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Wednesday, April 23, 2014

Marian: Reconciling Tax Law and Securities Regulation

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

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

April 23, 2014 in Scholarship, Tax | Permalink | Comments (0)

Tuesday, April 22, 2014

Clausing Presents Lessons for International Tax Reform from Formulary Apportionment Today at NYU

ClausingKimberly Clausing (Reed College) presents Lessons for International Tax Reform from the U.S. State Experience under Formulary Apportionment at NYU today as part of its Tax Policy Colloquium Series hosted by Daniel Shaviro and Alan Auerbach:

This work undertakes a comprehensive analysis of the US state experience under formulary apportionment of corporate income. While formulary apportionment eliminates the possibility of shifting income across states through accounting strategies that manipulate where income is booked, it may heighten the tax responsiveness of formula factors. The present analysis uses the substantial variation in corporate tax policy decisions of US states over the period 1986 to 2012 to understand the consequences of formulary apportionment better. It examines the effects of policy choices regarding tax rates, formula weights, and other parameters on economic activity, estimating the tax sensitivity of employment, investment, and sales. With the inclusion of adequate control variables, results indicate that economic activity has not been particularly sensitive to US state corporate tax policy choices, especially in recent years. Still, tax policy choices have important effects on corporate tax revenues. These results suggest important lessons regarding possible international adoption of formulary apportionment.

April 22, 2014 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Osofsky: Frictions, Screening, and Tax Law Design

Leigh Osofsky (Miami), Who's Naughty and Who's Nice? Frictions, Screening, and Tax Law Design, 61 Buff. L. Rev. 1057 (2013):

This Article sets forth a new dimension for designing and evaluating the tax law. Scholars have examined how many provisions throughout the tax code serve as “frictions” on tax planning, by imposing costs as a means to deter such planning. In this Article, I argue that, by imposing costs that will necessarily be borne differently by different taxpayers, frictions also inherently screen between different taxpayers. Recognizing how frictions screen upends conventional wisdom regarding the design of tax law. By focusing on the deterrence aspect of frictions, and not recognizing their additional screening role, scholars have concluded that: (1) frictions are successful if they deter tax planning rather than cause it to continue in a more wasteful fashion, and (2) that frictions should not impose costs on regular, business transactions. However, in coming to these conclusions, scholars have missed the key inquiry regarding frictions. As I flesh out in this Article, the key inquiry should be whether frictions impose differential, and greater, costs on tax planners, relative to non-planners, and thereby reduce the overall social cost attributable to tax planning. This inquiry not only reveals that frictions that successfully deter tax planning may nonetheless fail as a result of poor screening, but also that imposing costs on regular, business transactions is not always a flaw of a friction. More broadly, this inquiry suggests a new, more robust framework for optimal tax law design, which incorporates screening as a central part of the analysis. Many times frictions impose higher costs on taxpayers based on characteristics other than tax planning motivation. At times, these unintended screening results are undesirable, but not overly problematic, and they may even be remedied by careful attention to screening. Other times, however, these screening results are perverse, and counsel reform or elimination of the friction altogether. In any event, understanding how frictions screen is essential to ensure that the right taxpayers are bearing the right costs throughout the tax code, or, alternatively, that important deterrence objectives justify any undesirable screening outcomes.

April 22, 2014 in Scholarship, Tax | Permalink | Comments (0)

Monday, April 21, 2014

Barry Presents PPL and the Arbitrary Foreign Income Tax Credit Today at Pepperdine

BarryJordan M. Barry (San Diego) presents PPL and the Arbitrary Foreign Income Tax Credit at Pepperdine today as part of its Tax Policy Colloquium Series hosted by Paul Caron:

Last year, the Supreme Court decided PPL v. Commissioner, ruling that the United Kingdom’s windfall tax qualifies for a U.S. foreign income tax credit. Even though the windfall tax only applies to a handful of taxpayers, economists and tax experts nationwide closely followed the PPL litigation: The foreign income tax credit a key provision of the U.S. tax code and a major component of U.S. economic policy. The rules surrounding the foreign income tax credit are quite intricate, and there is relatively little authoritative guidance to help taxpayers navigate them. And since the Supreme Court decides foreign income tax credit cases so rarely, the Court’s reasoning in PPL will likely influence courts’ thinking—and taxpayers’ pocketbooks—for many years to come.

Unfortunately, the Court’s decision in PPL does little to clarify the law and guide taxpayers. Instead, it reveals the fundamentally arbitrary nature of the foreign income tax credit.

The Court justifies its ruling as a triumph of substance over form. But the Court’s opinion itself demonstrates how two taxes can be the same in substance, yet be treated quite differently for purposes of the foreign income tax credit. The Court describes a specific hypothetical tax that would not be creditable—yet there are multiple taxes that are substantively identical to the Court’s hypothetical tax, but qualify for significant foreign income tax credits.

This Article explores these conceptual problems with the foreign income tax credit, as demonstrated by PPL, and suggests several ways in which Congress and the IRS might wish to ameliorate them.

Update: Post-presentation lunch:


April 21, 2014 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Sunday, April 20, 2014

Top 5 Tax Paper Downloads

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

  1. [412 Downloads]  Submission to Finance Department on Implementation of FATCA in Canada, by Allison Christians (McGill) & Arthur J. Cockfield (Queen's)
  2. [341 Downloads]  As American as Apple Inc.: International Tax and Ownership Nationality, by Chris William Sanchirico (Pennsylvania)
  3. [290 Downloads]  2012 Developments in Connecticut Estate and Probate Law by Jeffrey A. Cooper (Quinnipiac) & John R. Ivimey (Reid & Riege, Hartford)
  4. [156 Downloads]  Recent Developments in Federal Income Taxation: The Year 2013, by Martin J. McMahon, Jr. (Florida), Ira B. Shepard (Houston) & Daniel L. Simmons (UC-Davis)
  5. [151 Downloads]   It's Time for the Supreme Court to Address the Economic Substance Doctrine, by Andy Grewal (Iowa)

April 20, 2014 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (1)

Friday, April 18, 2014

Weekly SSRN Tax Roundup

April 18, 2014 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Weekly Student Tax Note Roundup

April 18, 2014 in Scholarship, Tax, Weekly Student Tax Note Roundup | Permalink | Comments (2)

Audits as Signals

Maciej H. Kotowski (Harvard), David A. Weisbach (Chicago) & Richard J. Zeckhauser (Harvard), Audits as Signals, 81 U. Chi. L. Rev. 179 (2014):

A broad array of law enforcement strategies, from income tax to bank regulation, involve self-reporting by regulated agents and auditing of some fraction of the reports by the regulating bureau. Standard models of self-reporting strategies assume that although bureaus only have estimates of the of an agent’s type, agents know the ability of bureaus to detect their misreports. We relax this assumption, and posit that agents only have an estimate of the auditing capabilities of bureaus. Enriching the model to allow two-sided private information changes the behavior of bureaus. A bureau that is weak at auditing, may wish to mimic a bureau that is strong. Strong bureaus may be able to signal their capabilities, but at a cost. We explore the pooling, separating, and semi-separating equilibria that result, and the policy implications. Important possible outcomes are that a cap on penalties increases compliance, audit hit rates are not informative of the quality of bureau behavior, and by mimicking strong bureaus even weak bureaus can induce compliance.

April 18, 2014 in Scholarship, Tax | Permalink | Comments (1)

Thursday, April 17, 2014

Gamage Presents A Framework for Analyzing the Optimal Choice of Tax Instruments Today at Indiana

Gamage (2014)David Gamage (UC-Berkeley) presents A Framework for Analyzing the Optimal Choice of Tax Instruments, 68 Tax L. Rev. ___ (2014), at Indiana-Bloomington today as part of its Tax Policy Colloquium Series hosted by Leandra Lederman:

What mix of policy instruments should governments employ to raise revenues or to promote distribution? The dominant answer to this question in the tax theory and public finance literatures is that (with limited exceptions) governments should rely exclusively on a progressive consumption tax. Thus, among other implications, the dominant view is that governments should not tax capital income or wealth, and that legal rules should not be designed to promote distribution.

In contrast, this Article argues that governments should make use of a number of tax and non-tax policy instruments to raise revenues and to promote distribution. Furthermore, this Article argues that governments may have much greater capacity to raise revenues and to promote distribution at lower efficiency costs than is generally recognized. Whereas the existing theoretical literature focuses on a small number of distortionary costs that result from taxation (in particular, on labor-to-leisure and saving-to-spending distortions), this Article analyzes the implications of taxpayers engaging in a diverse variety of tax-gaming responses. To the extent that taxpayers respond to different tax instruments through different forms of tax gaming, this Article demonstrates that governments can raise revenues and promote distribution more efficiently by employing a variety of different policy instruments.

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April 17, 2014 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Fleischer Presents The Inferiority of Pigouvian Taxes Today at Washington

Fleischer Vic (2013)Victor Fleischer (San Diego) presents The Inferiority of Pigouvian Taxes at the University of Washington today as part of its Graduate Tax Program Colloquium Series:

Pigouvian (or "corrective") taxes have become the favored policy instrument to address activities that cause negative externalities. There is considerable academic support for Pigouvian taxes on a wide range of products and activities, including carbon, gasoline, fat, high fructose corn syrup, financial transactions, executive pay, excessive zoning, and SUVs. Economists of all political stripes are therefore mystified by our politicians’ collective inability to see the merits of using Pigouvian taxes more frequently to address serious social harms.

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April 17, 2014 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Solomon Presents Tax Policymaking in the United States Today at Temple

SolomonEric Solomon (Director of National Tax Practice, Ernst & Young, Washington, D.C.) presents The Process for Making Tax Policy in the United States: A System Full of Friction, 67 Tax Law. ___ (2014), at Temple today as part of its Tax Policy & Administration Colloquium Series hosted by Alice Abreu and Andrea Monroe:

The paper, first presented to the Canadian Tax Foundation Roundtable ..., acknowledges the roles of multiple participants in the formation of tax policy, including the Treasury, IRS, and courts, but focuses on the legislative process and describes both the roles of the various players in it. It emphasizes the operation of the checks and balances in the system and the ways in which they influence tax legislation and tax policy. The Colloquium will also include a discussion of the tax gap drawn from testimony presented to the Senate Finance Committee on April 18, 2007 by Eric Solomon and Henry Paulsen.

April 17, 2014 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Mazur Presents Tax Policy and the Economy Today at Florida

Mazur 2Mark Mazur (Assistant Secretary for Tax Policy, U.S. Treasury Department) presents Tax Policy and the Economy at Florida today as the Fourth Annual Ellen Bellet Gelberg Tax Policy Lecture in the Graduate Tax Program.  Prior lectures:

April 17, 2014 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Recent Tax Prof Tax Notes Articles

April 17, 2014 in Scholarship, Structuring a Tax Workshop Series, Tax | Permalink | Comments (0)

Mirkay: State Tax Law in a Post-Windsor World

Nicholas A. Mirkay III (Creighton), Equality or Dysfunction? State Tax Law in a Post-Windsor World, 47 Creighton L. Rev. ___ (2014):

Depending on one’s religious and political proclivities, the United States Supreme Court’s decision in United States v. Windsor can either been seen as a progressive step towards equality or a troublesome departure from traditional marriage norms. Notwithstanding, from a federal tax perspective, the Windsor decision clearly raised a myriad of issues that spanned virtually the entire Internal Revenue Code (the “Code”), including but not limited to income taxes (including filing status), estate and gift taxes, payroll taxes, and the tax treatment of retirement account contributions and social security benefits. In the aftermath of Windsor, the IRS was left with a quandary in administering marital-status-dependent Code provisions: should it base its administration of the Code on the taxpayer’s valid marriage in the state in which it was performed (commonly referred to as the “state of celebration” test) or the taxpayer’s state of residence or domicile (commonly referred to as the “state of residence” test)? The IRS resolved most of the federal tax issues raised by Windsor in its issuance of Revenue Ruling 2013-17, which chiefly adopted a state of celebration test for income and other tax purposes. However, the ruling did not extend to quasi-marital statuses, such as domestic partnerships and civil unions, resulting in federal tax non-recognition and complexities for couples in those legally recognized relationships.

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April 17, 2014 in Scholarship, Tax | Permalink | Comments (1)

Wealth Strategies Journal Publishes New Issue

Taxing Luck

Peter Prescott (Butler University, College of Business), Taxing Luck, 83 Miss. L.J. 117 (2014):

Luck, income, wealth, and taxation have always been, and still are, inexorably intertwined. The connection between the latter three is obvious and driven by practical necessity—one cannot collect a tax from someone who has nothing to pay it with. Taxing previously-acquired wealth or current income solves the collectability problem. Luck enters the picture as one of a handful of important factors contributing to acquiring wealth and to earning income. Like just about everything else in life, that luck-generated economic success has federal income tax consequences for the lucky recipient. But does the current income tax treatment of that success hold up under scrutiny? If not, then how should the federal government tax “lucky” income? And, how should Congress and the IRS decide which income is “lucky” and which is not? This Article wrestles with those thorny questions using the traditional tax policy considerations of economic efficiency, equity and distributive justice concerns, and practical administrative issues related to increasing legal complexity before concluding that taxable income attributable to luck should be segregated from other types of income and subjected to a fixed tax rate that exceeds the top marginal tax rates on ordinary income earned by individuals.

April 17, 2014 in Scholarship, Tax | Permalink | Comments (0)

Wednesday, April 16, 2014

Roin Presents Planning Past Pensions Today at Duke

RoinJulie Roin (Chicago) presents Planning Past Pensions at Duke today as part of its Tax Policy Seminar hosted by Lawrence Zelenak:

Evidence of state and local government dysfunction surfaces in many areas. One is the operation of their employee pension plans. Free from the strictures of ERISA, some governments failed to fund their pension promises and with the imminent retirement of the baby boom generation, are facing what appear to be insurmountable pension debts. The state of Illinois is one of the worst-hit states, with grossly underfunded pension plans, a state constitutional prohibition on reducing pension benefits, and a sizeable non-pension related budget deficit. Recently passed pension “reforms” likely will be struck down by its courts. There are no easy solutions to its pension woes, but this article seeks to lay out a few steps that Illinois can take now, under current law, and suggests more long-term policy and legal changes that it should consider for the future. Ultimately, though, the same dysfunctions that led to the current crisis might make these suggestions impractical.

April 16, 2014 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Sugin: Payroll Taxes, Mythology, and Fairness

Linda Sugin (Fordham), Payroll Taxes, Mythology, and Fairness, 51 Harv. J. on Legis.___ (2014):

As the 2012 fiscal cliff approached, Congress and President Obama bickered over the top marginal income tax rate that would apply to a tiny sliver of the population, while allowing payroll taxes to quietly rise for all working Americans. Though most Americans pay more payroll tax than income tax, academic and public debates rarely mention it. The combined effect of the payroll tax and the income tax produce dramatically heavier tax liabilities on labor compared to capital, producing substantial horizontal and vertical inequity in the tax system. This article argues that a fair tax system demands just overall burdens, and that the current combination of income taxes and payroll taxes imposes too heavy a relative burden on wage earners. It scrutinizes the payroll tax to debunk myths that artificially link payroll taxes to retirement security, and argues that these myths have lulled workers into accepting substantial and regressive tax burdens. Freed from the analytical limitations of an insurance label and a private-savings paradigm, policymakers can be better guided by fundamental principles of fairness. By refuting justifications for taxing capital income more lightly than labor income, and offering fairness arguments for taxing work less than investment, the article makes a case for equalizing the tax burdens on labor and capital income. Social Security’s outlays constitute one-fifth of total federal spending, and this article maintains that it should be financed by a fair tax.

April 16, 2014 in Scholarship, Tax | Permalink | Comments (0)

Peroni Presents Formulary Apportionment in the U.S. at UNLV

PeroniRobert J. Peroni (Texas) presented Formulary Apportionment in the U.S. International Income Tax System: Putting Lipstick on a Pig? (with J. Clifton Fleming (BYU) & Stephen E. Shay (Harvard)) at UNLV yesterday as part of its Faculty Enrichment Series:

[T]he authors argue that formulary apportionment and the current standard, arm's length transfer pricing, are just two shades of lipstick on the pig that is the US international tax system, with its twin features of deferral and cross-crediting. They conclude that formulary apportionment might be the less offensive shade, but in effect the whole discussion is a diversion from a broad reform that is sorely needed on the pig itself.

April 16, 2014 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Tuesday, April 15, 2014

Rao Presents The Tax Policy Implications of State Facilitated Collusion in the Alcohol Market Today at NYU

RaoNirupama Rao (NYU) presents The Price of Liquor is Too Damn High: State Facilitated Collusion and the Implications for Taxes (with Christopher T. Conlon (Columbia) at NYU today as part of its Tax Policy Colloquium Series hosted by Daniel Shaviro and Alan Auerbach:

Alcohol markets are subject to both heavy regulation as well as excise taxes at the federal and state level. We examine the impact of particular state regulations on the structure of the alcohol market and the consequences for tax eciency. We show that post and hold and meet but not beat pricing regulations at the wholesale level facilitate non-competitive pricing by wholesalers. Wholesalers will tend to mark up premium brands relative to call or well products. The distortion of premium brands generally exceeds the distortions resulting from optimally set taxes, particularly when states attempt to address any negative externality of alcohol consumption. Regression results and tabulations indicate that that states featuring post and hold regulations consume 4% to 10% less alcohol than other states, that premium products comprise a smaller share of consumption and that wholesaler pricing is consistent with non-competitive behavior. We use new monthly data describing prices and quantity for hundreds of products to estimate alcoholic beverage demand and use these estimates to assess the impact of replacing these regulations with higher taxes. Our ndings suggest that the state of Connecticut could raise three to six times their current alcohol tax revenue by eliminating these regulations and increasing taxes such that total alcohol consumption was unchanged. In addition to redirecting surplus from wholesalers to the taxing authority, these alternative policies increase consumer surplus by reducing distortions in consumer product choices. The state can e ectively raise much more revenue and improve consumer welfare by replacing alcohol regulations with taxation

April 15, 2014 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Kahng Presents The Taxation of Intellectual Capital Today at Washington

KahngLily Kahng (Seattle) presents The Taxation of Intellectual Capital, 66 Fla. L. Rev. ___ (2014), at The University of Washington today as part of its Graduate Tax Program Colloquium Series:

Intellectual capital — broadly defined to include nonphysical sources of value such as patents and copyrights, computer software, organizational processes and know-how — has a long history of being undervalued and excluded from measures of economic productivity and wealth. In recent years, however, intellectual capital has finally gained wide recognition as a central driver of economic productivity and growth. Scholars in fields such as knowledge management, financial accounting and national accounting have produced a wealth of research that significantly advances our conceptual understanding of intellectual capital and introduces new methodologies for identifying and measuring its economic value.

This Article is the first to analyze and assess the taxation of intellectual capital within this broader interdisciplinary landscape. Informed by the recent research and reform efforts in knowledge management, financial accounting and national accounting, the Article finds that the tax law, which allows most investments in intellectual capital to be deducted, is fundamentally flawed. This results in the loss of hundreds of billions of dollars in tax revenues, costly misallocations of resources and a grave deviation from the accurate measure of income. The Article argues that, consistent with the prevailing view in other fields, investments in intellectual capital ought to be capitalized under the tax law. Drawing upon the work of reform proponents in other fields as well as their critics, the Article considers whether and to what extent the advances in other disciplines can be adapted to the tax system. Based on this analysis, it proposes the tax law be reformed to require businesses to capitalize and amortize over five years a broad array of intellectual capital investments including research and development, advertising, worker training and strategic planning.

April 15, 2014 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Monday, April 14, 2014

NYU Tax Law Review Publishes Symposium Issue: The Income Tax at 100

NYU 100The Tax Law Review has published a new issue (Vol. 66, No. 4 (Summer 2013)), NYU/UCLA Tax Policy Symposium: The Income Tax at 100, 66 Tax L. Rev. 357-879 (2013):

Deborah H. Schenk (NYU), Foreword: The Income Tax at 100, 66 Tax L. Rev. 357 (2013)

Panel #1:  The Role of the Corporate Tax:

Panel #2:  International Taxation:

Panel #3:  Taxes and Inequality:

Panel #4:  Taxes and Politics:

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

Papers From the American Taxation Association's 2014 Midyear Meeting

ATA LogoThe American Taxation Association has posted on SSRN the 21 papers from its 2014 Midyear Meeting.

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

The Political Economy of Policy Transitions

OxfordMichael J. Trebilcock (Toronto), Dealing with Losers: The Political Economy of Policy Transitions (Oxford University Press 2014):

Whenever governments change policies—tax, expenditure, or regulatory policies, among others—there will typically be losers: people or groups who relied upon and invested in physical, financial, or human capital predicated on, or even deliberately induced by the pre-reform set of policies. The issue of whether and when to mitigate the costs associated with policy changes, either through explicit government compensation, grandfathering, phased or postponed implementation, is ubiquitous across the policy landscape. Much of the existing literature covers government takings, yet compensation for expropriation comprises merely a tiny part of the universe of such strategies.

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April 14, 2014 in Book Club, Scholarship, Tax | Permalink | Comments (0)

Sunday, April 13, 2014

Top 5 Tax Paper Downloads

Friday, April 11, 2014

Weekly SSRN Tax Roundup

April 11, 2014 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Weekly Student Tax Note Roundup

Crawford & Blattmachr: Planning With Portability Do-Overs

Tax Analysys Logo (2013)Bridget J. Crawford (Pace) & Jonathan G. Blattmachr (Interactive Legal Systems), Planning With Portability Do-Overs (But Only for a Limited Time), 143 Tax Notes 117 (Apr. 7, 2014):

In this article, the authors discuss Rev. Proc. 2014-18, in which the IRS provides some estates with a simplified method for making a portability election and having that election treated as timely even though the statutory deadline may have passed. The authors suggest that once the estate tax exemption of a first spouse to die has been preserved under Rev. Proc. 2014-18, an effective estate plan for the surviving spouse may include creating and funding a lifetime trust structured as a grantor trust.

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

Bank: Historical Perspective on the Corporate Interest Deduction

Steven A. Bank (UCLA), Historical Perspective on the Corporate Interest Deduction, 18 Chapman L. Rev. ___ (2014):

One of the so-called “pillars of sand” in the American business tax structure is the differential treatment of debt and equity. Corporations may deduct interest payments on their debt, but may not deduct dividend payments on their equity. This “ancient and pernicious” feature is criticized because it distorts corporate financing choices and inevitably leads to line drawing problems as the government engages in a futile chase to catch up with the latest financial innovation. Both the Obama administration and new Senate Finance Committee Chairman Ron Wyden have proposed capping the deductibility of corporate interest to mitigate these concerns. This has led commentators to come to the defense of the full corporate interest deduction, relying in part on a historical justification based on the origins of the corporate income tax as a proxy for reaching shareholder income. According to this argument, an entity-level tax was necessary to reach income that might be distributed as a dividend, since it could otherwise be avoided by deferring the dividend, but an entity-level tax was not necessary to reach income that might be paid out as interest, since interest payments were fixed and regular and non-deferrable. Therefore, interest payments were made deductible, but dividend payments were not.

This Essay, prepared in connection with a Chapman Law Review symposium on Business Tax Reform, contends that although there may be appropriate arguments in favor of maintaining a full corporate interest deduction, the historical premise for the origins of the corporate income tax system is not one of them. Corporate interest was deductible and dividend payments were not both in 1894, when deferral was not a concern because corporations routinely distributed all of their profits each year, and in 1909, when there was no individual income tax and therefore no tax incentive to retain earnings.

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

Wiedenbeck: Recovering the Tax Shelter Limitation Aspect of ERISA

Peter J. Wiedenbeck (Washington University), 'Ninety-Five Percent of Them Will Not Be Missed': Recovering the Tax Shelter Limitation Aspect of ERISA, 6 Drexel L. Rev. ___ (2014):

ERISA is justly hailed as a paramount achievement in labor and social welfare legislation. The worker-protective elements of ERISA get most of the attention. Yet Congress also emphasized that employee benefit plans “substantially affect the revenue of the United States because they are afforded preferential Federal tax treatment” which justified a coordinate declaration of policy, “to protect...the Federal taxing power”. ERISA § 2(a), (c), 29 U.S.C. § 1001(a), (c). The tax-subsidized but largely unregulated regime that preceded ERISA facilitated widespread tax abuse. Reducing wasted revenue by focusing preferential tax treatment on plans providing retirement savings to a broad cross-section of the workforce — not just to the business owners — is the often-overlooked dual objective of ERISA. This article seeks to recover the tax shelter limitation aspect of ERISA. Part II briefly explains the origins of ERISA’s tax controls. Part III surveys ERISA’s accomplishments and limitations in suppressing pension tax shelters. Part IV describes later momentous developments to which ERISA pointed the way.

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

Tax Increment Financing Districts and Taxable Properties

Randall K. Johnson, How Tax Increment Financing (TIF) Districts Correlate With Taxable Properties, 34 N. Ill. U. L. Rev. 39 (2013):

This article deals with Tax Increment Financing (TIF), which is a popular economic development tool. TIF borrows against future tax revenues to subsidize current development projects. In Illinois, this economic development tool is justified by its promise to expand the local tax base: by increasing tax revenues, increasing the number of tax payers or increasing the number of taxable properties in the area. However, it is not clear that TIF delivers on its promise. A new dataset, which is introduced in this article, helps to clarify the issue. It does so by providing information about the number of TIF Districts in suburban Cook County, Illinois, the number of taxable properties therein and the nature of the relationship between these variables. If these variables move together, which would indicate that TIF Districts positively correlate with taxable properties, this article will find that TIF delivers on its promise.

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

Thursday, April 10, 2014

Blank Presents Reconsidering Corporate Tax Privacy at Harvard

BlankJoshua D. Blank (NYU) presented Reconsidering Corporate Tax Privacy, 11 N.Y.U. J. L. & Bus. ___ (2014), at Harvard yesterday as part of its Current Issues in Tax Law, Policy, and Practice Seminar hosted by Daniel Halperin and Stephen Shay:

For over a century, politicians, government officials and scholars in the United States have debated whether corporate tax returns, which are currently subject to broad tax privacy rules, should be made publicly accessible. Throughout this age-old debate, participants have speculated about how corporate managers and the IRS might behave differently if they knew that the public could observe corporations’ tax returns and how investors and the general public would respond if they had access to this information. There is, however, another, unexplored perspective: how could seeing other corporations’ tax returns affect how corporate managers engage in tax planning and tax return preparation for their own corporations?

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

Call for Papers: McGill Symposium on Tax Justice and Human Rights

McGillMcGill Faculty of Law, Call for Papers:  Tax Justice and Human Rights Research Collaboration Symposium:

We invite paper proposals for a Tax Justice and Human Rights Research Collaboration Symposium, to be held at the McGill Faculty of Law, Montreal, Quebec, from Wednesday to Friday, 18-20 June, 2014. 

The symposium will explore the fundamental connections between taxation and human rights by providing a forum for collaboration among emerging scholars, established academics, civil society organization representatives, tax justice advocacy groups, tax policy makers, and researchers from around the world. The symposium seeks especially to bring developing-world perspectives into the discourse and to foster scholarly work for dissemination both within and beyond the academic setting.

The plurality of experience, in terms of training, background, country of origin, and area of expertise, will ensure that discussions and activities at the conference will have real-world impact. Indeed, there is a need within the tax-policy world for more cross-pollination between academic researchers and on-the-ground decision-makers. The connections and networking that we envision will take place at this conference should allow for meaningful discussions for years to come.

Paper proposals must be between 300-500 words in length and should be accompanied by a short résumé.

Please submit your proposal to the conference convener Professor Allison Christians, at [email protected]

Deadline for submissions: 30 April 2014. Successful applicants will be notified in early May 2014.

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

Critiquing the 'Gladiator Ethos' of Student-Edited Law Reviews

GladiatorEvelyn A. Grosenick (Public Defender, Nevada), In Defense of the Law Review, 45 McGeorge L. Rev. 305 (2013) (a response to Megan S. Knize (Editor-in-Chief, UC Davis Law Review, 2007-08), The Pen Is Mightier: Rethinking the "Gladiator" Ethos of Student-Edited Law Reviews, 44 McGeorge L. Rev. 309 (2013)):

I recognize that experiences vary greatly among law reviews and individuals. Despite individual differences among law review cultures, the need to publish issues influences the definition of success on all law reviews, which creates a common experience in some respects. Furthermore, this need to publish differentiates the definition of success in the law review context from the definition of success in the legal field and legal education. The main weakness of the gladiator model as an analytical tool for criticizing the law review is that it fails to take into account the full definition of success on the law review. Whereas the definition of success as winning drives the gladiator culture at law schools under Professor Sturm’s gladiator theory, the definition of success on the law review also includes producing a publication, which requires the members to work as a team. Publication cannot be accomplished without many of the aspects of the law review that Knize criticizes. In addition, the publication requirement encourages teamwork and creates an environment that celebrates prioritizing the needs of the team over the desires of the individual.

I am not arguing that the law review as an institution is perfect, nor do I believe that it is insulated from gender inequality. Rather, I am suggesting in response to Knize’s article that the necessity for teamwork on the law review counteracts the potential effect of the gladiator ethos and makes the law review more female-friendly than the typical law school classroom. Further, the hierarchical structure, rules, and deadlines serve essential gender-neutral purposes on law review and beyond.

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

Oei: The Uneasy Case Against Tax Lien Subordination

Shu-Yi Oei (Tulane), The Uneasy Case Against Tax Lien Subordination, 11 Pitt. Tax Rev. ___ (2014):

I.R.C. § 6323, which governs how the federal tax lien ranks against the interests of the taxpayer’s other creditors, subordinates the tax lien to the claims of other creditors in various ways. Tax lien subordination is commonly justified on the grounds that it enhances taxpayer asset value, facilitates commercial transactions, and reduces monitoring costs for private creditors. This short symposium essay argues, however, that these benefits may be illusory. Tax lien subordination may, in fact, be unnecessarily costly and distortive and may lead to unfair distributive results. This essay suggests that the tax lien priority scheme might be made less costly by reducing its multiple levels of subordination. This could be accomplished in two ways: First, by reducing the magnitude or number of the superpriorities and other prioritized interests; and second, by eliminating the priority of the four horsemen over the un-noticed federal tax lien, or, alternatively, by moving away from a system of pure public notice and toward a semi-private inquiry-based system.

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

Shanske: Revitalizing Local Political Economy Through Modernizing the Property Tax

Darien Shanske (UC-Davis), Revitalizing Local Political Economy Through Modernizing the Property Tax, 68 Tax L. Rev. ___ (2014):

As the Great Recession dramatically illustrated, state and local governments need a more stable revenue source. Accordingly, states and localities as diverse as Texas and San Francisco, are experimenting with new kinds of taxes. However, there has been essentially no experimentation with the oldest and most traditional local tax, namely the tax on real property.

This blindness to the property tax is unfortunate for many reasons, including that the property tax is both relatively efficient and stable compared to the other taxes available to states and localities. Of course, it is possible that the property tax has been ignored because, despite its merits, it has structural weaknesses that cannot be reformed. For instance, property tax liability is based on the value of the property and not on the income of the owner, which means that property taxes can impose great burdens on taxpayers on a fixed income. Furthermore, property taxes are typically collected once or twice a year, which imposes a significant obligation on taxpayers to budget correctly.

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

Templin: The Politics of Social Security Tax Reform

Benjamin A. Templin (Thomas Jefferson), Social Security Reform: The Politics of the Payroll Tax, 32 Quinnipiac L. Rev. 1 (2013):

This Article examines the principal reform proposals that would increase tax revenue for the Social Security trust fund--weighing the pros and cons of each. [FN13] The Article also considers the prospects for political agreement on a reform proposal given the past efforts and the looming crisis. Part I of the Article recounts the latest data on insolvency projections and discusses the methods by which the Office of the Chief Actuary measures the effect of proposed reforms. Part II provides an overview of the payroll tax and benefit calculations. The factors used in calculating both tax and benefits are key components used in many reform proposals. The Article groups tax reform proposals in two types: (1) proposals that increase the tax rate, which is the subject of Part III; and (2) proposals that increase the maximum taxable income, which is discussed in Part IV. Part V examines the political realities of reform proposals and suggests ways in which political bargaining can be structured to maximize the chances of success.

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

Wednesday, April 9, 2014

Rostain Presents Lawyers, Accountants, and the Tax Shelter Crisis Today at Duke

Tanina Rostain (Georgetown) presents Confidence Games: Lawyers, Accountants, and the Tax Shelter Crisis (MIT Press, 2014) (with Milton C. Regan, Jr. (Georgetown)) at Duke today as part of its Tax Policy Seminar hosted by Lawrence Zelenak:

ConfidenceFor ten boom-powered years at the turn of the twenty-first century, some of America’s most prominent law and accounting firms created and marketed products that enabled the very rich—including newly minted dot-com millionaires—to avoid paying their fair share of taxes by claiming benefits not recognized by law. These abusive domestic tax shelters bore such exotic names as BOSS, BLIPS, and COBRA and were developed by such prestigious firms as KPMG and Ernst & Young. They brought in hundreds of millions of dollars in fees from clients and bilked the U.S. Treasury of billions in revenues before the IRS and Justice Department stepped in with civil penalties and criminal prosecutions. In Confidence Games, Tanina Rostain and Milton Regan describe the rise and fall of the tax shelter industry during this period, offering a riveting account of the most serious episode of professional misconduct in the history of the American bar.

Rostain and Regan describe a beleaguered IRS preoccupied by attacks from antitax and antigovernment politicians; heightened competition for professional services; the relaxation of tax practitioner norms against aggressive advice; and the creation of complex financial instruments that made abusive shelters harder to detect. By 2004, the tax shelter boom was over, leaving failed firms, disgraced professionals, and prison sentences in its wake. Rostain and Regan’s cautionary tale remains highly relevant today, as lawyers and accountants continue to face intense competitive pressure and regulators still struggle to keep pace with accelerating financial risk and innovation.

April 9, 2014 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Wells Presents Tax Base Erosion and Section 482 at Northwestern

WellsBret Wells (Houston) presented Tax Base Erosion: Reformation of Section 482's Arm’s Length Standard, 15 Fla. Tax Rev. ___ (2014), at Northwestern last week as part of its Tax Colloquium Series hosted by by Herbert Beller, Charlotte CraneDavid Cameron, Philip Postlewaite, Jeffrey Sheffield, and Robert Wootton:

The United States has repeatedly attempted to stop tax base erosion for almost the entire post-World War I era, and yet the same problems exist today. The need for fundamental tax reform is front-page material in the major newspapers with the US transfer pricing rules and US multinationals portrayed as public enemy #1. This year, the OECD issued a report entitled “Addressing Base Erosion and Profit Shifting” and last month it issued a “Action Plan” for how it plans to proceed to address base erosion and profit-shifting. In a competing fashion, several important developing countries have initiated their own pact to develop cooperative strategies on these issues outside of the framework of the OECD and UN. It is fair to say that a solution to the base erosion and profit-shifting practices of multinational corporations is the “holy grail” of international tax policy.

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April 9, 2014 in Colloquia, Scholarship, Tax | Permalink | Comments (1)

Harvey Presents FATCA and the Taxation of U.S. Citizens Living Abroad Today at Penn

HarveyJ. Richard "Dick" Harvey, Jr. (Villanova) presents Offshore Accounts: Insider's Summary of FATCA and Its Potential Future, 57 Vill. L. Rev. 472 (2012), and Worldwide Taxation of U.S. Citizens Living Abroad: Impact of FATCA and Two Proposals, 5 Geo. Mason J. Int'l Comm. L. ___ (2013), at Pennsylvania today as part of its Center for Tax Law & Policy Seminar Series hosted by Michael Knoll, Chris Sanchirico, and Reed Shuldiner:

When FATCA was unilaterally enacted in March 2010 it was far from clear whether it would ultimately be successful. The major issue was whether the US would need multilateral action in order for FATCA to be a success. Currently the US has signed 25 intergovernmental agreements with many more in the final stages of negotiation. When coupled with the OECD's recent issuance of a Common Reporting Standard, it appears that FATCA or some version is here to stay. However, there will be growing pains, and some of those pains could be significant.

April 9, 2014 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Tuesday, April 8, 2014

Tahk Presents The Tax War on Poverty Today at NYU

TahkSusannah Camic Tahk (Wisconsin) presents The Tax War on Poverty at NYU today as part of its Tax Policy Colloquium Series hosted by Daniel Shaviro and Alan Auerbach:

In recent years, the war on poverty has moved in large part into the tax code. Scholarship has started to note that the tax laws, which once exacerbated the problem of poverty, have become increasingly powerful tools that the federal government uses to fight against it. Yet questions remain about how this new tax war on poverty works, how it is different from the decades of non-tax anti-poverty policy and how it could improve. To answer these questions, this Article looks comprehensively at the provisions that make up the new tax war on poverty. First, this Article examines each major piece of the tax war on poverty. The Article looks at its mechanics of each, its political history and its effectiveness at addressing poverty. Second, this Article analyzes the tax war on poverty as a whole, identifying commonalities across its different provisions and highlighting its distinctive features. Third, this Article proposes ways that the tax war on poverty could be more effective. In particular, this Article examines how tax lawmakers and tax lawyers could approach this task. In so doing, this Article conceptualizes tax law as the new poverty law and proposes a growing role for public-interest tax lawyers.

April 8, 2014 in Colloquia, Scholarship, Tax | Permalink | Comments (1)

Toder & Viard: A Call for Structural Reform of the U.S. Corporate Income Tax

Eric Toder (Tax Policy Center) & Alan D. Viard (American Enterprise Institute), Major Surgery Needed: A Call for Structural Reform of the U.S. Corporate Income Tax:

Corporate tax system flaws are amplified by the high US statutory tax rate. Here are two ways to fix it:

  1. Eliminate corporate income tax, but tax US shareholders at ordinary income tax rates on their dividends and accrued capital gains.
  2. Seek international agreement on allocating income of multinational corporations among countries to determine tax obligation.

April 8, 2014 in Scholarship, Tax, Think Tank Reports | Permalink | Comments (0)

Osofsky: Unwinding the Ceiling Rule

Leigh Osofsky (Miami), Unwinding the Ceiling Rule, 33 Va. Tax Rev. ___ (2014):

As is widely known, the so-called “ceiling rule,” which applies under the traditional method for section 704(c) allocations, can create the wrong tax result. Specifically, the ceiling rule can result in misallocations of income, gain, loss, and deduction to both a partner contributing property and to the noncontributing partners. Notwithstanding these predictable misallocations, the Treasury Department still permits application of the ceiling rule under section 704(c). This Article challenges longstanding assumptions regarding the operation of the ceiling rule in the context of section 704(c). Historically, Congress and partnership tax experts assumed that the ceiling rule is perfectly unwound on liquidation or sale of a partnership interest. This assumption still operates to some extent today. The assumption glosses over a significantly more complicated reality. This Article closely examines the history of section 704(c) and the interaction between the ceiling rule and the rules regarding sales and liquidations of partnership interests. Doing so reveals that when and to what extent the perfect unwinding assumption holds depends (perhaps to a surprising degree) on (1) a variety of relatively arbitrary facts regarding the assets held by the partnership on liquidation or sale, and (2) the unintended interactions of inordinately complicated partnership tax rules. In reaching this conclusion, this Article displays that the ceiling rule, which has always been part of the section 704(c) regime, is even worse than it is commonly thought to be.

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April 8, 2014 in Scholarship, Tax | Permalink | Comments (0)

Leff & Hackney: Tax Planning for Marijuana Dealers

Iowa Law Review LogoBenjamin M. Leff (American), Tax Planning for Marijuana Dealers, 99 Iowa L. Rev. 523 (2014):

In recent years, many states have legalized marijuana while the federal government continues to consider all marijuana sales and use illegal. But marijuana industry insiders consider not federal criminal law but federal tax law to be the biggest impediment to the development of a legitimate marijuana industry. State-sanctioned marijuana sellers are required to pay federal income taxes pursuant to § 280E, a formerly largely symbolic provision that Congress enacted to punish drug dealers, but which now could potentially drive legitimate marijuana sellers underground.

This paper proposes a tax strategy that enables state-sanctioned marijuana sellers to avoid the impact of § 280E by qualifying as a tax-exempt organization. The IRS has already stated that a marijuana seller cannot be exempt under § 501(c)(3) because the so-called “public policy doctrine” does not permit a charity to have purposes that are contrary to law. This paper proposes that a state-sanctioned marijuana seller could qualify as tax-exempt under § 501(c)(4), since the public policy doctrine only applies to charities, and § 501(c)(4) organizations are not charities. The organization would have to be operated to improve the social and economic conditions of a neighborhood blighted by crime or poverty, by providing job training, employment opportunities, and improved business conditions for commercial development in the neighborhood, just like many existing community economic development corporations that run businesses.

This novel argument is more than just a clever strategy – a “tax loophole” so to speak – to avoid the impact of § 280E. Rather, IRS recognition of tax-exempt status for marijuana sellers could actually provide a mechanism to resolve the federalism issues raised by the conflict between state and federal marijuana laws. A federal policy that incentivizes marijuana sellers to be non-profit, neighborhood-based organizations whose primary purpose is improving the neighborhood in effect ties federal approval to local support. By following this policy, the IRS would promote state and local policy harmonization by permitting community-based nonprofits to sell marijuana, but only when local community groups favored it. This would surely be better for the IRS than its current role as a lightning rod of the conflict between state and federal policy objectives.

Philip T. Hackney (LSU), No 'Fagin' School of Pickpockets Allowed -- A Response to Professor Leff on Tax Planning for Marijuana Dealers, 99 Iowa L. Rev. Bull. 25 (2014):

Professor Benjamin Leff argues in a forthcoming article entitled Tax Planning for Marijuana Dealers that a tax-exempt social welfare organization described in § 501(c)(4) may sell medical marijuana without putting its exempt status in jeopardy. He argues that (1) the “public policy” doctrine applicable to charitable organizations under § 501(c)(3) does not apply to social welfare organizations, and (2) a social welfare organization may consider “community” law and ignore federal law in considering whether its activity meets the idea of social welfare. I argue that Leff is wrong and that the public policy doctrine applicable to charitable organizations applies to social welfare organizations equally. Tax-exempt organizations derive exempt status primarily by supplying significant public benefits. Violating federal, state or local law causes public harm; thus, any tax-exempt organization, including a social welfare organization, may not violate established public policy as a substantial purpose. Additionally, the “community” requirement for social welfare organizations is to ensure the organization is dedicated to a public purpose rather than a private one. Violating any law, including federal, is more likely to ensure an organization is operating for a private rather than public purpose. Contrary to Leff’s claim therefore, this article argues that a social welfare organization may not sell medical marijuana and maintain its exempt status.

April 8, 2014 in Scholarship, Tax | Permalink | Comments (0)

Monday, April 7, 2014

Fleischer Presents Innovation, Equity Compensation, and the New Inequality Today at Pepperdine

Fleischer Vic (2013)Victor Fleischer (San Diego) presents Sweat Equity: Innovation, Equity Compensation, and the New Inequality at Pepperdine today as part of its Tax Policy Colloquium Series hosted by Paul Caron:

How people get paid—not just how much—explains the rising income inequality in the United States. Company founders, corporate executives, real estate developers, venture capitalists, and private equity fund managers often get paid in “sweat equity.” In exchange for labor, they receive equity in a venture largely financed with other people’s money. Globalization, technological change, and other factors have created economic conditions such that when companies are successful, those with sweat equity can receive unprecedented increases in income and wealth, and these gains are increasingly concentrated among a select few. For the rest of us, wages have stagnated.

The culture of equity-based pay has proven highly successful as a solution to the fundamental problem of entrepreneurial economics: how to get people with financial capital to share it with those who have the talent, motivation, and ideas. From the oil fields of Texas to the garages of Silicon Valley and the trading desks and boardrooms of Wall Street, sweat equity aligns the incentives of managers and investors. It is the engine of American innovation and economic growth.

But sweat equity is also rocket fuel for economic inequality. Economic gains increasingly flow to a lucky and talented elite, the one percent of the one percent, leaving everyone else behind. Our tax code aggravates the inequality problem, leaving sweat equity lightly taxed while taxes on wages have increased dramatically. The common recommendation of the political left—raise taxes on the rich—misses the target by focusing on ordinary income rather than sweat equity.

Addressing the problem of inequality will require finding fair methods of redistribution that do not disrupt the complex economic, legal, institutional and cultural infrastructure that forms the foundation for American innovation and entrepreneurship. Possibilities include redesigning the capital gains tax, adopting a progressive consumption tax, redesigning the estate tax, and increasing incentives for charitable giving. We must achieve enough redistribution to ensure some social mobility and some equality of opportunity, but not so much that the next generation of founders finds the risk and reward of entrepreneurship unattractive.

Update:  Post-presentation lunch:


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

Gamage Presents Should Risk Adjustment Become the Heart of Obamacare? Today at Harvard

Gamage (2014)David Gamage (UC-Berkeley) presents The Evolution of Health Care Reform: Should Risk Adjustment Become the Heart of Obamacare? at Harvard today as part of its Health Law Policy, Biotechnology, and Bioethics Workshop Series:

This Essay explores how the regulatory framework of Obamacare might evolve over the coming years. The Essay analyzes the ways in which Obamacare’s risk-adjustment-related provisions are becoming increasingly central. This Essay further ponders whether an expanded approach to risk adjustment might be a better model for guiding further reforms to Obamacare’s framework, especially in light of political constraints. In particular, this Essay explains how an expanded approach to risk adjustment might replace the tax penalty of the individual mandate.

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

Olson Presents Tax Politics v. Tax Policy Today at Minnesota

OlsonPamela F. Olson (PricewaterhouseCoopers LLP) presents Politics versus Policy at Minnesota today as part of its Perspectives in Taxation Lecture Series:

In the tax area, good policy and political reality are often at odds with one another. Such certainly seems to be the case today. Can the conflict between politics and policy be reconciled? What are the implications of the conflict between politics and policy for the enactment of sound tax and budget policy?

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

Retirement Accounts and the Hidden Law of Succession

Wall Street Journal:  When Your 401(k) Has a Bad Heir Day, by Jason Zweig:

Even where there is a will, there can be a won’t.

That is the hard lesson learned by the three adult children of a wealthy telemarketing executive who died suddenly last month. His will states that all his assets are to go to his children, according to Laura Mattia, a principal at Baron Financial Group, a financial-advisory firm in Fair Lawn, N.J., who was consulted after the executive’s death by his estate attorney.

However, much of his wealth was in his 401(k) retirement account, and the fate of those assets isn’t dictated by wills.

It is a little-understood situation: After a lifetime of saving, what ultimately happens to your individual retirement account, 401(k) and other retirement savings often hinges on what you scribbled down, decades earlier, as you filled out a form designating your beneficiaries.

If you haven’t updated that paperwork to reflect how your life has changed, you might not be able to leave your wealth to your heirs as you wish. Instead, you could bequeath them a bureaucratic nightmare.

The executive who died last month, Ms. Mattia says, should have asked his wife to sign a waiver and then named his children as the beneficiaries of his 401(k). Because he didn’t, his wife inherits it—although he married her only two months before he died. By neglecting to update his beneficiary form, the executive effectively disinherited his children.

No wonder Stewart Sterk and Melanie B. Leslie of the Benjamin N. Cardozo School of Law at Yeshiva University in New York call retirement accounts “substitute wills.” In a study they have just published on the problem [Accidental Inheritance: Retirement Accounts and the Hidden Law of Succession, 89 N.Y.U. L. Rev. 165 (2014)], the law professors point out that most Americans believe their retirement savings will be divided according to the instructions in their will—like their other assets. In fact, who inherits retirement money is usually determined by the language on beneficiary-designation forms that many people have long since forgotten or lost.

The assets at stake are staggering. Savers have amassed $5.9 trillion in 401(k) and other “defined contribution” plans, plus another $6.5 trillion in IRAs, according to the Investment Company Institute, a trade group. ...

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

Sunday, April 6, 2014

Top 5 Tax Paper Downloads

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

  1. [360 Downloads]  Submission to Finance Department on Implementation of FATCA in Canada, by Allison Christians (McGill) & Arthur J. Cockfield (Queen's)
  2. [293 Downloads]  As American as Apple Inc.: International Tax and Ownership Nationality, by Chris William Sanchirico (Pennsylvania)
  3. [287 Downloads]  2012 Developments in Connecticut Estate and Probate Law by Jeffrey A. Cooper (Quinnipiac) & John R. Ivimey (Reid & Riege, Hartford))
  4. [210 Downloads]  Deferral and Exemption of the Income of Foreign Subsidiaries: A Review of the Basic Analytics, by Alvin C. Warren (Harvard)
  5. [173 Downloads]  Exporting FATCA, by Joshua D. Blank (NYU) & Ruth Mason (Virginia)

April 6, 2014 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Saturday, April 5, 2014

17th Annual Critical Tax Theory Conference Concludes Today at Baltimore

Baltimore Law School LogoThe  17th Annual Critical Tax Theory Conference concludes today at Baltimore:

Critical tax scholars ask why the tax laws are the way they are and what impact tax laws have on historically disempowered groups, such as people of color; women; lesbian, gay, bisexual, and transgendered individuals; low-income and poor individuals; the disabled; and nontraditional families. Critical tax scholarship shares the following goals: (1) to uncover bias in the tax laws; (2) to explore and expose how the tax laws both reflect and construct social meaning; and (3) to educate nontax scholars and lawyers about the interconnectedness of taxation, social justice, and progressive political movements. However, as articulated at the original conference in 1995 to the present, the content of the Critical Tax Theory Conference has not been narrow – the topics discussed have been wide-ranging and have included more conventional tax topics as well.

Session #5:

  • Steven Dean (Brooklyn), Space Madness: Subsidies and Economic Substance 
  • Henry Ordower (St. Louis), Income Imputation: Toward Equal Treatment of Renters and Owners

Session #6:

  • Nan Kaufman (St. Louis), Tax Ladies
  • Keeva Terry (Howard), Divorce Without Marriage? There's Nothing Sexy about Taxing Property Transfers between Unmarried Couples
  • Mildred Robinson (Virginia), Philanthropy in IRC Section 170?

Session #7:

  • Neil H. Buchanan (George Washington), Forced Labor and the Income Tax: The Full Implications of Taking Nozick’s (Now-Repudiated) Claim Seriously
  • Nancy Shurtz (Oregon), Long-Term Care and the Tax Code: A Feminist Perspective
  • Linda Sugin (Fordham), Payroll Taxes, Mythology and Fairness

Session #8:

  • Andrew Blair-Stanek (Maryland), Crisis-Proofing the Tax Code
  • Wendy Gerzog (Baltimore), Façade Easements: Façades of Equity (incubator) Anthony

Prior Critical Tax Theory Conferences:

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