TaxProf Blog

Editor: Paul L. Caron
Pepperdine University School of Law

Friday, July 29, 2016

Herzig:  Elective Taxation On Inbound Real Estate Investment

David J. Herzig (Valparaiso), Elective Taxation on Inbound Real Estate Investment, 2016 U. Ill. L. Rev. 1025:

Since 1980, the United States has taxed U.S. real property gains of foreign investors. A nonresident must pay tax on the capital gain from the sale of U.S. real property or rights in U.S. real property, as well as on the sale of shares in non-publicly held domestic corporations that hold significant U.S. real property assets. The United States imposes a withholding liability on the purchaser based on a percentage of the purchase price. Moreover, by owning U.S. real property, foreign investors are subject to Internal Revenue Service (‘‘IRS’’) investigatory powers. Because of these rules, foreign investors spend significant resources to structure investment in U.S. real property assets to avoid being deemed an owner of the underlying real property for taxation purposes. This has rendered the underlying statute, the Foreign Investment in Real Property Act of 1980 (‘‘FIRPTA’’), elective. This electivity results in the United States exhibiting tax haven characteristics for inbound real estate investments. Rather than tightening the rules to eliminate this friction, Congress has recently proposed even looser requirements. The resulting narrative by practitioners and policy makers is that FIRPTA should be eliminated. The United States currently needs more, not less, collection of taxation. The fact that FIRPTA is either easily arbitraged or not properly collected should not result in the repeal.

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

Thursday, July 28, 2016

Johnson:  Paul Ryan's Republican Tax Wish List

Calvin H. Johnson (Texas), Where's the Rest of Me?: Ryan's Republican Wish List, 152 Tax Notes 105 (July 4, 2016):

House Speaker Paul D. Ryan, R-Wis., has released a wish list of what Republican House members would like to see in a tax system in the form of a plan that moves toward a cash flow consumption tax. A cash flow consumption tax is a terrific idea if it is used to raise revenue and to shift the tax burden from those without resources to those who have them, but it increases the harm that taxes do if it is used to give away revenue or shift the tax burden the other way. A cash flow consumption tax exempts from tax the return from capital, an exemption that obviously benefits those who have capital, called rich people. A cash flow consumption tax should make up for the revenue loss given over to the wealthy with higher taxes on their consumption, but Ryan’s plan would not. One of the great virtues of a cash flow consumption tax is that it would end the tax bias in favor of owner-occupied housing — selfish and wasteful investments instead of productive investments — but this plan would not.

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

Wednesday, July 27, 2016

Tax Infinity And Beyond

InfinityGalya Savir (Michigan), Tax Infinity & Beyond:

Commercial activities in space are going to expand thanks to new game-changing technologies being developed by Space Entrepreneurs. These entrepreneurs have pledged to reduce the cost of accessing space, and plan to unlock new horizons for innovative space markets, such as mining space-based resources and space tourism. Signs are showing in Congress of the impact that the space technology phenomenon is having on the U.S. legal system and on other governments’ policy decisions worldwide. Realizing the promise of expanding the United States' aerospace economy has raised myriad legal challenges, one of which is the issue of taxation. Thus, there is no time like the present to review the tax rules, at both the federal and the international levels, to ensure the sustainability of a policy that is clearly in the public interest.

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

Beyer:  Estate Planning Ramifications Of Obergefell

Gerry W. Beyer (Texas Tech), Estate Planning Ramifications of Obergefell v. Hodges:

One year ago, the Supreme Court of the United States handed down its landmark ruling in Obergefell v. Hodges holding that “same-sex couples may exercise the fundamental right to marry.” Since then, an estimated 123,000 same-sex marriages have occurred bringing the total number of same-sex marriages in the United States to almost one-half million. The number of Texas same-sex marriages will be difficult to track because the government does not plan on keeping a separate count of same-sex marriage licenses. Nonetheless, with over three percent of Texans identifying themselves as gay or lesbian, it is of vital importance for estate planners to understand the current and potential future impact of same-sex marriage on estate planning in Texas.

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

SSRN Tax Professor Rankings

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







Reuven Avi-Yonah (Mich.)


Reuven Avi-Yonah (Mich.)



Michael Simkovic (S. Hall)


Michael Simkovic (S. Hall)



Paul Caron (Pepperdine)


D. Dharmapala (Chicago)



D. Dharmapala (Chicago)


Paul Caron (Pepperdine)



Louis Kaplow (Harvard)


Richard Ainsworth (BU)



Vic Fleischer (San Diego)


Robert Sitkoff (Harvard)



James Hines (Michigan)


Jeff Kwall (Loyola-Chicago)



Ted Seto (Loyola-L.A.)


Nancy McLaughlin (Utah)



Richard Kaplan (Illinois)


Chris Hoyt (UMKC)



Ed Kleinbard (USC)


Omri Marian (UC-Irvine)



Katie Pratt (Loyola-L.A.)


David Weisbach (Chicago)



Richard Ainsworth (BU)


Louis Kaplow (Harvard)



Robert Sitkoff (Harvard)


William Byrnes (Texas A&M)



Carter Bishop (Suffolk)


Dan Shaviro (NYU)



Brad Borden (Brooklyn)


Ed Kleinbard (USC)



David Weisbach (Chicago)


Vic Fleischer (San Diego)



Jen Kowal (Loyola-L.A.)


Yariv Brauner (Florida)



Chris Sanchirico (Penn)


Brad Borden (Brooklyn)



Francine Lipman (UNLV)


Katie Pratt (Loyola-L.A.)



Dennis Ventry (UC-Davis)


Jack Manhire (Texas A&M)



Bridget Crawford (Pace)


Francine Lipman (UNLV)



Dan Shaviro (NYU)


Richard Kaplan (Illinois)



David Walker (Boston Univ.)


Steven Bank (UCLA)



Steven Bank (UCLA)


Jordan Barry (San Diego)



Herwig Schlunk (Vanderbilt)


Gregg Polsky (N. Carolina)


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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July 27, 2016 in Scholarship, Tax, Tax Prof Rankings | Permalink | Comments (0)

AALS Call For Participation: Discussion Group On The Future Of Tax Administration And Enforcement

AALS (2018)AALS, Call for Participation in a Discussion Group on The Future of Tax Administration and Enforcement:

The Annual Meeting Program Committee introduced a new program format, Discussion Groups, at the 2016 Annual Meeting to facilitate scholarly discussion and engagement. Discussion Groups provide a small group of faculty an opportunity to engage in a sustained conversation about a topic of interest. The objective is to facilitate a lively and engaging real-time discussion among participants. Discussion Group participants will typically be expected to write and share a short presentation summary (3-5 pages) as part of their participation. The Discussion Group sessions, however, will not feature formal presentations. Instead, the written summaries are intended to facilitate a lively and engaging real-time discussion among the participants. Participants in this Discussion Group will consist of a mix of the people identified in the original proposal along with additional individuals selected on the basis of this call for participation. There will be limited audience seating for those not selected in advance to be discussion participants.

The following is a Call for Participation in a Discussion Group on The Future of Tax Administration and Enforcement, to be held at the AALS Annual Meeting, Saturday, January 7, 2017 from 8:30–10:15 am, in San Francisco.

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July 27, 2016 in Conferences, Legal Education, Scholarship, Tax | Permalink | Comments (0)

Tuesday, July 26, 2016

If California Is A 'Bad State for Business,' Why Is It Leading The Nation In Job And GDP Growth?

Real GDPLos Angeles Times: If California's a 'Bad State for Business,' Why Is It Leading the Nation in Job and GDP Growth?, by Michael Hiltzik:

State and federal statistics released as recently as Friday make it clear: California is smoking hot, economy-wise.

The state gained 40,300 jobs in June and 461,000 over the year. With a gain of 2.9%, that was the best 12-month record of any large state except Florida, which won by a nostril with a gain of 3%, and much better than the nation as a whole (1.7%). According to the congressional Joint Economic Committee, California leads the nation in growth in its gross domestic product, which grew by 4.2% in 2015 — more than twice the national rate.

This record raises numerous questions, the most interesting of which is: So what’s all that guff about California being a “business-unfriendly” state?

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July 26, 2016 in Scholarship, Tax | Permalink | Comments (5)

Alstott:  Tax And … Housing Policy

EvictedAnne Alstott (Yale), Tax and … Housing Policy:

In his new book, Evicted, Harvard sociologist Matt Desmond recounts the human cost of the frequent evictions that disrupt life in poor communities. Desmond doesn’t focus on the role of the tax code in housing policy, but his work suggests directions for further thought. ...

We know that renters are second-class citizens in federal housing policy: taking into account tax expenditures and direct spending, the feds spend about $190 billion per year to subsidize housing, but as the Center for Budget and Policy Priorities demonstrates, the subsidies are poorly matched to housing need.

The upside-down distribution of federal housing subsidies isn’t news to tax folks, of course. Still, I think it’s worth looking beyond the home mortgage interest deduction and its glaring flaws. Instead, or addition, we might consider whether the federal government can — and should — redirect subsidy funds toward rental housing need and toward the goal of housing stability in particular.

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July 26, 2016 in Book Club, Scholarship, Tax | Permalink | Comments (0)

Li:  'Strangers In A Strange Land'—Chinese Companies In The American Tax System

Ji Li (Rutgers), 'Strangers in a Strange Land'—Chinese Companies in the American Tax System, 68 Hastings L.J. ___ (2016):

Two distinct features describe foreign direct investment (“FDI”) from emerging economies: (1) most of the investors thrive in poor regulatory environments, and (2) the visible hand of the state exerts a powerful influence. Due to these two features, emerging market FDI poses novel questions to tax law scholars and U.S. policymakers. For instance, will the investors import noncompliance practices? Or will they adapt to the complex and stringent regulatory regime of the host country?

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

Chevron In The Circuit Courts:  IRS Is Afforded 4th Least Judicial Deference Among 22 Federal Agencies

Kent H. Barnett (Georgia) & Christopher J. Walker (Ohio State), Chevron in the Circuit Courts:

This Article presents findings from the most comprehensive empirical study to date on how the federal courts of appeals have applied Chevron deference — the doctrine under which courts defer to a federal agency’s reasonable interpretation of an ambiguous statute that it administers. Based on 1561 agency interpretations the circuit courts reviewed from 2003 to 2013, we found that the circuit courts overall upheld 71% of interpretations and applied Chevron deference 75% of the time. But there was nearly a twenty-five percentage-point difference in agency-win rates when the circuit courts applied Chevron deference than when they did not. Among many other things, our study reveals important differences across circuits, agencies, agency formats, and subject matters as to judicial review of agency statutory interpretations — as our rankings based on these variables illustrate.

Table 2

As Table 2 indicates, the subject matters for which courts defer most often to agency interpretations included telecommunications (8.60), Indian affairs (8.33), federal government (8.18), pensions (8.17), education (8.15), health and safety (8.14), and entitlement programs (8.03). Conversely, the subject matters for which courts defer the least were civil rights (5.99), followed by housing (6.04), prisons (6.64), tax (6.74), and employment (6.96). ...

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July 26, 2016 in Scholarship, Tax | Permalink | Comments (1)

Monday, July 25, 2016

Brooks Posts Three Tax Papers On SSRN

John R. Brooks (Georgetown):

  • Don't Forget the Standard Deduction, 150 Tax Notes 1589 (Mar. 28, 2016):  "The presidential candidates this campaign season are a diverse group with a wide range of tax policy proposals, but they agree unanimously about one thing: the need to limit itemized deductions. Sadly, however, none of their proposals tackles how limits on itemized deductions would affect the other side of the equation — the standard deduction — which is also very much in need of reform."
  • Student Loans As Taxes, 151 Tax Notes 513 (Apr. 25, 2016):  "The growth of college tuition and the corresponding rise in student loan debt have become major issues of public importance. Total outstanding student debt is at least $1.3 trillion, and tuitions keep growing, even while we arguably need to invest more in higher education to add skills and grow our economy. Sen. Bernie Sanders, I-Vt., has made higher education reform a major part of his Democratic presidential campaign platform, proposing a new financial transactions tax to pay for large grants to states that offer free tuition to public universities. His opponent, Hillary Clinton, has proposed grants to states to offer ‘‘no-debt-tuition,’’ paid for in part by repealing several tax expenditures. These and other plans would essentially increase federal spending on higher education through expanded progressive taxation."

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

Fall 2016 Law Review Article Submission Guide

SubmissionsNancy Levit (UMKC) & Allen Rostron (UMKC) have updated their incredibly useful document, which contains two charts for the Fall 2016 submission season covering 204 law reviews.

The first chart (pp. 1-51) contains information gathered from the journals’ websites on:

  • Methods for submitting an article (such as by e-mail, ExpressO, regular mail, Scholastica, or Twitter)
  • Any special formatting requirements
  • How to request an expedited review
  • How to withdraw an article after it has been accepted for publication elsewhere

The second chart (pp. 52-58) contains the ranking of the law reviews and their schools under six measures:

  • U.S. News: Overall Rank
  • U.S. News: Peer Reputation Rating
  • U.S. News: Judge/Lawyer Reputation Rating
  • Washington & Lee Citation Ranking
  • Washington & Lee Impact Factor
  • Washington & Lee Combined Rating

They also have posted a list of links to the submissions information on each law journal’s website. Nancy notes two highlights in this updated document:

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July 25, 2016 in Legal Education, Scholarship | Permalink | Comments (0)

Sunday, July 24, 2016

Perry Fleischer Presents Autonomy, Uncertainty and the Poor: Reflections On 'Charity Law And The Liberal State' Today At Melbourne

Fleischer (Miranda)Miranda Perry Fleischer (San Diego) presents Autonomy, Uncertainty and the Poor: Reflections on Matthew Harding's "Charity Law and the Liberal State", 41 Australian J. for Legal Phil. ___ (2016), today at the Australian Society Of Legal Philosophy Annual Conference at Melbourne Law School:

In Charity Law and the Liberal State [Cambridge University Press 2014], Matthew Harding argues that one can best justify the existence, scope, and substance of charity law as reflecting the state’s desire to further the political ideal of autonomy as grounded in Razian principles.  Complicating Harding’s job, however, is the problem of factual uncertainty:  it is frequently hard to identify the impact of a given state policy on a specific currency such as autonomy, equality, opportunity, or well-being. This commentary argues that Harding both under- and over-values the importance of this uncertainty.

He over-values this uncertainty in his discussion of the charitable tax subsidies, when he implies that the complex nature of distributive questions surrounding the subsidies renders them an ultimately unfulfilling line of inquiry.  Despite the fact that the charitable tax subsidies are but one component by which a state might further the autonomy of the poor, however, understanding the extent to which the subsidies do or do not do so is necessary for determining whether the poor in a given state can adequately exercise their autonomy.

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

The Top 5 Tax Paper Downloads

Saturday, July 23, 2016

Perry Fleischer Presents How Is The Opera Like The Soup Kitchen? Today At Melbourne

Fleischer (Miranda)Miranda Perry Fleischer (San Diego) presents How is the Opera Like the Soup Kitchen? in The Philosophical Foundations of Tax Law (Oxford University Press, forthcoming 2016) today at the Australian Society Of Legal Philosophy Annual Conference at Melbourne Law School:

The charitable tax subsidies are, at heart, redistributive. Some individuals (the recipients of charitable goods and services, such as students, museum-goers, and soup kitchen patrons) receive benefits. Other individuals pay for these benefits, both voluntarily (through donations) and involuntarily (in the form of higher taxes or reduced benefits). At first glance, it appears that the redistribution effectuated by the subsidies violates commonly-held notions of distributive justice. After all, the subsidies treat charities that serve the wealthy (like the opera) the same as charities that aid the poor (such as the soup kitchen). How can spending public funds on the wealthy in this manner be considered just? As this Chapter shows, so doing is just under expansive interpretations of resource egalitarianism and left-libertarianism that account for expensive tastes and talent-pooling.

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

Friday, July 22, 2016

Bank, Cheffins & Wells:  Executive Pay—What Worked?

Steven A. Bank (UCLA), Brian R. Cheffins (Cambridge) & Harwell Wells (Temple), Executive Pay: What Worked?,  42 J. Corp. L. ___ (2016):

CEO pay is a controversial issue in America but there was a time, often overlooked today, when chief executives were not paid nearly as much as they are now. From 1940 to the mid-1970s executive pay was modest by today’s standards even though U.S. business was generally thriving. What worked to keep executive pay in check? Economist Thomas Piketty and others credit high marginal income tax rates, leading to calls for a return to a similar tax regime. This paper casts doubt on the impact tax had and also shows that neither the configuration of boards nor shareholder activism played a significant role in constraining executive pay. It emphasizes instead the roles played by strong unions, a different and more circumscribed market for managerial talent, and social norms, explanations that do not easily lend themselves to generating modern policy prescriptions.


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July 22, 2016 in Scholarship, Tax | Permalink | Comments (1)

Thursday, July 21, 2016

Brooks Reviews Hines & Logue's Delegating Tax

Jotwell (2016)Kim Brooks (Schulich School of Law, Dalhousie University), Don’t Delegate This Reading, JOTWELL (reviewing James R. Hines Jr. (Michigan) & Kyle D. Logue (Michigan), Delegating Tax, 114 Mich. L. Rev. 235 (2015)):

In modern regulatory states, the theoretically firm lines dividing the legislative, executive, and judicial branches of government are increasingly blurred. Teasing out how to design and enforce effective regulation has become a major preoccupation of scholars and policymakers in every area of law.

Delegating Tax, an article by the talented James R. Hines Jr. and Kyle D. Logue, is wonderful reading in that light. The article contrasts the reluctance of Congress to delegate the lawmaking authority of the IRS and Treasury in the tax area with Congress’ increasing willingness to delegate that authority to other federal administrative agencies. The authors make the case for great delegation in the tax area, noting the potential for the executive branch to draw on greater expertise and to respond more quickly. ...

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

Wednesday, July 20, 2016

McCaffery:  It's Tax, Not Trade

Edward J. McCaffery (USC), It's Tax Not Trade (Stupid):

Globalization, trade and other free market policies increase wealth. But the gains from trade are not being evenly spread among all citizens. People and politicians rage against foreigners. But it is the United States tax system, not trade, that ought to change, and wealthy Americans, not workers world-wide, who should be sharing the wealth. And it is the form of tax, not just its rate structure, that must reform, so that capital at last bears a meaningful share of the burden.

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

Cooper Reviews Caron's The One-Hundredth Anniversary Of The Federal Estate Tax: It’s Time To Renew Our Vows

JOTWELL (General)Jeffrey Cooper (Quinnipiac), The Estate Tax Of Our Youth JOTWELL (July 19, 2016) (reviewing Paul L. Caron (Pepperdine), The One-Hundredth Anniversary of the Federal Estate Tax: It’s Time to Renew Our Vows, 57 B.C. L. Rev. 823 (2016)):

In The One-Hundredth Anniversary of the Federal Estate Tax: It’s Time to Renew Our Vows, Paul L. Caron tracks how the modern estate tax has evolved since its 1916 inception and contends the tax should be modified to serve its original purposes. Caron analogizes the nation’s relationship to the estate tax as that of an aging marriage, arguing that our passion for the tax has cooled with the passage of time. He urges us to find that lost passion and renew our vows to the estate tax we once so adored. To do so, we must reinvigorate the estate tax and restore it to its historical position as an important, robust component of our federal tax system.

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

Tuesday, July 19, 2016

Gershon:  The Socio-Economics Of The Federal Estate Tax

I. Richard Gershon (Mississippi), The Socio-Economics of the Federal Estate Tax: Why Do so Many People Hate (or Love) this Centenarian?, 49 Akron L. Rev. 329 (2016):

The federal estate tax has faced many detractors during its almost 100 years of existence. While the tax affects only a very small percentage of estates, many have called for its repeal. This Essay discusses the socio-economic reasons why the estate tax should be maintained. The tax is an important source of revenue, and it helps to rectify the growing issue of wealth and income inequality in the United States.

See also Symposium, The Centennial of the Estate Tax: Perspectives and Recommendations, 57 B.C. L. Rev. 801-1078 (2016).

July 19, 2016 in Scholarship, Tax | Permalink | Comments (3)

Grewal:  Why Lenity Has No Place In The Income Tax

Andy Grewal (Iowa), Why Lenity Has No Place in the Income Tax Laws, 80 Mo. L. Rev. ___ (2016):

A controversy has emerged over how to interpret statutes under which the government can undertake either civil or criminal action against a person. Should courts interpret these statutes like any other civil statutes, and defer to agencies to resolve ambiguities? Or should courts treat these statutes like pure criminal provisions, and use the rule of lenity to resolve ambiguities in a defendant-friendly fashion?

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

Monday, July 18, 2016

Is It Time For Authors To Leave SSRN?

ESSRNFollowing up on my previous post, Elsevier Acquires SSRN:  Authors Alliance, Is It Time for Authors to Leave SSRN?:

As feared, it now appears that SSRN is taking up restrictive and hostile positions against authors’ ability to decide when and how to share their work. Reports are surfacing that, without notice, SSRN is removing author-posted documents following SSRN’s own, opaque determination that the author must have transferred copyright, the publisher had not consented to the posting, or where the author has opted to use a non-commercial Creative Commons license. One author, Andrew Selbst, reported that SSRN refused his post even though the article’s credits reflected his retained copyright.

This policy fails to honor the rights individual authors have negotiated in order to put their work on services like SSRN. It misreads the Creative Commons licenses authors adopt in order to share their work. And it is a marked departure from the standard notice and takedown procedures typically used to remove user-uploaded copyright-infringing works from the web, eliminating both any apparent notice from the putative copyright owner and any clear recourse for the affected authors.

SSRN authors: you have not committed to SSRN. You can remove your papers from their service, and you can opt instead to make your work available in venues that show real commitment to the sharing, vetting, and refinement of academic work.

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July 18, 2016 in Legal Education, Scholarship | Permalink | Comments (4)

Johnson:  House Votes To Dump Chevron And Auer

JohnsonTaxProf Blog op-ed:  House Votes to Dump Chevron and Auer, by Steve R. Johnson (Dunbar Family Professor of Law, Florida State):

On July 12, 2016, the U.S. House of Representatives passed H.R. 4768, the Separation of Powers Restoration Act (SOPRA).  The vote was 240 to 171, mostly along party lines.  If enacted, SOPRA would amend 5 U.S.C. sec. 706, a judicial review section of the Administrative Procedure Act (the APA).  The goal, according to the Judiciary Committee’s report, would be “to overturn the so-called Chevron and Auer doctrines of judicial deference to agency interpretations of statutory and regulatory provisions.”  H. Rep. 114-622, at 2  (June 14, 2016); see Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) (deference to reasonable agency interpretations of ambiguous statutes); Auer v. Robbins, 519 U.S. 452 (1997)(deference to reasonable agency interpretations of the agency’s own ambiguous regulations).

1.  Significance

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July 18, 2016 in Scholarship, Tax | Permalink | Comments (2)

Associate Deans Symposium:  Student-Edited Law Reviews—Future Publication Platforms

Associate Dean Symposium, Student-Edited Law Reviews: Future Publication Platforms, 32 Touro L. Rev. 235-74 (2016):

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July 18, 2016 in Legal Education, Scholarship | Permalink | Comments (0)

Sunday, July 17, 2016

The Top 5 Tax Paper Downloads

Friday, July 15, 2016

Weekly SSRN Tax Roundup

Weekly Student Tax Note Roundup

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

Thursday, July 14, 2016

Journal of Tax Administration Hosts Workshop Today On U.S. And U.K. Trends In Tax Exceptionalism And Tax Litigation

JOTAThe Journal of Tax Administration hosts a workshop today on Trends in Tax Exceptionalism and Tax Litigation (program):

In the United States, the Supreme Court's 2011 decision in the Mayo Foundation case has fundamentally changed tax litigation and tax administration. Previously, tax administration functioned with a mindset of "tax exceptionalism" from the administrative statutory requirements, legal doctrines, and norms that applied to other federal government agencies. The legal veracity of tax exceptionalism had not been tested; it was an unchallenged assumption, but one that persisted for some decades. In Mayo Foundation, the Supreme Court expressly rejected tax exceptionalism from general administrative law requirements, doctrines, and norms absent "good reason" — which is generally thought to mean unless the Internal Revenue Code provides an express exception.

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

Law Schools Should Teach Students How To Write Email

GmailKatrina Lee (Ohio State), Process Over Product: A Pedagogical Focus on Email as a Means of Refining Legal Analysis, 44 Cap. U. L. Rev. 655 (2016):

The prevalence of emails in law practice alone provides a compelling reason for assigning emails in the 1L legal writing course. Law students should learn how to write the types of documents they will be expected to write in law practice. Not surprisingly, over the past several years, email communications have increasingly become part of legal writing curricula.

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July 14, 2016 in Legal Education, Scholarship | Permalink | Comments (3)

Cockfield:  Big Data And Tax Haven Secrecy

Florida Tax Review  (2015)Arthur J. Cockfield (Queen's University), Big Data and Tax Haven Secrecy, 18 Fla. Tax Rev. 483 (2016):

While there is now a significant literature in law, politics, economics, and other disciplines that examines tax havens, there is little information on what tax haven intermediaries — so-called offshore service providers — actually do to facilitate offshore evasion, international money laundering and the financing of global terrorism. To provide insight into this secret world of tax havens, this Article relies on the author’s study of big data derived from the financial data leak obtained by the International Consortium for Investigative Journalists (ICIJ).

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

UC-Berkeley, Oxford & Tax Policy Center Host Program Today On Corporate Tax For The 21st Century

UCBThe Oxford University Centre for Business Taxation, Robert D. Burch Center for Tax Policy and Public Finance at UC-Berkeley and Tax Policy Center are hosting a program today on Corporate Tax for the 21st Century:

Welcome and Introduction: Michael Devereux (Oxford)

Panel:  The Need for Reform and Current Policy Proposals

  • Alan Auerbach (UC-Berkeley) (moderator)
  • Michael Devereux (Oxford)
  • Michael Graetz (Columbia)
  • Justus S. Hotchkiss (Yale)
  • Mark Mazur (Assistant Secretary for Tax Policy, U.S. Treasury Department)
  • John Vella (Oxford)

Session:  Residual Profit Allocation Proposal

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

Netanya Hosts Roundtable Today On Taxation And Tax Policy

Wednesday, July 13, 2016

Law Review Editor And Prof Spar After He Declines To Publish Article Rather Than Accept Offer From Low-Ranked Journal

Dan Subotnik (Touro), A Law Review Editor and Faculty Author Learn to Speak Honestly, 32 Touro L. Rev. 441 (2016):

[From Professor S on Aug. 28 via ExpressO] ...
I am a law teacher of twenty-five years standing and am widely published in the areas of contracts, professional responsibility, and legal education. Attached is an article for your consideration, “Forward to the Law School Past,” which I am sending to a select number of law reviews. ...

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July 13, 2016 in Legal Education, Scholarship | Permalink | Comments (16)

A Game Theory Model Of Law Faculties: Greater Turnover Needed To Curb Antisocial Faculty Behavior

Shi-Ling Hsu (Florida State), A Game-Theoretic Model of Cooperation in Law School Faculties:

A standard account of group cooperation would predict that group stability would bring about greater cooperation, because repeat-play games would allow for sanctions and rewards. In an academic unit such as a department or a law faculty, one might thus expect that faculty stability would bring about greater cooperation. Faculty turnover, by contrast, would cause faculty to invest less in each other, and depress cooperative behavior.

However, academic units are not like most other groups. Tenured professors face only limited sanctions for failing to cooperate, for engaging in unproductive conflict, or for shirking. It is thus open to question as to whether faculty turnover actually leads unambiguously to a decline in cooperation. This article posits that within limits, some faculty turnover may enhance cooperation. Certainly, excessive and persistent loss of faculty is demoralizing, and reduces the number of individuals among which administrative work can be spread. But for less dire losses, faculty turnover may play the disciplining role that academic units are deprived of by the tenure system.

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July 13, 2016 in Legal Education, Scholarship | Permalink | Comments (0)

Chodorow & Hackney:  Post-Graduate Legal Training — The Case For Tax-Exempt Programs

ASUAdam Chodorow (Arizona State) & Philip Hackney (LSU), Post-Graduate Legal Training: The Case for Tax-Exempt Programs, 65 J. Legal Educ. 463 (2016):

The challenging job market for recent law school graduates has highlighted a fact well known to those familiar with legal education: A significant gap exists between what students learn in law school and what they need to be practice-ready lawyers. Legal employers historically assumed the task of providing real-world training, but they have become much less willing to do so. At the same time, a large numbers of Americans — and not just those living at or below the poverty line — are simply unable to afford lawyers. In this Article, we argue that post-graduate legal training, similar to post-graduate medical training, is a good way to address these market failures and reduce the gap in both skills and legal services.

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July 13, 2016 in Legal Education, Scholarship, Tax | Permalink | Comments (1)

Tuesday, July 12, 2016

Morse & Deutsch:  Tax Anti-Avoidance Law In Australia And The U.S.

AUSSusan C. Morse  (Texas) & Robert Deutsch (Australia Administrative Appeals Tribunal), Tax Anti-Avoidance Law in Australia and the United States, 49 Int'l Law. 111 (2015):

In both Australia and the U.S., the tax anti-avoidance law has evolved to include two common doctrinal components. One component requires evidence of taxpayers’ tax avoidance purpose. The other component protects transactions clearly contemplated by the tax statute against charges of tax avoidance. The two bodies of law usually get to the same answer. Transactions involving loss generators, income assignment, and foreign tax credit generators illustrate this similarity.

But the two bodies of law sometimes arrive at different answers. This is because important but subtle doctrinal differences also exist. Australian law conceives of a tax avoidance transaction as a contrived, tax-motivated Plan B departure from the counterfactual of a more normal, Plan A course of action. Australia’s Part IVA has been applied to invalidate a planning step that is part of a larger, business-motivated merger transaction. In contrast, tax planning steps that are part of business-motivated merger and acquisition transactions generally are not vulnerable under U.S. law.

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

Shaviro:  Ten Observations Concerning International Tax Policy

Daniel Shaviro (NYU), Ten Observations Concerning International Tax Policy:

This is a slightly revised version of a lunch talk that the author gave at the National Tax Association’s 46th Annual Spring Symposium on May 12.

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

Sunday, July 10, 2016

Winners Of The 2016 Tax Analysts Student Writing Competition

Tax Analysys Logo (2013)2016 Tax Analysts Student Writing Competition:

Tax Notes:

  • S. Bruce Hiran (Houston)
  • Katrina Vitale (Villanova)
  • Luke Wagner (San Diego)

State Tax Notes:

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July 10, 2016 in Legal Education, Scholarship, Tax | Permalink | Comments (0)

The Top 5 Tax Paper Downloads

The (Im)Possibility Of Christian Legal Education

Trinity WesternVictor M. Muniz-Fraticelli (McGill), The (Im)Possibility of Christian Education:

Opponents of the Trinity Western University Law School do not seek to prohibit traditionalist religious law schools outright, nor do they seek to exclude individual candidates who hold traditionalist beliefs from becoming lawyers. Their effort, rather, is to give these schools the option to compromise on their religious identity, or to have students lose access to the most direct routes into the legal profession. This choice inhibits the establishment of traditionalist religious law schools by increasing the cost of maintaining a distinct institutional religious identity. When the alternative is to hold fast to religion but retreat from the task of producing lawyers, or play religion down and enter the legal market without any difference from secular institutions, the result is always the elimination of distinctly religious institutions from the educational landscape. This paper proposes an alternative that allows for the possibility of institutional diversity.

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July 10, 2016 in Scholarship, Tax | Permalink | Comments (1)

Friday, July 8, 2016

Weekly SSRN Tax Roundup

Thursday, July 7, 2016

A Defense Of Horizontal Equity

Florida Tax Review  (2015)Ira Lindsay (Dartmouth), Tax Fairness by Convention: A Defense of Horizontal Equity, 19 Fla. Tax Rev. 79 (2016):

Horizontal equity is the principle that people who earn equal income should owe equal tax. It has gotten a bad name. Although horizontal equity remains a textbook criterion of tax fairness, scholarly literature is largely hostile. Scholars ranging from the legal theorist Louis Kaplow to philosophers Thomas Nagel and Liam Murphy question its conceptual coherence and normative significance. The crux of the case against horizontal equity is that it seems irrational to worry about the relationship between pre-tax income and tax obligations rather than determining tax policy in light of what our best theory of distributive justice tells us is the best post-tax outcome. I argue that horizontal equity is best understood as a compromise principle for people who disagree about deeper principles of distributive justice.

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

Mehrotra:  Law And The New Intellectual Histories of Capitalism

Ajay K. Mehrotra (American Bar Foundation), A Bridge Between: Law and the New Intellectual Histories of Capitalism, 64 Buff. L. Rev. 1 (2016):

The American historical profession has in recent years witnessed a significant revival of two subfields that were once thought to be nearly dead. Both intellectual history and what is often referred to today as the history of capitalism— and what was earlier considered a variant of business or economic history—are flourishing. They are thriving mainly because of a newfound desire and interest among scholars and the public, alike, for better ways to understand the past. ...

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

Stars Upon Thars:  Law Schools Use ABA Standard 405(c)'s Tenure-Like Security Of Position To Discriminate Against Female Legal Writing Faculty

SneetchesMelissa H. Weresh (Drake), Stars upon Thars: Evaluating the Discriminatory Impact of ABA Standard 405(c) Tenure-Like Security of Position, 34 Law & Ineq. 137 (2016):

This brief Article (the title is inspired by the Dr. Seuss story, The Sneetches) relates to the institutional discrimination against women within the legal academy. More specifically, this Article addresses the potential for exploitation of law faculty members who hold ABA Accreditation Standard 405(c) status and the likelihood that such exploitation will have a disparate, discriminatory impact on a predominantly female cohort of law faculty. ...

The security of position afforded to 405(c) contractual law faculty members, defined as "reasonably similar to tenure, is somewhat vague and largely untested. This ambiguity provides an opportunity for law schools undergoing financial strain to terminate contractual legal writing faculty members without providing adequate, tenure-like protections. Augmenting this problem is the fact that faculty members who hold 405(c) status represent an overwhelmingly female cohort of faculty, resulting in a discriminatory and disparate impact on female members of the academy.

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July 7, 2016 in Legal Education, Scholarship | Permalink | Comments (5)

Wednesday, July 6, 2016

WSJ:  Marginal Tax Rates Matter To Star Scientists (And To The Rest Of Us)

Wall Street Journal editorial, Why Everyone Needs a Tax Cut: Scientists Like Living in Countries That Don’t Plunder Their Paychecks:

It’s déclassé on the left and right these days to talk about marginal tax rates, so forgive us for pointing out economic evidence that rates affect individual behavior. Two 2015 papers from the National Bureau of Economic Research looked at the impact of top marginal tax rates on the mobility of superstar scientists—the people critical to U.S. success in a high-tech global economy.

Mobility 1One study, by Ufuk Akcigit, Salomé Baslandze and Stefanie Stantcheva, looked at the international migration patterns of highly successful inventors since 1977. The authors found that “top 1% inventors”—those with the most valuable patents—“are significantly affected by top tax rates when choosing where to locate.” Specifically, countries enjoy a “26% increase in foreign superstar top 1% inventors” with each “10 percentage points decrease in top tax rates.” [Taxation and the International Mobility of Inventors]

The authors, in hilariously dry academic fashion, dare to note that these “migratory responses to tax policy might represent a cost to tax progressivity.” Imagine trying to attract the top 1% of earners instead of driving them away.

Mobility 2In another study, Enrico Moretti and Daniel Wilson examine star scientists “at or above the 95th percentile in number of patents over the past ten years” to find that state taxes have “a significant effect” on the geographical location of these innovators. In short, they found, “relative taxes matter.” [The Effect of State Taxes on the Geographical Location of Top Earners: Evidence from Star Scientists]

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July 6, 2016 in Scholarship, Tax | Permalink | Comments (5)

Frye:  Social Technology And The Origins Of Popular Philanthropy

Brian Frye (Kentucky), Social Technology & the Origins of Popular Philanthropy, 32 Ga. St. U. L. Rev. 413 (2016):

The prevailing theory of charity law holds that the charitable contribution deduction is justified because it solves market and government failures in charitable goods by compensating for free riding on charitable contributions. This article argues that many market and government failures in charitable goods are actually caused by transaction costs, and that social technology can solve those market and government failures by reducing transaction costs.

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July 6, 2016 in Scholarship, Tax | Permalink | Comments (0)

Natelson:  The Meaning Of The Constitution's Financial Terms, Including 'Tax,' 'Direct Tax' And 'Apportionment'

Rob Natelson (Independence Institute), What the Constitution Means by “Duties, Imposts, and Excises”—and “Taxes” (Direct or Otherwise), 66 Case W. Res. L. Rev. 297 (2016):

This Article recreates the original definitions of the U.S. Constitution’s terms “tax,” “direct tax,” “duty,” “impost,” “excise,” and “tonnage.”

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July 6, 2016 in Scholarship, Tax | Permalink | Comments (0)

Clausing, Kleinbard & Matheson:  U.S. Corporate Income Tax Reform And Its Spillovers

Kimberly Clausing (Reed College), Edward Kleinbard (USC) & Thornton Matheson (IMF), U.S. Corporate Income Tax Reform and its Spillovers:

This paper examines the main distortions of the U.S. corporate income tax (CIT), focusing on its international aspects, and proposes a set of reforms to alleviate them. A bold reform to replace the CIT with a corporate-level rent tax could induce efficiency-enhancing reform of the international tax system. Since fundamental reform is politically difficult, this paper also proposes an incremental reform that would reduce tax expenditures, reduce the CIT rate to 25-28 percent, and impose a minimum rent tax on foreign earnings.

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July 6, 2016 in Scholarship, Tax | Permalink | Comments (0)

Hayashi:  The Effects Of Refund Anticipation Loans On Tax Filing And EITC Takeup

Andrew Hayashi (Virginia), The Effects of Refund Anticipation Loans on Tax Filing and EITC Takeup:

The IRS has an uneasy relationship with tax return preparers. Preparers may ease the tax filing process and improve take-up of benefits like the earned income tax credit (EITC); however, preparers also profit from financial products sold in connection with tax preparation that have been viewed as exploitative. But can we have a market for low-income tax preparation without such products, and should we? I estimate the effects of regulation curtailing the market for refund anticipation loans (RALs) on a variety of outcomes, including demand for paid tax preparation, EITC take-up, and demand for other financial products, to explore the source of RAL demand and the relationship between RALs and tax compliance.

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July 6, 2016 in Scholarship, Tax | Permalink | Comments (0)

More On A Law Review Publishing Drama Over The LSAT And Discrimination

Law & InequalityFollowing up on my previous post, Subotnik: Plain Talk About Testing and Race: A Law Review Publishing Drama:  Harvey Gilmore (Monroe College), The SAT, LSAT, and Discrimination: Professor Gilmore Again Responds to Professor Subotnik, 34 Law & Ineq. 153 (2016):

On this very website, Touro Law Professor Dan Subotnik published a response to a piece that I wrote that will be published in a forthcoming edition of the University of Minnesota’s Journal of Law and Inequality. My piece continues the debate that Professor Subotnik and I have had for the past two years over whether standardized tests like the SAT and LSAT are reliable. I argue that they are not, and he argues that they are the best indicators for success in higher education…warts and all. In doing so, he makes some comments and generalizations that I found a little distasteful, and unjustifiably harsh, thus I replied accordingly.

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July 6, 2016 in Legal Education, Scholarship | Permalink | Comments (0)