TaxProf Blog

Editor: Paul L. Caron
Pepperdine University School of Law

Sunday, May 1, 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:

  1. [790 Downloads]  Lexisnexis® Guide to FATCA Compliance: Chapter 1, by Willliam Byrnes (Texas A&M) & Robert J. Munro (Texas A&M)
  2. [327 Downloads]  Ownership of the Means of Production, by E. Glen Weyl (Chicago) & Anthony Lee Zhang (Stanford)
  3. [299 Downloads]  The Law of the Platform, by Orly Lobel (San Diego)
  4. [267 Downloads]  Taxing Wealth Seriously, by Edward J. McCaffery (USC)
  5. [243 Downloads]  The Panama Papers and Tax Morality, by Usman W. Chohan (University of New South Wales)

May 1, 2016 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Saturday, April 30, 2016

University Of Minnesota Study:  Enhanced Individualized Feedback In One Core 1L Class Improves Student Performance In All Of Their Other Classes

Daniel Schwarcz (Minnesota) & Dion Farganis (Minnesota), The Impact of Individualized Feedback on Law Student Performance:

For well over a century, first-year law students have typically not received any individualized feedback in their core "doctrinal" classes other than their final exam grades. Although this pedagogical model has long been assailed by critics, remarkably limited empirical evidence exists regarding the extent to which enhanced feedback improves law students' outcomes. This Article helps fill this gap by focusing on a natural experiment at the University of Minnesota Law School.

The natural experiment arises from the random assignment of first-year law students to sections that take a common slate of classes, only some of which provide individualized feedback. Meanwhile, students in two different sections are occasionally grouped together into a "double section" first-year class. In these double section classes, students in sections that have previously or concurrently had a class providing individualized feedback consistently outperform students in sections that have not received any such feedback. The effect is both statistically significant and hardly trivial in magnitude, approaching about 1/3 of a grade increment even after controlling for students’ LSAT scores, undergraduate GPA, gender, race, and country of birth. The positive impact of feedback also appears to be stronger among lower-performing students.

These findings substantially advance the literature on law school pedagogy, demonstrating that individualized feedback in a single class during the first-year of law school can improve law students' performance in all of their other classes. Against the background of the broader literature on the importance of formative feedback in effective teaching, these findings also have a clear normative implication: law schools should systematically provide first-year law students with individualized feedback in at least one “core” doctrinal first-year class.

Note that the authors (at p.12) "defined individualized feedback to include assigning grades to individual students’ work products, providing individualized written comments to students, or providing individualized or small-group oral feedback to students. By contrast, we did not consider individualized feedback to include instances in which instructors provided students with only a model answer, grading rubric, or generalized oral comments regarding common mistakes."

Larry Solum (Georgetown):

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April 30, 2016 in Legal Education, Scholarship | Permalink | Comments (0)

Lazear:  America’s Coming Tax Increase

Wall Street Journal op-ed:  America’s Coming Tax Increase (data here), by Edward P. Lazear (Stanford):

The debt held by the public has approximately doubled since President Obama took office and is now equal to 74% of gross domestic product. It is true that with the right policy mix, economic growth—stuck at just over 2% during the Obama “recovery”—will help close federal deficits and pay down the debt. At the end of World War II, for example, the debt-to-GDP ratio was at 104% and shrank to a low of 23% by 1974. But letting growth or future belt-tightening close the gap is the exception, not the rule. More often, higher taxes are the result.

Chart 1

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April 30, 2016 in Scholarship, Tax | Permalink | Comments (6)

Friday, April 29, 2016

Marian Presents The State Administration Of International Tax Avoidance Today At City University London

Marian (2016)Omri Marian (UC-Irvine) presents The State Administration of International Tax Avoidance, 7 Harv. Bus. L. Rev. ___ (2016), at a Discussion Workshop on Corruption and the Role of Tax Havens at City University London:

This Article documents a process in which a national tax administration in one jurisdiction, is consciously and systematically assisting taxpayers to avoid taxes in other jurisdictions. The aiding tax administration collects a small amount tax from the aided taxpayers. Such tax is functionally structured as a fee paid for government-provided tax avoidance services. Such behavior can be easily copied (and probably is copied) by other tax administrations. The implications are profound. On the normative front, the findings should fundamentally change our understanding of the concept of international tax competition. Tax competition is generally understood to be the adoption of low tax rates in order to attract investments into the jurisdiction. Instead, this Article identifies an intentional “bagger thy neighbor” behavior, aimed at attracting revenue generated by successful investments in other jurisdictions, without attracting actual investments. The result is a distorted competitive environment, in which revenue is denied from jurisdictions the infrastructure and workforce of which support economically productive activity. On the practical front, the findings suggest that internationally coordinated efforts to combat tax avoidance are misaimed. Current efforts are largely aimed at curtailing aggressive taxpayer behavior. Instead, the Article proposes that the focus of such efforts should be curtailing certain rogue practices adopted by national tax administrations.

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April 29, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Weekly SSRN Tax Roundup

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April 29, 2016 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Weekly Student Tax Note Roundup

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 April 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.)

55,096

Reuven Avi-Yonah (Mich)

10,291

2

Michael Simkovic (S. Hall)

31,513

Michael Simkovic (S. Hall)

4590

3

Paul Caron (Pepperdine)

30,679

D. Dharmapala (Chicago)

3936

4

D. Dharmapala (Chicago)

26,229

Paul Caron (Pepperdine)

2316

5

Louis Kaplow (Harvard)

25,639

Richard Ainsworth (BU)

2218

6

Vic Fleischer (San Diego)

22,198

Jeff Kwall (Loyola-Chicago)

1892

7

James Hines (Michigan)

21,571

Robert Sitkoff (Harvard)

1863

8

Richard Kaplan (Illinois)

20,893

Nancy McLaughlin (Utah)

1737

9

Ted Seto (Loyola-L.A.)

20,843

Louis Kaplow (Harvard)

1737

10

Ed Kleinbard (USC)

19,617

David Weisbach (Chicago)

1635

11

Katie Pratt (Loyola-L.A.)

18,629

Jack Manhire (Texas A&M)

1622

12

Richard Ainsworth (BU)

17,517

Ed Kleinbard (USC)

1608

13

Carter Bishop (Suffolk)

16,821

Chris Hoyt (UMKC)

1605

14

Robert Sitkoff (Harvard)

16,772

Brad Borden (Brooklyn)

1586

15

Brad Borden (Brooklyn)

16,688

Omri Marian (UC-Irvine)

1580

16

David Weisbach (Chicago)

16,656

Dan Shaviro (NYU)

1549

17

Jen Kowal (Loyola-L.A.)

16,399

Vic Fleischer (San Diego)

1496

18

Chris Sanchirico (Penn)

16,270

Katie Pratt (Loyola-L.A.)

1405

19

Dennis Ventry (UC-Davis)

15,925

Steven Bank (UCLA)

1384

20

Francine Lipman (UNLV)

15,720

Richard Kaplan (Illinois)

1377

21

Bridget Crawford (Pace)

15,399

Gregg Polsky (N. Carolina)

1344

22

David Walker (BU)

14,917

Yariv Brauner (Florida)

1331

23

Dan Shaviro (NYU)

14,568

Chris Sanchirico (Penn)

1297

24

Steven Bank (UCLA)

13,194

William Byrnes  (Texas A&M)

1236

25

Herwig Schlunk (Vanderbilt)

13,131

Francine Lipman (UNLV)

1209

Note that this ranking includes full-time tax professors with at least one tax paper on SSRN, and all papers (including non-tax papers) by these tax professors are included in the SSRN data.

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April 29, 2016 in Legal Education, Scholarship, Tax, Tax Prof Rankings | Permalink | Comments (0)

Call For Papers:  University Of Washington Symposium On Protecting Taxpayer Rights

University of Washington Logo (2016)The University of Washington’s Graduate Tax Program has issued a call for papers for its Fourth Annual Tax Symposium on October 7, 2016:

The 2016 Symposium will focus on Protecting Taxpayer Rights and feature keynote remarks by Nina E. Olson, the National Taxpayer Advocate.

Papers should be well developed, but at a stage where they can still benefit from the group’s discussion. Priority will be given to papers that are consistent with the chosen theme. The symposium will include twelve to fifteen papers. Dinner with the keynote speaker will be held on the day of the conference.

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April 29, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (1)

Thursday, April 28, 2016

The Intersection Of EU State Aid And U.S. Tax Deferral

Florida Tax Review  (2015)Romero J.S. Tavares, Bret N. Bogenschneider & Marta Pankiv (Vienna University), The Intersection of EU State Aid and U.S. Tax Deferral: A Spectacle of Fireworks, Smoke, and Mirrors, 21 Fla. Tax Rev. ___ (2017):

The Advance Pricing Agreements or transfer pricing rulings granted to U.S. multinationals by Ireland, the Netherlands, and Luxembourg were principally designed to achieve U.S. tax deferral and not EU tax avoidance. Adverse BEPS effects within the European Union would be immaterial in comparison to the deferral of U.S. tax on residual IP related profits, and would have occurred primarily in countries other than those charged with the granting of unlawful State aid. The Irish, Dutch, and Luxembourgish treasuries have not foregone tax revenues in favor of the U.S. multinationals they allegedly aided, which is a requirement for a finding of prohibited State aid.

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

Wednesday, April 27, 2016

Ventry:  Lawyers As Whistleblowers

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

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

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

Call For Papers:  AALS Program On Philanthrocapitalism

AALS (2017)Call for Papers:  Joint Program of the AALS Sections on Agency, Partnerships LLCs, and Unincorporated Associations & Nonprofit and Philanthropy on LLCs, New Charitable Forms, and the Rise of Philanthrocapitalism:

In December 2015, Facebook founder Mark Zuckerberg and his wife, Dr. Priscilla Chan, pledged their personal fortune—then valued at $45 billion—to the Chan-Zuckerberg Initiative (CZI), a philanthropic effort aimed at “advancing human potential and promoting equality.” But instead of organizing CZI using a traditional charitable structure, the couple organized CZI as a for-profit Delaware LLC. CZI is perhaps the most notable example, but not the only example, of Silicon Valley billionaires exploiting the LLC form to advance philanthropic efforts. But are LLCs and other for-profit business structures compatible with philanthropy? What are the tax, governance, and other policy implications of this new tool of philanthrocapitalism? What happens when LLCs, rather than traditional charitable forms, are used for “philanthropic” purposes?

From the heart of Silicon Valley, the AALS Section on Agency, Partnerships LLCs, and Unincorporated Associations and Section on Nonprofit and Philanthropy Law will host a joint program tackling these timely issues. In addition to featuring invited speakers, we seek speakers (and papers) selected from this call.

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

Foundation Press Publishes Election Law Stories (36th Book in the Law Stories Series)

Election LawFoundation Press has published Election Law Stories (2016), by Joshua A. Douglas (Kentucky) & Eugene D. Mazo (Rutgers):

One of the most dynamic fields in the legal academy now has its own Stories book. This title offers a rich and detailed account of the most significant cases in election law, including the landmark decisions of Reynolds v. Sims, Bush v. Gore, Citizens United v. Federal Election Commission, and Shelby County v. Holder. The book relies on a unique encapsulated approach to storytelling, as each of its authors surveys an important doctrinal area in the field through the telling of his or her story. The volume’s thirteen cases concern the right to vote, redistricting and gerrymandering, campaign finance, and election administration. The book is suited for courses in the law of democracy at both the graduate and undergraduate levels.

The table of contents is here.  Other titles in the Law Stories Series (for which I serve as Series Editor) are:

April 27, 2016 in Book Club, Legal Education, Scholarship | Permalink | Comments (0)

May 1 Deadline For Call For Papers For NTA 109th Annual Conference On Taxation

NTA LogoThe National Tax Association has issued a Call for Papers for its 109th Annual Conference on Taxation to be held Nov. 10-12, 2016 in Baltimore:

The 109th Annual Conference on Taxation will cover a broad range of topics including, but not limited to, taxation and tax policies; expenditure policies; government budgeting; intergovernmental fiscal relations; and subnational, national, and international public finance. The conference will focus, as always, on policy-relevant research bearing on taxation and government spending.

You are invited to submit a paper or a complete session. May 1, 2016 is the deadline for submitting papers or sessions. Decisions concerning the inclusion of papers and sessions will be announced in July 2016. Authors of accepted papers will be offered the opportunity to include them in the Proceedings. All presenters will be required to register and pay a conference registration fee.

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

Tuesday, April 26, 2016

Zelenak Presents Tax-Free Basis Step-Up At Death And The Charitable Deduction Of Unrealized Appreciation Today At Georgetown

Zelenak (2016)Lawrence Zelenak (Duke) presents The Tax-Free Basis Step-Up at Death, the Charitable Deduction of Unrealized Appreciation, and the Persistence of Error at Georgetown today as part of its Tax Law and Public Finance Workshop Series hosted by John Brooks and Itai Grinberg:

This article recounts, as a study in the remarkable persistence of early error even when the error is promptly recognized and addressed, the legislative and administrative histories of the taxfree basis step-up at death and the charitable deduction for unrealized appreciation. Part I describes the early development of the basis rules for property transferred by gift or bequest, and Part II covers the early history of the charitable deduction for appreciated property. Parts III and IV are concerned with less ancient events. Part III recounts the short unhappy life of the 1976 carryover basis reform, and Part IV does the same for the 1986 AMT reform. Part V briefly concludes.

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April 26, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (3)

Gravelle Presents Policy Options To Address Corporate Profit Shifting: Carrots Or Sticks? Today At NYU

GravelleJane Gravelle (Congressional Research Service) presents Policy Options to Address Corporate Profit Shifting: Carrots or Sticks? at NYU today as part of its Tax Policy Colloquium Series hosted by Daniel Shaviro and Chris Sanchirico:

Issues surrounding the U.S. tax treatment of foreign source income, focused in large part in the past on real investment, may, to some degree, have given way to concern about tax minimization strategies that allow firms to shift profits into low and no tax countries. Firms can benefit from profit shifting because, although the United States has a worldwide income tax system with a credit for foreign taxes paid, income earned by U.S. multinationals’ foreign subsidiaries is not subject to tax until it is repatriated, that is, paid to the parent firm as a dividend. (Current law requires some income easily subject to abuse, called Subpart F income, to be taxed currently). In addition, firms can shield repatriated profits from low tax countries from U.S. tax if they have excess foreign tax credits from operations in high tax countries. Profit shifting is largely a problem of lost revenue rather than inefficient location of investment, although widespread manipulation of the tax rules to avoid taxes also may undermine voluntary compliance with the tax system by others.

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April 26, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Monday, April 25, 2016

Kahng Presents Who Owns Human Capital? Today At Pepperdine

Kahng (2017)Lily Kahng (Seattle) presents Who Owns Human Capital?, 93 Wash. U. L. Rev. ___ (2017), at Pepperdine today as part of our Tax Policy Workshop Series funded in part by a generous gift from Scott Racine:

This Article analyzes the tax law’s capital income preference through the lens of intellectual capital, an increasingly important driver of economic productivity whose value derives primarily from workers’ knowledge, experience and skills. The Article discusses how business owners increasingly are able to “propertize” labor into intellectual capital — to control their workers and appropriate the returns on their labor through the expansive use of intellectual property laws, contract and employment laws, and other legal mechanisms. The Article then shows how the tax law provides significant subsidies to the process of propertization and thereby contributes to the inequitable distribution of returns between business owners and workers. The Article’s analysis further reveals the tax law’s fundamental capital-labor distinction to be questionable, perhaps even illusory, an insight which has profound implications for the tax law.

Update:  Post-presentation lunch:

Lunch

April 25, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Shaviro:  The Mapmaker's Dilemma In Evaluating High-End Inequality

Daniel Shaviro (NYU), The Mapmaker's Dilemma in Evaluating High-End Inequality:

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. This paper addresses what we do and don’t learn from the optimal income tax literature regarding high-end inequality, and what other inputs might be needed to help one evaluate the relevant issues.

April 25, 2016 in Scholarship, Tax | Permalink | Comments (1)

Sunday, April 24, 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:

  1. [746 Downloads]  Lexisnexis® Guide to FATCA Compliance: Chapter 1, by Willliam Byrnes (Texas A&M) & Robert J. Munro (Texas A&M)
  2. [309 Downloads]  Ownership of the Means of Production, by E. Glen Weyl (Chicago) & Anthony Lee Zhang (Stanford)
  3. [281 Downloads]  The Law of the Platform, by Orly Lobel (San Diego)
  4. [259 Downloads]  Taxing Wealth Seriously, by Edward J. McCaffery (USC)
  5. [170 Downloads]  The Panama Papers and Tax Morality, by Usman W. Chohan (University of New South Wales)

April 24, 2016 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

The Accreditation Battle Over Canada's First Christian Law School

Trinity WesternFollowing up on my previous posts (links below):  Richard Moon (University of Windsor), The Accreditation of Trinity Western University's Law Program:

There is a debate at the moment about whether the law societies (which regulate the legal profession in the various provinces) must accredit a law program to be offered by Trinity Western University [TWU], a private Evangelical Christian college. The Law Society of Upper Canada [LSUC], along with the law societies of British Columbia and Nova Scotia, refused to the accredit the proposed program because of the school’s discriminatory admissions policy and in particular the covenant that all students are required to sign, in which they agree, among other things, not to engage in sex outside of marriage and sex with a same-sex partner. The issue in the TWU accreditation case is whether the covenant is simply an internal matter (a rule that applies simply to the internal operations of a voluntary religious association) or whether it impacts outsiders to the religious community or the public interest, more generally. As I understand it, the law societies are not claiming that the members of a religious community need to be protected from oppressive or discriminatory internal rules. There are two ways in which it may be argued that the TWU program (and the covenant in particular) will have an impact on the public interest.

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April 24, 2016 in Legal Education, Scholarship | Permalink | Comments (1)

Friday, April 22, 2016

Weekly SSRN Tax Roundup

Weekly Student Tax Note Roundup

Smith:  The PACT Act And The Constitutionality Of The Marketplace Fairness Act

Florida Tax Review  (2015)Eric Smith (Weber State), The PACT Act as Indicium of the Due Process Validity of the Marketplace Fairness Act, 19 Fla. Tax Rev. ___ (2016):

If passed into law, the Marketplace Fairness Act would impose a federal duty on out-of-state sellers to collect a state-defined and state-benefitting use tax. This unique exercise of federal power implicates due process. The PACT Act represents the only other instance in which Congress has similarly compelled state law compliance. Two circuit courts of appeals have found the PACT Act vulnerable on concerns of due process. This Article relies on the PACT Act analogue to simulate how the Marketplace Fairness Act would fare under similar scrutiny. To this end and in this uncommon context, two novel constitutional questions are considered: 1) with which sovereign, the federal government or the state, are minimum contacts measured; and 2) if measured with the state, is a single sale sufficient to meet due process thresholds?

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

Thursday, April 21, 2016

Delaney Thomas Reviews Weeks McCormack's The Childcare Tax Squeeze

Jotwell (Tax) (2016)Kathleen DeLaney Thomas (North Carolina), It's Time to Revisit the Tax Treatment of Working Childcare Costs (reviewing Shannon Weeks McCormack (University of Washington), Over-Taxing the Working Family: Uncle Sam and the Childcare Squeeze, 114 Mich. L. Rev. 559 (2015)):

Childcare costs have soared in recent years while wages remain stagnant. To make matters worse, relief by provided by the tax code is extremely limited. Parents may be able to claim a tax credit for a portion of their childcare costs and may be able to divert limited funds to a pretax flexible spending account. But in many cases, these tax benefits capture only a minor portion of parents’ costs. It is no surprise, then, that with an election year upon us, a number of proposals to expand the current childcare tax credit have resurfaced in recent months. These proposals echo years of debate over whether the tax system discourages work by secondary earners and treats working parents unfairly vis-à-vis their non-parent counterparts.

But current proposals to modestly expand the childcare credit will make only a small dent in working parents’ childcare costs. Recognizing the inadequacy of such an approach, Shannon Weeks McCormack proposes a more fundamental reform in her forthcoming article, Over-Taxing the Working Family: Uncle Sam and the Childcare Squeeze. The childcare tax credit, she argues, should be replaced with an above-the-line deduction for childcare expenses that is not subject to phase-outs or dollar limitations. In essence, Weeks McCormack calls for according childcare expenses the same treatment as deductible trade or business expenses.

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

Gergen:  How To Tax Capital

Mark P. Gergen (UC-Berkeley), How to Tax Capital, 69 Tax L. Rev. ___ (2016):

This paper proposes a new system for taxing capital that can collect the same amount of revenue as the existing system with much lower administrative and compliance costs, and with somewhat lower distortionary impact. Its pillar is a flat annual tax assessed on the market value of publicly traded securities paid by an issuer. Wealth represented by a string of publicly traded securities is taxed once by giving an issuer a credit for amounts remitted with respect to publicly traded securities it owns. The securities tax will cover around 75 to 80 percent of income producing capital that is presently subject to the individual and corporate income taxes.

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

Wells:  International Tax Reform By Means Of Corporate Integration

Florida Tax Review  (2015)Bret Wells (Houston), International Tax Reform By Means of Corporate Integration, 19 Fla. Tax Rev. ___ (2016):

This Article focuses on a single organizing question, namely how should a dividend paid deduction regime be designed so that it achieves acceptable international tax outcomes. By focusing on the international tax implications attendant with a dividend paid deduction regime, the author is not attempting to minimize the broader benefits of achieving shareholder-corporate integration. The dividend paid deduction proposal, as to distributed earnings, would equate the tax treatment of debt and equity, and in so doing it would reduce distortions that current law creates with respect to debt and equity in the corporate context. Furthermore, recent economic works suggest that the incidence of the corporate income tax burden is partially shifted to labor and away from shareholders whereas a properly designed integration proposal puts the incidence of business taxation squarely on shareholders. Furthermore, shareholder-corporate integration for C corporations harmonizes the divergent tax treatment that currently exists between C corporations and pass-through entities. Thus, a corporate integration proposal provides a broad spectrum of potential benefits, and so not surprisingly significant scholarship has been dedicated towards how to best achieve shareholder-corporate integration. But, in today’s era, the overwhelming tax policy problem that must be solved rests on finding a solution to the systemic international tax challenges that face the country, and so that is where this Article will focus.

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

Pepperdine Symposium:  The Impact Of King v. Burwell On Judicial Deference To IRS Determinations

Pepperdine Law ReviewSymposium, The Impact of King v. Burwell on Judicial Deference to IRS Determinations, 2015 Pepp. L. Rev. 1-81:

I previously blogged the online version of the symposium, published  just four months after the decision in King v. Burwell.  The Pepperdine Law Review has now released a hard copy of the symposium, pictured on the right.  This is the third major tax symposium produced by the Pepperdine Law Review over the past three years:

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April 21, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (1)

Wednesday, April 20, 2016

Doran Presents The Puzzle Of Non-Qualified Retirement Pay Today At Penn

Doran (2015)Michael Doran (Virginia) presents The Puzzle of Non-Qualified Retirement Pay: Optimal Contracting, Managerial Power, and Taxes at Pennsylvania today as part of its Center for Tax Law and Policy Seminar Series hosted by Chris Sanchirico and Reed Shuldiner:

Pay arrangements for managers of public corporations typically include substantial amounts of compensation deferred through non-qualified retirement plans. As a departure from the familiar baseline of current payment for current services, this presents a longstanding puzzle. The corporate-governance literature offers two explanations for the practice. The “optimal-contracting account” argues that non-qualified retirement pay represents “inside debt” that aligns the interests of managers with the interests of the corporation’s unsecured general creditors. The “managerial-power account” argues that non-qualified retirement pay represents “stealth compensation” that facilitates managers’ extraction of rents from corporate assets. In this paper, I set out a different explanation based on tax considerations.

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April 20, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Clarke:  New Research On The Stubborn Persistence of Tax Expenditures

Conor Clarke (Ph.D. Candidate, Yale Law School), New Research on the Stubborn Persistence of Tax Expenditures, 150 Tax Notes 1462 (Mar. 21, 2016):

In this essay I examine new research on tax expenditures. By utilizing survey experiments, several new studies have explored when and why the public prefers spending programs organized as tax credits rather than direct expenditures, even when the substance and cost of the policies are the same. I argue that this 'framing effects' research can help explain why tax expenditures have continued to grow faster than government spending as a whole, and why tax expenditure budgets have failed to stop this growth.

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April 20, 2016 in Scholarship, Tax | Permalink | Comments (0)

Implicit Bias In Law Review Article Selection

Michael J. Higdon (Tennessee), Beyond the Metatheoretical: Implicit Bias in Law Review Article Selection, 51 Wake Forest L. Rev. ___ (2016):

Every year, law review editors around the country are forced to select which authors, out of the hundreds who annually submit articles, to extend offers of publication. For law review editors, these are stressful times given 1) the short time frame they have for reading and assessing this ever growing number of submissions and 2) the fear that a poor selection on their part could potentially embarrass both themselves and their law schools. Although legal scholars sometimes forget about article selection from the perspective of the hurried, stressed law review editor, everyone in the academy should be somewhat concerned about the current process. After all, numerous studies have shown that, when people are asked to make decisions quickly and under stressful conditions, their decision-making is more likely to be influenced by implicit bias.

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April 20, 2016 in Legal Education, Scholarship | Permalink | Comments (1)

NYU Hosts Book Discussion Today With Anne Alstott On A New Deal For Old Age

AlstottNYU Law Tax Blog, A New Deal for Old Age: Book Discussion with Anne Alstott (today at 12:30 p.m.):

Please join us for a presentation by Anne Alstott, the Jacquin D. Bierman Professor in Taxation at Yale Law School, of her recently published book, A New Deal for Old Age: Toward a Progressive Retirement (Harvard University Press, 2016). ...

As America’s haves and have-nots drift further apart, rising inequality has undermined one of the nation’s proudest social achievements: the Social Security retirement system. Unprecedented changes in longevity, marriage, and the workplace have made the experience of old age increasingly unequal. For educated Americans, the traditional retirement age of 65 now represents late middle age. These lucky ones typically do not face serious impediments to employment or health until their mid-70s or even later. By contrast, many poorly educated earners confront obstacles of early disability, limited job opportunities, and unemployment before they reach age 65.

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April 20, 2016 in Book Club, Scholarship, Tax | Permalink | Comments (0)

Clarke Reviews The Hidden Wealth of Nations

HiddenConor Clarke (Ph.D. Candidate, Yale Law School), What Are Tax Havens and Why Are They Bad, 94 Tex. L. Rev. ___ (2016) (reviewing Gabriel Zucman, The Hidden Wealth of Nations: The Scourge of Tax Havens (University of Chicago Press, 2015)):

This essay reviews Gabriel Zucman's The Hidden Wealth of Nations: The Scourge of Tax Havens. Zucman's important new book brings clarity to a confusing subject -- but occasionally does so at the expense of nuance. My review has three goals. First, I summarize and appraise Zucman's central findings, and re-estimate his revenue-loss totals for the United States using tax-rate assumptions that I believe are more realistic. Second, I position Zucman's findings against the backdrop of the wider literatures on tax havens and inequality, and attempt to answer the two questions in this essay's title. Third, I comment on Zucman's call for a global registry covering the ownership of financial securities. I argue that such a proposal must contend with the fact that there is no international legal consensus on what constitutes ownership.

Prior reviews of The Hidden Wealth of Nations:

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April 20, 2016 in Book Club, Scholarship, Tax | Permalink | Comments (0)

Tuesday, April 19, 2016

Goldin Presents Rethinking The Taxation Of Single Parents Today At Georgetown

GoldinJacob Goldin (Stanford) presents Beyond Head of Household: Rethinking the Taxation of Single Parents (with Zachary Liscow (Yale)) at Georgetown today as part of its Tax Law and Public Finance Workshop Series hosted by John Brooks and Itai Grinberg:

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.

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April 19, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Alm Presents Whither The Tax Gap? Today At NYU

AlmJames Alm (Tulane) presents Whither the Tax Gap? (with Jay Soled (Rutgers)) at NYU today as part of its Tax Policy Colloquium Series hosted by Daniel Shaviro and Chris Sanchirico:

For decades, policy makers and politicians have railed against the “tax gap,” or the difference between what taxpayers are legally obligated to pay in taxes and what they actually pay in taxes. To close the gap, Congress has instituted numerous reforms, with varying degrees of success. Notwithstanding these efforts, the tax gap has largely remained intact, and, if anything, its size has gradually grown over the last several decades.

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April 19, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Monday, April 18, 2016

Blair-Stanek Presents Two Tax Papers Today At Oxford

Blair-Stanek (2016)Andrew Blair-Stanek (Maryland) presents Intellectual Property Law Solutions to Tax Avoidance, 62 UCLA L. Rev. 2 (2015), and Just Compensation for Intellectual Property, 58 Ariz. L. Rev. ___ (2016), at Oxford University today as part of a multidisciplinary workshop on the Technical and Practical Feasibility for a Data Levy:

Multinational corporations avoid taxes on a massive scale by transferring their intangible property -- including data and copyrighted data-derivatives -- to tax havens for artificially low prices. Tax agencies have failed to stop this avoidance, which takes advantage of international tax law norms enshrined in thousands of bilateral tax treaties. These two articles propose an alternative approach: fight this tax avoidance by focusing instead on the law governing the intangible property itself.

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April 18, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Call For Papers:  Taxation And Migration Conference At Saint Louis

St. Louis (2016)Call for Papers:  Sanford E. Sarasohn Conference on Critical Issues in Comparative and International Taxation II: Taxation and Migration at Saint Louis University School of Law:

As ever growing numbers of individuals seek economic and political refuge in Europe and North America, and increasing numbers of individuals and businesses seek refuge from the tax burdens of their home jurisdictions in lower tax jurisdictions, these in- and out- migrations strain the national economies of affected countries causing them to modify their taxation rules and structures. This conference will explore the effects of taxation on migration and the effects of migration on taxation. Papers on any topic related to taxation and migration of individuals or entities are welcome but those offering a critical perspective or addressing the impact of taxation on, and taxation changes relating to acceptance of, migrants from conflict areas are preferred. Please submit paper proposal abstracts by e-mail to Professor Henry Ordower at ordoweh@slu.edu no later than May 25, 2016. Notification of proposal acceptance is targeted for July 1, 2016.

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April 18, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Sunday, April 17, 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, with some reshuffling of the order within the Top 5:

  1. [672 Downloads]  Lexisnexis® Guide to FATCA Compliance: Chapter 1, by Willliam Byrnes (Texas A&M) & Robert J. Munro (Texas A&M)
  2. [320 Downloads]  The Tax Lives of Uber Drivers: Evidence from Internet Discussion Forums, by Shu-Yi Oei (Tulane) & Diane M. Ring (Boston College)
  3. [295 Downloads]  Ownership of the Means of Production, by E. Glen Weyl (Chicago) & Anthony Lee Zhang (Stanford)
  4. [260 Downloads]  The Law of the Platform, by Orly Lobel (San Diego)
  5. [252 Downloads]  Taxing Wealth Seriously, by Edward J. McCaffery (USC)

April 17, 2016 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, April 15, 2016

UCLA Law Prof's Long Legal Fight Over Access To California Bar Admissions Data Headed To Trial

MismatchFollowing up on my earlier post, The Mismatch Critique of Law School Affirmative Action and Its Opponents:  Wall Street Journal, Long Legal Fight Over Access to California Bar Admissions Data Headed for Trial:

It was a decade ago when a UCLA law professor known for his critique of affirmative action first asked the State Bar of California to give him a trove of data on people who applied to practice law in the state.

Professor Richard H. Sander still hasn’t gotten the state bar to turn over the information he wants. But his long legal effort in pursuit of it may have reached a turning point this week when a judge said his case could go to trial over the objections of the state bar.

Mr. Sander is the academic most associated with the “mismatch” theory about affirmative action, the idea that racial and other kinds of admissions preferences can have unintended consequences by putting students in academic settings for which they’re not prepared.

In 2006, he asked the state bar to disclose bar exam scores, grade point averages and LSAT scores of everyone who applied for bar admission between 1972 and 2007, along with each bar applicant’s race and gender. All of the information is stored on the state bar admissions database.

His request didn’t seek disclosure of anyone’s names, but sought admissions data on much more granular level. Mr. Sander has said his request had to do with his research into “the large and persistent gap in bar passage rates among racial and ethnic groups.”

The state bar refused, citing privacy concerns. In 2008, the professor and the California First Amendment Coalition filed suit, arguing that they have a legal right to the information.

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

Weekly SSRN Tax Roundup

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April 15, 2016 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Weekly Student Tax Note Roundup

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April 15, 2016 in Scholarship, Tax, Weekly Student Tax Note Roundup | Permalink | Comments (0)

Blank & Osofsky:  Simplexity

Joshua D. Blank (NYU) & Leigh Osofsky (Miami), Simplexity, 65 Emory L.J. ___ (2016):

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

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

Thursday, April 14, 2016

Duncan Presents Tax Incidence In The Presence Of Tax Evasion Today At Indiana

DuncanDenvil Duncan (Indiana-Bloomington) presents Tax Incidence in the Presence of Tax Evasion (with Philipp Doerrenberg (ZEW Mannheim and Institute for the Study of Labor (IZA), Germany) at Indiana-Bloomington today as part of its Tax Policy Colloquium Series hosted by Leandra Lederman:

This paper studies the economic incidence of sales taxes in the presence of tax evasion opportunities. We design a laboratory experiment in which buyers and sellers trade a fictitious good in double auction markets. A per-unit tax is imposed on sellers, and sellers in the treatment group are provided the opportunity to evade the tax whereas sellers in the control group are not. We find that the market equilibrium price in the treatment group is lower than in the control group. This difference is economically and statistically significant, and implies that sellers with access to evasion shift a smaller share of the statutory tax burden onto buyers relative to sellers without tax evasion opportunities.

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

Doran Presents The Puzzle Of Non-Qualified Retirement Pay Today At Colorado

Doran (2015)Michael Doran (Virginia) presents The Puzzle of Non-Qualified Retirement Pay: Optimal Contracting, Managerial Power, and Taxes at Colorado today as part of its Tax Policy Colloquium Series hosted by David Hasen and Sloan Speck:

Pay arrangements for managers of public corporations typically include substantial amounts of compensation deferred through non-qualified retirement plans. As a departure from the familiar baseline of current payment for current services, this presents a longstanding puzzle. The corporate-governance literature offers two explanations for the practice. The “optimal-contracting account” argues that non-qualified retirement pay represents “inside debt” that aligns the interests of managers with the interests of the corporation’s unsecured general creditors. The “managerial-power account” argues that non-qualified retirement pay represents “stealth compensation” that facilitates managers’ extraction of rents from corporate assets. In this paper, I set out a different explanation based on tax considerations.

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

Pandya & Utz:  Designing The Tax Treatment Of Litigation-Related Costs

Sachin S. Pandya (Connecticut) & Stephen Utz (Connecticut), Designing the Tax Treatment of Litigation-Related Costs:

This paper identifies key tax design issues for how income tax law should treat litigation-related costs paid by defendants, such as attorney fees, court courts, and payments to settle claims or satisfy judgments, fines or penalties. After discussing how US and Germany income tax law treat litigated related costs, the paper identifies four important tax-design issues: (1) how to attribute litigation-related costs to any particular income-producing activity; (2) whether to treat liability insurer payments made on a defendant’s behalf as income to that defendant; (3) whether to coordinate the tax treatment of a payer’s damages payments with the tax treatment of those receipts to the payee; and (4) whether litigation-related costs should be treated as capital expenditures related to the right to receipts established or sought to be established by the litigation itself.

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

Wednesday, April 13, 2016

Gentry Presents Capital Gains Taxation And Entrepreneurship Today At Penn

Penn (2016)William Gentry (Williams College) presents Capital Gains Taxation and Entrepreneurship at Pennsylvania today as part of its Center for Tax Law and Policy Seminar Series hosted by Chris Sanchirico and Reed Shuldiner:

The taxation of capital gains is a perennial issue in tax policy. One critical aspect for understanding the overall effects of capital gains taxation is how these taxes affect entrepreneurs. While many analyses focus on the disincentive effects created by capital gains taxes for investors in large corporations, these disincentives may be even more important for entrepreneurs. This paper discusses several mechanisms through which capital gains taxes can affect entrepreneurs’ decisions. First, capital gains taxes may create an additional level of taxation on successful entrepreneurs. Second, asymmetric taxation of capital gains and losses (in which gains are taxed more heavily than losses) may be an especially important issue for entrepreneurs; the asymmetries in the tax system may discourage entrepreneurs from taking risk. Third, much like the commonly-referenced lock-in effect of capital gains taxes on investments in stock, entrepreneurs may become locked into closely-held businesses; this lock-in effect may distort whether firms are owned by the most efficient manager for the firm. Fourth, capital gains taxes can affect the cost of capital for entrepreneurs.

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April 13, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Hickman Presents Treasury's Retroactivity Today At Cambridge

Hickman 2014 2Kristin Hickman (Minnesota) presents Treasury's Retroactivity at Christ's College, Cambridge today at a conference on The Role of Judges in Developing the Content of Tax Law:

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

April 13, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (1)

The Taxation Of Crowdfunding

CrowdfundingPaul Battista (Law Office of Paul Battista, Manhattan Beach, CA), The Taxation of Crowdfunding: Income Tax Uncertainties and a Safe Harbor Test to Claim Gift Tax Exclusion, 64 U. Kan. L. Rev. 143 (2015):

Crowdfunding is the process of asking a large number of separate third parties for relatively small amounts of money to fund an endeavor. Although the concept of asking for financial “contributions” is not new, seeking funds from others via websites on the internet is relatively new. As with any distinctly new financing vehicle, there are many legal issues raised by crowdfunding that have not been explored or answered. One such issue is the income tax consequences associated with crowdfunding. The academy has not yet widely addressed the issues and the Internal Revenue Service (IRS) has yet to provide any formal guidance which has created a lack of clarity that needs to be addressed.

This article provides an overview of the most popular types of crowdfunding models and addresses the tax aspects of crowdfunding models that raise funds through a tax-exempt entity and that provide loans or equity investments through crowdfunding. The article also explores the tax uncertainties that arise under current income and gift tax laws and shows that the current tax laws do not provide bright-line answers to whether or not a crowdfunding transaction is taxable income or excluded from tax as a “gift.

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April 13, 2016 in Scholarship, Tax | Permalink | Comments (0)

Tuesday, April 12, 2016

Shay Presents R&D Tax Incentives: Growth Panacea Or Budget Trojan Horse? Today At Georgetown

Shay (2014)Stephen E. Shay (Harvard) presents Essay on R&D Tax Incentives: Growth Panacea or Budget Trojan Horse? (with J. Clifton Fleming, Jr. (BYU) & Robert J. Peroni (Texas)) at Georgetown today as part of its Tax Law and Public Finance Workshop Series hosted by John Brooks and Itai Grinberg:

Research and development (R&D) activity has long held a privileged place in the U.S. income tax system and in policy debates. The premises for R&D tax incentives, however, are grounded in theory regarding a market failure for investment in R&D that does not align well with the target of U.S. R&D tax incentives. Moreover, factors contributing to innovation are now understood to include, in addition to R&D, other “knowledge-based capital” (KBC) investment in training and other human capital development, developing organizational processes, computer software, and architectural and engineering designs. The combination of existing R&D tax incentives, income shifting, and deferral of foreign income from U.S. tax, with intellectual property protection for successful R&D, result a poorly designed mix of overlapping benefits only loosely related to fostering innovation. Proposed “innovation box” tax incentives would add to the incoherence of the existing incentives.

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April 12, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Kahng Presents Who Owns Human Capital? Today At NYU

Kahng (2017)Lily Kahng (Seattle) presents Who Owns Human Capital?, 93 Wash. U. L. Rev. ___ (2016), at NYU today as part of its Tax Policy Colloquium Series hosted by Daniel Shaviro and Chris Sanchirico:

This Article analyzes the tax law’s capital income preference through the lens of intellectual capital, an increasingly important driver of economic productivity whose value derives primarily from workers’ knowledge, experience and skills. The Article discusses how business owners increasingly are able to “propertize” labor into intellectual capital — to control their workers and appropriate the returns on their labor through the expansive use of intellectual property laws, contract and employment laws, and other legal mechanisms. The Article then shows how the tax law provides significant subsidies to the process of propertization and thereby contributes to the inequitable distribution of returns between business owners and workers. The Article’s analysis further reveals the tax law’s fundamental capital-labor distinction to be questionable, perhaps even illusory, an insight which has profound implications for the tax law.

April 12, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Browde:  The Need For Increased Penalties To Deter Tax Identity Theft

Florida Tax Review  (2015)Pippa Browde (Montana), Many Unhappy Returns: The Need for Increased Tax Penalties for Identity Theft-Based Refund Fraud, 18 Fla. Tax Rev. 53 (2015):

The growing problem of fraudulent tax returns being submitted based on stolen identities is a “tsunami of fraud,” and victims, lawmakers, and law enforcement are struggling with how to deal with the fallout. The issues surrounding identity theft-based tax fraud are complex. Current IRS efforts to stem the tide involve pouring resources into assisting victims, updating IRS processes to detect and prevent refund fraud, and increasing the number of criminal investigations and prosecutions it pursues. The IRS’s approach and pending proposed legislation are not enough to address the problems created by identity theft-based tax fraud. This article argues the IRS and Congress must use a holistic approach to attack this specie of tax fraud. To that end, this article supports enhanced criminal penalties and proposes new civil tax penalties aimed specifically at identity theft tax fraud.

This article pursues two goals. First, it documents and explains the problem of identity theft-based refund fraud, highlighting particular issues with respect to tax compliance. In so doing it analyzes existing civil and criminal tax penalties to punish and deter identity thieves, an analysis which reveals that existing criminal penalties are insufficient and that there is no directly applicable existing civil penalty. Second, to address the gaps in existing law, the article proposes standards for Congress to use in crafting a comprehensive penalty scheme to apply to identity theft-based refund fraud.

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April 12, 2016 in Scholarship, Tax | Permalink | Comments (1)

McCormack:  Postpartum Taxation

Shannon McCormack (University of Washington), Postpartum Taxation: The Internal Revenue Code and the Opt Out Mom, 104 Geo. L.J. ___ (2016):

Legislation seeking to ensure that women receive equal pay for equal work has been on the books for decades. Nevertheless, the average American woman still receives less than eighty cents for every dollar earned by the average American man. Happily, the gender pay gap between men and childless women is narrowing over time. Meanwhile, the gap between mothers and others continues to widen. Career interruptions contribute significantly to this disturbing trend — nearly half of mothers opt out of the workforce at some point in their lives, most often to care for young children. Faced with too-short (or non-existent) maternity leaves, inflexible work schedules and the soaring costs of childcare in the United States, this opt out phenomenon is hardly surprising. But with the decision to opt out comes grave cost. Over 90% of opt out moms want to return to the workforce several years after off ramping. Unfortunately, many discover that they are unable to do so. A mother that does manage to reenter the workforce will find that even a short off ramp results in a sizeable and disproportionate reduction in her annual earnings that will persist for every year of her remaining life.

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April 12, 2016 in Scholarship, Tax | Permalink | Comments (7)