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Wednesday, May 6, 2015

Preparing The Online Generation For The Occupational Hazards Of The Legal Profession

Brittany Stringfellow Otey (Pepperdine), Buffering Burnout: Preparing the Online Generation for the Occupational Hazards of the Legal Profession, 24 S. Cal. Interdisc. L.J. 147 (2014):

OnlineThis article explores legal education’s “elephant in the classroom”: the innate psychological toll of the legal profession and legal education’s failure to adequately prepare law students for that reality. This article will address the increasing need for reform by: 1) examining several unique qualities of Millennials and their use of technology; 2) exploring the occupational hazards of lawyering, namely stress, burnout and compassion fatigue; 3) identifying the ways in which technology increases Millennials’ vulnerability to these occupational hazards and subsequent professional impairments; and 4) providing best practices and preventative tools to be used in a professional formation curriculum aimed at preparing Millennial students to thrive in legal practice.

May 6, 2015 in Legal Education, Scholarship | Permalink | Comments (0)

Tuesday, May 5, 2015

Polsky Presents Private Equity Tax Games Today At NYU

Polsky (2015)Gregg D. Polsky (North Carolina) presents A Compendium of Private Equity Tax Games at NYU today as part of its Tax Policy Colloquium Series hosted by Daniel Shaviro and Alan Viard:

This paper will describe and analyze tax strategies, lawful and unlawful, used by private equity firms to minimize taxes. While one strategy — the use of “carried interest” — should by now be well understood by tax practitioners and academics, the others remain far more obscure. In combination, these strategies allow private equity managers to pay preferential tax rates on all of their risky pay (through carried interest), pay preferential tax rates on much of their non-risky pay (through management fee waivers and misallocations of their expense deductions), and push much of the residual non-risky pay down to their funds’ portfolio companies who, unlike the fund, can derive significant tax benefits from the resulting deductions (through monitoring fees and management fee offsets).

May 5, 2015 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Soled Reviews Zelenak's Learning To Love Form 1040

Learning to Love 1040Jay A. Soled (Rutgers), Book Review, 87 Temp. L. Rev. 111 (2014) (reviewing Lawrence Zelenak (Duke), Learning to Love Form 1040: Two Cheers for the Return-Based Mass Income Tax (University of Chicago Press, 2013)): 

For the last several decades, a few days immediately before and on April 15 itself, our country has experienced an annual ritual as taxpayers nationwide form long lines at their local post offices to file their income tax returns. Akin to military service, undoubtedly few relish this obligation but recognize it as their civic obligation worthy of fulfillment. In a fascinating new book, Learning to Love Form 1040, published by the University of Chicago Press, Duke University School of Law professor Lawrence Zelenak details the origins of this obligation, traces its history, and explores how it has fostered what he terms fiscal citizenship, or “the important civic purpose of recognizing and formalizing the financial responsibilities of citizenship.”

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May 5, 2015 in Book Club, Scholarship, Tax | Permalink | Comments (2)

Clark: Thoughts On The Uses (Or Uselessness) Of Legal Scholarship

Sherman J. Clark (Michigan), Drawing (Gad) Flies: Thoughts on the Uses (or Uselessness) of Legal Scholarship, 48 U. Mich. J.L. Reform ___ (2015):

The apparent uselessness of much legal scholarship is a recurring theme in the profession. As with the broader pressures law schools are facing, we should embrace and learn from this scrutiny. In that spirit, this brief essay makes two related points. First, at least some scholarship should question, rather than merely accept as given, the aims and priorities of the profession. We should be willing to rethink, rather than merely reflect, current assumptions about what matters — about what is or is not truly useful. Thus some of our work will, by definition, initially strike the profession as useless — at least if we are doing our job. Second, support for a certain amount of wide-ranging scholarship attracts and helps retain law teachers who are willing and able to do this sort of work — and who are thus able to help future members of the profession develop that same capacity. How we evaluate this latter consideration will depend on our views about who should be teaching law and what we should be teaching. In this way, responding thoughtfully to difficult questions from the profession about the value of our scholarship should prompt reflection not just about the uses of legal research but about the aims of legal education more broadly.

May 5, 2015 in Scholarship, Tax | Permalink | Comments (0)

Monday, May 4, 2015

Thomas Reviews Avi-Yonah's Corporate Taxation and Corporate Social Responsibility

Jotwell Kathleen DeLaney Thomas (North Carolina), Do Corporate Managers Have a Duty to Avoid Taxes? (Jotwell) (reviewing Reuven S. Avi-Yonah (Michigan), Just Say No: Corporate Taxation and Corporate Social Responsibility, 12 NYU J. L. & Bus. __ (2015):

The recent wave of corporate inversion transactions, in which domestic companies essentially move their headquarters abroad to lower their U.S. tax bill, is just the latest in a decades-long trend of aggressive tax avoidance behavior by corporations. From the government’s perspective, inversions and other tax avoidance strategies erode the U.S. tax base and impose a costly enforcement challenge on Treasury and the IRS. But from the perspective of corporate managers, aggressive tax planning may simply be part of the corporation’s duty to maximize shareholder value. Reuven Avi-Yonah questions this latter proposition in Just Say No: Corporate Taxation and Corporation Social Responsibility. He offers a compelling argument that corporate managerial duties are not hopelessly at odds with the goal of promoting better corporate tax compliance.

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May 4, 2015 in Scholarship, Tax | Permalink | Comments (0)

Taxpayer Standing In International Tax Disputes

Limor Riza (Carmel Academic Center, Haifa, Israel), Taxpayers’ Lack of Standing in International Tax Dispute Resolutions: An Analysis Based on the Hybrid Norms of International Taxation, 34 Pace L. Rev. 1064 (2014):

This paper examines whether a taxpayer should have “standing” in international dispute resolutions. To answer this question the primary task is to identify the nature of international taxation. In other words, this paper discusses how to classify the field of international taxation. Is it part of public international law, private international law (i.e., conflict of laws), national (domestic) law, or is it a hybrid field that requires specific attention? Making this distinction is vital for resolving disputes when a taxpayer is taxed twice for cross-border transactions in cases where the double tax convention is unclear and both contracting states claim full or partial tax on accrued income.

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May 4, 2015 in Scholarship, Tax | Permalink | Comments (0)

Tax Policy And The Invisible Hand Of God

We Are Better Than This (2014)Huffington Post:  The Invisible Hand of God, by Jim Burklo (Associate Dean of Religious Life, USC):

The United States has the highest poverty rate, the greatest income inequality, and the greatest wealth inequality of any major developed economy in the world. Edward Kleinbard, We Are Better Than This: How Government Should Spend Our Money (Oxford University Press, 2014) (p 98).

America ought to be better than these statistics imply. It's time for us to live up to the moral values espoused so long ago by Adam Smith. The real Adam Smith, that is.

I've just finished a dense but important and surprisingly readable book by a University of Southern California professor of tax law, Ed Kleinbard. I had the privilege of enjoying a vegetarian lunch with him last week at USC's Good Karma Cafe. He was eager for me to do what I could in the faith community to spread the message of his recent book. And I'm eager to do so, because there is good theology lurking amid the wonky details of tax and spending policy in We Are Better Than This.

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May 4, 2015 in Book Club, Scholarship, Tax | Permalink | Comments (3)

Sunday, May 3, 2015

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 a new #1 paper and new papers debuting on the list at #4 and #5:

  1. [247 Downloads]  Can Sharing Be Taxed?, by Shu-Yi Oei (Tulane) & Diane M. Ring (Boston College)
  2. [199 Downloads]  Using the 'Smart Return' to Reduce Tax Evasion, by Joseph Bankman (Stanford), Clifford Nass (Stanford) & Joel Slemrod (Michigan)
  3. [188 Downloads]  The Historical Origins of the Debt-Equity Distinction, by Camden Hutchison (Wisconsin)
  4. [171 Downloads]  Scholarship Against Desire, by Shari Motro (Richmond)
  5. [126 Downloads]  Fairness and Taxation in a Globalized World, by Sigrid Hemels (Eramus)

May 3, 2015 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, May 1, 2015

Barry Presents Tax Regulation, Transportation Innovation, and the Sharing Economy Today at Georgia

BarryJordan M. Barry (San Diego) presents Tax Regulation, Transportation Innovation, and the Sharing Economy, 82 U. Chi. L. Rev. Dialogue 69 (2015) (with Paul L. Caron (Pepperdine)) at the 6th Annual Meeting of the Association for Law, Property & Society (ALPS) today at the University of Georgia School of Law:

Many emerging companies’ business models center on helping consumers to share assets in new ways. This “sharing economy” has already experienced tremendous growth and attracted considerable investment capital and talent. Yet, as is often the case with economic innovations, existing regulatory structures have hindered the growth of the sharing economy, reducing its popularity and slowing its development.

This Article explores the tension between innovation and regulation, both in general and in a specific context: the intersection of the transportation sector of the sharing economy and the qualified transportation fringe benefit rules of Internal Revenue Code Section 132.

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May 1, 2015 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Weekly SSRN Tax Roundup

Weekly Student Tax Notes Roundup

May 1, 2015 in Scholarship, Tax, Weekly Student Tax Note Roundup | Permalink | Comments (0)

Thursday, April 30, 2015

Davis: Mapping the Families of the Internal Revenue Code

Tessa R. Davis (South Carolina), Mapping the Families of the Internal Revenue Code, 22 Va. J. Soc. Pol'y & L. 179 (2015):

The Tax Code contains not one, but two conceptions of family. Existing scholarship does not address this puzzle but instead takes one of two views on the family—either the family is a tool for avoiding taxes or it is a source of discrimination. Current scholars, motivated by the discrimination concern, reject the relevance of kinship to tax and argue for an increased focus on the individual. This Article takes a different approach. Utilizing the “status” and “contract” distinctions familiar to family law scholars, it explains the puzzle of the multiple families in the Code, identifying the two families of the Code and their respective functions.

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April 30, 2015 in Scholarship, Tax | Permalink | Comments (0)

Nussim & Tabbach: Tax-Loss Mechanisms

Jacob Nussim (Bar-Ilan University) & Avraham Tabbach (Tel-Aviv University), Tax-Loss Mechanisms, 81 U. Chi. L. Rev. 1509 (2014):

Business losses are a persistent reality and far from an insignificant economic phenomenon. They are disruptive for businesses and burdensome for tax authorities. This Article builds a theory of tax-loss-mechanism design and discusses its normative implications. Although income-tax laws in the United States and else-where conclusively adopt a loss-offset mechanism, economists often advocate that losses be governed by a tax-refundability regime. Tax scholars, on the other hand, largely ignore the question of the desirable tax-loss mechanism.

This Article constructs and applies an economic framework for analyzing three prominent tax mechanisms for the treatment of losses: offset, refundability, and transferability. The economic theory that we develop yields several new insights and results. We show that all three tax mechanisms diverge primarily by legal design choices rather than by any inherent feature, and therefore, contrary to the common understanding in the literature, any normative choice can be imple-mented through any of the three, setting aside implementation costs. The commonly perceived differences among these tax mechanisms are erroneously grounded in observations of existing tax rules; this has prevented scholars from envisioning a redesign according to policy preferences.

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April 30, 2015 in Scholarship, Tax | Permalink | Comments (0)

Blum: Migrants With Retirement Plans

Florida Tax ReviewCynthia A. Blum (Rutgers-Newark), Migrants with Retirement Plans: The Challenge of Harmonizing Tax Rules, 17 Fla. Tax Rev. 1 (2015):

Many countries seek to encourage retirement savings for their residents by offering tax preferences for privately-operated "qualified retirement plans." These tax preferences generally take the form of delaying taxation of contributions made to the plan and of the earnings thereon until funds are withdrawn by the participant during retirement. In a few cases, countries instead tax contributions immediately but forgo further tax. Because these rules encompass the tax treatment to be accorded throughout an individual’s lifetime, the individual is able to plan for retirement with some assurance of the eventual tax consequences. However, in recent years, it has become increasingly likely that an individual who has accumulated qualified retirement savings in one country will later migrate and retire in another country and, as a result, face unexpected tax consequences.

This Article examines (1) the tax rules commonly applied by the country of emigration in order to maintain its ability to tax a departing participant in a qualified plan, and (2) the tax rules commonly applied by the country of immigration when its new resident has accumulated savings in another country’s qualified plan. The Article then analyzes how the interaction of the two countries’ rules may lead to inappropriate tax consequences and administrative burdens. In addition, it considers the various ways that bilateral treaties and model tax treaties seek to ameliorate these concerns.

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April 30, 2015 in Scholarship, Tax | Permalink | Comments (0)

Fleming, Peroni & Shay: Formulary Apportionment in the U.S.

J. Clifton Fleming (BYU), Robert J. Peroni (Texas) & Stephen E. Shay (Harvard), Formulary Apportionment in the U.S. International Income Tax System: Putting Lipstick on a Pig?, 36 Mich. J. Int'l L. 1 (2015):

Perhaps surprisingly, this Article has shown that the debate over formulary apportionment is little more than an alternative path to the larger debate over worldwide taxation versus territorial taxation. The present U.S. international income tax regime for U.S. MNEs is an implicit, overly-generous, and incoherent quasi-territorial system that relies on residence rules, source rules, and the arm’s-length approach to apportion international business profits between domestic income that is currently taxable by the United States and foreign income that is effectively exempt, or nearly so, from U.S. taxation because of deferral and cross-crediting. This version of territoriality is quite ugly because it is highly complex and it imposes only modest restraints on the ability of U.S. MNEs to shift income out of the U.S. tax base to low-tax foreign countries.

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April 30, 2015 in Scholarship, Tax | Permalink | Comments (0)

Wednesday, April 29, 2015

Tax Compliance As A Wicked System

WickedJ. T. Manhire (U.S. Treasury Department), Tax Compliance as a Wicked System:

This paper proposes a new typology and framework for tax compliance systems. Traditionally-competing approaches such as deterrence theory, behaviorist theory, and game theoretic models taken together suggest that tax compliance is perhaps a new type of system — a “wicked system” — that is only partially comprehensible by understanding the traditional theories alone. If correct, previously competing theories become simply different limiting cases of the same underlying “wicked system.” The paper concludes with a discussion of the framework’s limitations and presents initial solutions and challenges for future work.

April 29, 2015 in Scholarship, Tax | Permalink | Comments (0)

Why Don't Law Professors Play Well With Others?

PlayMichael I. Meyerson (Baltimore), Law School Culture and the Lost Art of Collaboration: Why Don't Law Professors Play Well with Others?, 93 Neb. L. Rev. 547 (2015):

I have an Erdős number. Specifically, I have an Erdős number of 5. For the uninitiated, the concept of an “Erdős number” was created by mathematicians to describe how many “degrees of separation” an author of an article is from the great mathematician Paul Erdős. If you coauthored a paper with Erdős, you have an Erdős number of 1. If you coauthor a paper with someone with an Erdős number of 1, you have earned an Erdős number of 2. Coauthoring a paper with someone with an Erdős number of 2 gives you an Erdős number of 3, and so on.

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April 29, 2015 in Legal Education, Scholarship | Permalink | Comments (0)

Call for Papers: Global Conference on Environmental Taxation

16th

The 16th Global Conference on Environmental Taxation to be held in Sydney, Australia  on September 23-26, 2015 has issued a Call for Papers:

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April 29, 2015 in Conferences, Scholarship, Tax, Tax Faculty Metro Area Rankings | Permalink | Comments (0)

Tuesday, April 28, 2015

Schizer Presents Energy Tax Expenditures Today at NYU

Schizer (2016)David M. Schizer (Columbia) presents Energy Tax Expenditures: Worthy Goals, Competing Priorities, and Flawed Institutional Design at NYU today as part of its Tax Policy Colloquium Series hosted by Daniel Shaviro and Alan Viard:

Part I outlines the environmental, national security, and economic goals of energy tax expenditures.  Part II discusses how empirical uncertainty and heterogeneity complicate efforts to pursue these objectives.  Part III considers challenges that arise because of conflicts in our goals.  Part IV canvasses the political economy advantages of subsidies over Pigouvian taxes, and offers suggestions about how to make Pigouvian taxes more politically palatable.  Part V surveys five institutional design challenges that arise under currently law – most of which are more acute with subsidies than with Pigouvian taxes – and offers suggestions about how to mitigate them.  Part VI is the conclusion.

April 28, 2015 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Symposium: The 100th Anniversary of the Income Tax

NYLSSymposium, The 100th Anniversary of the Revenue Act of 1913: Marking a Century of Income Tax Law in the United States, 59 N.Y.L. Sch. L. Rev. 261-420 (2014):

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April 28, 2015 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Are PILOTs Property Taxes for Nonprofits?

Fan Fei (Michigan), James R. Hines Jr. (Michigan) & Jill R. Horwitz (UCLA), Are PILOTs Property Taxes for Nonprofits?:

Nonprofit charitable organizations are exempt from most taxes, including local property taxes, but U.S. cities and towns increasingly request that nonprofits make payments in lieu of taxes (known as PILOTs). Strictly speaking, PILOTs are voluntary, though nonprofits may feel pressure to make them, particularly in high-tax communities. Evidence from Massachusetts indicates that PILOT rates, measured as ratios of PILOTs to the value of local tax-exempt property, are higher in towns with higher property tax rates: a one percent higher property tax rate is associated with a 0.2 percent higher PILOT rate. PILOTs appear to discourage nonprofit activity: a one percent higher PILOT rate is associated with 0.8 percent reduced real property ownership by local nonprofits, 0.2 percent reduced total assets, and 0.2 percent lower revenues of local nonprofits. These patterns are consistent with voluntary PILOTs acting in a manner similar to low-rate, compulsory real estate taxes.

April 28, 2015 in Scholarship, Tax | Permalink | Comments (2)

Monday, April 27, 2015

Ryan Receives St. Louis Faculty Scholarship Award

RyanCongratulations to Kerry Ryan (St. Louis), who received the St. Louis Law School Faculty Award For Exceptional Legal Scholarship today for her article, EITC as Income (In)Stability?, 14 Fla Tax Rev. 583 (2014):

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April 27, 2015 in Legal Education, Scholarship, Tax | Permalink | Comments (0)

Carter: A Critique of Charitable Bequests

Elizabeth R. Carter (LSU), Tipping the Scales in Favor of Charitable Bequests: A Critique, 34 Pace L. Rev. 983 (2014):

This paper considers the public policy favoring testamentary bequests to charity and offers a critique of that policy.

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April 27, 2015 in Scholarship, Tax | Permalink | Comments (0)

Sunday, April 26, 2015

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 a new #1 paper and new papers debuting on the list at #4 and #5:

  1. [271 Downloads]  The U.S. Foreign Account Tax Compliance Act: American Legal Imperialism?, by Bruce W. Bean (Michigan State) & Abbey Wright Farnsworth
  2. [252 Downloads]  Recent Developments in Federal Income Taxation: The Year 2014, by Martin J. McMahon Jr. (Florida), Bruce A. McGovern (South Texas) & Ira B. Shepard (Houston)
  3. [217 Downloads]  Can Sharing Be Taxed?, by Shu-Yi Oei (Tulane) & Diane M. Ring (Boston College)
  4. [176 Downloads]  Using the 'Smart Return' to Reduce Tax Evasion, by Joseph Bankman (Stanford), Clifford Nass (Stanford) & Joel Slemrod (Michigan)
  5. [169 Downloads]  The Historical Origins of the Debt-Equity Distinction, by Camden Hutchison (Wisconsin)

April 26, 2015 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Saturday, April 25, 2015

Ring Presents Can Sharing Be Taxed? Today at Fordham

FordhamDiane M. Ring (Boston College) presents Can Sharing Be Taxed?, 93 Wash. U. L. Rev. ___ (2016) (with Shu-Yi Oei (Tulane)), at Fordham today as part of its conference on Sharing Economy, Sharing City: Urban Law and the New Economy:

The past few years have seen the rise of a new model of production and consumption of goods and services, often referred to as the “sharing economy.” Fueled by startups such as Uber and Airbnb, sharing enables individuals to obtain rides, accommodations, and other goods and services from peers via the Internet or mobile application in exchange for payment. The rise of sharing has raised questions about how it should be regulated, including whether existing laws and regulations can and should be enforced in this new sector or whether new ones are needed.

In this Article, we explore those questions in the context of taxation. We argue that, contrary to the claims of some commentators, the application of substantive tax law to sharing is mostly (though not completely) clear, because current law generally contains the concepts and categories necessary to tax sharing. However, tax enforcement and compliance may present challenges, as a result of two distinctive features of sharing. First, some sharing businesses tend to opportunistically pick the more favorable regulatory interpretation if there is ambiguity regarding which rule applies or whether a rule applies. This leads to compliance and enforcement gaps. Second, the “microbusiness” nature of sharing raises unique compliance and enforcement concerns. We suggest strategies for addressing these dual challenges, including lower information reporting thresholds, safe harbors and advance rulings to simplify tax reporting, and targeted enforcement efforts.

April 25, 2015 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Friday, April 24, 2015

Weekly SSRN Tax Roundup

Weekly Student Tax Note Roundup

April 24, 2015 in Scholarship, Tax, Weekly Student Tax Note Roundup | Permalink | Comments (0)

Forman & Mann: Making The IRS Work

Florida Tax ReviewJonathan Barry Forman (Oklahoma) & Roberta F. Mann (Oregon), Making the Internal Revenue Service Work, 17 Fla. Tax Rev. ___ (2015):

This is an Article about how to redesign the federal tax system so that the Internal Revenue Service (IRS) can administer it more effectively given that Congress is only willing to let the IRS have around 82,000 employees and a $12 billion budget. As the IRS Oversight Board and the National Taxpayer Advocate frequently emphasize, the United States underinvests in the IRS, and that underinvesting means that taxpayer services are suffering and that tax enforcement has been significantly weakened.

With budget deficits for “as far as the eye can see” and the recent IRS troubles with tax-exempt political organizations, the prospects for increased funding for the IRS are remote. In this Article, we consider a variety of approaches that would make it easier for the IRS to raise and collect revenue, and we offer a number of recommendations for legislative and administrative changes. For example, we recommend simplifying the tax system, enhancing third-party reporting, and streamlining the tax-filing and dispute-resolution procedures.

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April 24, 2015 in Scholarship, Tax | Permalink | Comments (0)

Symposium: Teaching the Academically Underprepared Law Student

TUSSymposium, Teaching The Academically Underprepared Law Student,  53 Duq. L. Rev. 1-278 (2015):

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April 24, 2015 in Legal Education, Scholarship | Permalink | Comments (0)

Thursday, April 23, 2015

Crane Presents Uncovering A Meaning For 'Direct Tax' Today At Ohio State

CraneCharlotte Crane (Northwestern) presents Uncovering a Meaning for “Direct Tax” at Ohio State today in a tax colloquium sponsored its Law, Finance and Governance Program:

This paper argues that the references article I to “direct taxes” (which if “layed and collected” by Congress must be apportioned among the states) is a reference to taxes the burden of which can be traced to a particular location, and thus to a particular state. The paper looks to the history of the grant of the impost to the Confederation Congress to support this argument. It demonstrates that throughout the decade before 1787, those involved in financing the War distinguished the impost (which could not appropriately be credited to the state in which it was paid when reckoning whether that state had met its fiscal obligation to the Confederation) from those “direct taxes” (which should be so credited). This same distinction was embedded in the Constitution, to provide both for the final reckoning of those obligations of the states and for the ongoing support of the United States.

Erik Jensen (Case Western) is the discussant.

April 23, 2015 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Life After Loving: IRS Regulation of Tax Preparers

Florida Tax ReviewAlex H. Levy (NYU), Believing in Life After Loving: IRS Regulation of Tax Preparers, 17 Fla. Tax Rev. 437 (2015):

Nearly anyone can be a tax preparer. There is no test to pass or code of ethics to follow. With few barriers to entry, the field of tax preparation has drawn unscrupulous players, many of whom prey on low-income families who claim the earned-income tax credit. In 2011, the IRS endeavored to regulate the anything-goes world of tax preparation. But a group of small-government activists at the Institute for Justice challenged the IRS’s regulations in federal court. And they won. The U.S. Court of Appeals for the D.C. Circuit struck down the regulations as beyond the IRS’s authority under section 330 of Title 31 of the United States Code. In the wake of that decision, Loving v. IRS, the only path forward for advocates of taxpayer protection is for Congress to explicitly empower the IRS to regulate swindlers posing as tax professionals.

This Article is, fundamentally, a story of political and judicial failure in the age of small government absolutism. In a different era, federal oversight of unscrupulous tax preparers would have represented the blandest kind of common sense. But the Institute for Justice was able to convince a panel of judges on what is widely regarded as the second most influential court in the country that IRS oversight of tax preparers is unlawful. The government’s litigation strategy proved bumbling and ill-considered; it was easily outmaneuvered by its ideologically-driven adversary.

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April 23, 2015 in Scholarship, Tax | Permalink | Comments (2)

Wednesday, April 22, 2015

Mazur: Taxing the Cloud

CloudsOrly Mazur (SMU), Taxing the Cloud, 103 Cal. L. Rev. 1 (2015):

Transacting business in the “cloud” has quickly gained popularity worldwide as the new method of providing information technology (IT) resources. Instead of purchasing or downloading software, we can now use the Internet to access software and other fundamental computing resources located on remote computer networks operated by third parties. These transactions offer companies lower operating costs, increased scalability, and improved reliability, but also give rise to a host of international tax issues. Despite the rapid growth and prevalent use of cloud computing, U.S. taxation of international cloud computing transactions has yet to receive significant scholarly attention. This Article seeks to fill that void by analyzing the U.S. tax implications of operating in the cloud from both doctrinal and policy perspectives. Such an analysis shows that the technological advances associated with the cloud put pressure on traditional U.S. federal income tax principles, which creates uncertainty, compliance burdens, liability risks for businesses, and a potential loss of revenue for the government. Applying the current law to cloud computing transactions also results in tax consequences that run counter to sound tax policy and may result in double taxation or complete nontaxation of cloud income.

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April 22, 2015 in Scholarship, Tax | Permalink | Comments (0)

Tuesday, April 21, 2015

Albouy Presents The Optimal Taxation Of Housing Consumption Today At NYU

AlbouyDavid Albouy (Illinois) presents Should We Be Taxed Out Of Our Homes? The Optimal Taxation of Housing Consumption at NYU today as part of its Tax Policy Colloquium Series hosted by Daniel Shaviro and Alan Viard:

Optimal tax theory suggests that it is more efficient to tax housing as a consumption good than other forms of consumption as it is a complement to leisure and is produced more intensively from land, an inelastic factor, than other goods. This tax rate appears to be at least 50 percent higher than other forms of consumption, justifying high rates of property taxation, particularly in areas with inelastic housing supply. It may be efficient to offer a lump sum transfer to households who choose to live close to high-paying jobs, justifying infra-marginal subsidies to housing units in some high-price areas. Proximity to amenities may also influence optimal tax rates depending on whether they are substitutes or complements to labor supply or housing consumption.

April 21, 2015 in Colloquia, Scholarship, Tax | Permalink | Comments (1)

Eyal-Cohen: Lessons in Fiscal Activism

Mirit Eyal-Cohen (Alabama), Lessons in Fiscal Activism:

This article highlights an anomaly. It shows that two tax rules aimed to achieve a similar goal were introduced at the same time. Both meant to be temporary and bring economic stimuli but received a dramatically different treatment. The economically inferior rule survived while its superior counterpart did not. The article reviews the reasons for this paradox. It shows that the causes are both political and an agency problem. The article not only enriches an important and ongoing debate that has received much attention in recent years, but also provides important lessons to policymakers.

April 21, 2015 in Scholarship, Tax | Permalink | Comments (0)

Monday, April 20, 2015

Field Presents Aggressive Tax Planning and the Ethical Tax Lawyer Today at Pepperdine

Field (2015)Heather Field (UC-Hastings) presents Aggressive Tax Planning and the Ethical Tax Lawyer at Pepperdine today as part of our Tax Policy Colloquium Series:

[H]ow should a tax planner, who wants to engage in “permissible tax planning” but not cross the line over into “unethical loophole lawyering,” exercise her discretion and judgment? This paper seeks to answer this question by drawing on both (a) the extensive literature on lawyering and professionalism and (b) the social science literature regarding factors that contribute to biased decision-making and unintentional lapses in judgment. The explicit incorporation of these strands of literature into the discourse on tax ethics helps each tax planner operationalize, on an individual basis and in a way that aligns with her values, both the general and tax-specific rules of professional conduct. The existing tax ethics literature primarily focuses either on how to comply with the rules governing practice or on how the rules should be improved. Thus, this paper contributes to the literature by focusing on the issues that the rules leave to the discretion of the tax practitioner (rather than on the issues that the rules address) and by approaching the discussion from a lawyering perspective20 (rather than from a policymaking perspective).

Specifically, this paper argues that a lawyer seeking to pursue a career as an ethical tax planner should identify and implement her philosophy of lawyering to help her make difficult discretionary decisions in a principled way, and when implementing that approach to lawyering, she should work to counteract the subtle factors that can skew her professional judgment. ...

Ultimately, this paper argues that an important part of being an ethical tax planner, particularly when dealing with contestable tax positions, includes being deliberate about how one approaches the task of giving tax planning advice and being self-aware about the ways in which one exercises judgment. By fleshing out the concept of ethical tax planning, I hope to give our students confidence and guidance as they embark on (hopefully, ethical) careers as tax planners, and I hope to ease the tension between tax academics’ scholarly work condemning aggressive tax planning and their classroom work, in which they often teach students how to use those same tax planning techniques. And perhaps this limited defense of the ethics of the tax planning profession can help to rehabilitate the public image of tax lawyers.

Update:  Post-presentation lunch:

Field

April 20, 2015 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Yale: Anti-Basis

Ethan Yale (Virginia), Anti-Basis, 94 N.C. L. Rev. ___ (2015):

Anti-basis is the untaxed benefit enjoyed by a taxpayer when a liability or obligation is incurred. In the business context, the untaxed benefit is an increase in asset basis or a tax deduction. In the personal context, the untaxed benefit might take one of those forms, or it might be (nondeductible) personal consumption. A well-functioning income tax system must keep track of any such untaxed benefit. If the liability from which the benefit derived is avoided by the taxpayer, the prior untaxed benefit must be taken into income (or must reduce basis). If there was no prior untaxed benefit relating to a liability, exceptions are necessary to various rules requiring income recognition (or basis reduction) on discharge or shifting of liabilities.

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April 20, 2015 in Scholarship, Tax | Permalink | Comments (0)

Sunday, April 19, 2015

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 #1 paper and a new paper debuting on the list at #5:

  1. [312 Downloads]  Cancellation of Debt and Related Transactions, by Douglas A. Kahn (Michigan) & Jeffrey H. Kahn (Florida State)
  2. [258 Downloads]  Abusive Tax Avoidance and Institutional Corruption: The Responsibilities of Tax Professionals, by Gillian Brock (Harvard) & Hamish Russell (Toronto)
  3. [255 Downloads]  The U.S. Foreign Account Tax Compliance Act: American Legal Imperialism?, by Bruce W. Bean (Michigan State) & Abbey Wright Farnsworth
  4. [236 Downloads]  Recent Developments in Federal Income Taxation: The Year 2014, by Martin J. McMahon Jr. (Florida), Bruce A. McGovern (South Texas) & Ira B. Shepard (Houston)
  5. [192 Downloads]  Can Sharing Be Taxed?, by Shu-Yi Oei (Tulane) & Diane M. Ring (Boston College)

April 19, 2015 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, April 17, 2015

Weekly SSRN Tax Roundup

Thursday, April 16, 2015

Omri Marian Leaves Florida For UC-Irvine

Marian (2015)Omri Marian, a rising tax scholar at Florida, has accepted a lateral offer from UC-Irvine. Omri spent three years as a tax associate at Sullivan & Cromwell and joined the Florida tax faculty in 2012. His recent tax scholarship includes (in addition to reviews and op-eds):

Omri joins Sarah Lawsky in giving UC-Irvine a powerhouse tax faculty and strengthening my not entirely disinterested view that Southern California boasts the strongest collection of tax scholars of any region in the country, which includes, among others:  UCLA (Steve Bank, Jason Oh, Kirk Stark, Eric Zolt), USC (Tom Griffith, Ed Kleinbard, Ed McCaffery), San Diego (Howard Abrams, Jordan Barry, Victor Fleischer, Miranda Perry Fleischer, Bert Lazerow), and Loyola-L.A. (Ellen Aprill, Ted Seto, Katie Pratt), not to mention (ahem) the tax faculty at Pepperdine.

April 16, 2015 in Scholarship, Tax, Tax Prof Moves | Permalink | Comments (3)

North Carolina Law Review Festschrift In Honor Of Bill Turnier

TurnierJohn Charles Borger (Dean, North Carolina), An Issue in Tribute to a Splendid Career William J. Turnier: UNC Law Colleague, 1973–2014, 93 N.C. L. Rev. 643 (2015):

It is not every senior faculty member whose fondest wish upon retirement is less a dinner hosted in his honor or a public celebration in the Rotunda of Van Hecke-Wettach, but rather an issue of the North Carolina Law Review devoted to tax scholarship. Yet it seems completely fitting that William J. Turnier, a member of the University of North Carolina law faculty for the past forty-one years, has acquiesced in the tribute that appears in these pages, a series of tax articles his scholarly colleagues have assembled in this issue of the Review to mark his departure from full-time academic life. ...

There is always some sadness in watching the departure from our halls of learning of someone who has built such a rich career and commanded such gratitude from more than two generations of students. Yet Bill Turnier’s impact on Carolina Law will remain, and by suggesting this special issue, designed in tribute to his chosen field, Bill has afforded us one last gift that will endure as long as readers strive to read, research, and understand law and its potential for ordering the commonweal.

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April 16, 2015 in Legal Education, Scholarship, Tax | Permalink | Comments (1)

Wednesday, April 15, 2015

Shay Presents Designing a U.S. Minimum Tax on Foreign Business Income Today at Penn

Shay (2014)Stephen Shay (Harvard) presents Designing a U.S. Minimum Tax on Foreign Business Income (with Cliff Fleming (BYU) & Robert Peroni (Texas)) at Pennsylvania today as part of its Tax Law and Policy Workshop Series hosted by Chris William Sanchirico and Reed Shuldiner:

This paper continues an exploration of second best international tax reforms, in this case, how a U.S. minimum tax on foreign income earned by a controlled foreign corporation should be designed to protect the U.S. against erosion of its corporate income tax base and combat tax competition by low-tax intermediary countries. A minimum tax should be an interim tax that preserves the residual U.S. tax on foreign income. Such a tax would more effectively limit incentives to seek low-taxed foreign income while ameliorating pressure to retain excess earnings abroad. Corresponding changes should be made to the U.S. corporate residence definition, to the residence taxation of U.S. portfolio investors in foreign corporations and to the source taxation of foreign MNCs to reduce tax advantages under current law for investments in foreign corporations. These changes would reduce tax advantages for foreign parent corporate groups and incentives for U.S. corporations to expatriate as a consequence of increased U.S. taxation of foreign income.

April 15, 2015 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Call for Book Reviews: Michigan Law Review

Michigan The Michigan Law Review has asked me to post its solicitation of book reviews for its 2016 Survey of Books Related to the Law:

The Michigan Law Review publishes an Annual Survey of Books. These book reviews are not included in any other issue of the Law Review. Typically, the Survey includes only reviews of books published in the past year. The Volume 114 Book Review issue will be published in spring 2016.

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April 15, 2015 in Book Club, Legal Education, Scholarship, Tax | Permalink | Comments (1)

Tuesday, April 14, 2015

Eissa Presents The Technology of Tax Collection and Compliance Today at Georgetown

EissaNada Eissa (Georgetown) presents The Technology of Tax Collection and Compliance: Electronic Billing Machines and The VAT at Georgetown today as part of its Tax Law and Public Finance Workshop Series hosted by John BrooksItai Grinberg, and David Schizer:

The expansion of the tax base in developing countries is increasingly recognized as an important policy goal, as an increase in domestic revenue sources promises to reduce aid dependence and reduce distortionary consequences of taxes on externally traded goods. This paper analyzes the adoption rate and tax compliance impacts of an innovative program in Rwanda, which introduced Electronic Billing Machines to strengthen VAT compliance. To do so, we combine quarterly data on all VAT payments from 2012 through 2014q3 with data on EBM activation over the same period.

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April 14, 2015 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Zelenak Presents The Differing Income Tax Treatments of Marriage at Different Income Levels Today at NYU

Zelenak (2014)Lawrence Zelenak, (Duke) presents For Better And Worse: The Differing Income Tax Treatments of Marriage at Different Income Levels, 93 N.C. L. Rev. 783 (2015), at NYU today as part of its Tax Policy Colloquium Series hosted by Daniel Shaviro and Alan Viard:

Although both marriage penalties and marriage bonuses exist at all income levels under the federal income tax, the system is tilted toward penalties for lower-income couples, toward bonuses for middle-income couples, and back toward penalties for upper-income couples. This Article begins by explaining how the tax rules produce these differing treatments of marriage at different points in the income distribution. It then argues that the increase in recent decades in the social acceptability and prevalence of cohabitation makes tax marriage effects a more serious concern—in terms of both behavioral effects and fairness—than in earlier decades.

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April 14, 2015 in Colloquia, Scholarship, Tax | Permalink | Comments (1)

Tacha: Who Needs a Lawyer Anyway?

Deanell Reece Tacha (Dean, Pepperdine), Who Needs a Lawyer Anyway?, 66 Rutgers L. Rev. 729 (2014):

You are the people who must be the spokespersons for the enduring and essential need for well-trained lawyers who can guide the nation and the world through the challenging and exciting issues and disputes that lie ahead. The lawyers’ ability to focus on germane issues, negotiate reasoned practical resolutions, and settle and litigate disputes, will be in high demand in this complex society. The debate about the value of legal education goes to the core of our understanding of what it is to prepare legal professionals for a world we cannot see with any particularity. That is what lawyers do. What we must foresee clearly, is that the legacy of freedom and of people governed by the rule of law is our highest calling and the source of our professional responsibility. The modes of delivering legal services, and even the understanding of what is a legal service, will change. What will not change is the need for lawyers who are problem solvers, client servers, articulators of the American ideal of self-government, models of the rule of law, and servants of the common good. We will always need lawyer-patriots.

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April 14, 2015 in Legal Education, Scholarship | Permalink | Comments (0)

Monday, April 13, 2015

Blair-Stanek: Crisis-Proofing Tax Law

Andrew Blair-Stanek (Maryland), Crisis-Proofing Tax Law, 57 Wm. & Mary L. Rev. __ (2016):

While Congress and the Federal Reserve battled the 2008-09 financial crisis with high-profile bailouts, the IRS fought a parallel, little-noticed battle to ensure that many harsh tax rules did not deepen the crisis. Remarkably, the IRS’s crisis responses cost the government more money than the bailouts, with a handful of companies receiving huge tax windfalls. Yet the IRS also kept its responses too narrowly tailored, causing preventable layoffs and foreclosures.

This Article proposes a novel framework for tax law to handle future crises efficiently and equitably, using the law-and-economics concept of property rules and liability rules.

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April 13, 2015 in Scholarship, Tax | Permalink | Comments (0)

Kerr: New (And Free) Legal Research Tool From Google

Google Scholar (2015)Orin Kerr (George Washington), New (and Free) Legal Research Tool:

If you use the Google Chrome browser, and you do legal research online, you should add the new Google Scholar Button to your browser. It’s really easy to do. Just click here and add the button. At that point you can use the button to research academic articles using Google Scholar’s database.

 

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April 13, 2015 in Legal Education, Scholarship | Permalink | Comments (0)

Sunday, April 12, 2015

The Top 5 Tax Paper Downloads

Friday, April 10, 2015

Weekly SSRN Tax Roundup

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April 10, 2015 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Weekly Student Tax Note Roundup