TaxProf Blog

Editor: Paul L. Caron
Pepperdine University School of Law

Monday, January 30, 2017

Oei Presents The Law of the Leak Today At Washington & Lee

OeiShu-Yi Oei (Tulane; moving to Boston College) presents The Law of the Leak (with Diane Ring (Boston College)) at Washington & Lee today as part of its Faculty Workshop Series hosted by Michelle Drumbl:

Over the past decade, a number of well-publicized data leaks concerning the secret offshore holdings of high-net-worth individuals and multinational taxpayers have reverberated through tax circles worldwide, leading to a sea change in cross-border tax enforcement. Spurred by leaked data, tax authorities have prosecuted offshore tax cheats, attempted to recoup lost revenues, enacted new laws, and signed international agreements that promote “sunshine” and exchange of financial information between countries.

The conventional wisdom is that data leaks enable tax authorities to detect and punish offshore tax evasion more effectively, and that leaks are therefore socially beneficial from an economic welfare perspective. This Article argues, however, that the conventional wisdom is too simplistic.

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January 30, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Hackney Presents Labor Unions And Tax Exemption Today At UC-Irvine

HackneyPhilip Hackney (LSU) presents Subsidizing the Heavenly Chorus: Labor Unions and Tax Exemption at UC-Irvine today as part of its Tax Law and Policy Colloquium Series hosted by Omri Marian:

Labor interests are historically politically weak in our U.S. democracy. Laborers who desire to form an organization to advance their political interests face classic collective action problems. This presents a significant challenge for a modern democratic state that depends upon organized interests to represent the political voice of its citizens. This Article examines the impact of our federal income tax system on labor interests. It focuses upon the provision of tax exemption to labor unions and the deduction of labor union dues. I adopt a model that presumes in a democracy we should aim for one person one political voice. By political voice I mean more than the concept of one person one vote; it refers to the ability of citizens to participate in setting the political agenda and to vote on any final decision.

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January 30, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Sunday, January 29, 2017

Hickman:  Thoughts On Statutory Interpretation—For Tax Specialists, Too

Jotwell (Tax) (2016)Kristin Hickman (Minnesota), Thoughts On Statutory Interpretation—For Tax Specialists, Too, JOTWELL (2017) (reviewing Brett M. Kavanaugh (Judge, U.S. Court of Appeals for the D.C. Circuit), Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118 (2016) and Robert A. Katzmann (Chief Judge, U.S. Court of Appeals for the Second Circuit), Response to Judge Kavanaugh’s Review of Judging Statutes, 129 Harv. L. Rev. F. 388 (2016)):

Tax specialists are no strangers to the exercise of statutory interpretation. The Internal Revenue Code is an enormously complex statute, with all of the overlapping provisions, competing goals, and specificity interspersed with ambiguity that one would expect to accompany that complexity. And mastering the tax policy aspects of the Code is hard enough that tax specialists might be forgiven for reducing the exercise of statutory interpretation to short statements about considering the Code’s text, history, and purpose, or the “spirit” of the tax laws. A recent exchange between two prominent federal judges — Chief Judge Robert Katzmann of the Second Circuit and Judge Brett Kavanaugh of the D.C. Circuit — and the lengthier books highlighted within their exchange offer a highly readable reminder of the parallel complexity of statutory interpretation theory and jurisprudence. Tax specialists interested in seeing their policy preferences succeed in the real world would do well to take note.

Although tax specialists often like to think of the tax laws as unique, judges in tax cases routinely rely upon and debate about the same tools of statutory construction that they apply and discuss in interpreting other statutes. ...

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January 29, 2017 in Scholarship, Tax | Permalink | Comments (1)

Taxing Citizens: Socio-legal Constructions Of Late Antique Muslim Identity

Lena Salaymeh (Tel Aviv University), Taxing Citizens: Socio-legal Constructions of Late Antique Muslim Identity, 23 Islamic L. & Soc'y 333 (2016):

The regulations pertaining to Islamic charity taxation illuminate underappreciated dimensions of how Muslims de󰁦􀁩ned identity boundaries in late antiquity. To demarcate the contours of a historical process of Muslim identity construction, I analyze Islamic jurisprudential debates about who is and who is not obligated to pay the charity tax. Most late antique and medieval jurists made the charity tax incumbent on minors or others lacking full legal capacity, even though these groups were exempt from “for-the-divine” practices. I suggest Muslim citizenship as a framework for understanding late antique Muslim identity.

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January 29, 2017 in Scholarship, Tax | Permalink | Comments (0)

The Top 5 Tax Paper Downloads

SSRN LogoThis week's list of the Top 5 Recent Tax Paper Downloads is the same as last week's list:

  1. [1,561 Downloads]  Problems with Destination-Based Corporate Taxes and the Ryan Blueprint, by Reuven S. Avi-Yonah (Michigan; moving to UC-Irvine) & Kimberly A. Clausing (Reed College)
  2. [411 Downloads]  A Guide to the GOP Tax Plan — The Way to a Better Way, by David A. Weisbach (Chicago)
  3. [221 Downloads]  Destination-Based Cash-Flow Taxation: A Critical Appraisal, by Wei Cui (British Columbia)
  4. [188 Downloads]  The Right Tax at the Right Time, by Edward Kleinbard (USC)
  5. [150 Downloads]  The Other Eighty Percent: Private Investment Funds, International Tax Avoidance, and Tax-Exempt Investors, by Omri Marian (UC-Irvine)

January 29, 2017 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Defending Churches By Narrowing The Definition Of 'Church' For Tax Purposes

Lidiya Mishchenko (J.D. 2016, George Washington), In Defense of Churches: Can the IRS Limit Tax Abuse by “Church” Impostors?, 84 Geo. Wash. L. Rev. 1361 (2016):

A large gap in our Tax Code allows certain religious organizations to amass extraordinary riches while preying on the faithful. Their conduct is causing damage to the church as an institution and is inconsistent with the purpose of tax exemptions—to provide a public good. This Essay proposes that the IRS create a narrower, more specific definition of what constitutes a “church” for tax purposes. This change would force more religious entities to file annual returns with the IRS, and would better define the IRS threshold for auditing such organizations.

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January 29, 2017 in Scholarship, Tax | Permalink | Comments (5)

Saturday, January 28, 2017

Northwestern Study: Excellent Teaching Is Unrelated To Excellent Research (And Vice Versa)

NorthwesternBrookings Institution: Are Great Teachers Poor Scholars?, by David Figlio (Northwestern) & Morton O. Schapiro (Northwestern):

Colleges and universities must balance many goals, and research universities in particular aspire to excellence in both teaching and research. University administrators and policymakers alike are interested in ensuring that publicly-supported private and public universities operate at high levels of instructional and scholarly quality, but to date we know little about whether scholarly excellence comes at a cost in terms of teaching quality, or vice versa.

We bring to bear unique matched student-faculty data from Northwestern University, a midsized research university that is one of the 26 private universities among the 62 members of the Association of American Universities, to investigate the relationship between teaching and scholarly quality. Using the full population of all first-year undergraduates enrolled at Northwestern between fall 2001 and fall 2008 (over 15,000 students in all), we empirically generate two new measures of teaching quality—one an indicator of inspiration (the rate of “conversion” of non-majors to majors) and the other an indicator of deep learning (the degree to which a professor adds lasting value to students’ learning that is reflected in success in future classes). We also investigate two measures of research quality—one based on a measure of the relative importance of a scholar’s research in the field, and the other a measure of national or international prominence as reflected by major awards.

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January 28, 2017 in Legal Education, Scholarship, Teaching | Permalink | Comments (5)

Friday, January 27, 2017

Weekly SSRN Tax Article Review And Roundup

This week, Daniel Hemel (Chicago) reviews a new article by Michael Doran (Virginia), Uncapping Executive Pay, 90 S. Cal. L. Rev. (forthcoming 2017).

HemelMichael Doran’s scholarship on the taxation of executive pay is consistently insightful, and his latest article on section 162(m) is no exception. That provision, enacted in 1993, disallows a deduction for amounts paid to CEOs and other top officers of publicly traded corporations in excess of $1 million unless such compensation is “performance-based.” Doran convincingly argues that section 162(m) has done little to stem the rise of CEO compensation and that it has not caused corporations to tie pay to performance in a meaningful way. And while I am less sure than Doran that section 162(m) should be scrapped, Doran certainly makes a strong case for getting rid of the provision.

According to Doran, section 162(m) has proven to be a failure for at least three reasons. First, firms can skirt the $1 million limit by paying CEOs in stock options or by tying compensation to performance goals that are easily met. Second, the provision applies only to current employees—and so does not impose any constraints on nonqualified deferred compensation paid out to former CEOs. And third, corporations can ignore the cap, pay their CEOs more than $1 million outright, and simply forgo the deduction for amounts over $1 million paid. Indeed, more than a quarter of publicly traded corporations in 2013 blew through the cap and gave up the deduction.

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January 27, 2017 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Will Donald Trump Finally End The 100 Year War Over The Estate Tax?

Estate Tax LogoThe Hill op-ed: Trump vs. the Democrats: Is This the End of the 100-Year War over the Estate Tax?, by Darren T. Case (Tiffany & Bosco, Phoenix):

[The] 45th President of the United States will soon embark upon his descent into the battlefield on Capitol Hill to potentially end a century long war regarding the estate tax. Standing in opposition to Donald Trump’s political army, presently in firm control of the Executive and Legislative branches, is a Democratic Party that was severely wounded by the 2016 election. With the morale amongst Democrats arguably being at an all-time low, many may assume that the white flag will be raised in regard to the so-called “death tax.”

However, considering what is at stake while we’re in the midst of the greatest wealth transfer in human history, with over $30 trillion dollars set to transfer over the next few decades, and with the estate tax believed by some to be one of the most quintessential weapons against the growing wealth inequality in the United States, it would be foolish to assume that the Democrats will not attempt to go down fighting with vigor and valor. For a nation essentially founded upon a war over taxation, ultimately ending in 1776, perhaps this final battle over the estate tax should come as no surprise. ...

Throughout its 100 year history, liberal economists and academics have published considerable amounts of analysis arguing in favor of the estate tax, especially in regard to the economic principle of inequality.  Economic inequality, generally defined as the difference found in various measures of economic well-being, is believed by liberal schools of thought to be one of the greatest economic ills plaguing fairness in American society.  A recent work on the topic of the estate tax and inequality is that of Pepperdine University School of Law Professor and Editor of the most popular tax law blog on the Internet, Paul L. Caron, and Boston College Law School Professor James Repetti.

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January 27, 2017 in Scholarship, Tax | Permalink | Comments (4)

Columbia Journal Of Tax Law Publishes New Tax Matters:  Country By Country Reporting And Corporate Privacy

Columbia Journal of Tax Law LogoThe Columbia Journal of Tax Law has published a new issue of its Tax Matters feature, with three short pieces by tax practitioners responding to a specific cutting-edge tax law issue posed by a tax academic. Reuven S. Avi-Yonah (Michigan), Country by Country Reporting and Corporate Privacy: Some Unanswered Questions , 8 Colum. J. Tax L. Tax Matters 1 (2016):

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January 27, 2017 in Scholarship, Tax | Permalink | Comments (0)

Thursday, January 26, 2017

Mehrotra Presents Japanese And U.S. Resistance To The VAT Today At Duke

Mehrotra (2017)Ajay Mehrotra (American Bar Foundation & Northwestern) presents The VAT Laggards: A Comparative History of Japanese and U.S. Resistance to the Value-Added Tax (with Hiroyasu Nomura (Dokkyo University, Japan)) at Duke today as part of its Tax Policy Workshop Series hosted by Lawrence Zelenak:

Since 1945 the fiscal histories of Japan and the United States have had a great deal in common. Not only have these two advanced industrial nations relied for decades on progressive income taxes as their main source of national revenue; in the process, both countries resisted for many years the global trend towards broad-based consumption taxes. Indeed, until the 1980s, Japan and the United States were among a very small group of highly developed and industrialized nations that avoided the worldwide embrace of the value-added tax (VAT) — one of the most popular forms of broad-based consumption taxes. The Japanese resistance to the VAT ended in 1989. In that year, Japan enacted a VAT and participated in the third and perhaps most widespread phase of VAT adoption across the globe. Yet, the United States has continued to resist this global trend.

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January 26, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (1)

Morse:  Important Developments In Federal Income Taxation

Edward A. Morse (Creighton), Important Developments in Federal Income Taxation (80 pages):

This outline covers significant developments in federal income taxation along with a few other interesting or noteworthy tax topics. It offers a selective treatment of items likely to interest practitioners and advisors within a broad range of professional practices and is not intended to provide comprehensive coverage.

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January 26, 2017 in Scholarship, Tax | Permalink | Comments (1)

Walker:  The Stages Of Tax Exceptionalism

The Surly Subgroup:  The Stages of Administrative Law Exceptionalism, by Christopher J. Walker (Ohio State):

At the American Bar Association’s annual Administrative Law Conference in December, I had the privilege of moderating a panel entitled Your Agency Is Not That Special: The Decline of Administrative Law Exceptionalism. The panel consisted of leading experts on administrative law exceptionalism from three distinct regulatory fields: Jill Family for immigration, Kristin Hickman for tax, and Melissa Wasserman for patent law. ...

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January 26, 2017 in Scholarship, Tax | Permalink | Comments (0)

Wednesday, January 25, 2017

Chodorow Presents The Parsonage Exemption Today At Pepperdine

Chodorow (2014)Adam Chodorow (Arizona State) presents The Parsonage Exemption at Pepperdine today as part of our Tax Policy Workshop Series funded in part by a generous gift from Scott Racine:

The parsonage exemption allows “ministers of the gospel” to exclude the value of housing benefits from income, whether received in-kind or as a cash allowance. Critics argue that the provision is unconstitutional, and the dispute is likely to make it to the Supreme Court. This Article fills an important gap in the debate over the parsonage exemption by offering a nuanced explanation of how it and other housing provisions function within the tax code. Placing the parsonage exemption in its proper tax context makes clear that (1) other tax-free housing provisions and exemptions for religious organizations cannot provide the parsonage exemption constitutional cover; (2) the parsonage exemption involves significantly more entanglement than would the generally applicable housing provision; (3) permitting ministers to receive tax-free housing violates the core tax principles of horizontal and vertical equity; and (4) other exemptions for religious organizations cannot justify the parsonage exemption.

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

Stewart Presents Transnational Tax Law And The Future Of The Tax State Today At Toronto

StewartMiranda Stewart (Australian National University & University of Melbourne) presents Transnational Tax Law and the Future of the Tax State at Toronto today as part of its James Hausman Tax Law and Policy Workshop Series:

There is a growing contemporary literature about transnational law. Until recently this has not been a concept adopted in the tax law context, although there is a substantial literature on international tax law, including in bilateral and multilateral treaties and even suggested as international customary law (Avi-Yonah 2006). Tax law has been a bastion and expression of national sovereignty, funding public goods in the nation state, which developed through the 20th century in many countries as a "tax state". Recently, Genschel and Rixen (2015) proposed and analysed the strengths and limitations of a “transnational legal order” of international tax. This paper asks whether transnational tax law really exists and if so, what does it mean for the tax state? What is the authority and legitimacy of transnational tax law? Who are its legislators, subjects, agents, interpreters and enforcers in national or international spheres?

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

Field:  Fostering Ethical Professional Identity In Tax

Heather M. Field (UC-Hastings), Fostering Ethical Professional Identity in Tax: Using the Traditional Tax Classroom, 8 Colum. J. Tax. L. ___ (2017):

Will a tax lawyer in private practice help taxpayers comply or help taxpayers cheat? Will a government tax lawyer respect or abuse taxpayer rights? Answers to these questions turn, at least in large part, on the lawyer’s ethical professional identity—the lawyer’s philosophy of lawyering, which reflects her values, her sense of responsibility to others, and her self-concept of who she is (and wants to be) as a member of the legal profession. According to recent reports on legal education reform, commentators, and the ABA, law schools must do more to help students develop their ethical professional identities. This is particularly important in tax law, where lawyers’ ethical professional identities can affect compliance and revenue collection, tax morale and taxpayer rights, and the reputation of the tax profession.

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January 25, 2017 in Scholarship, Tax | Permalink | Comments (1)

Speck:  The Social Boundaries Of Corporate Taxation

Sloan G Speck (Colorado), The Social Boundaries of Corporate Taxation, 84 Fordham L. Rev. 2583 (2016):

Historically, the tax law distinction between corporate and conduit treatment drew primarily on doctrinal understandings, treating state-law corporations as corporate for tax purposes and classifying unincorporated legal entities based on their resemblance to conventional state-law corporations. More recently, commentators and Treasury have abandoned these doctrinal touchstones in favor of efficiency, broadly construed, as the guiding principle in determining an entity’s tax classification. This Article argues that, while important, efficiency considerations should not function as the sole arbiter of the boundary between corporate and conduit tax treatment.

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

Tuesday, January 24, 2017

Batchelder Presents Accounting For Behavioral Biases In Business Tax Reform At NYU

BatchelderLily Batchelder (NYU) presented Accounting for Behavioral Biases in Business Tax Reform: The Case of Expensing at NYU yesterday as part of its Tax Policy Colloquium Series hosted by Daniel Shaviro and Rosanne Altshuler:

One of the fundamental questions in business tax reform is whether to allow firms to immediately expense investments or require economic cost recovery. The conventional view is that expensing would generate stronger growth effects holding revenues constant. This view is rooted in traditional models of corporate finance that assume firms look at the net present value of expected tax payments when incorporating taxes into investment decisions. But this traditional view ignores the possibility that firms focus on more salient measures of taxes as well. If so, they may respond less to expensing than this theory suggests because expensing does not lower their financial accounting tax liability and, all else equal, requires a higher statutory rate.

This paper considers whether firms undervalue expensing due to a focus on these non-economic tax metrics and, if so, what this implies about business tax reform if the goal is to increase US investment. It develops a framework for what cost recovery rules are optimal, and then uses new and existing data to parameterize this framework, holding constant long-run revenues and the relative tax treatment of debt and equity. 

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

Speck Presents Expertise And International Tax Norms Today At Georgetown

SpeckSloan Speck (Colorado) presents Expertise and International Tax Norms at Georgetown today as part of its Tax Law and Public Finance Workshop Series hosted by John Brooks and Itai Grinberg:

This paper explores how a particular framework for understanding international taxation — a framework driven by so-called international tax neutrality norms — developed among economists and legal academics in the 1960s and subsequently became entrenched among public-sector policymakers. The neutrality norm framework marks a turn from the instrumental use of international taxation in the 1950s toward an efficiency-oriented approach towards international taxation. Although some scholars question the usefulness of this turn towards efficiency, the neutrality norm framework continues to dominate discussions about international tax policy today. This paper traces the intellectual history of the neutrality norm framework: how it emerged in the late 1950s, and how it became a durable framework for understanding international tax policy.

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

Tax Havens And The Transparency Wave Of International Tax Legislation

Robert T. Kudrle (Minnesota), Tax Havens and the Transparency Wave of International Tax Legislation, 37 U. Pa. J. Int'l L. 1153 (2016):

Tax havens have posed an increasingly important challenge to the world economy, yet they receive little attention in the international economic law and policy literature. This relative neglect springs largely from taxation’s tangential connection with the major structures of international economic governance. But a highly developed treaty regime has been in place for decades. The first wave of legalization aimed at relief from double taxation grew from an influential template for bilateral tax treaties promulgated by the League of Nations and the OECD. Developments outside that regime, particularly the growth of tax havens, generated the need for a second wave that began with a 1998 OECD report proposing cooperative action to combat both tax avoidance and evasion.

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

Speck:  Tax Planning And Policy Drift

Sloan G. Speck (Colorado), Tax Planning and Policy Drift, 69 Tax L. Rev. 549 (2016):

This Article proposes a framework for analyzing how private-sector legal interpretations influence public policy. Political scientists and legal scholars use the terms “bureaucratic drift” and “legislative drift” to describe how administrative agencies and future legislative coalitions affect public policy enacted by Congress. This Article identifies a third category of policy drift: “planning drift.” Planning drift describes deviations from an enacting legislature’s policy preferences that result from private experts’ interpretations of existing law. After Congress enacts a statute, the first people to interpret and apply the new legislation generally are not regulators or judges, but instead are private experts, such as lawyers, acting in the service of their clients. Although these experts’ interpretations do not have legal authority in a formal sense, this Article elaborates mechanisms through which these interpretations shape the course of public policy. Specifically, these interpretations give private experts a first-mover advantage in the interpretation of new legislation and affect the substance of subsequent legislative and bureaucratic interventions. Where private experts’ legal interpretations distort legislative policy preferences, Congress may have an incentive to limit planning drift. From Congress’s perspective, however, planning drift is not always undesirable.

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

Columbia Journal Of Tax Law Publishes New Issue

Columbia Journal of Tax Law LogoThe Columbia Journal of Tax Law has published Vol. 8, No. 1:

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

Monday, January 23, 2017

Holderness Presents The Unexpected Role Of Tax Salience In State Competition For Businesses At Washington U.

Holderness (2017)Hayes Holderness (Illinois VAP, moving to Richmond) presented The Unexpected Role of Tax Salience in State Competition for Businesses, 84 U. Chi. L. Rev. ___ (2017), at Washington University last week as part of its Faculty Workshop Series:

Competition among the states for mobile firms and the jobs and infrastructure they can bring is a well-known phenomenon. However, in recent years, a handful of states have added a mysterious new tool to their kit of incentives used in this competition. Unlike more traditional incentives, these new incentives — which this Article brands “customer-based incentives” — offer tax relief to a firm’s customers rather than directly to the firm. The puzzle underling customer-based incentives is that tax relief provided to the firm’s customers would seem more difficult for the firm to capture than relief provided directly to the firm — strange, as a state’s primary goal is to subsidize the firm’s investment in the state.

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January 23, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Lederman Presents Does Enforcement Crowd Out Voluntary Tax Compliance? Today At Florida

LedermanLeandra Lederman (Indiana-Bloomington) presents To What Extent Does Enforcement Crowd Out Voluntary Tax Compliance? at Florida today as part of its Tax Policy Colloquium Series:

Tax collectors generally use enforcement methods, such as audits and the imposition of penalties, to deter noncompliance with tax laws. Although this approach is consistent with most economic modeling of tax compliance, some scholars caution that enforcement may backfire, “crowding out” taxpayers’ intrinsic motivations to pay taxes to such an extent that they reduce their tax payments. This article analyzes the existing evidence to determine if and when this occurs. Field studies suggest that enforcement tools, such as audits, are effective deterrents, generally greatly increasing tax collections.

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January 23, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Pepperdine Tax Policy Workshop Series (Spring 2017)

Here is the schedule for my Spring 2017 Pepperdine Tax Policy Workshop Series:

I will of course blog each professor's paper on the day of their presentation.  Southern California professors and practitioners are welcome to attend any of the sessions (11:00 a.m. - 12:30 p.m.) — just let me know.

Pepperdine Law School (2016)

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January 23, 2017 in Colloquia, Legal Education, Scholarship, Tax | Permalink | Comments (0)

Sunday, January 22, 2017

The Top 5 Tax Paper Downloads

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

  1. [1,345 Downloads]  Problems with Destination-Based Corporate Taxes and the Ryan Blueprint, by Reuven S. Avi-Yonah (Michigan; moving to UC-Irvine) & Kimberly A. Clausing (Reed College)
  2. [367 Downloads]  A Guide to the GOP Tax Plan — The Way to a Better Way, by David A. Weisbach (Chicago)
  3. [190 Downloads]  Destination-Based Cash-Flow Taxation: A Critical Appraisal, by Wei Cui (British Columbia)
  4. [175 Downloads]  The Right Tax at the Right Time, by Edward Kleinbard (USC)
  5. [133 Downloads]  The Other Eighty Percent: Private Investment Funds, International Tax Avoidance, and Tax-Exempt Investors, by Omri Marian (UC-Irvine)

January 22, 2017 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Saturday, January 21, 2017

Pratt:  The IRS's Startling Arguments In O’Donnabhain

Katherine Pratt (Loyola-L.A.), The Tax Definition of “Medical Care:” A Critique of the Startling IRS Arguments in O’Donnabhain v. Commissioner, 23 Mich. J. Gender & L. 313 (2016):

This Article critiques the startling arguments made by the Internal Revenue Service (“IRS”) in O’Donnabhain v. Commissioner, a case in which the issue was whether a person diagnosed with gender identity disorder (“GID”) could take a federal tax deduction for the costs of male-to-female medical transition, including hormone treatment, genital surgery, and breast augmentation.

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January 21, 2017 in Scholarship, Tax | Permalink | Comments (0)

Friday, January 20, 2017

Weekly SSRN Tax Article Review And Roundup

This week, David Gamage (Indiana) reviews a new article by Linda Sugin (Fordham), Invisible Taxpayers, 69 Tax L. Rev. 617 (2016).

Gamage (2017)Linda Sugin’s new article engages with important problems related to the taxpayer standing doctrine.  Sugin persuasively and powerfully critiques what she calls “the broad no-taxpayer-standing rule” that prevents most taxpayers from accessing the court system to challenge tax benefits awarded to other taxpayers.  As Sugin explains, “the broad no-taxpayer-standing rule” operates even when important constitutional values are at stake and even when tax benefits are awarded through administrative discretion rather than by an act of Congress. 

Sugin partially rests her analysis on arguing that tax fairness consists of more than just economic fairness.  As she elaborates:

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January 20, 2017 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Grewal:  The Foreign Emoluments Clause And The Chief Executive

Following up on Tuesday's post, Can Trump Deduct Donations Of Emoluments To The U.S. Treasury?:  Andy Grewal (Iowa), The Foreign Emoluments Clause and the Chief Executive:

The 2016 Presidential election brought widespread attention to a part of the Constitution, the Foreign Emoluments Clause, that had previously enjoyed a peaceful spot in the dustbin of history. That clause generally prohibits U.S. Officers from accepting "emoluments" from foreign governments, absent Congressional consent. Several commentators believe that President Trump will inevitably run into this prohibition, given the global business dealings of the Trump Organization. They read “emolument” as referring to any payment received from a foreign government, such that a diplomat’s payment of a room reservation fee at the Trump Hotel establishes a potentially impeachable offense.

This Article argues that the commentators have interpreted emoluments far too broadly. Numerous legal authorities show that that term, as used in the Foreign Emoluments Clause, refers to payments from a foreign government made in connection with the performance of services (office-related payments), rather than any and all payments from a foreign government.

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

Thursday, January 19, 2017

Bankman Presents The Global Battle To Capture MNE Profits Today At Duke

Bankman (2016)Joseph Bankman (Stanford) presents Collecting the Rent: The Global Battle to Capture MNE Profits (with Mitchell Kane (NYU) & Alan O. Sykes (Stanford)) at Duke today as part of its Tax Policy Workshop Series hosted by Lawrence Zelenak:

This paper explores the various tools available to jurisdictions in their quest to capture MNE rents. As we shall see the arsenal is an expansive one, including various forms of income and consumption taxation, government purchasing programs, price regulation, antitrust, and common trade instruments such as tariffs or quotas. ...

The paper is organized as follows. In part I we define terms and outline some legally relevant sources of MNE economic rent. Part II covers the basic descriptive analysis of how jurisdictions may seek to capture economic rent through the tax system. To aid analysis here we will work with three stylized, illustrative MNEs, which we will refer to simply as Computer, Pharma, and Coffee. These are meant to capture in a simple way the fact that MNE rents are likely to have different origins across different sectors and that different sectors are thus likely to present different challenges to jurisdictions seeking to capture such rents.

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

Hemel Presents Federalism As A Safeguard Of Progressivity Today At Indiana

HemelDaniel Hemel (Chicago) presents Federalism as a Safeguard of Progressivity at Indiana-Bloomington today as part of its Tax Policy Colloquium Series hosted by Leandra Lederman:

This article considers the distributional consequences of the Supreme Court’s federalism jurisprudence over the past quarter century, focusing specifically on the anti-commandeering and state sovereign immunity doctrines. The first of these doctrines prevents Congress from compelling the states to administer federal programs; the second prohibits Congress from abrogating state sovereign immunity outside a limited class of cases. Each of these doctrines vests the states with a valuable entitlement protected by a property rule and allows the states to sell the entitlement back to Congress for a price. In this respect, the doctrines have an intergovernmental distributional effect, shifting wealth from the federal government to the states.

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

Blair-Stanek:  Just Compensation As Transfer Prices

Andrew Blair-Stanek (Maryland), Just Compensation as Transfer Prices, 58 Ariz. L. Rev. 1077 (2016):

This Article proposes using eminent domain to fight both transfer-pricing abuse and the deadweight losses created by intellectual property. IP creates deadweight losses, because the exclusive rights granted to IP owners allow them to charge higher prices that keep some customers out of the market entirely. IP also allows multinational corporations to avoid taxes on a massive scale, by transferring their IP to tax havens for artificially low prices.

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

Shu-Yi Oei Leaves Tulane For Boston College

OeiShu-Yi Oei, Hoffman F. Fuller Professor of Tax Law at Tulane, has accepted a lateral offer from Boston College, beginning Fall 2017. Here are Shu-Yi's recent publications:

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January 19, 2017 in Legal Education, Scholarship, Tax, Tax Prof Moves | Permalink | Comments (1)

Wednesday, January 18, 2017

Rostain Presents Lessons From The Tax Shelter Wars At University Of British Columbia

RostainTanina Rostain (Georgetown) delivered the J. Donald Mawhinney Lectureship in Professional Ethics at the University of British Columbia Allard School of Law on Lessons from the Tax Shelter Wars: Tax Advice, Organizational Wrongdoing, and Enforcement Challenges:

The turn of the 21st Century saw the development of an enormous tax shelter industry in the United States. Aided by prestigious law firms, tax professionals at major accounting firms — including KPMG, Ernst & Young, and PricewaterhouseCoopers — created a widespread market in abusive shelters, which allowed corporate and individual taxpayers to eliminate billions of dollars in taxes owed. As tax shelter activity proliferated, government authorities were faced with increasingly complex regulatory challenges and were ultimately forced to resort to criminal prosecutions to stem the tide of tax shelter activity.

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January 18, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Call For Proposals: Association For Mid-Career Tax Law Professors

The Association for Mid-Career Tax Law Professors (“AMT”) has issued a Call for Proposals:

MCThe AMT organizing committee — Jennifer Bird-Pollan (Kentucky), Miranda Fleischer (San Diego), Will Foster (Arkansas), Brian Galle (Georgetown), and Susie Morse (Texas) — welcomes proposals for our annual conference.

AMT is a recurring conference intended to bring together relatively recently-tenured professors of tax law for frank and free-wheeling scholarly discussion. Our third annual meeting will be held on Monday and Tuesday, May 22 and 23, 2017, on the campus of the University of Arkansas School of Law in Fayetteville, Arkansas. We’ll begin early on Monday and adjourn by noon on Tuesday.

2015 Conference at Ohio State (Day 1, Day 2)
2016 Conference at UC-Davis (Day 1, Day 2)

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January 18, 2017 in Conferences, Scholarship, Tax | Permalink | Comments (1)

Tax Policy Center:  Are Entrepreneurs Overtaxed?

Tax Polcy Center Logo (2017)Tax Policy Center, Are Entrepreneurs Overtaxed?:

Entrepreneurs play a critical role in developing new products, inventing new production techniques, creating jobs, and strengthening our economy. As lawmakers focus on tax reform, it is timely to ask whether America’s tax system treats entrepreneurs appropriately and whether reforms could improve economic performance.

Policy discussions often emphasize how taxes affect incentives to work, save, invest, innovate, and launch new ventures. Because successful entrepreneurs sometimes amass substantial wealth, discussions also consider how the tax burden is shared across people of different means. These considerations are important, but incomplete. Policymakers should also consider the special characteristics of income from entrepreneurial activity.

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January 18, 2017 in Conferences, Scholarship, Tax | Permalink | Comments (1)

Sunday, January 15, 2017

The Top 5 Tax Paper Downloads

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

  1. [603 Downloads]  Problems with Destination-Based Corporate Taxes and the Ryan Blueprint, by Reuven S. Avi-Yonah (Michigan; moving to UC-Irvine) & Kimberly A. Clausing (Reed College)
  2. [334 Downloads]  IRS Issues Final and Temporary Debt-Equity Regulations Under Section 385, by David S. Miller (Proskauer, New York) & Janicelynn Asamoto Park (Proskauer, New York)
  3. [316 Downloads]  A Guide to the GOP Tax Plan — The Way to a Better Way, by David A. Weisbach (Chicago)
  4. [166 Downloads]  The Right Tax at the Right Time, by Edward Kleinbard (USC)
  5. [149 Downloads]  Protecting Trump's $916 Million of NOLs, by Steve Rosenthal (Tax Policy Center)

January 15, 2017 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, January 13, 2017

Weekly SSRN Tax Article Review And Roundup

This week, Ari Glogower (Ohio State) reviews a new article by Omri Marian (UC-Irvine), The Other Eighty Percent: Private Investment Funds, International Tax Avoidance, and Tax-Exempt Investors, BYU L. Rev (forthcoming 2016).

Glogower (2016)Omri Marian’s new work highlights the role of private investment funds (“PIFs”) in international tax planning and avoidance by PIF-controlled multinational enterprises (“MNEs”).  Marian argues that PIFs active in cross-border investments can take advantage of tax planning opportunities unavailable to purely domestic funds, and provides evidence that PIF-controlled MNEs are more likely to engage in aggressive planning.  Consequently, income earned by PIFs can more readily escape taxation entirely, in both the source jurisdiction where investments are made, and in the residence jurisdiction of investors and managers.   

This groundbreaking work lies at the intersection of two literatures, on cross-border tax planning by MNEs, and on the taxation of PIFs, and fills critical gaps in both.  The MNE literature, Marian notes, generally focuses on tax planning by corporate MNEs, particularly in industries with mobile IP such as technology and pharmaceuticals, but not on the role of investor and PIFs in MNE tax planning.  Marian’s work also calls for (and makes significant strides towards) a broader account of the full scope PIF tax planning activities, beyond traditional areas of concern such as manager compensation and carried interest. 

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January 13, 2017 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Batchelder:  Fixing The Estate Tax

Democracy Logo (2018)Democracy: A Journal of Ideas: Fixing the Estate Tax, by Lily Batchelder (NYU):

Liberals and conservatives have long disagreed about how much economic inequality is fair. But one thing they generally share is a vision of America as a land of opportunity—a nation where, at least compared to other countries, one’s financial success should depend relatively little on the circumstances of one’s birth. To be sure, we have had, and continue to have, great failings in this regard, with slavery and disenfranchisement just two conspicuous examples. But as President Obama has said, “What makes us Americans is our shared commitment to an ideal—that all of us are created equal, and all of us have the chance to make of our lives what we will.”

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

Thursday, January 12, 2017

Morse Presents Entrepreneurship Incentives For Resource-Constrained Firms Today At Duke

Morse (2017)Susan Morse (Texas) presents Entrepreneurship Incentives for Resource-Constrained Firms at Duke today as part of its Tax Policy Workshop Series hosted by Lawrence Zelenak:

How should entrepreneurship and innovation policy account for the fact that different firms have different access to capital? The firms that can more easily claim tax and other legal incentives targeted at encouraging innovation are often large established firms with ready access to capital. But there is no reason to think that large, established firms are best suited to the pursuit of entrepreneurial goals. To the contrary, new firms, such as resource-constrained startups, may have an advantage when it comes to pursuing entrepreneurship and innovation.

The typical resource-constrained firm considered in this chapter is a new, loss-making firm. Legal incentives, including tax incentives, for entrepreneurial action often offer a deal that is unappealing to such a firm. This is because such incentives often require an up-front investment in exchange for a delayed, uncertain payoff.  A firm must expend resources to respond to the law. But the legal incentives often do not offer any definite benefit, let alone any immediate benefit, in exchange for the up-front expenditure. ...

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

Sugin:  Invisible Taxpayers

Linda Sugin (Fordham), Invisible Taxpayers, 69 Tax L. Rev. 617 (2017):

The paradigm tax dispute involves a taxpayer on one side and the government on the other. In that traditional dyad, only the taxpayer matters, even though the interrelatedness of taxpayers across the fiscal system means that the outcome of any one dispute often affects the interests of many other taxpayers. Yet everyone else is invisible to the legal system, without enforceable rights in the administrative or judicial structure. This article focuses attention on such invisible taxpayers and what justice for them would require. It proposes a theory of tax injury that is determined by “legal shares” and argues that conventional standing doctrine can accommodate broader taxpayer access if courts acknowledge the financial interrelatedness of taxpayers. Invisibility deprives taxpayers of both economic fairness (a traditional tax policy norm) and democratic fairness (a norm requiring tax institutions to treat people with equal respect and concern). This article explains how the Supreme Court has turned tax expenditures into invisible laws. It evaluates tax expenditures as tax law, challenging the standard scholarly approach that assumes tax expenditures should be not only economically, but also legally, equivalent to direct spending programs.

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

Hasen:  A Partnership Mark-To-Market Tax Election

David Hasen (Colorado), A Partnership Mark-to-Market Tax Election:

The rules of subchapter K of the Internal Revenue Code impose substantial compliance burdens on partnerships and substantial administrative burdens on the government. These burdens could make the option to have periodic deemed realizations of gains and losses on partnership assets attractive to many partnerships. Although deemed realizations would impose valuation costs and a slightly higher expected tax liability for partners than they bear under current law, for many partnerships, the tradeoff likely would prove worthwhile, especially if partners could continue to take advantage of the long-term capital gain preference for gains that would be taxed at preferential rates in the absence of deemed realizations.

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

Nurturing The Law Student’s Soul: Law Schools Struggle To Teach Professionalism In an Age of Consumerism

Elizabeth Adamo Usman (Belmont), Nurturing the Law Student’s Soul: Why Law Schools Are Still Struggling to Teach Professionalism and How to Do Better in an Age of Consumerism, 99 Marq. L. Rev. 1021 (2016):

The pronounced increase over the past few decades of the role of consumerism in higher education in general and in law schools specifically, in which schools and students view themselves, respectively, as consumers and sellers of an educational product, has only been accelerated in recent years with the competition over the declining number of potential entering law students. With no end to this trend in site, consumerism appears to have become a part of the reality of legal education.

This Article explores the intersection of consumerism and professionalism in the law school setting with a specific focus on the “Millennial” law student. This Article first explores the contours of what constitutes “professionalism,” concluding that at essence it involves aspirational values of the legal profession. The Article also delineates the unique characteristics of law students from the Millennial generation, focusing on Millennials’ penchant for service and desire for greater meaning through work.

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January 12, 2017 in Legal Education, Scholarship | Permalink | Comments (0)

Wednesday, January 11, 2017

At The Universities Of Michigan And Virginia, Faculty Salaries Are Tied To Research Productivity, Not The Number Of Students Taught—And That's A Good Thing

Inside Higher Ed, Study Explores How Universities Deploy Faculty and Link Professor Pay:

A common criticism of the faculty reward system is that it tends to value research over teaching. A just-released working paper from the National Bureau of Economic Research offers new evidence in support of that contention, suggesting that the number of students a professor teaches has relatively little to do with their compensation [Paul N. Courant (Michigan) & Sarah Turner (Virginia), Faculty Deployment in Research Universities].

Disciplines with bigger class sizes do tend to offer better pay. But the highest-paid faculty members within departments tend to teach fewer undergraduates and fewer undergraduate courses than their lower-paid colleagues. The paper also suggests that changes in faculty pay over time have more to do with discipline than number of students taught, and that universities adjust to various cost pressures by increasing class size and other means.

Yet the paper asserts that universities behave “rationally” in making such decisions, and suggests that prizing research output over teaching doesn’t necessarily affect educational quality. Over all, the paper seems to dispute assertions that higher education spending -- at least on instruction -- is wasteful or inefficient.

Figure 5A

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January 11, 2017 in Legal Education, Scholarship | Permalink | Comments (1)

The Course Source: The Casebook Evolved

Stephen Johnson (Mercer), The Course Source: The Casebook Evolved, 44 Cap. U. L. Rev. 591 (2016)

Psychologist Abraham Maslow once noted that “it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” Law students are changing, law schools are criticized for failing to prepare practice-ready lawyers, and there is nearly universal consensus that legal education must transform. However, the principal tool that many faculty rely on to prepare their courses, the Langdellian casebook, is ill-suited for the transformation. The prototypical casebook that is still the standard for many courses today was designed for the Socratic dialogue and case method mode of instruction. While there is still a place for that method of instruction in legal education, other methods of instruction, the carriage bolts and lag screws of modern legal education, cannot be hammered down with the traditional casebook.

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January 11, 2017 in Legal Education, Scholarship, Teaching | Permalink | Comments (1)

Nguyen & Maine:  Branding Taxation

Xuan-Thao Nguyen (Indiana-Indianapolis) & Jeffrey A. Maine (Maine), Branding Taxation, 50 Ga. L. Rev. 399 (2016):

Brand advertising and enforcement represent a significant investment by most firms. Yet, surprisingly, little scholarship is devoted to the ideal tax regime that should govern investments in both brand building and brand enforcement. Current tax rules governing branding evolved in the absence of an appropriate legal framework. The result is a regime with incoherent tax distinctions that lack theoretical justification, suggesting that legislative or administrative changes are warranted. This Article concludes that the current tax treatment of ordinary brand advertising (expensing) serves legitimate goals--expensing stimulates economic growth, furthers administrative efficiency, and creates an even playing field between businesses that advertise their own brands and businesses that choose instead to license from others the right to use well-known trademarks.

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January 11, 2017 in Scholarship, Tax | Permalink | Comments (0)

Tuesday, January 10, 2017

White:  Cost Sharing Agreements And The Arm's Length Standard

Florida Tax Review  (2015)Sienna Carly White (Jones Day, Cleveland), Cost Sharing Agreements & The Arm's Length Standard: A Matter of Statutory Interpretation?, 19 Fla. Tax Rev. 191 (2016):

The arm’s length standard has been the touchstone of international transfer pricing and Internal Revenue Code Section 482 for the better part of a century, but its relevance is under scrutiny. A growing consensus among the international community suggests the arm’s length standard is no longer adequate to accurately and fairly tax the multinational enterprises that make up the modern global economy. In this paper, I examine the implications of the Xilinx saga and conclude that both the Ninth Circuit and the IRS were incorrect: the arm’s length standard should function as a legal principle, with explicit exceptions, rather than as a legal rule.

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January 10, 2017 in Scholarship, Tax | Permalink | Comments (0)

Brooks:  Quasi-Public Spending

John R. Brooks (Georgetown), Quasi-Public Spending, 104 Geo. L.J. 1057 (2016):

The United States has increasingly designed certain public spending programs not as traditional tax-financed programs, but rather as mixtures of private expenditures, subsidies, and limited taxes. Thus part of what could have gone to the government as a tax is instead used to purchase the good or service directly, with only incremental taxes and subsidies to manage distributional goals. This Article terms this “quasi-public spending,” and argues that it is descriptive of our evolving approaches to both health care and higher education.

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January 10, 2017 in Scholarship, Tax | Permalink | Comments (0)

Merritt:  What Happened To The Law School Class Of 2010?

Deborah Jones Merritt (Ohio State), What Happened to the Class of 2010? Empirical Evidence of Structural Change in the Legal Profession, 2015 Mich. St. L. Rev. 1043:

Poor employment outcomes have plagued law school graduates for several years. Legal scholars have debated whether these outcomes stem from macroeconomic cycles or from fundamental changes in the market for legal services. This Article examines that question empirically, using a database of employment outcomes for more than 1,200 lawyers who received their JDs in 2010. The analysis offers strong evidence of structural shifts in the legal market. Job outcomes have improved only marginally for the Class of 2010, those outcomes contrast sharply with results for earlier classes, and law firm jobs have dropped markedly. In addition to discussing these results, the Article examines correlations between job outcomes and gender, law school prestige, and geography. In a concluding section, it offers four predictions about the future of the legal market and the economics of legal education.

Table 4A

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January 10, 2017 in Legal Education, Scholarship | Permalink | Comments (4)

Monday, January 9, 2017

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

Florida Tax Review  (2015)Romero Tavares, Bret Bogenschneider & Marta Pankiv (Vienna University), The Intersection of EU State Aid and U.S. Tax Deferral: A Spectacle of Fireworks, Smoke, and Mirrors, 19 Fla. Tax Rev. 121 (2016):

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

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