, in contrast, examines two other related provisions in the reform plan: immediate expensing for business investments, and disallowance of a deduction for a business’ net interest expenses.

The conventional wisdom, as reflected in the reform plan, is that businesses would prefer the reform package of expensing plus interest non-deductibility to current law, which generally allows accelerated depreciation and interest deductions. Sanchirico’s work challenges this assumption, as well as the related arguments that the reform package will incentivize investment and encourage more efficient investment and financing decisions. 

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February 10, 2017 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Brunson & Herzig:  Treasury Department Should Create Blacklist Of What Constitutes Prohibited Discrimination By Religious Organizations

Samuel D. Brunson (Loyola-Chicago) & David Herzig (Valparaiso), A Diachronic Approach to Bob Jones: Religious Tax Exemptions after Obergefell, 92 Ind. L.J. ___ (2016):

In Bob Jones v. U.S., the Supreme Court held that an entity may lose its tax exemption if it violates a fundamental public policy, even where religious beliefs demand that violation. In that case, the Court held that racial discrimination violated fundamental public policy. Could the determination to exclude same-sex individuals from marriage or attending a college also be considered a violation of fundamental public policy? There is uncertainty in the answer. In the recent Obergefell v. Hodges case that legalized same-sex marriage, the Court asserted that LGBT individuals are entitled to “equal dignity in the eyes of the law.” Constitutional law scholars, such as Lawrence Tribe, are advocating that faith groups might lose their status, citing that this decision is the dawning of a new era of constitutional doctrine in which fundamental public policy will have a more broad application.

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February 10, 2017 in IRS News, Scholarship, Tax | Permalink | Comments (3)

Thursday, February 9, 2017

Walker Presents The Practice And Tax Consequences Of Nonqualified Deferred Compensation Today At Duke

Walker (2016)David Walker (Boston University) presents The Practice and Tax Consequences of Nonqualified Deferred Compensation at Duke today as part of its Tax Policy Workshop Series hosted by Lawrence Zelenak:

Although nonqualified deferred compensation plans lack explicit tax preferences afforded qualified plans, it is well understood that nonqualified deferred compensation results in a joint tax advantage when employers earn a higher after-tax return on deferred sums than employees could achieve on their own. Several commentators have proposed tax reform aimed at leveling the playing field between cash and nonqualified deferred compensation, but reform is not easily achieved. This Article examines the stakes.

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

Wednesday, February 8, 2017

Liscow Presents Innovation And Climate Law Today At Toronto

Liscow (2017)Zachary Liscow (Yale) presents Innovation and Climate Law (with Quentin Karpilow (Yale)) at Toronto today as part of its James Hausman Tax Law and Policy Workshop Series:

A common view in environmental law is that the government should not pick certain technologies over others. Rather, in the context of climate policy, this view suggests that the government should impose a carbon tax and let that induce innovation in private sector through the patent system. We offer a qualified defense of the government “picking winners”: directly encouraging innovation in cleantech over dirtytech and even within cleantech. Our argument is largely based on recent research in economics showing “path dependence” in the development of energy technology, suggesting that a big push in cleantech innovation can lead to a permanent reorientation of the energy sector and lead to more emissions reductions at lower cost.

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February 8, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

McLaughlin:  Conservation Easements And The Valuation Conundrum

Florida Tax Review  (2015)Nancy A. McLaughlin (Utah), Conservation Easements and the Valuation Conundrum, 19 Fla. Tax Rev. 225 (2016):

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

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February 8, 2017 in Scholarship, Tax | Permalink | Comments (0)

Kaye:  Tax Transparency— A Tale Of Two Countries

Tracy A. Kaye (Seton Hall), Tax Transparency: A Tale of Two Countries, 39 Fordham Int'l L.J. 1153 (2016):

On April 4, 2016, the International Consortium of Investigative Journalists announced their access to the “Panama Papers,” 11.5 million documents comprising forty years of emails, bank accounts and client records from the Panamanian law firm Mossack Fonseca. This latest public disclosure reveals the offshore accounts of individuals and corporations from over 200 countries and demonstrates that the movement toward global transparency is inevitable. The Panama Papers are also a powerful reminder that transparency matters greatly in the war on tax evasion.

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February 8, 2017 in Scholarship, Tax | Permalink | Comments (0)

Tuesday, February 7, 2017

Batchelder Presents Accounting For Behavioral Biases In Business Tax Reform Today At Georgetown

BatchelderLily Batchelder (NYU) presents Accounting for Behavioral Biases in Business Tax Reform: The Case of Expensing at Georgetown today as part of its Tax Law and Public Finance Workshop Series hosted by John Brooks and Itai Grinberg:

One of the fundamental questions in business tax reform is whether to allow firms to immediately expense investments or require economic cost recovery. The conventional view is that expensing would generate stronger growth effects holding revenues constant. This view is rooted in traditional models of corporate finance that assume firms look at the net present value of expected tax payments when incorporating taxes into investment decisions. But this traditional view ignores the possibility that firms focus on more salient measures of taxes as well. If so, they may respond less to expensing than this theory suggests because expensing does not lower their financial accounting tax liability and, all else equal, requires a higher statutory rate.

This paper considers whether firms undervalue expensing due to a focus on these non-economic tax metrics and, if so, what this implies about business tax reform if the goal is to increase US investment. It develops a framework for what cost recovery rules are optimal, and then uses new and existing data to parameterize this framework, holding constant long-run revenues and the relative tax treatment of debt and equity. 

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February 7, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

The Crisis Of Race In Higher Education

RaceWilliam F. Tate IV (Dean, Graduate School of Arts & Sciences & Vice Provost, Graduate Education, Washington University), Nancy Staudt (Dean, Law School, Washington University) & Ashley Macrander (Assistant Dean, Graduate Student Affairs, Washington University), The Crisis of Race in Higher Education: A Day of Discovery and Dialogue (2016):

The compendium of writings in this edited volume sheds light on the event Race & Ethnicity — 2015: A Day of Discovery and Dialogue at Washington University in St. Louis and the work current students, faculty, and staff are doing to improve inclusivity on campus and in St. Louis.

Race & Ethnicity — 2015: A Day of Discovery and Dialogue:

On Feb. 5-6, 2015, the university came together to explore critical issues facing our community. Here, you can experience what transpired that day—a day that marked the beginning of a dialogue and work that must continue. We invite you to be part of this ongoing process.

Over the course of 25 hours, the subjects of race and ethnicity were explored through the lens of the five themes summarized below. Watch the videos, be inspired and continue the conversation.

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February 7, 2017 in Book Club, Legal Education, Scholarship | Permalink | Comments (1)

Theft Loss Deductions, Restitution, And Public Policy

Steven Friedell (Rutgers), Confidence Schemes: Theft Loss Deductions, Restitution, and Public Policy, 90 St. John's L. Rev. 25 (2016):

May courts legitimately impose their public policy views to override statutory commands? This article focuses on some of these problems in the field of federal income tax. Part I of the article focuses on theft losses suffered by confidence-scheme victims who thought they would profit from counterfeiting or other illegal activity. Courts usually disallow these deductions so as to discourage illegal activity. This article criticizes this rationale and offers a better one. It suggests that a tax deduction would be contrary to state policy in those situations where states in effect penalize victims by denying them restitution from the thieves. Part II discusses the cases that have denied deductions for fines and civil penalties and explores how these apply to the denial of restitution.

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February 7, 2017 in Scholarship, Tax | Permalink | Comments (0)

How To Count Citations (If You Must)

EinsteinMotty Perry (Warwick) & Philip J. Rent (Chicago), How To Count Citations If You Must:

Citation indices are regularly used to inform critical decisions about promotion, tenure, and the allocation of billions of research dollars. Nevertheless, most indices (e.g., the h-index) are motivated by intuition and rules of thumb, resulting in undesirable conclusions. In contrast, five natural properties lead us to a unique new index, the Euclidean index, that avoids several shortcomings of the h-index and its successors. The Euclidean index is simply the Euclidean length of an individual’s citation list.

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February 7, 2017 in Legal Education, Scholarship | Permalink | Comments (0)

Monday, February 6, 2017

Pratt Presents The IRS's Startling Attempt To Deny Medical Expense Deduction For Cost Of Male-To-Female Transition Today At Pepperdine

Pratt (2016)Katherine Pratt (Loyola-L.A.) presents The Tax Definition of “Medical Care:” A Critique of the Startling IRS Arguments in O’Donnabhain v. Commissioner, 23 Mich. J. Gender & L. 313 (2016), at Pepperdine today as part of our Tax Policy Workshop Series funded in part by a generous gift from Scott Racine:

This Article critiques the startling arguments made by the Internal Revenue Service (“IRS”) in O’Donnabhain v. Commissioner, a case in which the issue was whether a person diagnosed with gender identity disorder (“GID”) could take a federal tax deduction for the costs of male-to-female medical transition, including hormone treatment, genital surgery, and breast augmentation.

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February 6, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (2)

Auerbach Presents U.S. Inequality, Fiscal Progressivity, And Work Disincentives Today At NYU

AuerbachAlan Auerbach (UC-Berkeley) presents U.S. Inequality, Fiscal Progressivity, and Work Disincentives: An Intra-generational Accounting (with Laurence Kotlikoff (Boston University) & Darryl Koehler) at NYU today as part of its Tax Policy Colloquium Series hosted by Daniel Shaviro and Rosanne Altshuler:

This study combines the 2013 Federal Reserve Survey of Consumer Finances data and the Fiscal Analyzer, a highly detailed life-cycle consumption-smoothing program, to a) measure ultimate economic inequality – inequality in lifetime spending power – within cohorts, b) assess fiscal progressivity within cohorts, c) calculate marginal remaining lifetime net tax rates, taking into account all major federal and state tax and transfer policies, d) evaluate the ability of current income to correctly classify households as rich, middle class, and poor, e) determine whether current-year average net tax rates accurately capture actual fiscal progressivity, and f) determine whether current-year marginal tax rates on labor supply accurately capture actual remaining lifetime marginal net tax rates.

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February 6, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Olson Presents Tax Policy In The New Administration Today At Minnesota

Olson (2017)Pam Olson (PricewaterhouseCoopers) presents Tax Policy in the New Administration at the University of Minnesota Law School Corporate Institute Forum on Taxation and Regulation today as part of its Perspectives on Taxation Lecture Series:

The start of a new presidential administration is always an interesting time for reflecting on tax policy. What are the new administration’s tax policy goals? Where does tax policy fall on the new administration’s list of priorities? What tax legislation might Congress consider?

The Honorable Pam Olson is the U.S. Deputy Tax Leader and Washington National Tax Services Practice Leader of PricewaterhouseCoopers LLP, heading a team that includes many former senior government officials and policy advisors. Before joining PwC, she retired from Skadden, Arps, Slate, Meagher & Flom, where she was the leader of the Washington office tax practice.

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February 6, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (1)

Graetz:  Business Tax Reforms In The House GOP Blueprint

Michael J. Graetz  (Columbia), The Known Unknowns of the Business Tax Reforms Proposed in the House Republican Blueprint:

This set of slides raises important issues and questions concerning the potential effects of a border-adjusted destination-based cash flow tax (DBCFT) as proposed in the 2016 House Blueprint “A Better Way.” This will form the basis for an article forthcoming in the Columbia Tax Journal. Citations have been omitted here.

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