TaxProf Blog

Editor: Paul L. Caron
Pepperdine University School of Law

Tuesday, May 2, 2017

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

Daniel Shaviro (NYU), The Mapmaker's Dilemma in Evaluating High-End Inequality, 71 U. Miami L. Rev. 83 (2016):

The last thirty years have witnessed rising income and wealth concentration among the top 0.1 percent of the population, leading to intense political debate regarding how, if at all, policymakers should respond. Often, this debate emphasizes the tools of public economics, and in particular optimal income taxation. However, while these tools can help us in evaluating the issues raised by high-end inequality, their extreme reductionism – which, in other settings, often offers significant analytic payoffs – here proves to have serious drawbacks.

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

Call For Papers: NTA 110th Annual Conference On Taxation

National Tax Association (2016)The National Tax Association has issued a Call for Papers for its 110th Annual Conference on Taxation to be held Nov. 9-11, 2017 in Philadelphia:

The 110th Annual Conference on Taxation will cover a broad range of topics including, but not limited to, taxation and tax policies; expenditure policies; government budgeting; intergovernmental fiscal relations; and subnational, national, and international public finance. The conference will focus, as always, on policy-relevant research bearing on taxation and government spending.

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

Monday, May 1, 2017

Vann Presents International Tax Post-BEPS — Is The Corporate Tax Really All That Bad? Today At NYU

VannRichard Vann (University of Sydney) presents International Tax Post-BEPS: Is the Corporate Tax Really All That Bad? (with Ray Rees (University of Oslo)) at NYU today as part of its Tax Policy Colloquium Series hosted by Daniel Shaviro and Rosanne Altshuler:

The corporate income tax has been getting a particularly bad press from academic economists for over three decades, as one of the most inefficient tax instruments currently used by governments. The criticism of the corporate income tax has been matched by a similar bad press for taxation of capital income generally. More recently these views have come to be accepted both at the national and international levels by government policy makers, who indeed have become strong advocates of such changes.

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

Formative Assessment Raised 1L Con Law Grades At Ohio State

Ohio State LogoDeborah Jones Merritt, Ruth Colker, Ellen E. Deason, Monte Smith & Abigail B. Shoben (Ohio State), Formative Assessments: A Law School Case Study, 95 U. Det. Mercy L. Rev. __ (2017):

Several empirical studies have shown that formative assessment improves student learning. We build on those studies by reporting the results of a natural experiment at The Ohio State University Moritz College of Law. Students in one of three first-year sections had the opportunity to complete a formative assessment in their spring-semester Constitutional Law course. The assessment consisted of an essay question that the professor had used on a prior exam. Students who submitted an essay answer received prompt, extensive written feedback; they also had the chance to discuss their answer with the professor.

Over the course of three years, about half of the students enrolled in the section took advantage of the formative assessment. Those students achieved significantly higher grades on the final exam even though the assessment score did not factor into their course grade. Notably, students receiving this formative feedback also secured a significantly higher GPA in their other spring-semester classes. Both of these effects persisted after controlling for LSAT score, UGPA, gender, race, and fall-semester grades. These controls helped reduce any effect of selection bias on our findings.

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May 1, 2017 in Legal Education, Scholarship | Permalink | Comments (9)

Holderness:  Questioning Quill

Hayes R Holderness Jr. (Illinois VAP; moving to Richmond), Questioning Quill:

The physical presence rule of Quill Corp. v. North Dakota is under increasing attack from the Kill Quill movement. This rule prohibits states from requiring remote vendors to collect use taxes on goods sold into the states. As a petition to the Supreme Court for certiorari in a case directly challenging the rule grows closer, the case for certiorari remains cloudy. Technology and the economy have changed in the 25 years since Quill was decided, but are these changes enough to convince the Court to rehear the case?

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

Sunday, April 30, 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 #5:

  1. [398 Downloads]  Background and Current Status of FATCA, by William Byrnes (Texas A&M) & Robert J. Munro (Texas A&M)
  2. [359 Downloads]  House Plan's Bad Math: Over-Estimates of Revenue from a Border Adjustment, by David Kamin (NYU) & Brad Setser (Council on Foreign Relations)
  3. [232 Downloads]  The Offshore Tax Enforcement Dragnet, by Shu-Yi Oei (Tulane)
  4. [203 Downloads]  The First McGee Annual Report on the Best and Worst States for Business, by Robert W. McGee (Fayetteville State University)
  5. [186 Downloads]  BEPS and the New International Tax Order, by Allison Christians (McGill)

April 30, 2017 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Lederman Presents Does Enforcement Crowd Out Voluntary Tax Compliance? At Indiana

LedermanLeandra Lederman (Indiana-Bloomington) presented To What Extent Does Enforcement Crowd Out Voluntary Tax Compliance? yesterday at the Indiana University School of Public and Environmental Affairs Conference on Applied Research in Public Finance

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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April 30, 2017 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Friday, April 28, 2017

Weekly SSRN Tax Article Review And Roundup

This week, Erin Scharff (Arizona State) reviews an article by Susanna Camic Tahk (Wisconsin), The New Welfare Rights, Brooklyn L. Rev. (forthcoming):  

Scharff (2017)Susannah Camic Tahk’s previous work has explored the “tax war on poverty,” as she calls it.  In her forthcoming article, Camic Tahk considers a potential upside of federal poverty policy’s shift from direct spending to refundable tax credits: the significant procedural protections afforded taxpayers.  Camic Talk’s article compares these taxpayer rights to the failure of War on Poverty lawyers to instantiate a “new property right” in welfare benefits and persuasively argues that these taxpayer rights rest on much more solid legal footing.  Camic Tahk’s article further suggests the ways that a taxpayer rights framework offers opportunities for improving the ways low income taxpayers interact with the IRS.

Camic Tahk’s paper begins by recounting the aspirations of the Great Society poverty law lawyers.  Drawing on accounts by historians and political scientists as well as legal academics, Camic Tahk explains how the hopes of these reformers were raised when Goldberg v. Kelly expanded due process rights, and how their hopes were dashed by the Eldridge v. Matthews balancing test.  Subsequent legislative changes, most prominently the passage of the Personal Responsibility and Work Opportunity Act (“PRWORA,” or, more commonly, welfare reform) further struck a blow to the idea that recipients might have due process claims when denied government benefits.  As Camic Tahk explains, post-welfare reform court decisions saw the PRWORA as explicitly attempting to avoid the entitlement language that would make benefits subject to Goldberg’s expansive endorsement of due process rights.

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April 28, 2017 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

UC-Hastings Hosts Northern California Tax Roundtable

NorCalUC-Hastings hosts the Spring 2017 Northern California Tax Roundtable today with these papers:

Joseph Bankman (Stanford), Collecting the Rent: The Global Battle to Capture MNE Profits (with Mitchell Kane (NYU) & Alan Sykes (Stanford))
Commentator: Manoj Viswanathan (UC Hastings)

Mark Gergen (UC-Berkeley), How to Tax Global Capital
Commentator:  Annette Nellan (San Jose State)

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April 28, 2017 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Fleming, Peroni & Shay Receive Tulane Law Review Award For Excellence in Legal Scholarship

Tulane (2015)J. Clifton Fleming Jr. (BYU), Robert J. Peroni (Texas), and Stephen E. Shay (Harvard) received the Tulane Law Review's John Minor Wisdom Award for Academic Excellence in Legal Scholarship, given annually to the authors of the best article in the current volume, for their article, Two Cheers for the Foreign Tax Credit, Even in the BEPS Era, 91 Tul. L. Rev. 1 (2016):

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April 28, 2017 in Legal Education, Scholarship, Tax | Permalink | Comments (1)

Thursday, April 27, 2017

The Tax Lawyer Publishes New Issue

The Tax Lawyer (2013)The Tax Lawyer has published Vol. 70, No. 2 (Winter 2017):

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April 27, 2017 in ABA Tax Section, Scholarship, Tax | Permalink | Comments (0)

Hemel:  Can New York Publish President Trump's State Tax Returns?

Trump Tax ReturnsFollowing up on my previous post, The Quick And Easy Way To See Trump’s Tax Returns:  Daniel Hemel (Chicago), Can New York Publish President Trump's State Tax Returns?, 127 Yale L.J. Forum ___ (2017): 

Breaking from a decades-old norm of presidential tax transparency, Donald Trump has refused to make his federal income tax returns available for public inspection. Congressional leaders have blocked bipartisan legislation that would compel the President to disclose his returns. New York State, however, has a unique opportunity to ensure that the practice of presidential tax transparency endures. As a longtime New York resident, President Trump files state tax returns that contain most of the information found in his federal filings. A bill pending in the New York State Legislature would direct state tax authorities to release returns filed by the President and statewide elected officials. If the bill becomes state law, it will do much to protect the norm of presidential tax transparency from Trump’s attack.

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April 27, 2017 in Scholarship, Tax | Permalink | Comments (2)

Dimick:  Should The Law Do Anything About Economic Inequality?

Matthew Dimick (SUNY-Buffalo), Should the Law Do Anything About Economic Inequality?, 26 Cornell J.L. & Pub. Pol'y 1 (2016):

What should be done about rising income and wealth inequality? Should the design and adoption of legal rules take into account their effects on the distribution of income and wealth? Or should the tax-and-transfer system be the exclusive means to address concerns about inequality? A widely-held view argues for the latter: only the tax system, and not the legal system, should be used to redistribute income. While this argument comes in a variety of normative arguments and has support across the political spectrum, there is also a well-known law-and-economics version. This argument, known as the “double-distortion” argument, is simply stated. Legal rules that redistribute income only add to the economic distortions that are already present in the tax system. It would therefore be better for everyone, and especially the poor, to instead adopt an efficient, nonredistributive legal rule, and increase redistribution through the tax system.

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April 27, 2017 in Scholarship, Tax | Permalink | Comments (5)

Tahk:  The New Welfare Rights

Susannah Camic Tahk (Wisconsin), The New Welfare Rights, 82 Brook. L. Rev. ___ (2017):

Participating in the tax system gives rise to what could be enormously powerful rights for poor people. The tax system has become one of the main tools the U.S. uses to fight poverty. A thick bundle of tax rights accompanies the many tax antipoverty programs. This paper is the first to recognize the potentially substantial rights that poor people have through the tax code. For decades, poverty law advocates and scholars have lamented the decline of the “welfare rights” that poor people once had in their benefits. No one has yet recognized that in fact poor people still have substantial rights in the tax code. These “new welfare rights” are not rights that lawmakers are attempting to weaken but rights that they are strengthening. However, lawyers and lawmakers have yet to unlock the potential that tax rights have to improve the lives of poor people. This paper discusses two methods by which this can happen.

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

Chodorow:  Bitcoin And The Definition Of Foreign Currency

Florida Tax Review  (2015)Adam Chodorow (Arizona State), Bitcoin and the Definition of Foreign Currency, 19 Fla. Tax Rev. 365 (2016):

The IRS recently dealt a blow to Bitcoin enthusiasts by ruling that Bitcoin and other similar currencies should be treated as property – and not foreign currency – for income tax purposes. As a result, those who use bitcoins to purchase goods or services must report gain or loss on each transaction if the bitcoins have changed value between the time they were acquired and spent. Treating Bitcoin as a foreign currency would have permitted individuals to take advantage of the personal use exemption, which could facilitate Bitcoin’s adoption, and required taxpayers to adopt a formulaic system for tracking the basis of commingled bitcoins. The IRS’s decision seems correct as a matter of positive law, but laws can always be changed.

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

Wednesday, April 26, 2017

Bird-Pollan Presents Philosophy And Wealth Transfer Taxation At Georgetown

Bird-Pollan (2017)Jennifer Bird-Pollan (Kentucky) presented Philosophy and Wealth Transfer Taxation at Georgetown yesterday as part of its Tax Law and Public Finance Workshop Series hosted by John Brooks and Itai Grinberg:

Tax policy discussions are dominated by economic theories, and often do not involve philosophical analysis. Because tax is applied distributive justice, it makes sense to bring the insights of philosophy to bear on the work of creating and implementing tax laws. As one model of how philosophy can inform discussions of tax policy, this project looks in particular at the taxation of wealth transfers from different philosophical perspectives. Because wealth transfer taxes, more than most income or consumption taxes, are enacted primarily to redistribute wealth and to increase equality of opportunity, focusing on these taxes, rather than on the more widely used income tax, allows the analysis to focus on how the tax does or does not comply with the philosophical goals of the society that enacted the rule.

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

Schizer:  Taxing Corporations Or Shareholders (or Both)

David M. Schizer (Columbia), Between Scylla and Charybdis: Taxing Corporations or Shareholders (or Both), 116 Colum. L. Rev. 1849 (2016):

The US taxes both corporations and shareholders on corporate profits. In principle, the U.S. could rely on only one of these taxes, as many commentators have suggested. Although choosing to tax the corporation or its owners may seem like taking money from one pocket or the other, this Essay emphasizes a key difference: corporate and shareholder taxes prompt different tax planning. Relying on one or the other mitigates some distortions and leaks, while exacerbating others. As a result, choosing which tax to impose is like navigating between Scylla and Charybdis.

In response to these dualing distortions, this Essay recommends using both taxes. Some tax should be collected from corporations, and some from investors. The two rates should be coordinated, so they aggregate to the combined rate Congress wants, which ideally would be the rate for pass-through businesses. The main goal of this Essay is to defend the use of both taxes, and to analyze what the balance should be between them. Using both taxes has three advantages. First, if one of these partially overlapping instruments is avoided, the other still raises some revenue. Second, if the goal is to deter a planning strategy, cutting the rate to zero is an overreaction. If the rate is low enough, paying a tax is cheaper than avoiding it, since tax planning is not free. Third, if one tax is cut instead of repealed, the other can be correspondingly lower, and thus induces less planning.

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

SSRN Tax Professor Rankings

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

 

 

All-Time

 

Recent

1

Reuven Avi-Yonah (Mich.)

67,467

Reuven Avi-Yonah (Mich.)

12,371

2

Michael Simkovic (S. Hall)

35,950

Lily Batchelder (NYU)

8820

3

Paul Caron (Pepperdine)

32,954

Michael Simkovic (S. Hall)

4437

4

D. Dharmapala (Chicago)

30,412

D. Dharmapala (Chicago)

4183

5

Louis Kaplow (Harvard)

27,954

Michael Graetz (Columbia)

3355

6

Vic Fleischer (San Diego)

23,603

Richard Ainsworth (BU)

2873

7

James Hines (Michigan)

22,752

Ed Kleinbard (USC)

2782

8

Ed Kleinbard (USC)

22,399

David Weisbach (Chicago)

2410

9

Richard Kaplan (Illinois)

21,890

Dan Shaviro (NYU)

2389

10

Ted Seto (Loyola-L.A.)

21,870

Louis Kaplow (Harvard)

2315

11

Richard Ainsworth (BU)

20,390

Paul Caron (Pepperdine)

2275

12

Katie Pratt (Loyola-L.A.)

20,061

William Byrnes (Texas A&M)

2207

13

David Weisbach (Chicago)

19,086

David Gamage (Indiana)

1990

14

Robert Sitkoff (Harvard)

18,751

Robert Sitkoff (Harvard)

1979

15

Brad Borden (Brooklyn)

18,113

Jeff Kwall (Loyola-Chicago)

1815

16

Carter Bishop (Suffolk)

17,985

Omri Marian (UC-Irvine)

1748

17

Chris Sanchirico (Penn)

17,443

Francine Lipman (UNLV)

1685

18

Francine Lipman (UNLV)

17,405

Brian Galle (Georgetown)

1631

19

Jen Kowal (Loyola-L.A.)

17,366

Christopher Hoyt (UMKC)

1506

20

Dan Shaviro (NYU)

16,957

Jordan Barry (San Diego)

1497

21

Bridget Crawford (Pace)

16,870

Steven Bank (UCLA)

1482

22

Dennis Ventry (UC-Davis)

16,428

Yariv Brauner (Florida)

1481

23

David Walker (Boston Univ.)

15,610

Bridget Crawford (Pace)

1471

24

Steven Bank (UCLA)

14,676

Katie Pratt (Loyola-L.A.)

1432

25

Gregg Polsky (Georgia)

13,780

Brad Borden (Brooklyn)

1425

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

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April 26, 2017 in Scholarship, Tax, Tax Prof Rankings | Permalink | Comments (0)

Reports Of Extreme Income Inequality Are Exaggerated Due To Shift In S-Corporation Income Among The Very Wealthiest

Fatih Guvenen (Minnesota) & Greg Kaplan (Chicago), Top Income Inequality in the 21st Century: Some Cautionary Notes:

Since 2000, different measures of top income inequality have exhibited very different trends. Top income shares based on measures of total income show a continued rise, whereas top income shares based on wage and salary income show no increase in inequality post-2000. The most important difference between these two measures of income is the income that accrues to S-corporations. Moreover, the majority of the recent increase in top income shares is due to an increase in average earnings at very high income levels, much higher than that assumed in typical discussions of top income inequality. Once incomes above the 99.99th percentile are excluded (around $7 million in 2012), we see that little continued growth in top income shares has taken place in the last 20 years. Put simply, so far in the 21st century, all the action in top income shares has been S-corporation income at very, very high income levels. ...

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April 26, 2017 in Scholarship, Tax | Permalink | Comments (3)

Tuesday, April 25, 2017

Slemrod Presents Taxing Hidden Wealth: The Consequences Of U.S. Enforcement Initiatives On Evasive Foreign Accounts At NYU

Slemrod (2017)Joel Slemrod (Michigan) presented Taxing Hidden Wealth: The Consequences of U.S. Enforcement Initiatives on Evasive Foreign Accounts (with Niels Johannesen (Copenhagen), Patrick Langetieg (IRS), Daniel Reck (UC-Berkeley) & Max Risch (Michigan)) at NYU yesterday as part of its Tax Policy Colloquium Series hosted by Daniel Shaviro and Rosanne Altshuler:

Beginning in 2009, the IRS initiated a series of enforcement efforts to curb the use of offshore accounts to facilitate tax evasion, along with a voluntary disclosure program to encourage individuals with foreign accounts to become compliant with tax law. This paper examines the impact of increased enforcement activity on U.S. taxpayers’ statements of foreign accounts and reported income on tax returns. We find that enforcement initiatives increased the number of individuals reporting foreign accounts to the IRS by at least 19 percent, and they increased total wealth disclosed by at least $75 billion.

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

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

Steven A. Bank (UCLA), Brian R. Cheffins (Cambridge) & Harwell Wells (Temple), Executive Pay: What Worked?,  42 J. Corp. L. 59 (2016):

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

Bank

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

Pittsburgh Tax Review Issues Call For Papers

Pittsburgh Tax Review (2017)With some room still remaining in its coming fall issue, the peer-reviewed Pittsburgh Tax Review invites the submission of articles and essays for publication in the journal’s Fall 2017 issue. Submissions can be sent directly to Anthony Infanti, preferably prior to June 1, 2017.

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

Monday, April 24, 2017

Hemel Presents The Federalist Safeguards of Progressive Taxation Today At Pepperdine

HemelDaniel Hemel (Chicago) presents The Federalist Safeguards of Progressive Taxation, 93 NYU L. Rev. ___ (2017), at Pepperdine today as part of our Tax Policy Workshop Series funded in part by a generous gift from Scott Racine:

This essay considers the distributional consequences of the Supreme Court’s federalism jurisprudence over the past quarter century, focusing specifically on the anticommandeering, anti-coercion, and state sovereign immunity doctrines. The first of these doctrines prevents Congress from compelling the states to administer federal programs; the second prevents Congress from achieving the same result through offers that for practical purposes the states cannot refuse; the third prohibits Congress from abrogating state sovereign immunity outside a limited class of cases. These doctrines vest the states with valuable entitlements and allow the states to sell those entitlements 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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April 24, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Sunday, April 23, 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 #1 paper:

  1. [355 Downloads]  Background and Current Status of FATCA, by William Byrnes (Texas A&M) & Robert J. Munro (Texas A&M)
  2. [346 Downloads]  House Plan's Bad Math: Over-Estimates of Revenue from a Border Adjustment, by David Kamin (NYU) & Brad Setser (Council on Foreign Relations)
  3. [328 Downloads]  Destination-Based Cash Flow Taxation, by Alan Auerbach (UC-Berkeley), Michael P. Devereux (Oxford), Michael Keen (IMF) & John Vella (Oxford)
  4. [216 Downloads]  The Offshore Tax Enforcement Dragnet, by Shu-Yi Oei (Tulane)
  5. [200 Downloads]  The First McGee Annual Report on the Best and Worst States for Business, by Robert W. McGee (Fayetteville State University)

April 23, 2017 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, April 21, 2017

Weekly SSRN Tax Article Review And Roundup

This week, Daniel Hemel (Chicago) reviews a new article by Richard Schmalbeck (Duke), Jay Soled (Rutgers), and Kathleen DeLaney Thomas (North Carolina), Advocating A Carryover Tax Basis Regime, 93 Notre Dame L. Rev. (forthcoming 2017).

HemelCandidate Donald Trump’s campaign platform contained a cryptic line regarding the tax treatment of assets transferred at death: “The Trump Plan will repeal the death tax, but capital gains held until death and valued over $10 million will be subject to tax to exempt small businesses and family farms.” Some read that to mean Trump would treat death as a realization event; others interpreted it to mean that Trump would allow inheritors to defer capital gains tax until they sold the inherited asset, but with carryover rather than stepped-up basis. No one was quite sure how the $10 million exemption would work. Would it apply to the first $10 million in transferred assets or the first $10 million in capital gains? (Unless the decedent’s basis is zero, those two things aren’t the same.)

To help us sort through these alternatives, Richard Schmalbeck, Jay Soled, and Kathleen DeLaney Thomas have produced an excellent article arguing for a carryover basis regime and against any exemption. Soled, Thomas, and James Alm of Tulane have published two shorter pieces in Tax Notes advocating a carryover basis regime limited to marketable securities. (See Soled, Alm & Thomas, A New Carryover Tax Basis Regime for Marketable Securities, 154 Tax Notes 835 (Feb. 13, 2017); Soled, Alm & Thomas, Trump and a Populist Agenda?, 154 Tax Notes 1131 (Feb. 27, 2017).) Soled, Thomas, and Alm also have condensed their argument into an op-ed for The Hill, distilling a complicated issue of tax law into clear language comprehensible to nonlawyers.

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April 21, 2017 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (1)

Thursday, April 20, 2017

The Taxing Power After Sebelius

Bret N. Bogenschneider (University of Surrey), The Taxing Power After Sebelius, 51 Wake Forest L. Rev. 941 (2016):

In National Federation of Independent Business v. Sebelius, the individual mandate of the Affordable Care Act was upheld under Congress’s taxing power rather than pursuant to the Commerce Clause. Although politically expedient, the salutary effect of the decision came at the expense of an undefined expansion of the taxing power. The Congressional Research Service concluded that, after Sebelius, the limits of the Congressional taxing power are unknown. Accordingly, the Congressional staff attorneys listed prior cases that ostensibly limit the taxing power and then predicted that future cases will be needed to define the limits going forward.

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April 20, 2017 in Scholarship, Tax | Permalink | Comments (2)

Wednesday, April 19, 2017

NYU Tax Law Review Publishes New Issue

NYU Law (2016)The Tax Law Review has published a new issue (Vol. 69, No. 4 (Summer 2016)):

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

Tuesday, April 18, 2017

Galle Presents Design And Implementation Of A Charitable Regulation Regime Today At Georgetown

Galle (2016)Brian Galle (Georgetown) presents Design and Implementation of a Charitable Regulation Regime at Georgetown today as part of its Tax Law and Public Finance Workshop Series hosted by John Brooks and Itai Grinberg:

Charitable organizations are often billed as private alternatives to the governmental provision of public goods (Weisbrod 1975). Yet in developed countries many aspects of charities are subject to government dictate, or at least oversight. Government rules may circumscribe, or at least incentivize, the organizational structure of the firm, the rights and obligations of its stakeholders, what activities it will engage in or not, how much it will spend or save, even to whom it will communicate and the content of those communications. In a federated system such as the United States, a single multi-state firm might be answerable to literally dozens of separate regulators.

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

Columbia Symposium:  The House GOP Better Way To Tax Reform

Better WaySymposium, The Better Way Plan, 8 Colum. J. Tax L. 113-308 (2017):

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April 18, 2017 in Conferences, Scholarship, Tax | Permalink | Comments (0)

BYU And Pepperdine Are The Most Ideologically Balanced Faculties Among The Top 50 Law Schools (2013)

Adam Bonica (Stanford), Adam S. Chilton (Chicago), Kyle Rozema (Northwestern) & Maya Sen (Harvard), The Legal Academy's Ideological Uniformity:

Ideology

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April 18, 2017 in Legal Education, Scholarship | Permalink | Comments (8)

Monday, April 17, 2017

Perry Fleischer Presents The Libertarian Case For A Universal Basic Income Today At NYU

Fleischer (Miranda)Miranda Perry Fleischer (San Diego) presents Atlas Nods: The Libertarian Case for a Universal Basic Income (with Daniel Hemel (Chicago)) at NYU today as part of its Tax Policy Colloquium Series hosted by Daniel Shaviro and Rosanne Altshuler: :

Proposals for a universal basic income are generating interest across the globe, with pilot experiments underway or in the works in Finland, Kenya, the Netherlands, and the city of Oakland, California. Surprisingly, many of the most outspoken supporters of a universal basic income have been self-described libertarians — even though libertarians are generally considered to be antagonistic toward redistribution and a universal basic income is, at its core, a program of income redistribution. What explains such strong libertarian support for a policy that seems so contrary to libertarian ideals?

This Article seeks to answer that question. We first show that a basic safety net is not only consistent with, but likely required by, several strands of libertarianism. We then explain why libertarians committed to limited redistribution and limited government might support a system of unconditional cash transfers paid periodically. Delivering benefits in cash, rather than in-kind, furthers autonomy by recognizing that all citizens —  even poor ones — are the best judges of their needs. Decoupling such transfers from a work requirement acknowledges that the state lacks the ability to distinguish between work-capable and work-incapable individuals. Providing payments periodically, rather than through a once-in-a-lifetime lump sum grant, ensures that all individuals can receive a minimum level of support over lifespans of variable lengths, while also allowing individuals to adjust payment flows through financial market transactions.

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April 17, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (2)

Thomas Brennan Named Stanley Surrey Professor of Law At Harvard Law School

Harvard Law School, Focus and Perspective in Taxation: Tom Brennan receives the Stanley S. Surrey Professorship of Law:

In a lecture marking his appointment as the Stanley S. Surrey Professor of Law at Harvard Law School, Tom Brennan ’01 delivered a talk titled “Focus and Perspective in Taxation.”

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April 17, 2017 in Legal Education, Scholarship, Tax | Permalink | Comments (0)

Sunday, April 16, 2017

The Top 5 Tax Paper Downloads

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

  1. [327 Downloads]  House Plan's Bad Math: Over-Estimates of Revenue from a Border Adjustment, by David Kamin (NYU) & Brad Setser (Council on Foreign Relations)
  2. [307 Downloads]  Destination-Based Cash Flow Taxation, by Alan Auerbach (UC-Berkeley), Michael P. Devereux (Oxford), Michael Keen (IMF) & John Vella (Oxford)
  3. [299 Downloads]  Background and Current Status of FATCA, by William Byrnes (Texas A&M) & Robert J. Munro (Texas A&M)
  4. [203 Downloads]  The Offshore Tax Enforcement Dragnet, by Shu-Yi Oei (Tulane)
  5. [195 Downloads]  The First McGee Annual Report on the Best and Worst States for Business, by Robert W. McGee (Fayetteville State University)

April 16, 2017 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, April 14, 2017

Weekly SSRN Tax Article Review And Roundup

This week, David Gamage (Indiana) reviews a recent article by David P. Hariton (Sullivan & Cromwell), Planning for Border Adjustments: A Practical Analysis, Tax Notes, February 20, 2017.

Gamage (2017)The House Republicans’ proposal for a destination-based cash-flow tax (DBCFT) continues to inspire fascinating discussions among tax policy experts.  Important advances in our knowledge about how destination-based taxes can work, or fail to work, are occurring in real time through these discussions.  This will be my third blog entry praising a recent piece of scholarship as one of the best analyses of the DBCFT to date (see here and here for my previous entries).  Nevertheless, I hope I retain credibility in declaring Hariton’s new article to be essential reading for anyone hoping to understand how the DBCFT, or any other similar proposal reliant on federal-level border adjustments, might work in practice.

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April 14, 2017 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Aprill:  Section 501(C)(3) Organizations, Single Member LLCs, And Fiduciary Duties

Ellen P. Aprill (Loyola-L.A.), Section 501(C)(3) Organizations, Single Member Limited Liability Companies, and Fiduciary Duties, 52 ABA Real Prop., Prob. & Tr. J. ___ (2017):

Tax-exempt organizations, including section 501(c)(3) organizations and their philanthrocapitalists, use single member limited liability companies (SMLLCs) for a variety of purposes. Exempt section 501(c)(3) nonprofit organizations (which, for convenience, I will refer to as charities) that have a number of facilities, be they schools, hospitals, or real estate investments, may form a separate SMLLC for each of them, primarily to protect other assets from liability. Charities may wish to place activities with a high risk of tort liability, such as an overnight summer camp, in its own SMLCC. SMLLCs may be used to isolate unrelated business activities from related activities. They may be used to isolate risky investments from more conservative ones. Philanthrocapitalists may structure donations through SMLLCs. They may use them to control aspects of the tax exempt entity’s activities, as according to press reports, the Koch Brothers may do with some of their noncharitable tax-exempt entities.

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

Thursday, April 13, 2017

Hanna Presents The Theory And Reality Of Business Tax Reform Today At Georgetown

HannaChristopher Hanna (SMU; Senior Policy Advisor for Tax Reform, Senate Finance Committee) presents The Theory and Reality of Business Tax Reform at Georgetown today as part of its Tax Law and Public Finance Workshop Series hosted by John Brooks and Itai Grinberg:

The last several years has seen a lot of discussion among policymakers as to reforming the tax code. On the individual side, there is very little agreement on what form tax reform should take. For example, some policymakers would like to eliminate a number of exclusions, deductions and credits thereby broadening the income tax base and coupling that with a reduction in the individual statutory tax rates. Others would like to shift the current tax system to a consumption-based tax system through, for example, enactment of a value-added tax or an exemption of capital income from the tax base. Some policymakers would simply like to retain the current individual income tax system, particularly after the enactment of a higher individual statutory tax rate as part of the fiscal cliff deal in early 2013.

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

Gamage & Ross Present At Final Indiana Tax Policy Workshop Of The Semester

Indiana (2016)Two Indiana-Bloomington faculty are presenting papers today at the final Indiana Tax Policy Workshop of the semester:

David Gamage, Tax Cannibalization and State Government Tax Incentive Programs, 82 State Tax Notes 197 (Oct. 17, 2016) (with Darien Shanske (UC-Davis)):

States and localities offer businesses an enormous amount of tax incentives to locate within their jurisdictions despite: 1) the mass of evidence that suggests that these incentives are not particularly effective and, 2) substantial doubts about their constitutionality.

In this essay, we develop a new critical perspective on state tax incentives. We argue that offering these incentives permits states to offer lower taxes to more mobile businesses while keeping their overall corporate tax rates high. This is arguably not the best choice for the states, but it is definitely not the best choice for the federal government. Because the states share the corporate income tax base with the federal government, higher overall state corporate income tax rates results in more cannibalization of federal corporate income tax revenue.

Justin Ross, The Impact of State Taxes on Pass-Through Businesses: Evidence from the 2012 Kansas Income Tax Reform (with Jason DeBacker (Middle Tennessee State), Bradley Heim (Indiana) & Shanthi Ramnath (U.S. Treasury Department, Office of Tax Analysis)):

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

Wednesday, April 12, 2017

Dirty Secrets: How Tax Havens Destroy the Economy

Dirty SecretsRichard Murphy (City University, London), Dirty Secrets: How Tax Havens Destroy the Economy (2017):

The Panama Papers were a reminder of how the superrich are allowed to hide their wealth from the rest of us. Dirty Secrets uncovers the extent of the corruption behind this crisis and shows what needs to be done in the face of this unregulated spread of rampant greed.

Tax havens, we are often told, are part of the global architecture of capitalism, providing a freedom from regulation necessary to make markets work. In this book, leading authority Richard Murphy uncovers the truth behind this lie. The fact of the matter is that this increasingly popular practice threatens the foundations of democracy, sowing mistrust and creating a regime based upon opacity.

As Murphy shows, how we manage our economy is a political decision, and one that can be changed. Dirty Secrets proposes ways to regulate tax havens and what the world might look like without them.

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April 12, 2017 in Book Club, Scholarship, Tax | Permalink | Comments (1)

Tuesday, April 11, 2017

Shaviro Presents The Relationship Between 'Legally Defensible' Tax Planning And Social Justice Today At Northwestern

Shaviro (2015)Daniel Shaviro (NYU) presents Interrogating the Relationship between 'Legally Defensible' Tax Planning and Social Justice at Northwestern today as part of its Advanced Topics in Taxation Workshop Series hosted by Sarah Lawsky:

This article, prepared for presentation on September 23, 2016 at a conference at NYU Law School, organized by the Center for Human Rights and Global Justice and entitled Human Rights and Tax in an Unequal World, mainly takes the form of a dialogue between two fictional individuals. The conclusions that the discussants reach (insofar as they are able to agree) can be summarized as follows:

Large-scale tax avoidance by wealthy individuals and large companies that is legally defensible under relevant national tax laws can nonetheless have major adverse effects on social justice and/or public morale. However, its legal defensibility complicates analyzing its ethical implications, as compared to the more straightforward case of committing tax fraud. Legal defensibility also complicates the analysis of the extent to which human rights advocates should focus on such desiderata as “good corporate tax behavior” and the ethics of tax professionals.

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

Trump And A Populist Tax Agenda

Jay A. Soled (Rutgers), James Alm (Tulane) & Kathleen DeLaney Thomas (North Carolina), Trump and a Populist Tax Agenda?, 154 Tax Notes 1131 (2017):

In this article, the authors argue that President Trump should urge Congress to institute a carryover tax basis rule for marketable securities applicable upon death.

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

Dodging The Taxman: Firm Misreporting And Limits To Tax Enforcement

Dina Pomeranz (Harvard), Paul Carrillo (George Washington) & Monica Singhal (Harvard), Dodging the Taxman: Firm Misreporting and Limits to Tax Enforcement:

Reducing tax evasion is a key priority for many governments, particularly in developing countries. A growing literature has argued that the ability to verify taxpayer self-reports against reports from third parties is critical for modern tax enforcement and the growth of state capacity. However, there may be limits to the effectiveness of third-party information if taxpayers can make offsetting adjustments on less verifiable margins. We present a simple framework to demonstrate the conditions under which this will occur and provide strong empirical evidence for such behavior by exploiting a natural experiment in Ecuador. We find that when firms are notified by the tax authority about detected revenue discrepancies on previously filed corporate income tax returns, they increase reported revenues, matching the third-party estimate when provided. Firms also increase reported costs by 96 cents for every dollar of revenue adjustment, resulting in minor increases in total tax collection.

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

Monday, April 10, 2017

Kleinbard Presents Capital Taxation In An Age Of Inequality Today at Pepperdine

Kleinbard (2015)Edward Kleinbard (USC) presents Capital Taxation In An Age Of Inequality, 90 S. Cal. L. Rev. ___ (2017), at Pepperdine today as part of our Tax Policy Workshop Series funded in part by a generous gift from Scott Racine:

The standard view in the U.S. tax law academy remains that capital income taxation is both a poor idea in theory and completely infeasible in practice. But this ignores the first-order importance of political economy issues in the design of tax instruments. The pervasive presence of gifts and bequests renders moot the claim that the results obtained by Atkinson and Stiglitz (1976) counsel against taxing capital income in practice.

Taxing capital income is responsive to important political economy exigencies confronting the United States, including substantial tax revenue shortfalls relative to realistic government spending targets, increasing income and wealth inequality at the top end of distributions, and the surprising persistence of dynastic wealth. It also responds to a new strand of economic literature that argues that “inclusive growth” leads to higher growth.

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

Cullen Presents Political Alignment And Tax Evasion Today At NYU

CullenJulie Berry Cullen (UC-San Diego), presents Political Alignment and Tax Evasion at NYU today as part of its Tax Policy Colloquium Series hosted by Daniel Shaviro and Rosanne Altshuler:

We explore whether the decision to evade federal personal income taxes depends on the taxpayer’s level of approval of government. We first demonstrate using survey data the positive association between political alignment with the current president and the respondent’s trust in the administration and support for government taxation and spending. We then show using IRS tax return data and county-level fixed effects regressions that the larger the typical share of county residents who vote for the president’s party the smaller the tax gap across a variety of tax gap measures. Responses are concentrated in income components that are more likely to be invisible to the government, such as small business income. Our results provide realworld evidence that a positive outlook on government lowers tax evasion.

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April 10, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (1)

Lawsky Presents Formalizing The Tax Code Today At UC-Irvine

Lawsky (2017)Sarah Lawsky (Northwestern) presents Formalizing the Code, 70 Tax L. Rev. ___ (2017), at UC-Irvine today as part of its Tax Law and Policy Colloquium Series hosted by Omri Marian:

The Internal Revenue Code is notoriously complex, both substantively and structurally. This article examines one source of structural complexity in the Internal Revenue Code: dependency among sections that stems from defined terms. In particular, the article examines what it describes as the problem of “definitional scope”: when the structure of the Code leaves unclear to what a term refers. The article provides examples of problematic definitional scope and then suggests a general solution: that those who draft tax legislation should “formalize” the proposed statutory language—translate it into logical terms—prior to its enactment. To illustrate this proposal, the article provides formalizations of two provisions of the Internal Revenue Code.

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

Hayashi Presents A Theory Of Facts And Circumstances Today At UNLV

HayashiAndrew Hayashi (Virginia) presents A Theory of Facts and Circumstances at UNLV today as part of its Faculty Enrichment Series:

The legal consequences of an action often depend on information that only the actor knows, such as her intentions. This information is often inferred from the observable “facts and circumstances” attending the actor’s conduct, which creates a seemingly unresolvable tension in legal design. On the one hand, the unstructured nature of these analyses gives free rein to the factfinder’s judgment about which facts justify an inference to the hidden information. On the other hand, if the law were to specify in advance the facts that would be used to draw that inference it would provide a roadmap for actors to strategically adjust their conduct to manipulate the factfinder’s conclusions. I argue that this tension can be resolved by applying insights from the economics literature on asymmetric information.

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April 10, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (1)

Polsky Presents Elite Tax Professionals Behaving Badly Today At Washington & Lee

Polsky (2015)Gregg Polsky (Georgia) presents Elite Tax Professionals Behaving Badly: The Sad and Sordid Management Fee Waiver Saga at Washington & Lee today as part of its Faculty Workshop Series:

For at least the past 15 years, many private equity fund managers have used a technique—known as a management fee waiver—to try to claim what is effectively their weekly paycheck as a capital gain. Recently, the Treasury and IRS explained that, at least in the government’s view, the vast majority of fee waivers do not actually provide the claimed tax result. Recent reports of significant audit activity relating to fee waivers suggest that the fee waiver saga may finally be coming to an end, but not before billions of tax revenues that are beyond the statute of limitations have been lost forever.

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

Johnson Presents Who Wins A Tax Case If There Is A Tie: The Taxpayer Or The Revenue Authority? Today At Minnesota

Johnson (Steve)Steve R. Johnson (Florida State) presents Who Wins If There’s A Tie: The Taxpayer or the Revenue Authority? at Minnesota today as part of its Perspectives on Taxation Lecture Series:

In baseball, if the runner touches the base at the same time as the baseman catches the ball or tags the runner, the runner is safe. In other words, a tie goes to the runner. State and federal tax controversies also can involve close calls, either because the facts supporting the two sides are balanced or because the law is unsettled. When that happens, when the case is close, should the court hold for the taxpayer or the revenue bureau? Courts have answered this question differently in different eras and in different jurisdictions.

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

Fleischer Presents Tax Reform: The State of Play Today At UCLA

Fleischer (2016)Victor Fleischer (San Diego; Co-Chief Tax Counsel, Senate Finance Committee Democrats) presents Tax Reform: The State of Play at UCLA today as part of its Business Law Breakfast Series.  Vic's talk will discuss several aspects of the House Republicans' tax reform blueprint, A Better Way for Tax Reform:

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April 10, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (2)

Sunday, April 9, 2017

McMahon & McGovern:  2016 Federal Income Tax Developments

Florida Tax Review  (2015)Martin J. McMahon Jr. (Florida) & Bruce A. McGovern (South Texas), Recent Developments in Federal Income Taxation: The Year 2016, 20 Fla. Tax Rev. 131 (2017):

This recent developments outline discusses, and provides context to understand the significance of, the most important judicial decisions and administrative rulings and regulations promulgated by the Internal Revenue Service and Treasury Department during the most recent twelve months—and sometimes a little farther back in time if we find the item particularly humorous or outrageous. Most Treasury Regulations, however, are so complex that they cannot be discussed in detail, and, anyway, only a devout masochist would read them all the way through; just the basic topic and fundamental principles are highlighted—unless one of us decides to go nuts and spend several pages writing one up. This is the reason that the outline is getting to be as long as it is.

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

The Top 5 Tax Paper Downloads

SSRN LogoThere is a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with a new paper debuting on the list at #5. The #1 paper is now #96 in all-time downloads among 12,640 tax papers:

  1. [1,756 Downloads]  The Known Unknowns of the Business Tax Reforms Proposed in the House Republican Blueprint, by Michael J. Graetz (Columbia)
  2. [612 Downloads]  How Donald Trump can Keep His Campaign Promises, Grow the Economy, Cut Tax Rates, Repatriate Offshore Earnings, Reduce Income Inequality, Keep Jobs in the United States, and Reduce the Deficit, by David S. Miller (Proskauer, New York)
  3. [399 Downloads]  Predicting Stock Market Prices with Physical Laws, by Jack Manhire (Texas A&M)
  4. [317 Downloads]  House Plan's Bad Math: Over-Estimates of Revenue from a Border Adjustment, by David Kamin (NYU) & Brad Setser (Council on Foreign Relations)
  5. [278 Downloads]  Destination-Based Cash Flow Taxation, by Alan Auerbach (UC-Berkeley), Michael P. Devereux (Oxford), Michael Keen (IMF) & John Vella (Oxford)

April 9, 2017 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)