TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Tuesday, June 20, 2017

Pareja:  The Problem With Using Advanceable, Income-Based Tax Credits To Subsidize Health Insurance

Affordable Care ActMary Leto Pareja (New Mexico), Inviting Everyone to the ACA (Risk) Pool Party: The Problem with Using Advanceable, Income-Based Tax Credits to Subsidize Health Insurance, 20 Fla. Tax Rev. 551 (2017):

The year 2014 marked the first opportunity for American taxpayers to receive subsidized health insurance through the Affordable Care Act’s (“ACA”) new Premium Tax Credit (“PTC”). About 4.8 million people enrolled in an ACA plan in 2014 were eligible, and nearly 97% of these claimants were approved for advance payments of the PTC.

The year 2015 marked the first tax return where taxpayers received the unpleasant surprise that they must repay excess credits due to reconciliation. Advance PTC estimates turned out to be highly inaccurate, with only 8% of claimants receiving accurate advance payments. A majority, 51%, had to repay some or all of the advance payments.

These figures reveal systemic problems in the PTC’s design. While the PTC’s function is to entice the uninsured to purchase insurance (and dive into insurance risk pools), reconciliation lurks as a financial danger for those who make the plunge. A shark is swimming in the pool.

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

Monday, June 19, 2017

Herzfeld:  The Case Against BEPS

BEPS (2017)Mindy Herzfeld (Florida), The Case Against BEPS : Lessons for Coordination:

In 2013 the OECD, at the behest of the G20, embarked upon an ambitious project of coordinating and harmonizing countries’ international tax rules under the guise of curtailing multinational companies’ cross-border tax planning, generally referred to as base erosion and profit shifting, or BEPS. The project was finalized with great fanfare in October 2015. But the proclamations of success masked real underlying differences between participant countries. I argue that the project suffered from a number of flaws that that largely precluded effective coordination, as a result of which the project’s recommendations largely gloss over key differences in participants’ goals and commitments while doing nothing to solve the systemic problems it was seeking to address. For example, while a key stated goal of the project was to align the taxation of profits with value creation, there was no attempt made to define the location of value creation, nor to address the fact that this principle is fundamentally at odds with the arm’s length principle that serves as the backbone of transfer pricing rules.

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June 19, 2017 in Scholarship, Tax | Permalink | Comments (0)

Hayashi Reviews Batchelder's Accounting For Behavioral Considerations In Business Tax Reform

Jotwell (Tax) (2016)Andrew Hayashi (Virginia), Do Taxes Motivate Corporate Managers? (JOTWELL) (reviewing Lily Batchelder (NYU), Accounting for Behavioral Considerations in Business Tax Reform: The Case of Expensing (2017)):

Tax scholarship is interdisciplinary. To evaluate tax policy it helps to know at least a little about economics, a little about philosophy, something about budget processes, and a lot about the dizzying creativity of the marketplace in exploiting loopholes and facilitating tax-advantaged transactions. In her recent article Accounting for Behavioral Considerations in Business Tax Reform: The Case of Expensing, Lily Batchelder shows us that we must add financial accounting and firm (and corporate managers’) behavioral considerations to the mix.

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June 19, 2017 in Scholarship, Tax | Permalink | Comments (1)

Sunday, June 18, 2017

The Top Five New Tax Papers

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 #3:

  1. [223 Downloads]  Can New York Publish President Trump's State Tax Returns?, by Daniel Hemel (Chicago)
  2. [166 Downloads]  A Taxonomy for Tax Loopholes, by Heather Field (UC-Hastings)
  3. [163 Downloads]  The Rise and Fall of the Destination-Based Cash Flow Tax: What Was That All About?, by Daniel Shaviro (NYU)
  4. [137 Downloads]  Shareholder Wealth Effects of Border Adjustment Taxation, by Fabio B. Gaertner (Wisconsin), Jeffrey L. Hoopes (North Carolina) & Edward L. Maydew (North Carolina)
  5. [133 Downloads]  Why Don't White Supremacists Pay Taxes?, by Eric Franklin Amarante (UNLV)

June 18, 2017 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Saturday, June 17, 2017

12th Annual Junior Tax Scholars Workshop Concludes Today At Toronto

TorontoPanel #5:  Inequality

Daniel Hemel (Chicago), Gambling for Good
Commentators: Rebecca Morrow (Wake Forest), Erin Scharff (Arizona State)

Zach Liscow (Yale), How to Structure Transfers to Low-Income Americans
Commentators:  Andrew Hayashi (Virginia), Emily Satterthwaite (Toronto)

Goldburn Maynard (Lousiville), The Cold of Tax Justice
Commentators:  Allen Madison (South Dakota), Gabriel Shobe (BYU)

Orly Mazur (SMU), Taxing the Robot
Commentators:  Tessa Davis (South Carolina), Ari Glogower (Ohio State)

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June 17, 2017 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Friday, June 16, 2017

Weekly SSRN Tax Article Review And Roundup

This week, Ari Glogower (Ohio State) reviews a new work by Heather M. Field (UC-Hastings), A Taxonomy for Tax Loopholes, 55 Hous. L. Rev. __ (forthcoming 2018). 

Glogower (2016)Heather Field’s new work introduces a taxonomy of different types of “tax loopholes,” to guide policymakers and the public, and to promote analytic rigor in the public discourse over tax policy. 

Field first demonstrates that the term has no independent and consistent meaning, other than as a vague pejorative (except when used by some advisors and clients proud to “beat the system”). This nebulous terminology, Field argues, impedes meaningful tax policy analysis, and the prospects for tax reform.  In order to bridge the gap between loophole rhetoric and substantive tax policy analysis, Field subsequently introduces a taxonomy of loopholes, divided along two axes.  First, tax loopholes may be categorized by reference to their normative policy objections. 

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June 16, 2017 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

12th Annual Junior Tax Scholars Workshop Kicks Off Today At Toronto

TorontoPanel #1:  The Family Unit

Christine Allie (Widener), Negating the Cost of “I Do”: Ending the U.S. Tax Code’s Family Penalty Through Permissive Joint Filing
Commentators:  Kathleen Delaney-Thomas (North Carolina), Sloan Speck (Colorado), 

Tessa Davis (South Carolina), Freezing the Future: Fertility, Choice, and Taxing State of the Art Reproductive Technologies
Commentators:  Pippa Browde (Montana), Erin Scharff (Arizona State)

Khrista Johnson (Pepperdine), The Offshore Whistle During Divorce: An Examination of the Whistleblower Program and Innocent Spouse Relief
Commentators:  Gabriel Schobe (BYU), Genevieve Tokić (Northern Illinois)

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

Bilionis:  Bringing Purposefulness To Professional Identity Formation

Louis D. Bilionis (Cincinnati), Bringing Purposefulness to the American Law School's Support of Professional Identity Formation,  13 U. St. Thomas L.J. ___ (2017):

Ten years after the publication of Educating Lawyers, a growing number of American law schools are taking initiative to better support their students in the formation of professional identity. There is widespread recognition that success in these efforts requires an element of “purposefulness” on the part of law faculty and staff. Experiences, environments, and pedagogies that actually work for professional identity formation must be crafted and promoted with intentionality. Bringing the requisite purposefulness to the effort, however, will take a mindset about the education of a lawyer that will be new to many in legal education.

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June 16, 2017 in Legal Education, Scholarship | Permalink | Comments (2)

Thursday, June 15, 2017

Lawsky:  Formalizing The Tax Code

Sarah B. Lawsky (Northwestern), Formalizing the Code, 70 Tax L. Rev. ___ (2017):

The Internal Revenue Code is notoriously complex, both substantively and structurally. This article examines one source of structural complexity in the Internal Revenue Code: dependency among sections that stems from defined terms. In particular, the article examines what it terms the problem of “definitional scope”: when the structure of the Code leaves unclear to what a term refers. The article uses the problem of definitional scope as a case study to suggest that those who draft tax legislation should formalize proposed statutory language — translate it into logical terms — prior to its enactment.

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June 15, 2017 in Scholarship, Tax | Permalink | Comments (1)

Kleinbard:  Business Taxes Reinvented — The Dual Business Enterprise Income Tax

Edward Kleinbard (USC), Business Taxes Reinvented: The Dual Business Enterprise Income Tax:

This short overview and accompanying term sheet summarize the key features of a proposed comprehensive business tax environment termed the Dual Business Enterprise Income Tax (the Dual BEIT). The term sheet format is a useful mode of presentation for capturing in one accessible document the major policy recommendations of the Dual BEIT (or any other comprehensive tax reform proposal).

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

Bursting The Legal Scholarship Bubble: Some Retrograde Recommendations

BubbleFrank O. Bowman III (Missouri), Days of Future Past: A Plea for More Useful and More Local Legal Scholarship, in The Fate of Scholarship in American Law Schools (Cambridge University Press 2017):

Legal scholarship is at an inflection point because the legal education industry, to which legal scholarship is merely an internally overvalued appendage, is passing from a period of affluent abundance to a period of relative austerity. Scarcity stimulates self-examination.

This essay describes how the population explosion in American law schools during the 1990s and the simultaneous rise of the U.S. News rankings mania created a kind of tulip bubble in legal scholarship — a bubble that is rapidly, and properly, deflating. I make several concededly retrograde recommendations for dealing with a post-bubble world, including changing law school hiring practices to favor professors with more legal experience than has long been the fashion, assessing scholarship more by effect and less by placement, and devoting more of our scholarly attention to questions of state law and practice.

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June 15, 2017 in Legal Education, Scholarship | Permalink | Comments (37)

A Tax Dead on Arrival: Classical Liberalism, Inheritance, And Social Mobility

Åsbjørn Melkevik (Harvard), A Tax Dead on Arrival: Classical Liberalism, Inheritance, and Social Mobility:

Historically, it is safe to say that very few laws did as much to stoke inequality as laws touching descents and hereditary transmissions. This paper attempts to see if the classical liberal tradition can endorse inheritance taxation so as to further fair equality of opportunity, as well as to lessen inequality of undeserved wealth. It argues that fair equality of opportunity is a necessary feature of market societies to make sure that they remain competitive.

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June 15, 2017 in Scholarship, Tax | Permalink | Comments (1)

Wednesday, June 14, 2017

Shaviro:  The Rise And Fall Of The Destination-Based Cash Flow Tax

Daniel Shaviro (NYU), The Rise and Fall of the Destination-Based Cash Flow Tax: What Was that All About? (Presentation Slides):

These slides, prepared for the keynote address at the Nordic Tax Research Council Annual Conference in Haikko Borga, Finland, on June 1, 2017, offer background regarding the reasons for the rise and fall of the destination-based cash flow tax (DBCFT) as an apparently live legislative option. They place this saga in the broader context of the U.S.'s being the only major country without a value-added tax (VAT).

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

Weidner:  Sarbanes-Oxley And The New FASB Rules On Accounting For Leases

Donald J. Weidner (Florida State), New FASB Rules on Accounting for Leases: A Sarbanes-Oxley Promise Delivered, 72 Bus. Law. 367 (2017):

Congress responded to the financial accounting scandals of the new millennium by enacting the Sarbanes-Oxley Act of 2002, which required the Securities and Exchange Commission (“SEC”) to study filings by issuers and report on the extent of off-balance sheet arrangements, particularly those involving leases. In 2005, the SEC reported that there “may be approximately $1.25 trillion in non-cancellable future cash obligations committed under operating leases that are not recognized on issuer balance sheets, but are instead disclosed in the notes to the financial statements.” Accordingly, the SEC Report requested the Financial Accounting Standards Board (“FASB”) to craft new rules to record more lessee liabilities on the balance sheet. In 2016, the FASB issued sweeping new rules that affect virtually every firm that leases assets “such as real estate, airplanes, and manufacturing equipment.” In a dramatic change in approach, every lease for more than 12 months will be capitalized and recorded on the lessee’s balance sheet as reflecting both a “right of use asset” and a corresponding liability.

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

Tuesday, June 13, 2017

How Tax Policy Favors Robots Over Workers, And What To Do About It

Ryan Abbott (University of Surrey) & Bret N. Bogenschneider (University of Surrey), How Tax Policy Favors Robots over Workers and What to Do About It:

In an article forthcoming in the Harvard Law and Policy Review [Should Robots Pay Taxes? Tax Policy in the Age of Automation] we argue that existing tax policies encourage automation, even when a human worker would otherwise be more efficient than a machine. That’s because automating lets firms avoid wage taxes, which fund social benefit programs like Medicare, Medicaid, and Social Security. Only with human workers are firms responsible for paying taxes on wages to the federal government (and sometimes additional wage taxes at the state or local level) based on an employee’s salary.

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June 13, 2017 in Scholarship, Tax | Permalink | Comments (2)

Avi-Yonah:  Territoriality And The Original Intent Of Subpart F

Reuven S. Avi-Yonah (Michigan), Territoriality and the Original Intent of Subpart F:

On April 26, 2017, President Trump issued a one-page tax reform outline that included “territoriality,” i.e., exempting from tax dividends from the non-Subpart F income of controlled foreign corporations. Territoriality is also included in the House GOP “Better Way” Blueprint and was supported by the Obama Administration and in bipartisan legislation introduced in 2016 by Senators Rob Portman (R-OH) and Chuck Schumer (D-NY). Thus, of all the current tax reform proposals, it may have the best chance of being enacted, especially given that it is linked with imposing some tax on the past offshore earnings of US multinationals.

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

Monday, June 12, 2017

Marian Presents The Making Of International Tax Law: Empirical Evidence From Natural Language Processing Today In Germany

Marian (2016)Omri Marian (UC-Irvine) presents The Making of International Tax Law: Empirical Evidence from Natural Language Processing (with Elliott Ash (Princeton)) at the University of Heidelberg today:

We offer the first attempt at empirically testing the level of transnational consensus on the legal language controlling international tax matters. We also investigate the institutional framework of such consensus-building. We build a dataset of 4,052 bilateral income tax treaties, as well as 16 model tax treaties published by the United Nations (UN), Organisation for Economic Co-operation and Development (OECD) and the United States. We use natural language processing to perform pair-wise comparison of all treaties in effect at any given year. We identify clear trends of convergence of legal language in bilateral tax treaties since the 1960s, particularly on the taxation of cross-border business income.

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June 12, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

People Are Bothered By Economic Unfairness, Not Economic Inequality

Nature: Why People Prefer Unequal Societies, by Christina Starmans (Yale), Mark Sheskin (Yale) & Paul Bloom (Yale):

There is immense concern about economic inequality, both among the scholarly community and in the general public, and many insist that equality is an important social goal. However, when people are asked about the ideal distribution of wealth in their country, they actually prefer unequal societies. We suggest that these two phenomena can be reconciled by noticing that, despite appearances to the contrary, there is no evidence that people are bothered by economic inequality itself. Rather, they are bothered by something that is often confounded with inequality: economic unfairness. Drawing upon laboratory studies, cross-cultural research, and experiments with babies and young children, we argue that humans naturally favour fair distributions, not equal ones, and that when fairness and equality clash, people prefer fair inequality over unfair equality. Both psychological research and decisions by policymakers would benefit from more clearly distinguishing inequality from unfairness.

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June 12, 2017 in Scholarship, Tax | Permalink | Comments (9)

Water And Taxes

Dave Owen (UC-Hastings), Water and Taxes, 50 UC Davis L. Rev. 1559 (2017) (reviewed by David Gamage (Indiana) here):

This article considers how water consumption in the United States is and should be taxed. It reviews the few federal and state tax code provisions that directly target water use and the somewhat larger number of provisions with indirect implications for water policy. It also draws upon existing literature on tax policy, water law, and water economics to evaluate whether taxation of water consumption makes sense.

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June 12, 2017 in Scholarship, Tax | Permalink | Comments (1)

Sunday, June 11, 2017

Weekly SSRN Tax Article Review And Roundup

This week, Erin Scharff (Arizona State) reviews a new working paper by Jay Soled (Rutgers) and James Alm (Tulane), W(h)ither the Tax Gap?, 92 Wash. L. Rev. 521 (2017).

Scharff (2017)In their thoughtful new article, W(h)ither the Tax Gap?, Jay Soled and James Alm make a persuasive case that several economic trends are likely to narrow the tax gap in the near future.  As they note, such progress on tax compliance could play a significant role in closing the deficit. 

In particular, Soled and Alm highlight three trends that they suggest make it more likely that tax authorities will be able to improve compliance in the coming years.  First, the increasing reliance on electronic payments makes it more difficult for would-be tax cheats to hide income.  These days, even taxicabs, convenience stores, and valet attendants accept credit cards.  (Not to accuse all of these occupations of cheating, but those paid in cash can more easily hide their earnings.)  Second, as Soled and Alm observe, as the use of cash declines, “[t]hose who use cash, especially large denomination notes, will likely be flagged as potential tax evaders.”

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June 11, 2017 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

The Top Five New Tax Papers

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. [220 Downloads]  Can New York Publish President Trump's State Tax Returns? , by Daniel Hemel (Chicago)
  2. [198 Downloads]  Recent Developments in Federal Income Taxation: The Year 2016 , by Martin J. McMahon Jr. (Florida) & Bruce A. McGovern (South Texas)
  3. [156 Downloads]  A Taxonomy for Tax Loopholes , by Heather Field (UC-Hastings)
  4. [133 Downloads]  Why Don't White Supremacists Pay Taxes?, by Eric Franklin Amarante (UNLV)
  5. [130 Downloads]  Shareholder Wealth Effects of Border Adjustment Taxation, by Fabio B. Gaertner (Wisconsin), Jeffrey L. Hoopes (North Carolina) & Edward L. Maydew (North Carolina)

June 11, 2017 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, June 9, 2017

Bach:  (Re)Viewing The American Social Welfare State

Florida Tax Review  (2015)Wendy A. Bach (Tennessee), Poor Support/Rich Support: (Re)Viewing the American Social Welfare State, 20 Fla. Tax. Rev. ___ (2017):

Since at least the 1970s a variety of scholars have redefined the U.S. social welfare state to include not only traditional benefit programs (for example Food Stamps and social security) but also a variety of tax benefits that are “hidden” or “submerged” forms of “welfare for the wealthy.” Including these benefits in the overall picture of U.S. social welfare provision reveals a system that is both larger in size than popularly believed and that, in addition to providing some support for the poor, distributes significant benefits regressively, to households with substantial wealth. Although a variety of scholars and policy analysts have described these outcomes, scholars have yet to focus on the ways in which structural inequality is written directly into the means of administration of U.S. social welfare programs. This article is the first to turn to those questions and to systematically demonstrate that those who are economically (and disproportionately racially) disadvantaged are offered a social welfare state that is meager, punitive and tremendously risky for those who receive its benefits.

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

Thursday, June 8, 2017

Glogower:  Taxing Capital Appreciation

Ari D. Glogower (Ohio State), Taxing Capital Appreciation, 70 Tax L. Rev. ___ (2016):

The realization rule — which defers tax on asset gains and losses until a disposition — is a well-known flaw in the income tax. Tax scholars have long recognized that the rule causes inequity, inefficiency, complexity, and revenue loss; allows wealthy taxpayers to avoid the income tax; and distorts the taxation of corporations and capital gains. The realization rule was a problem in the past, and a greater problem now, as financial innovations increase the opportunities for abuse and the need for reform. Prior proposals have generally favored replacing the realization rule with an accrual method accounting for the timing of gains and losses, through mark-to-market taxation, which taxes observed changes in asset value, formulaic taxation, which taxes deemed changes in asset value, or a combination thereof in a mixed regime. While these proposals have attracted much academic interest, they have not gained political traction, due to concerns of administrative feasibility, taxpayer liquidity, behavioral distortions, and public acceptance. This Article first introduces a framework for evaluating realization rule reform proposals, based on the rule’s harms and justifications, and demonstrates that none of the prior proposals adequately satisfies the framework’s criteria. It then introduces a new approach to taxing capital appreciation, “Deferred Tax Accounting,” which integrates accrual principles within the current realization system.

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

Wednesday, June 7, 2017

Soled & Alm:  W(H)Ither the Tax Gap?

Jay A. Soled (Rutgers) & James Alm (Tulane), W(H)Ither the Tax Gap?:

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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June 7, 2017 in Scholarship, Tax | Permalink | Comments (2)

Hemel:  The President's Power To Tax

Daniel Hemel (Chicago), The President's Power to Tax, 102 Cornell L. Rev. 633 (2017):

President Obama and his predecessors have used their regulatory authority to implement significant elements of their domestic policy agendas across a wide range of issue areas—including the environment, immigration, labor, and health care. But recent administrations have been much less willing to exercise regulatory authority in the realm of tax. More precisely, recent administrations have been reluctant to take regulatory actions that raise revenue (although quite willing, in certain cases, to take regulatory actions that move the law in a taxpayer-friendly direction). This is not because the Executive Branch lacks the legal authority to adopt significant revenue-raising tax reforms via regulation: as this article demonstrates, the Executive Branch’s “power to tax” under existing statutes is broad. Nor is it because the President is satisfied with the tax status quo: recent Presidents have repeatedly asked Congress to amend the tax code via legislation. Yet in many cases, the change that the President asks Congress to make is a change that the Executive Branch already has authority to make on its own. What explains the reluctance of recent administrations to raise revenue through regulatory action?

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

Tuesday, June 6, 2017

Deans' Leadership In Legal Education Symposium

Toledo Logo14th Deans' Leadership in Legal Education Symposium, 48 U. Tol. L. Rev. 189-317 (2017):

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June 6, 2017 in Legal Education, Scholarship | Permalink | Comments (0)

Temple Symposium:  The Saga Of Unfulfilled Business Income Tax Reform

TempleSymposium, The Saga of Unfulfilled Business Income Tax Reform,  89 Temp. L. Rev. 267-363 (2017):

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

Browde:  The Collection Due Process Jurisdictional Mess

Pippa Browde (Montana), A Reflection on Tax Collecting: Opening a Can of Worms to Clean Up a Collection Due Process Jurisdictional Mess, 65 Drake L. Rev. 51 (2017):

Almost 20 years ago Congress enacted the Internal Revenue Service Restructuring and Reform Act of 1998 (RRA 98), with the intention of protecting taxpayers against perceived abuses in tax collection by the Internal Revenue Service (IRS). RRA 98 contained provisions creating the so-called collection due process (CDP) provisions. CDP changed existing law by providing taxpayers with a pre-deprivation right to an administrative hearing and judicial review of any proposed collection actions by the IRS such as liens or levies.

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

Sunday, June 4, 2017

Vischer:  The Secret Sauce For Faith-Based Law Schools To Thrive In A Difficult Market

Religiously Affiliated Law SchoolsRobert K. Vischer (Dean, St. Thomas), How Should a Law School's Religious Affiliation Matter in a Difficult Market?, 48 U. Tol. L. Rev. 307 (2017):

For religiously affiliated law schools, a broad and deep understanding of professional formation should lie at the heart of our reason for being and should grow out of our own religious traditions, allowing us to educate the whole person. Articulating and cultivating this deeper understanding of professional formation is essential for deans of religiously affiliated law schools today as we seek to demonstrate the connection between our religious identity and the value proposition our schools offer to our current and prospective students. ...

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June 4, 2017 in Legal Education, Scholarship | Permalink | Comments (0)

The Top 5 Tax Paper Downloads

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

  1. [330 Downloads]  The Offshore Tax Enforcement Dragnet, by Shu-Yi Oei (Tulane)
  2. [216 Downloads]  Can New York Publish President Trump's State Tax Returns? , by Daniel Hemel (Chicago)
  3. [172 Downloads]  Recent Developments in Federal Income Taxation: The Year 2016 , by Martin J. McMahon Jr. (Florida) & Bruce A. McGovern (South Texas)
  4. [152 Downloads]  Corporate Tax Avoidance and Honoring the Fiduciary Duties Owed to Corporation and Its Stockholders, by Eric C. Chaffee (Toledo) & Karie Davis-Nozemack (Georgia Tech)
  5. [132 Downloads]  A Taxonomy for Tax Loopholes , by Heather Field (UC-Hastings)

June 4, 2017 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, June 2, 2017

Weekly SSRN Tax Article Review And Roundup

This week, Daniel Hemel (Chicago) reviews a new article by Michael Knoll (Penn), Taxation, Competitiveness, and Inversions: A Response to Kleinbard, 155 Tax Notes 619 (May 1, 2017) 

HemelDo U.S. tax laws place U.S.-domiciled companies at a competitive disadvantage vis-à-vis foreign firms? In an influential 2014 article, Edward Kleinbard (Southern California) argued that the answer is no: “there is no credible evidence,” Kleinbard concluded, “that U.S. firms are at a fundamental international business competitive disadvantage under current law.” Now, Michael Knoll responds to Kleinbard’s article and arrives at a contrasting conclusion: while acknowledging the limits of existing empirical work, Knoll says that “the stronger case would seem to be that U.S.-domiciled corporations are often tax-disadvantaged relative to their non-U.S. rivals.”

Both authors agree that the competitiveness question has important implications for the debate over corporate inversions. Inversion defenders often argue that U.S.-headquartered multinationals must be allowed to shed their U.S. domicile so that they can compete on even terms with foreign firms. In Kleinbard’s view, this narrative is a “fable”: competitiveness concerns cannot justify inversions. Consequently, Kleinbard concludes that the U.S. Treasury and Congress should crack down on inversion transactions. In Knoll’s view, “improving competitiveness remains a strong reason for U.S.-domiciled companies to invert,” and “policies intended to curb inversions that ignore this state of affairs are likely to . . . produce adverse consequences.”

My own view, to lay my cards on the table at the outset, is that Kleinbard and Knoll are both right. 

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June 2, 2017 in Scholarship, Tax, Weekly Student Tax Note Roundup | Permalink | Comments (0)

Caron Presents Faculty Scholarship Assessment: A (Very) New Dean's Perspective Today At Texas A&M

CaronPaul L. Caron (Dean, Pepperdine) presents Faculty Scholarship Assessment: A (Very) New Dean's Perspective at Texas A&M today as part of its Conference for Associate Deans:

I describe how existing measures of faculty scholarly output (publications) and influence (law review citations, Google Scholar citations (H-Index and M-Index), and SSRN downloads) can be used to (1) compare a law school faculty's scholarly productivity to its peers and to assess individual faculty contributions in these areas; and (2) value scholarly productivity of both junior and senior faculty.  I then offer some thoughts on what these existing ranking metrics leave out in quantifying faculty contributions to law school success, especially at faith-based schools.

My co-panelists are:

  • John August (Dean of Faculties and Associate Provost, Texas A&M)
  • Gary Lucas (Professor of Law and Associate Dean for Assessment, Strategic Analysis, and Reporting, Texas A&M)
  • Gregory Sisk (Laghi Distinguished Chair in Law, University of St. Thomas (Minnesota))

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June 2, 2017 in Conferences, Law School Rankings, Legal Education, Scholarship | Permalink | Comments (1)

Virginia Tax Review Publishes New Issue

Virginia Tax Review (2016)The Virginia Tax Review has published Vol. 36, No. 1 (Winter 2017):

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June 2, 2017 in Scholarship, Tax | Permalink | Comments (0)

Thursday, June 1, 2017

Tax Exceptionalism: A UK Perspective

Stephen Daly (King's College London, Dickson Poon School of Law), Tax Exceptionalism: A UK Perspective:

In her article in this issue [Administrative Law's Growing Influence on U.S. Tax Administration, 3 J. Tax Adm. ___ (2017)], Professor Kristin Hickman explores the relationship between the US Treasury and Internal Revenue Service (‘IRS’), and exceptionalism to general administrative law principles, dubbed “tax exceptionalism”. It builds upon work that Hickman has produced in response to the 2011 case of Mayo Foundation for Medical Education and Research v. United States in which the Supreme Court is generally considered to have rejected the idea of tax exceptionalism [Administering the Tax System We Have, 63 Duke L.J. 1717 (2014); Unpacking the Force of Law, 66 Vand. L. Rev. 465 (2013)]. Indeed, Hickman’s article deals a decisive blow to the idea of tax exceptionalism by noting that the functions of the IRS are not dissimilar to those of other administrative agencies.

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June 1, 2017 in Scholarship, Tax | Permalink | Comments (0)

Grewal:  Why Lenity Has No Place In The Income Tax

Andy Grewal (Iowa), Why Lenity Has No Place in the Income Tax Laws, 81 Mo. L. Rev. 1045 (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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June 1, 2017 in Scholarship, Tax | Permalink | Comments (0)

Wednesday, May 31, 2017

Gamage & Shanske:  The American Health Care Act Would Toss The States A Hot Potato

Hot PotatoDavid Gamage (Indiana) & Darien Shanske (UC-Davis), The American Health Care Act Would Toss the States a Hot Potato, 84 State Tax Notes 579 (May 8, 2017):

This essay explains how the American Health Care Act (AHCA) — the House Republicans’ proposed replacement for Obamacare — would toss a hot potato to state governments. Were the AHCA to be enacted into law, state governments would need to act promptly if they are to save individual insurance markets within their states. This essay explains measures that state governments might take to respond to this threat.

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May 31, 2017 in Scholarship, Tax | Permalink | Comments (2)

A Law School Should Not Impose Its Faculty's Social Justice Views On Students Through Mandatory Pro Bono Or Clinics (Unless There Is A Sufficient Variety Of Clinical Offerings)

Julie D. Lawton (DePaul), Teaching Social Justice in Law Schools: Whose Morality Is It?, 50 Ind. L. Rev. 813 (2017):

A few years ago, when I began interviewing for a position as a law professor, Pepperdine University School of Law invited me to interview for a position on their impressive law faculty. The Vice-Chair of the Faculty Appointments Committee asked if I would send for their review, as part of their normal evaluation process, a statement of my research agenda and a brief description of my teaching philosophy. These requests are relatively standard, but the third request was quite unusual — the Chair asked if I would also provide a statement describing how I could contribute to the mission of the University and the law school, including, of note to me, a description of my involvement, if any, with a community of faith. I responded that I was uncomfortable with a discussion of my faith, or my involvement in a faith community, as part of my professional interactions, and thus, declined the interview. However, the experience remained with me as I pondered the question that their faculty at the law school had already answered — what role should the personal ethics and morality of a law professor play in teaching?

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May 31, 2017 in Legal Education, Scholarship | Permalink | Comments (10)

Sunday, May 28, 2017

The Top 5 Tax Paper Downloads

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

  1. [323 Downloads]  The Offshore Tax Enforcement Dragnet, by Shu-Yi Oei (Tulane)
  2. [212 Downloads]  Can New York Publish President Trump's State Tax Returns? , by Daniel Hemel (Chicago)
  3. [194 Downloads]  A Global Treaty Override? The New OECD Multilateral Tax Instrument and Its Limits, by Reuven S. Avi-Yonah (Michigan) & Haiyan Xu (Michigan)
  4. [136 Downloads]  Recent Developments in Federal Income Taxation: The Year 2016 , by Martin J. McMahon Jr. (Florida) & Bruce A. McGovern (South Texas)
  5. [127 Downloads]  Why Don't White Supremacists Pay Taxes?, by Eric Franklin Amarante (UNLV)

May 28, 2017 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, May 26, 2017

Weekly SSRN Tax Article Review And Roundup

This week, Ari Glogower (Ohio State) reviews a new work by Chris William Sanchirico (Penn), Optimal Redistributional Instruments in Tax Policy and Law & Economics: Survey and Assessment, in The Oxford Handbook of Law & Economics, Vol. 1: Methodology and Concepts 321 (Francesco Parisi, ed., 2017)

Glogower (2016)In his new work, Chris Sanchirico surveys the current literature on the optimal redistributional instruments, which seeks identify the most efficient policy tool(s) for redistribution.

Sanchirico identifies three broad strands in the literature.  First, the tax substitution argument generally holds that redistribution is best accomplished through a tax on labor earnings, because redistribution through any other policy can be substituted for redistribution through the labor income tax, at a lower cost.  As Sanchirico has argued in prior work, however, the assumptions about labor income taxation underlying the tax substitution argument could similarly be used to justify optimal redistribution through other policies or instruments.

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May 26, 2017 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (1)

Thursday, May 25, 2017

Kim:  'Citizenship Taxation' — In Defense Of FATCA

Florida Tax Review  (2015)Young Ran (Christine) Kim (Utah), Considering 'Citizenship Taxation': In Defense of FATCA, 20 Fla. Tax Rev. 335 (2017):

Inspired by Ruth Mason’s recent article, Citizenship Taxation, [89 S. Cal. L. Rev. 169 (2016),] which reaches a general conclusion against citizenship taxation, this Article also questions citizen taxation under the same normative framework, but with a particular focus on efficiency and administrability, and takes a much less critical stance towards the merits of citizenship taxation.

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May 25, 2017 in Scholarship, Tax | Permalink | Comments (12)

Morrow:  Accelerating Depreciation In Recession

Florida Tax Review  (2015)Rebecca N. Morrow (Wake Forest), Accelerating Depreciation in Recession, 19 Fla. Tax Rev. 465 (2016):

What would you do if on January 13, 2016, you had won the $1.5 billion Powerball jackpot? The prize gives you the choice of a smaller lump sum now or the full jackpot parceled out for years to come. For the New York Times and numerous financial experts, the right choice is clear: take the money over time. While lump sums are nice, they are not worth a big discount when compared to “ultrasafe” income streams (like the Powerball annuity), especially in an “ultralow interest rate environment.”

What everyone understands about Powerball seems to elude us when it comes to the United States’ largest corporate tax expenditure. “Accelerated depreciation” rules give taxpayers a lump sum deduction now, rather than the gradual deductions they would normally claim. Called tax law’s “standard method for combating recessions,” accelerated depreciation has become the most important tax policy affecting businesses because it is thought to be an effective if costly way to stimulate the economy, particularly during tough economic times.

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May 25, 2017 in Scholarship, Tax | Permalink | Comments (0)

Shaheen:  Treaty Aspects Of The McDonald's State Aid Investigation

McDonaldsFadi Shaheen (Rutgers), Tax Treaty Aspects of the McDonald's State Aid Investigation, 86 Tax Notes Int'l 275 (Apr. 24, 2017):

Supporting the European Commission’s conclusion that Luxembourg was under no treaty obligation to exempt income attributable to a U.S. branch of a McDonald’s Luxembourgian subsidiary, this paper suggests two alternative methods for reaching the same result in ways that avoid possible obstacles in the commission’s approach.

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May 25, 2017 in Scholarship, Tax | Permalink | Comments (0)

Wednesday, May 24, 2017

Knoll Critiques Kleinbard's Influential Article Claiming That Competitiveness Has Nothing To Do With Inversions

Michael Knoll (Pennsylvania), Taxation, Competitiveness, and Inversions: A Response to Kleinbard, 155 Tax Notes 619 (May 1, 2017):

In a 2014 article [Competitiveness’ Has Nothing to Do With It, 144 Tax Notes 1055 (Sept. 1, 2014)], Professor Edward D. Kleinbard leaped into the center of [the inversion] debate. In that article, he contended that competitiveness arguments for corporate inversions are “almost entirely fact-free” and constitute “a false narrative,” and that “international business ‘competitiveness’ has nothing to do with the reasons for these deals.” He concluded that although the current U.S. tax system “is highly distortive and inefficient . . . one of the few deficiencies it has avoided is imposing an unfair international business tax competitive burden on sophisticated U.S. multinationals.”

Kleinbard and his article have played and continue to play a highly visible role in public policy debates over inversions.

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May 24, 2017 in Scholarship, Tax | Permalink | Comments (0)

Dodge:  The Personal Realization Income Tax

Florida Tax Review  (2015)Joseph M. Dodge (Florida State), The Fair Tax: The Personal Realization Income Tax, 19 Fla. Tax Rev. 522 (2016):

This article argues that the properly conceived fairness norm for taxation leads to a personal realization income tax. Fairness in taxation refers to “allocative tax fairness,” that is, the ethical/political standard according to which taxes are to be apportioned among the relevant population. In concrete terms, the standard constitutes the tax base for individual taxpayers. Allocative fairness is but one norm bearing on taxation, but it is one that (in academia, at least) has unjustifiably taken a back seat to economics and welfarist norms, largely due to the perception that allocative tax fairness lacks any specific content apart from the speaker's political and personal tastes and, therefore, by implication, is without independent normative grounding. The short riposte is that exclusive adherence to economic and/or welfarist norms is itself a matter of personal taste.

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

SSRN Tax Professor Rankings

SSRN LogoSSRN has updated its monthly rankings of 750 American and international law school faculties and 3,000 law professors by (among other things) the number of paper downloads from the SSRN database.  Here is the new list (through May 1, 2017) of the Top 25 U.S. Tax Professors in two of the SSRN categories: all-time downloads and recent downloads (within the past 12 months):

 

 

All-Time

 

Recent

1

Reuven Avi-Yonah (Mich.)

68,651

Reuven Avi-Yonah (Mich.)

12,639

2

Michael Simkovic (S. Hall)

36,246

Lily Batchelder (NYU)

9013

3

Paul Caron (Pepperdine)

33,093

Michael Simkovic (S. Hall)

4210

4

D. Dharmapala (Chicago)

30,734

D. Dharmapala (Chicago)

4114

5

Louis Kaplow (Harvard)

28,121

Michael Graetz (Columbia)

3508

6

Vic Fleischer (San Diego)

23,719

Richard Ainsworth (BU)

2870

7

James Hines (Michigan)

22,842

Ed Kleinbard (USC)

2768

8

Ed Kleinbard (USC)

22,536

David Weisbach (Chicago)

2531

9

Richard Kaplan (Illinois)

21,983

Dan Shaviro (NYU)

2374

10

Ted Seto (Loyola-L.A.)

21,950

Louis Kaplow (Harvard)

2271

11

Richard Ainsworth (BU)

20,684

David Gamage (Indiana)

2229

12

Katie Pratt (Loyola-L.A.)

20,176

William Byrnes (Texas A&M)

2110

13

David Weisbach (Chicago)

19,299

Paul Caron (Pepperdine)

2037

14

Robert Sitkoff (Harvard)

18,895

Robert Sitkoff (Harvard)

1981

15

Brad Borden (Brooklyn)

18,242

Jeff Kwall (Loyola-Chicago)

1731

16

Carter Bishop (Suffolk)

18,065

Omri Marian (UC-Irvine)

1671

17

Francine Lipman (UNLV)

17,526

Francine Lipman (UNLV)

1664

18

Jen Kowal (Loyola-L.A.)

17,441

Brian Galle (Georgetown)

1629

19

Chris Sanchirico (Penn)

17,402

Darien Shanske (UC-Davis)

1589

20

Dan Shaviro (NYU)

17,165

Jordan Barry (San Diego)

1535

21

Bridget Crawford (Pace)

17,091

Bridget Crawford (Pace)

1534

22

Dennis Ventry (UC-Davis)

16,465

Steven Bank (UCLA)

1472

23

David Walker (BU)

15,654

Brad Borden (Brooklyn)

1443

24

Steven Bank (UCLA)

14,786

Christopher Hoyt (UMKC)

1438

25

Gregg Polsky (Georgia)

13,890

Yariv Brauner (Florida)

1430

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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May 24, 2017 in Scholarship, Tax, Tax Prof Rankings | Permalink | Comments (0)

Tuesday, May 23, 2017

3rd Annual Mid-Career Tax Professors Workshop Concludes Today At Arkansas

Arkansas Fayetteville LogoPanel #6

Susan Morse (Texas), Skewed Deference
Commentator:  Charlene Luke (Florida)

Jordan Barry (San Diego), Taxation and Innovation: The Sharing Economy as a Case Study
Commentator:  Shu-Yi Oei (Tulane)

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

Kades:  Reducing Inequality With A Progressive State Tax Credit

Eric A. Kades (William & Mary), Giving Credit Where Credit Is Due: Reducing Inequality with a Progressive State Tax Credit, 77 La. L. Rev. 359 (2016):

Widening economic inequality is fast becoming the defining social problem of this era. Although there are a number of policy mechanisms available for addressing the problem, taxation is the first and best tool for the job. The federal income tax code is already moderately progressive and thus partially counteracts growing inequality in before-tax incomes. State taxation, however, is an entirely different matter: every single state has some combination of sales, property, and income taxes that, taken together are regressive: average (“effective”) state tax rates fall as income rises. It is perverse that taxation in each and every state exacerbates instead of ameliorates the nation’s burgeoning income inequality.

Figure 8

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May 23, 2017 in Scholarship, Tax | Permalink | Comments (2)

Weber:  Killing Zombie Mortgages With Differential Property Taxes

David P. Weber (Creighton), Taxing Zombies: Killing Zombie Mortgages with Differential Property Taxes, 2017  U. Ill. L. Rev. 1135 (2017):

Zombie mortgages and abandoned properties are costly problems for cities and counties across the country. The term “zombie mortgage” is meant to, and hopefully does, evoke images of undead mortgages that are nearly impossible to eliminate. In the legal literature, the term is used to describe the circumstance when a lender or mortgagee has initiated foreclosure proceedings, the homeowner has quit the premises, and the lender later abandons the foreclosure process, often without notifying the owner of record. The mortgages, accompanying fees, and real estate taxes are “zombies” because the affected homeowner cannot escape them by abandoning the property, even after notice of eviction. Generally, the affected homeowner cannot shed these “zombies” through bankruptcy, either.

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May 23, 2017 in Scholarship, Tax | Permalink | Comments (1)

Monday, May 22, 2017

3rd Annual Mid-Career Tax Professors Workshop Kicks Off Today At Arkansas

Arkansas Fayetteville LogoPanel #1

Jennifer Bird-Pollan (Kentucky), Sovereignty, Tax, and BITs
Commentator: David Herzig (Valparaiso)

John Brooks (Georgetown), Income Tax as Wealth Tax
Commentator:  Rebecca Kysar (Brooklyn)

Emily Cauble (DePaul), Tax Law’s Inconsistent Treatment of Gains and Losses
Commentator:  Heather Field (UC-Hastings)

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May 22, 2017 in Conferences, Scholarship, Tax | Permalink | Comments (1)

Sunday, May 21, 2017

The Top 5 Tax Paper Downloads

SSRN LogoThere is quite a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with new papers debuting on the list at #3, #4, and #5:

  1. [306 Downloads]  The Offshore Tax Enforcement Dragnet, by Shu-Yi Oei (Tulane)
  2. [229 Downloads]  BEPS and the New International Tax Order, by Allison Christians (McGill)
  3. [202 Downloads]  Can New York Publish President Trump's State Tax Returns? , by Daniel Hemel (Chicago)
  4. [171 Downloads]  A Global Treaty Override? The New OECD Multilateral Tax Instrument and Its Limits, by Reuven S. Avi-Yonah (Michigan) & Haiyan Xu (Michigan)
  5. [149 Downloads]  Base Erosion by Intra-Group Debt and BEPS Project Action 4's Best Practice Approach: A Case Study of Chevron, by Antony Ting (Sydney)

May 21, 2017 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)