TaxProf Blog

Editor: Paul L. Caron
Pepperdine University School of Law

Friday, December 2, 2016

Weekly SSRN Tax Article Review And Roundup

This week, David Gamage (UC-Berkeley, moving to Indiana) reviews a new article by Walter Hellerstein (Georgia), Taxing Remote Sales in the Digital Age: A Global Perspective, 65 American University Law Review 1195 (2016).

Gamage (2017)Walter Hellerstein’s new article represents comparative legal scholarship at its best.  Hellerstein’s article analyzes the OECD’s recently issued International VAT/GST Guidelines so as to discuss the lessons for the design and reform of U.S. state-level retail sales taxes.  In doing so, the article argues that U.S. retail sales taxes (RSTs) should tax remote sales and should do so based on the destination principle.  The article then analyzes how RSTs should be reformed so as to best accomplish these goals.

Hellerstein is persuasive in arguing that RSTs should tax remote sales. His article offers important guidance for how RSTs should ideally be reformed. But how can we get there in light of the politically and judicially imposed constraints that currently confront U.S. state governments? I would rank the most plausible paths to reform as follows:

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December 2, 2016 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Harrison:  Normative Legal Scholarship Is An Oxymoron

Jeffrey Harrison (Florida), Scholarship, Rush, and Still Waters:

I ran across the term "normative scholarship" in an article in the Journal of Legal Education by Robin West [The Contested Value of Normative Legal Scholarship, 66 J. Legal Educ. 6 (2016)]. It is, of course, and I think she would admit, an oxymoron. I've looked up every definition of scholarship I could find and no where is there any mention of normativity. Scholars search for information, inconvenient and otherwise, and report it. When they do, it is scholarship.

When they add the "should" element, it stops being scholarship and it becomes advocacy. This is not true just of your run of the mill article in which someone tries to convince you that the position they hold is the "right" one (usually by reporting what others have written that supports that position and not reporting what does not.) It also applies to any empirical work in which the author interprets the results with a certain "correct" spin without coming clean about other possible interpretations.

This is not to say no law professors produce scholarship. Some do. And, this is not to say all normative scholarship is bad. But it is to say that it is not scholarship, it is advocacy. Why don't more law professors do scholarship? The easy answer is they do not know how. They were not trained to be scholars. ...

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December 2, 2016 in Legal Education, Scholarship | Permalink | Comments (2)

Thursday, December 1, 2016

University Of Basel Conference:  Global Histories of Taxation And State Finances Since The Late 19th Century

BaselThe three-day conference on Global Histories of Taxation and State Finances Since the Late 19th Century kicks off today at the University of Basel Institute for European Global Studies:

Taxation has wide-ranging implications for global as well as domestic orders, ranging from budgets and public finances to inequality, the social fabric of societies, and worldwide competition for corporate profits. Since the global financial crisis of 2008 in particular, taxation and the reform of tax systems have become talking points in many parts of the North Atlantic world. The current interest in taxation is welcome, but many of the issues raised more recently have long histories that deserve to be studied in their own right. This international symposium calls on historians and historically-minded sociologists and political scientists with different geographical specializations to engage with the topic of taxation from a wide variety of angles.

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December 1, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Wednesday, November 30, 2016

Dyreng Presents Trade-offs In The Repatriation Of Foreign Earnings Today At Pennsylvania

DyrengScott D. Dyreng (Duke) presents Trade-offs in the Repatriation of Foreign Earnings (with Kevin S. Markle (Iowa) & Jon C. Medrano (Iowa)) at Pennsylvania today as part of its Tax Policy Workshop Series hosted by Chris Sanchirico and Reed Shuldiner:

We examine repatriations of foreign earnings that have been designated as indefinitely reinvested. U.S. firms can repatriate foreign earnings without an immediate tax cost when there is a domestic loss, which frees the earnings to be used domestically. But using the domestic loss to offset repatriation taxes reduces financial accounting income, and removes a real option to tax deferral. We show that firms are more likely to repatriate indefinitely reinvested foreign earnings in domestic loss years, but they are less likely to repatriate when financial reporting incentives are strong.

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November 30, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Monday, November 28, 2016

The Investment Tax Credit And Immediate Expensing: Lessons In Cyclical Fiscal Activism

Mirit Eyal-Cohen (Alabama), Lessons in Cyclical Fiscal Activism, 48 Conn. L. Rev. 873 (2016):

This Article highlights an anomaly. It tells a story of two tax rules that were introduced at the same time to achieve a similar goal. Both were meant to be temporary and stimulate economic growth but received dramatically different outcomes. The Article reviews the reasons for this paradox. It demonstrates that the causes are structural, ideological, and political. It argues that the historical support the two mechanisms received diverged in accordance with their complexity, the perceptions they epitomized, and their instrumental role in society.

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November 28, 2016 in Scholarship, Tax | Permalink | Comments (0)

Public Opinion Survey:  Should Governments Tax The Rich And Subsidize The Poor?

Robert W. McGee (Fayetteville State), Should Governments Tax the Rich and Subsidize the Poor? An Empirical Study of Opinion in the United States:

The present study reports the findings of a survey conducted by the World Values Survey scientists in the United States on the question of whether governments should tax the rich and subsidize the poor. The sample size of 2166 consisted of individuals from all parts of the United States. A 10-point Likert Scale was used to determine the extent of agreement or disagreement with the question. Various demographic variables were also examined to determine whether differences between groups were significant. Demographic variables included gender, age, marital status, social class, education level, region of the country, religion and ethnicity.

This study examines opinion in the United States on the question of whether it is a legitimate function of government to confiscate the property of the rich and distribute that property to the poor. ...

The questions asked:  Many things are desirable, but not all of them are essential characteristics of democracy. Please tell me for each of the following things how essential you think it is as a characteristic of democracy. Use this scale where 1 means “not at all an essential characteristic of democracy” and 10 means it definitely is “an essential characteristic of democracy”: Governments tax the rich and subsidize the poor.

Responses were measured on a 10-point Likert scale where 1 is “Not an essential characteristic of democracy” and 10 is “An essential characteristic of democracy.” The sample size was 2166.

Table 1 shows the overall results. The mean score of 5.04 indicates strong support for the view that confiscating the wealth of the rich to subsidize the poor is a legitimate function of democracy.

Table 1

Robert W. McGee (Fayetteville State), Should Governments Tax the Rich and Subsidize the Poor? An Empirical Study of Opinion in 59 Countries:

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November 28, 2016 in Scholarship, Tax | Permalink | Comments (5)

Sunday, November 27, 2016

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. The #1 paper is now #9 in all-time downloads among 12,361 tax papers:

  1. [5,543 Downloads]  Families Facing Tax Increases Under Trump's Latest Tax Plan, by Lily L. Batchelder (NYU)
  2. [580 Downloads]  Aggressive Tax Planning & the Ethical Tax Lawyer, by Heather M. Field (UC-Hastings)
  3. [311 Downloads]  The Up-C Revolution, by Gregg D. Polsky (Georgia) & Adam H. Rosenzweig (Washington University)
  4. [280 Downloads]  Estate Planning for Digital Assets: Assigning Tax Basis and Value to Digital Assets, by Elizabeth Ruth Carter (LSU)
  5. [254 Downloads]  IRS Issues Final and Temporary Debt-Equity Regulations Under Section 385, by David S. Miller (Proskauer, New York) & Janicelynn Asamoto Park (Proskauer, New York)

November 27, 2016 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Kaplan:  Religion And Advance Medical Directives—Formulation And Enforcement Implications

Richard L. Kaplan (Illinois), Religion and Advance Medical Directives: Formulation and Enforcement Implications, 2016 U. Ill. L. Rev. 1737:

This Article examines the role of religion in the creation and enforcement of advance medical directives. It begins by setting out the principal similarities and differences between the two types of such directives—namely, living wills and health care proxies (or powers of attorney). It then considers the formulation of religiously oriented advance directives and their incorporation of religious doctrine and imperatives. The Article then addresses the impact that the religious views of an individual patient’s treating physician might have on such directives.

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November 27, 2016 in Scholarship, Tax | Permalink | Comments (0)

Saturday, November 26, 2016

What Would A Libertarian Tax Look Like?

LibertarianJohn R. Dorocak (California State University, San Bernardino), What Would a Libertarian Tax Look Like?, 57 S. Tex. L. Rev. 147 (2015):

Libertarian ideas have been given attention, particularly recently, in academic, judicial, and political areas. Those who have been involved with taxation as practitioners or academicians at some point in time likely wrestle with the question of what should "fair" taxation look like. The goal here is not to discuss all philosophical underpinnings of a tax system, but rather to discuss how libertarians might frame a tax system.

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November 26, 2016 in Scholarship, Tax | Permalink | Comments (4)

Friday, November 25, 2016

Weekly SSRN Tax Article Review And Roundup

This week, Ari Glogower (Ohio State) reviews a new article by Lily Batchelder (NYU), The “Silver Spoon” Tax: How to Strengthen Wealth Transfer Taxation, in Delivering Equitable Growth: Strategies for the Next Administration (Washington Center for Equitable Growth, Fall 2016).

Glogower (2016)Lily Batchelder’s new work examines the reform options for taxing wealth transfers. 

The argues that that wealth transfer taxes are an essential tool for mitigating economic inequality – as measured by both disparities of wealth, income and other measures of economic well-being, and by disparities of economic opportunity. Wealth transfer taxes are also relatively efficient, since taxpayers save for the purposes of enjoying wealth while they are alive (and the social benefits wealth affords) and for retirement needs, in addition to merely accumulating bequests for future generations. Batchelder argues that wealth transfer taxes may also efficiently counter the decreased work incentive among heirs. 

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November 25, 2016 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Thursday, November 24, 2016

Penn State Issues Call For Tax Papers

Penn StateThe Penn State Journal of Law & International Affairs has issued a call for tax papers:

The Penn State Journal of Law & International Affair (“JLIA”) is conducting a call for papers for an upcoming publication in spring 2017. The publication will focus on areas of taxation, corporate law, banking and finance, and related subject areas. Current papers accepted for publication cover areas of international taxation, international financial regulation for cryptocurrencies, and regulations resulting from the global financial crisis.

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November 24, 2016 in Scholarship, Tax | Permalink | Comments (0)

Wednesday, November 23, 2016

Kaplan:  The Cadillac Tax And Its Potential To Transform How Americans Purchase Health Care Services

Richard Kaplan (Illinois), The Cadillac Tax and Its Potential to Transform How Americans Purchase Health Care Services, 2016 NYU Rev. Em. Ben. & Exec. Comp.:

This Article examines one of the most contentious provisions of the Affordable Care Act — namely, the 40% excise tax on high-value health insurance provided by employers. This levy, commonly denominated the “Cadillac” tax, is scheduled to take effect in 2020 but has already induced many employers to raise annual deductibles on the health insurance they provide to reduce the value of such insurance and thereby lower their exposure to this new tax.

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November 23, 2016 in Scholarship, Tax | Permalink | Comments (0)

Tuesday, November 22, 2016

Alstott Presents A New Deal For Old Age: Toward A Progressive Retirement Today At Columbia

Old AgeAnne Alstott (Yale) presents A New Deal for Old Age: Toward a Progressive Retirement at Columbia today as part of its Davis Polk & Wardwell Tax Policy Colloquium Series hosted by Alex Raskolnikov and Wojciech Kopczuk:

A growing chorus of policy analysts is calling for an increase in the Social Security retirement age. Even staunch defenders of Social Security have begun to concede that the retirement age of 66 is too low, in light of the increasing longevity, improving health, and expanding work options of older Americans. Still, some progressives worry that the only way to protect disadvantaged workers is to leave the early and full retirement ages as they are. The result is a debate that pits intergenerational fairness against intragenerational fairness: either we shortchange the young (by paying unneeded benefits to the old) or else we shortchange the disadvantaged (by raising the retirement age to levels that are unrealistic for low-earners).

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November 22, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Fleming, Peroni & Shay:  Two Cheers For The Foreign Tax Credit

J. Clifton Fleming Jr. (BYU), Robert J. Peroni (Texas) & Stephen E. Shay (Harvard), Two Cheers for the Foreign Tax Credit, Even in the BEPS Era, 91 Tulane L. Rev. 1 (2016):

Reform of the U.S. international income taxation system has been a hotly debated topic for many years. The principal competing alternatives are a territorial or exemption system and a worldwide system. For reasons summarized in this article, we favor worldwide taxation if it is real worldwide taxation – i.e., a non-deferred U.S. tax is imposed on all foreign income of U.S. residents at the time the income in earned. This approach is not acceptable, however, unless the resulting double taxation is alleviated. The longstanding U.S. approach for handling the international double taxation problem is a foreign tax credit limited to the U.S. levy on the taxpayer’s foreign income. Indeed, the foreign tax credit is an essential element of the case for worldwide taxation. Moreover, territorial systems often apply worldwide taxation with a foreign tax credit to all income of resident individuals plus the passive income and tax haven income of resident corporations. Thus, the foreign tax credit is actually an important feature of many territorial systems.

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November 22, 2016 in Scholarship, Tax | Permalink | Comments (0)

Monday, November 21, 2016

Shaviro Presents The Mapmaker’s Dilemma In Evaluating High-End Inequality Today At NYU

Shaviro (2015)Daniel Shaviro (NYU) presents The Mapmaker’s Dilemma in Evaluating High-End Inequality at NYU today as part of its High-End Inequality Colloquium Series (more here):

The last thirty years have witnessed rising income and wealth concentration among the top 0.1 percent of the population, leading to intense political debate regarding how, if at all, policymakers should respond. Often, this debate emphasizes the tools of public economics, and in particular optimal income taxation. However, while these tools can help us in evaluating the issues raised by high-end inequality, their extreme reductionism — which, in other settings, often offers significant analytic payoffs — here proves to have serious drawbacks.

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November 21, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

ATPI Conference:  Improving The Tax System Using Advances In Social Knowledge And Technology

ATPI Logo (2014)The American Tax Policy Institute sponsored a conference on Improving the Tax System Using Advances in Social Knowledge and Technology at Skadden's Washington, D.C. office on Friday:

Panel 1:  How behavioral economics relates to and might be taken into account in developing tax policy and administration

  • James Alm (Tulane) (Panel Chair)
  • Mike Hawkins (HM Revenue & Customs)
  • Steven M. Sheffrin (Tulane)
  • Eric LoPresti (Taxpayer Advocate Service, IRS)

Panel 2:  Using social science to improve the tax system and promote voluntary compliance

  • Susan C. Morse (Texas) (Panel Chair)
  • Joseph Bankman (Stanford)
  • John Guyton (Office of Research, Applied Analytics & Statistics, IRS)
  • Ronald Hodge (Office of Research, Applied Analytics & Statistics, IRS)
  • Kathleen DeLaney Thomas (North Carolina)

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November 21, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Sunday, November 20, 2016

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. The #1 paper is now #19 in all-time downloads among 12,340 tax papers:

  1. [4,594 Downloads]  Families Facing Tax Increases Under Trump's Latest Tax Plan, by Lily L. Batchelder (NYU)
  2. [522 Downloads]  Aggressive Tax Planning & the Ethical Tax Lawyer, by Heather M. Field (UC-Hastings)
  3. [299 Downloads]  The Up-C Revolution, by Gregg D. Polsky (Georgia) & Adam H. Rosenzweig (Washington University)
  4. [271 Downloads]  Estate Planning for Digital Assets: Assigning Tax Basis and Value to Digital Assets, by Elizabeth Ruth Carter (LSU)
  5. [223 Downloads]  IRS Issues Final and Temporary Debt-Equity Regulations Under Section 385, by David S. Miller (Proskauer, New York) & Janicelynn Asamoto Park (Proskauer, New York)

November 20, 2016 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, November 18, 2016

Weekly SSRN Tax Article Review And Roundup

This week, Daniel Hemel (Chicago) reviews a new article by David Kamin (NYU), Getting Americans To Save: In Defense of (Reformed) Tax Incentives, Tax Law Review (forthcoming 2017).

HemelTax-preferred retirement accounts are hugely popular among participants but widely panned by academics who study saving behavior. The two principal criticisms are (1) that tax incentives such as 401(k)s and IRAs aren’t effective at encouraging individuals to save more, and (2) that these incentives amount to “upside-down” subsidies that deliver the largest benefits to wealthy Americans in the highest tax brackets. In an excellent new article, David Kamin carefully considers these criticisms and concludes that the case against tax-preferred retirement accounts is overstated. “[B]ased on the available evidence,” Kamin writes, “tax incentives probably should be used to help correct failures in people’s saving decisions—correcting the ‘internality’ that people impose on themselves because of their biases.”

Kamin begins by canvassing the empirical evidence suggesting that a substantial fraction of American workers are “under-saving” for retirement. He goes on to evaluate the evidence that tax incentives can encourage individuals to save more. On this point, research results vary widely, with some studies finding that tax incentives have little or no effect and others finding that tax incentives play an important role in boosting rates of saving.

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November 18, 2016 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (2)

Shaviro Presents Fixing U.S. International Taxation Today At San Francisco

FixingDaniel N. Shaviro (NYU) presents Fixing U.S. International Taxation (Oxford University Press, 2014) at the University of San Francisco Graduate Tax Program as part of its Tax Lecture Series:

International tax rules, which determine how countries tax cross-border investment, are increasingly important with the rise of globalization, but the modern U.S. rules, even more than those in most other countries, are widely recognized as dysfunctional. The existing debate over how to reform the U.S. tax rules is stuck in a sterile dialectic, in which ostensibly the only permissible choices are worldwide or residence-based taxation of U.S. companies with the allowance of foreign tax credits, versus outright exemption of the companies' foreign source income.

In Fixing U.S. International Taxation, Daniel N. Shaviro explains why neither of these solutions addresses the fundamental problem at hand, and he proposes a new reformulation of the existing framework from first principles. He shows that existing international tax policy frameworks are misguided insofar as they treat "double taxation" and "double non-taxation" as the key issues, conflate the distinct questions of what tax rate to impose on foreign source income and how to treat foreign taxes, and use simplistic single-bullet global welfare norms in lieu of a comprehensive analysis.

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November 18, 2016 in Book Club, Scholarship, Tax | Permalink | Comments (0)

Thursday, November 17, 2016

Century Foundation Conference:  Paying For Progress—A Tax Reform Agenda For The Next President

CennturyThe Century Foundation hosts a conference today on Paying for Progress: A Tax Reform Agenda for the Next President:

Panel 1:  A Federal Budget for Equity and Fairness

  • Josh Bivens (Economic Policy Institute)
  • Jane Gravelle (Congressional Research Service)
  • Christian Dorsey (Economic Policy Institute) (moderator)

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November 17, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Wednesday, November 16, 2016

Burman Presents Is U.S. Corporate Income Double-Taxed? Today At Pennsylvania

Burman (2016)Leonard E. Burman (Tax Policy Center) presents Is U.S. Corporate Income Double-Taxed? (with Kimberly Clausing (Reed College)) at Pennsylvania today as part of its Tax Policy Workshop Series hosted by Chris Sanchirico and Reed Shuldiner:

Every public finance student learns that corporations are subject to two levels of taxation—at the company level through the corporate income tax and the individual level through taxation of dividends and capital gains. Though observers frequently lament this double taxation of equity-financed corporate investment, double taxation is not important per se; the issue is the overall level of tax. (Most investors would prefer two 10 percent taxes to a single 30 percent tax.) Still, the overall effective tax rate depends on both corporate and individual income taxes.

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November 16, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (1)

Shanske Presents Equitable Apportionment In The Age Of Single Sales Factor Apportionment Today At Northwestern

ShanskeDarien Shanske (UC-Davis) presents What is Equitable Apportionment For in the Age of Single Sales Factor Apportionment? A Study of the Evolution of State Corporate Income Taxes at Northwestern today as part of its Advanced Topics in Taxation Workshop Series hosted by Sarah Lawsky:

Over 40 states impose a corporate income tax. Each of these states use a formula to apportion the share of a multistate corporation’s income to the state. All of these states also permit both the government and the taxpayer to challenge the result of the formula if the results “do not fairly represent the extent of the taxpayer’s business activity in this State.” This is equitable apportionment. Needless to say, terms such as “fair” invite dispute, but it seemed there was at least some sense of how equitable apportionment was to work, at least until recently.

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November 16, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Access Group Legal Education Research Symposium

Access GroupAccess Group Legal Education Research Symposium:

[T]he Access Group Legal Education Research Symposium offers law school deans, administrators, faculty and researchers from across the nation the opportunity to engage in thought-provoking discussions on the most critical issues facing legal education today.

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November 16, 2016 in Conferences, Legal Education, Scholarship | Permalink | Comments (0)

Tuesday, November 15, 2016

Dynarski Presents Tax Benefits Of College Attendance Today At Columbia

DynarskiSusan Dynarski (Michigan) presents Tax Benefits of College Attendance at Columbia today as part of its Davis Polk & Wardwell Tax Policy Colloquium Series hosted by Alex Raskolnikov and Wojciech Kopczuk:

National efforts to promote college enrollment are increasingly delivered through tax-based assistance, including tax credits and deductions for tuition and fees, tax-advantaged college savings plans, and student loan interest deductions. This paper outlines the main tax-based student aid programs and describes their history and growth over time. We then provide an economic perspective on tax-based student aid, and an assessment of their impact on student behavior. We conclude with a discussion of what the tax system does particularly well and what it does particularly poorly in comparison to traditional Department of Education-based student aid programs, and highlight opportunities for productive reform. 

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November 15, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Viard Presents Progressive Consumption Taxation: The X-Tax Revisited At NYU

PCT 2Alan Viard (American Enterprise Institute) presented Progressive Consumption Taxation: The X Tax Revisited (2012) at NYU yesterday as part of its High-End Inequality Colloquium Series (more here) hosted by Robert Frank (Cornell) and Dan Shaviro (NYU):

The United States is alone among industrialized countries in having no broad-based consumption tax at the national level. Yet, economic analysis suggests that consumption taxation is likely to be superior to income taxation, because it does not penalize saving and investment. This book proposes to completely replace the income tax system with a progressive consumption tax. This approach avoids the problems arising from the adoption of a consumption tax alongside the income tax and also avoids the distributional problems posed by regressive consumption taxes, such as the VAT.

This book argues that the Bradford X tax, developed by the late David Bradford, offers the best form of progressive consumption taxation. The X tax modifies the VAT, so that it no longer imposes a flat-rate tax on all consumption. It splits the value-added tax base, which equals aggregate consumption, into two components, wages and business cash flow. The X tax achieves progressivity by applying graduated tax rates to wages and a high flat tax rate to business cash flow, which reflects consumption financed from wealth accumulated prior to the reform and from above-normal business investment returns, which largely accrue to well-off households.

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November 15, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Access Group Invites Proposals For $50,000 Grants For Legal Education Research

Access GroupFollowing up on yesterday's post, Access Group Awards $1.28 Million In Grants To Six Law Schools, ABA & ABF:  Request For Proposals, Access Group/AIR 2016 Research and Dissertation Fellows Grant Program:

The Access Group Center for Research & Policy Analysis, in partnership with the Association for Institutional Research(AIR), is excited to announce the 2016 Research and Dissertation Fellows Program. The Fellows program is a grant competition promoting scholarship on issues related to access, affordability and value of legal education specifically, and graduate and professional education more broadly. Two types of grants are available to support year-long research projects-$50,000 Research Grants and $25,000 Doctoral Grants.

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November 15, 2016 in Legal Education, Scholarship | Permalink | Comments (5)

Kamin:  Getting Americans To Save—In Defense Of (Reformed) Tax Incentives

David Kamin (NYU), Getting Americans to Save: In Defense of (Reformed) Tax Incentives, 69 Tax L. Rev. ___ (2016):

According to the most recent literature, one of the primary systems for getting Americans to save more — a system of tax-preferred retirement accounts — is fundamentally broken and should be abandoned. This system of 401(k)s, Individual Retirement Accounts (IRAs), and other tax-preferred accounts cost the government about $80 billion per year, and influential new research by Raj Chetty, John Friedman, and co-authors — among others — suggests that tax incentives like these are unable to substantially increase private saving. However, this case against tax incentives is overstated.

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November 15, 2016 in Scholarship, Tax | Permalink | Comments (0)

Grewal:  Trump’s Broad Powers To Revoke Tax Regulations Issued By The Obama Administration

Trump (President Elect)Andy Grewal (Iowa), Trump’s Broad Powers to Revoke Tax Regulations Issued By the Obama Administration, Yale J. on Reg.: Notice & Comment (Nov. 14, 2016):

The IRS was actively involved in implementing various policy objectives of the Obama Administration and issued various controversial regulations, including those dealing with the Affordable Care Act. With Donald Trump soon to step into the Oval Office, one may wonder about the extent to which the Trump Administration can reverse regulations issued by the Treasury/IRS over the past 8 years.

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November 15, 2016 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 November 1, 2016) 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.)

60,359

Reuven Avi-Yonah (Mich.)

10,284

2

Michael Simkovic (S. Hall)

34,300

Michael Simkovic (S. Hall)

4937

3

Paul Caron (Pepperdine)

32,233

Lily Batchelder (NYU)

4213

4

D. Dharmapala (Chicago)

28,494

D. Dharmapala (Chicago)

3659

5

Louis Kaplow (Harvard)

26,738

Paul Caron (Pepperdine)

2424

6

Vic Fleischer (San Diego)

23,060

Richard Ainsworth (BU)

2398

7

James Hines (Michigan)

22,213

Ed Kleinbard (USC)

2363

8

Ted Seto (Loyola-L.A.)

21,400

Dan Shaviro (NYU)

2249

9

Richard Kaplan (Illinois)

21,326

Robert Sitkoff (Harvard)

2155

10

Ed Kleinbard (USC)

21,289

William Byrnes (Texas A&M)

2108

11

Katie Pratt (Loyola-L.A.)

19,398

Jeff Kwall (Loyola-Chicago)

1870

12

Richard Ainsworth (BU)

18,948

Omri Marian (UC-Irvine)

1864

13

Robert Sitkoff (Harvard)

18,143

Louis Kaplow (Harvard)

1760

14

Brad Borden (Broklyn)

17,450

David Weisbach (Chicago)

1751

15

Carter Bishop (Suffolk)

17,381

Vic Fleischer (San Diego)

1629

16

David Weisbach (Chicago)

17,278

Steven Bank (UCLA)

1627

17

Jen Kowal (Loyola-L.A.)

16,956

Chris Hoyt (UMKC)

1614

18

Chris Sanchirico (Penn)

16,884

Yariv Brauner (Florida)

1576

19

Francine Lipman (UNLV)

16,582

Brad Borden (Brooklyn)

1470

20

Dennis Ventry (UC-Davis)

16,194

Brian Galle (Georgetown)

1418

21

Dan Shaviro (NYU)

16,131

Nancy McLaughlin (Utah)

1390

22

Bridget Craford (Pace)

16,225

Katie Pratt (Loyola-L.A.)

1364

23

David Walker (Boston Univ.)

15,298

Jack Manhire (Texas A&M)

1354

24

Steven Bank (UCLA)

14,095

Francine Lipman (UNLV)

1344

25

Herwig Schlunk (Vanderbilt)

13,315

Richard Kaplan (Illinois)

1307

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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November 15, 2016 in Legal Education, Scholarship, Tax, Tax Prof Rankings | Permalink | Comments (0)

Symposium: Fifteen Law School Deans/Former Deans On The Future Of Legal And Higher Education

Syracuse Logo (2016)Richard A. Matasar Symposium, The Future of Legal and Higher Education, 66 Syracuse L. Rev. 419-729 (2016):

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November 15, 2016 in Conferences, Legal Education, Scholarship | Permalink | Comments (1)

Monday, November 14, 2016

Blank Presents The Timing Of Tax Transparency Today In London

Blank (2016)Joshua D. Blank (NYU) presents The Timing of Tax Transparency, 90 S. Cal. L. Rev. ___ (2017), at Queen Mary University of London School of Law today as part of its Centre for Commercial Law Studies Speaker Series:

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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November 14, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

McLaughlin Presents Keeping The Perpetual In Tax-Deductible Perpetual Conservation Easements Today At Loyola-L.A.

McLaughlinNancy McLaughlin (Utah) presents Keeping the Perpetual in Tax-Deductible Perpetual Conservation Easements at Loyola-L.A. today as part of its Tax Policy Colloquium Series hosted by Ellen Aprill and Katherine Pratt:

Section § 170(h) of the Internal Revenue Code authorizes a federal charitable income tax deduction for the donation of conservation easements and façade easements provided, among other things, that the easements are “granted in perpetuity” and their conservation purposes are “protected in perpetuity.” This deduction has been one of the driving forces behind the dramatic growth in the use of easements as land protection and historic preservation tools over the last several decades. The deduction has also, however, been subject to abuse. Over the past decade, courts have issued more than eighty opinions in cases involving challenges to claimed § 170(h) deductions. This case law reveals various forms of noncompliance and abuse, including persistent overvaluation of easements, failure to properly substantiate the claimed deductions, failure to satisfy one or more of the conservation purposes tests set forth in § 170(h), and failure to comply with “perpetuity” requirements set forth in § 170(h) and the Treasury Regulations.

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November 14, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

NTA 109th Annual Conference On Taxation

National Tax Association (2016)The three-day National Tax Association 109th Annual Conference on Taxation concluded Saturday in Baltimore. Saturday's highlights included:

Session 72:  Taxation and Wealth
Session Organizer:  John Brooks (Georgetown) 
Session Chair:  John Brooks (Georgetown)
Presentations:

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November 14, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Sunday, November 13, 2016

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. The #1 paper is now #19 in all-time downloads among 12,338 tax papers:

  1. [4,345 Downloads]  Families Facing Tax Increases Under Trump's Latest Tax Plan, by Lily L. Batchelder (NYU)
  2. [444 Downloads]  Aggressive Tax Planning & the Ethical Tax Lawyer, by Heather M. Field (UC-Hastings)
  3. [285 Downloads]  The Up-C Revolution, by Gregg D. Polsky (Georgia) & Adam H. Rosenzweig (Washington University)
  4. [254 Downloads]  Estate Planning for Digital Assets: Assigning Tax Basis and Value to Digital Assets, by Elizabeth Ruth Carter (LSU)
  5. [242 Downloads]  Taxation and Human Rights: A Delicate Balance, by Reuven Avi-Yonah (Michigan) & Gianluca Mazzoni (S.J.D. 2017, Michigan)

November 13, 2016 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, November 11, 2016

Weekly SSRN Tax Article Review And Roundup

This week, David Gamage (UC-Berkeley, moving to Indiana) reviews a new article by Susan Morse (Texas) and Eric Allen (USC), Innovation and Taxation at Start-Up Firms, Tax Law Review, Vol. 69, No. 3, 2016.

Gamage (2017)Tax planning occupies a substantial portion of the legal work done by businesses. But this does not mean that every business engages in significant tax planning. In their new paper, Morse and Allen show that early-stage startup companies have very low appetites for tax planning.

The essence of how they reach this conclusion is rather simple. Early-stage startup companies are resource constrained. These companies cannot pursue all avenues for maximizing future profitability, and must instead focus only on those tasks that have the most immediate payout or the highest potential for very large future payouts. Many forms of profitable tax planning do not meet these criteria.

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November 11, 2016 in Scholarship, Tax | Permalink | Comments (0)

NTA 109th Annual Conference On Taxation

National Tax Association (2016)The three-day National Tax Association 109th Annual Conference on Taxation continues today in Baltimore. Today's highlights include:

Session 38: Multinational M&A and Incorporations
Session Organizer:  Tim Dowd (Joint Committee on Taxation)
Session Chair:  Jane Gravelle (Library of Congress)
Presentations:

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November 11, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (0)

69th University Of Chicago Tax Conference

Chicago (2016)The two-day 69th University of Chicago Tax Conference kicks off today. Tax Prof speakers include:

  • Itai Grinberg (Georgetown)
  • Kristin Hickman (Minnesota)
  • Julie Roin (Chicago)

The six sessions are:

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November 11, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Thursday, November 10, 2016

Lucas Presents Psychological Barriers To An Efficient Carbon Tax At George Mason

LucasGary Lucas (Texas A&M) presented Psychological Barriers to an Efficient Carbon Tax at George Mason yesterday as part of its Public Choice Seminar Series hosted by the Center for Study of Public Choice:

The Paris Agreement on climate change and the federal government’s recent efforts to regulate carbon emissions suggest that the United States is starting to take global warming seriously. According to economists, a carbon tax would be the most effective and economically efficient way to address the problem. The American public, however, strongly opposes taxing carbon. The public’s opposition is not rooted in climate change denialism. In fact, the public supports government action on global warming, but it eschews taxation in favor of “green” subsidies and command-and-control regulations that would make global warming mitigation incredibly expensive and perhaps even infeasible.

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November 10, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Batchelder:  How To Strengthen Wealth Transfer Taxation

2016-Delivering-equitable-growthLily L. Batchelder (NYU), The 'Silver Spoon' Tax: How to Strengthen Wealth Transfer Taxation, in Washington Center for Equitable Growth, Delivering Equitable Growth: Strategies for the Next Administration (Fall 2016):

Wealth transfer taxes are a critical policy tool for mitigating economic inequality, including inequality of opportunity. They are also relatively efficient. This short essay summarizes why and how wealth transfer taxes should be strengthened. Reform options that our next President should consider include increasing the wealth transfer tax rate, broadening the base, repealing stepped-up basis, addressing talking points against wealth transfer taxes with little or no factual basis, and converting the estate and gift taxes into a direct tax on the recipients of large inheritances. ...

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November 10, 2016 in Scholarship, Tax, Think Tank Reports | Permalink | Comments (4)

NTA 109th Annual Conference On Taxation

National Tax Association (2016)The three-day National Tax Association 109th Annual Conference on Taxation kicks off today in Baltimore.  Today's highlights include:

Session 5:  Scope of Regulatory Authority: From Interpretation to Implementing Policy:

  • Session Organizer:  John Brooks (Georgetown)
  • Session Chairs:  George Plesko (Connecticut), Stephen Shay (Harvard)
  • Presentations:  Daniel Hemel (Chicago), Steve Johnson (Florida State), Steven Rosenthal (Tax Policy Center)

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November 10, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Wednesday, November 9, 2016

Polsky Presents The Up-C Revolution Today At Pennsylvania

Polsky (2015)Gregg D. Polsky (Georgia) presents The Up-C Revolution (with Adam H. Rosenzweig (Washington University)) at Pennsylvania today as part of its Tax Policy Workshop Series hosted by Chris Sanchirico and Reed Shuldiner:

Over the past few years, a revolutionary new tax structure, known as the Up-C, has become increasingly popular, particularly in instances where an LLC is being taken public. In such an Up-C IPO, a newly formed C corporation is placed on top of the existing LLC, which continues to operate the business. Shares of the C corporation are sold to new investors, and the proceeds are used by the C corporation to buy an interest in the LLC. Meanwhile, the legacy owners of the LLC (typically, founders and private investment funds) retain their interests in the LLC, while receiving exchange rights that allow them to swap their LLC interests for equivalent-value shares of the C corporation. In addition, the legacy owners often receive the benefit of tax receivables agreements (TRAs), which provide that the owners will receive a specified percentage (usually 85 percent) of the tax benefits to the C corporation resulting from future exchanges. In combination, these features seem to provide a near-nirvana of tax efficiency. It is therefore unsurprising that the popularity of Up-Cs is growing at an exponential rate.

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November 9, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Morse & Allen:  Innovation And Taxation At Start-Up Firms

Susan C. Morse (Texas) & Eric J. Allen (USC), Innovation and Taxation at Start-Up Firms, 69 Tax L. Rev. ___ (2016):

This Article considers capital-constrained start-up firms and conventional income tax breaks meant to encourage innovation. Some argue that these tax breaks provide benefits to encourage innovation that are more certain and earlier in time compared to other possible government policies, such as patent protection. But start-up firms generally cannot use income tax breaks currently, because such firms are not profitable for years after their founding. Instead, investment in income tax planning reduces the funds available to a capital-constrained start-up firm for business investment. This reduces the time a firm has to reach its next stage of success, such as securing external financing.

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November 9, 2016 in Scholarship, Tax | Permalink | Comments (0)

Analysis Of Section 385 Debt-Equity Regulations

Debt v EquityDavid S. Miller (Proskauer, New York) & Janicelynn Asamoto Park (Proskauer, New York), IRS Issues Final and Temporary Debt-Equity Regulations Under Section 385:

On October 13, 2016, the Treasury Department and the Internal Revenue Service issued final and temporary regulations under section 385 of the Internal Revenue Code. The final and temporary regulations recharacterize certain debt instruments as equity for all federal income tax purposes. This paper briefly describes the final and temporary regulations.

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November 9, 2016 in Scholarship, Tax | Permalink | Comments (0)

Tuesday, November 8, 2016

Rosenthal:  Protecting Trump's $916 Million Of NOLs

Trump (2016-3)Steve Rosenthal (Tax Policy Center), Protecting Trump's $916 Million of NOLs, 153 Tax Notes 829 (Nov. 7, 2016):

This article describes how Republican presidential nominee Donald Trump generated $916 million of net operating losses, and how he preserved them for later use.

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November 8, 2016 in Political News, Scholarship, Tax | Permalink | Comments (0)

Johnson:  Trump Bought The Law In Wilkie Farr's Tax Opinion

WTCalvin H. Johnson (Texas), Bought Law:

In 1991, Donald Trump bought a tax opinion from Wilkie Farr, a New York law firm, that allowed him to avoid tax on roughly a billion dollars of income. The legal theory behind the opinion is that there was no reduction of deductions if the banks traded their Trump-depleted debt for a partnership interest. The theory has neither the literal wording of the statute nor any court case on its said. Nonetheless the theory called Trump to keep a billion dollars of fake tax losses to shelter a billion dollars' of luxury consumption from tax when nothing was lost as a matter of economics.

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November 8, 2016 in Political News, Scholarship, Tax | Permalink | Comments (1)

Monday, November 7, 2016

Kuziemko Presents Redistribution In An Age Of Rising Inequality Today At NYU

KuziemkoIlyana Kuziemko (Princeton) presents Support for Redistribution in an Age of Rising Inequality: New Stylized Facts and Some Tentative Explanations (with Vivekinan Ashok (Yale) & Ebonya Washington (Yale)) today at the NYU High-End Inequality Colloquium Series (more here) hosted by Robert Frank (Cornell) and Dan Shaviro (NYU):

Despite the large increases in economic inequality since 1970, American survey respondents exhibit no increase in support for redistribution, in contrast to the predictions from standard theories of redistributive preferences. We replicate these results but further demonstrate substantial heterogeneity by demographic groups. In particular, the two groups who have most moved against income redistribution are the elderly and African-Americans. We find little evidence that these subgroup trends are explained by relative economic gains or growing cultural conservatism, two common explanations. We further show that the elderly trend is uniquely American, at least relative to other developed countries with comparable survey data. While we are unable to provide definitive evidence on the cause of these two groups' declining redistributive support, we offer additional correlations which may offer fruitful directions for future research on the topic.

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November 7, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (1)

Hurt Presents Using NOL Poison Pills To Ward Off Activist Investors Today At UC-Irvine

Hurt (2016)Christine Hurt (BYU) presents The Hostile Poison Pill, 50 U.C. Davis L. Rev. ___ (2016), at UC-Irvine today as part of its Business Colloquium Series hosted by Katherine Porter and Funmi Arewa:

Whether one ascribes to the agency theory of shareholder primacy or the contractarian theory of director primacy, boards of directors have great discretion in determining whether, when, and how to sell the corporation. Defensive tactics, like poison pills, can be tools in wielding that discretion in the service of creating shareholder value. However, a poison pill either to oppress a minority shareholder, as in eBay v. Newmark, or to minimize the impact of activist shareholders, as in Versata Enterprises, Inc. v. Selectica, Inc., seems to exceed the “maximum dosage” of the pill. The NOL poison pill, while facially plausible as a tool to protect tax assets from impairment caused by a Section 382 “ownership change,” may be a stepping stone to a low-trigger anti-shareholder pill. Instead of warding off uninvited potential acquirers, the pill could ward off shareholder voice. Though the original poison pills were blessed by the Delaware courts to ward off hostile bidders, now boards can use a hostile poison pill to ward off noisy shareholders.

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November 7, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Goldin Presents Rethinking The Taxation Of Single Parents Today At Loyola-L.A.

GoldinJacob Goldin (Stanford) presents Beyond Head of Household: Rethinking the Taxation of Single Parents (with Zachary Liscow (Yale)) at Loyola-L.A. today as part of its Tax Policy Colloquium Series hosted by Ellen Aprill and Katherine Pratt:

Under current law, unmarried taxpayers with children can take advantage of the head of household filing status (HHFS) to reduce their federal income taxes. We argue that the design of the filing status is largely obsolete, geared toward alleviating a “marriage penalty” in the tax code that is much less important than when the filing status was first established. At the same time, the growth in the fraction of Americans raising children outside of traditional two-parent households has dramatically raised the cost of the filing status to the fisc.

In this article, we highlight two features of the design of HHFS that undermine its goal of providing support to single parent households.

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November 7, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (2)

Pratt:  Two Tax Issues Disqualify Trump For The Presidency

Pratt (2016)TaxProf Blog op-ed:  Trump Tax Concerns Persist, by Katherine Pratt (Loyola-L.A.):

Just 24 hours before the presidential election, concerns about Donald Trump’s payment of his tax obligations persist.  Recent press coverage has focused on an issue that (at least so far, based on very limited information) probably does not disqualify him to be our president, and has not focused enough on two more fundamental tax issues that disqualify him to be our president.

In the past few days, press coverage has emphasized a technical business tax question:  what specific tax strategies did Trump use to generate and preserve $916 million of net operating losses (NOLs), despite massive debt discharge, and were those strategies legally questionable? A front page November 1 New York Times article on this topic asserts that the “stock for debt swap” part of Trump’s overall  tax strategy was a new tax “dodge” dreamed up by tax lawyers to avoid debt discharge income (COD) on the cancellation of debt. This characterization of such swaps as a new tax scam is inaccurate. My academic articles on corporate COD explain the long history and theory of the exception and its gradual repeal [Shifting Biases: Troubled Company Debt Restructurings after the 1993 Tax Act, 68 Am. Bankr. L.J. 23 (1994); Corporate Cancellation of Indebtedness Income and the Debt-Equity Distinction, 24 Va. Tax Rev. 187 (2004)]. Suffice it to say that “stock for debt swaps” in bankruptcy cases were relatively common in the 1980s and early 1990s. Unless there is more to be revealed, Trump’s use of the stock for debt exception to COD does not disqualify him to be president.

But Trump’s conduct regarding two other tax issues does disqualify him to be president.

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November 7, 2016 in Political News, Scholarship, Tax | Permalink | Comments (4)

Columbia Journal Of Tax Law Issues Call For One Tax Paper For Inclusion In Forthcoming Issue

Columbia Journal of Tax Law LogoThe Columbia Journal of Tax Law has issued a call for one paper for inclusion in its forthcoming Volume 8, Issue No. 2:

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November 7, 2016 in Scholarship, Tax | Permalink | Comments (0)