TaxProf Blog

Editor: Paul L. Caron
Pepperdine University School of Law

Wednesday, February 15, 2017

Morse & Osofsky:  Regulating By Example

Susan C. Morse (Texas) & Leigh Osofsky (Miami), Regulating by Example,  35 Yale J. on Reg. ___ (2017):

Agency regulations are full of examples. Regulated parties and their advisors parse the examples to develop an understanding of the applicable law and to determine how to conduct their affairs. However, neither the legal nor theoretical literature contains any study of regulatory examples or explains how they might be interpreted. This Article fills this gap.

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

Tuesday, February 14, 2017

Toder Presents Taxing Entrepreneurial Income Today At Georgetown

Toder (2017)Eric Toder (Tax Policy Center) presents Taxing Entrepreneurial Income at Georgetown today as part of its Tax Law and Public Finance Workshop Series hosted by John Brooks and Itai Grinberg:

This paper applies the Schumpeterian view of entrepreneurship to estimate the tax rate on entrepreneurial income under alternative assumptions about the pattern of returns from innovations, the tax rules applied to different types of income (wages, interest, capital gains, dividends, corporate profits), and the effects of taxes on the market value of successful enterprises. We model the tax rate on entrepreneurial income as the tax burden on an individual who establishes a new firm and then sells her interest in the business once it becomes an established enterprise. The paper finds the effective tax rate on entrepreneurial income depends on both the tax rate imposed on the entrepreneur’s income during the firm’s growth phase and on the effects of the tax system on the price at which the entrepreneur can cash in her investment when the firm reaches maturity.

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

Call For Business Tax Papers:  Oxford University Symposium

OxfordThe Oxford University Centre for Business Taxation has issued a call for papers for its annual symposium:

The 11th Annual Academic Symposium will take place between 26 and 28 June 2017.  A call for papers will be issued in due course. The symposium will be held at Saïd Business School, Park End Street, Oxford.

The call for papers is now live. If you wish to make a submission the deadline is Monday 27 February 2017. Papers will be selected, and invitations extended, by Monday 27 March 2017.

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

Blank, Osofsky & Zelenak On Tax Simplexity

Joshua D. Blank (NYU) & Leigh Osofsky (Miami), Simplexity: Plain Language and the Tax Law, 66 Emory L.J. 189 (2017):

In recent years, federal government agencies have increasingly attempted to use plain language in written communications with the public. The Plain Writing Act of 2010, for instance, requires agencies to incorporate “clear and simple” explanations of rules and regulations into their official publications. In the tax context, as part of its “customer service” mission, the Internal Revenue Service bears a “duty to explain” the tax law to hundreds of millions of taxpayers who file tax returns each year. Proponents of the plain language movement have heralded this form of communication as leading to simplicity in tax compliance, more equitable access to federal programs, and increased open government.

This Article casts plain language efforts in a different light. As we argue, rather than achieving simplicity, which would involve reform of the underlying law, the use of plain language to describe complex legal rules and regulations often yields “simplexity.”

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

Monday, February 13, 2017

Christians Presents Human Rights At The Borders Of Tax Sovereignty Today At NYU

Christians (2017)Allison Christians (McGill) presents Human Rights at the Borders of Tax Sovereignty at NYU today as part of its Tax Policy Colloquium Series hosted by Daniel Shaviro and Rosanne Altshuler:

Tax scholarship typically presumes the state' s power to tax and therefore rarely concerns itself with analyzing which relationships between a government and a potential taxpayer normatively justify taxation, and which do not. This paper presents the case for undertaking such an analysis as a matter of the state' s obligation to observe and protect fundamental human rights.

It begins by examining existing frameworks for understanding how a taxpayer population is and ought to be defined. It then analyzes potential harms created by an improperly expansive taxpayer category, and those created by excluding from consideration those beyond the polity even if directly impacted by the tax regime. It concludes that a modified membership principle is a more acceptable framework for normative analysis of the jurisdiction to tax, even while acknowledging the overwhelming weight of existing perceptions about the bounds of the polity and the state-citizen relationship as significant barriers to acceptance.

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

Polsky Presents Elite Tax Professionals Behaving Badly Today At UC-Irvine

Polsky (2015)Gregg Polsky (Georgia) presents Elite Tax Professionals Behaving Badly: The Sad and Sordid Management Fee Waiver Saga at UC-Irvine today as part of its Tax Law and Policy Colloquium Series hosted by Omri Marian:

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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February 13, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (1)

Marriage Penalty Relief After Obergefell

Mitchell Engler (Cardozo) & Edward Stein (Cardozo), Not Too Separate or Unequal: Marriage Penalty Relief after Obergefell, 91 Wash. L. Rev. ___ (2016):

Joint tax returns have generated controversy for many years. Married couples with the same joint income pay the same tax under our current system regardless of the earnings distribution between the spouses. This approach primarily rests on the idea that married couples share resources and operate as a single economic unit. Critics typically challenge this assumption and lament how marriage might significantly change a couple’s taxes. Depending on their earnings breakdown, a couple’s taxes could be reduced (a marital bonus for uneven earners) or increased (a marital penalty for even earners). These possibilities exist because the joint brackets are typically larger – but not twice as large – as the unmarried brackets.

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February 13, 2017 in Scholarship, Tax | Permalink | Comments (1)

Call For Tax Papers:  First Mid-Atlantic Junior Faculty Forum

Richmond (2017)Mid-Atlantic Junior Faculty Forum: Call for Papers:

The University of Richmond School of Law invites submissions for the inaugural Mid-Atlantic Junior Faculty Forum. This workshop will be held on Wednesday, May 10 and Thursday, May 11, 2017 in Richmond, Virginia.

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February 13, 2017 in Conferences, Legal Education, Scholarship, Tax | Permalink | Comments (0)

Mini-Symposium:  The Future Of Tax Administration And Enforcement

Christopher J. Walker (Ohio State), Surly Subgroup Mini-Symposium on The Future of Tax Administration and Enforcement, Yale J. on Reg.: Notice & Comment (Feb. 11, 2017):

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

ACTEC Law Journal Exclusive Review

ACTECThe American College of Trust and Estate Counsel Law Journal will be conducting exclusive reviews over the next few weeks. Any contribution submitted to the ACTEC Law Journal between February 13, 2017 and February 28, 2017 will be evaluated for publication purposes within four (4) business days of submission.  By submitting an article or essay, the author agrees to immediately accept a publication offer with the ACTEC Law Journal should one be extended. 

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

Sunday, February 12, 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. [2,001 Downloads]  Problems with Destination-Based Corporate Taxes and the Ryan Blueprint, by Reuven Avi-Yonah (Michigan; moving to UC-Irvine) & Kimberly Clausing (Reed College)
  2. [619 Downloads]  A Guide to the GOP Tax Plan — The Way to a Better Way, by David Weisbach (Chicago)
  3. [292 Downloads]  Accounting for Behavioral Considerations in Business Tax Reform: The Case of Expensing , by Lily Batchelder (NYU)
  4. [279 Downloads]  Destination-Based Cash-Flow Taxation: A Critical Appraisal, by Wei Cui (British Columbia)
  5. [235 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)

February 12, 2017 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, February 10, 2017

Weekly SSRN Tax Article Review And Roundup

This week, Ari Glogower (Ohio State) reviews a new article by Chris Sanchirico (Penn), Business Investment in the Tax Reform Blueprint

Glogower (2016)Since its release last June, the business tax provisions of the GOP House’s tax reform plan (“the reform plan”) have garnered intense interest, and improbably trending hashtags.  Much of the focus has centered on the border adjustment, which taxes imports but exempts exports, and its implications for the dollar and trade agreements.  (For example, Problems with Destination-Based Corporate Taxes and the Ryan Blueprint, by Reuven Avi-Yonah (Michigan/UC-Irvine) and Kimberly Clausing (Reed)).  Sanchirico’s new work, in contrast, examines two other related provisions in the reform plan: immediate expensing for business investments, and disallowance of a deduction for a business’ net interest expenses.

The conventional wisdom, as reflected in the reform plan, is that businesses would prefer the reform package of expensing plus interest non-deductibility to current law, which generally allows accelerated depreciation and interest deductions. Sanchirico’s work challenges this assumption, as well as the related arguments that the reform package will incentivize investment and encourage more efficient investment and financing decisions. 

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February 10, 2017 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Brunson & Herzig:  Treasury Department Should Create Blacklist Of What Constitutes Prohibited Discrimination By Religious Organizations

Samuel D. Brunson (Loyola-Chicago) & David Herzig (Valparaiso), A Diachronic Approach to Bob Jones: Religious Tax Exemptions after Obergefell, 92 Ind. L.J. ___ (2016):

In Bob Jones v. U.S., the Supreme Court held that an entity may lose its tax exemption if it violates a fundamental public policy, even where religious beliefs demand that violation. In that case, the Court held that racial discrimination violated fundamental public policy. Could the determination to exclude same-sex individuals from marriage or attending a college also be considered a violation of fundamental public policy? There is uncertainty in the answer. In the recent Obergefell v. Hodges case that legalized same-sex marriage, the Court asserted that LGBT individuals are entitled to “equal dignity in the eyes of the law.” Constitutional law scholars, such as Lawrence Tribe, are advocating that faith groups might lose their status, citing that this decision is the dawning of a new era of constitutional doctrine in which fundamental public policy will have a more broad application.

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February 10, 2017 in IRS News, Scholarship, Tax | Permalink | Comments (3)

Thursday, February 9, 2017

Walker Presents The Practice And Tax Consequences Of Nonqualified Deferred Compensation Today At Duke

Walker (2016)David Walker (Boston University) presents The Practice and Tax Consequences of Nonqualified Deferred Compensation at Duke today as part of its Tax Policy Workshop Series hosted by Lawrence Zelenak:

Although nonqualified deferred compensation plans lack explicit tax preferences afforded qualified plans, it is well understood that nonqualified deferred compensation results in a joint tax advantage when employers earn a higher after-tax return on deferred sums than employees could achieve on their own. Several commentators have proposed tax reform aimed at leveling the playing field between cash and nonqualified deferred compensation, but reform is not easily achieved. This Article examines the stakes.

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

Wednesday, February 8, 2017

Liscow Presents Innovation And Climate Law Today At Toronto

Liscow (2017)Zachary Liscow (Yale) presents Innovation and Climate Law (with Quentin Karpilow (Yale)) at Toronto today as part of its James Hausman Tax Law and Policy Workshop Series:

A common view in environmental law is that the government should not pick certain technologies over others. Rather, in the context of climate policy, this view suggests that the government should impose a carbon tax and let that induce innovation in private sector through the patent system. We offer a qualified defense of the government “picking winners”: directly encouraging innovation in cleantech over dirtytech and even within cleantech. Our argument is largely based on recent research in economics showing “path dependence” in the development of energy technology, suggesting that a big push in cleantech innovation can lead to a permanent reorientation of the energy sector and lead to more emissions reductions at lower cost.

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

McLaughlin:  Conservation Easements And The Valuation Conundrum

Florida Tax Review  (2015)Nancy A. McLaughlin (Utah), Conservation Easements and the Valuation Conundrum, 19 Fla. Tax Rev. 225 (2016):

For more than fifty years, taxpayers have been able to claim a federal charitable income tax deduction under Internal Revenue Code § 170(h) for the donation of a conservation easement or a façade easement. For just as long, the deduction has been subject to abuse, including valuation abuse. Dismayed by the expenditure of significant judicial and administrative resources to combat abuse in the easement donation context, the Treasury Department recently proposed reforms, including reforms to address valuation abuse. The reforms were proposed in somewhat of an analytical vacuum, however, because there has been no comprehensive analysis of the easement valuation case law. This article fills that void.

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

Kaye:  Tax Transparency— A Tale Of Two Countries

Tracy A. Kaye (Seton Hall), Tax Transparency: A Tale of Two Countries, 39 Fordham Int'l L.J. 1153 (2016):

On April 4, 2016, the International Consortium of Investigative Journalists announced their access to the “Panama Papers,” 11.5 million documents comprising forty years of emails, bank accounts and client records from the Panamanian law firm Mossack Fonseca. This latest public disclosure reveals the offshore accounts of individuals and corporations from over 200 countries and demonstrates that the movement toward global transparency is inevitable. The Panama Papers are also a powerful reminder that transparency matters greatly in the war on tax evasion.

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

Tuesday, February 7, 2017

Batchelder Presents Accounting For Behavioral Biases In Business Tax Reform Today At Georgetown

BatchelderLily Batchelder (NYU) presents Accounting for Behavioral Biases in Business Tax Reform: The Case of Expensing at Georgetown today as part of its Tax Law and Public Finance Workshop Series hosted by John Brooks and Itai Grinberg:

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

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

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

The Crisis Of Race In Higher Education

RaceWilliam F. Tate IV (Dean, Graduate School of Arts & Sciences & Vice Provost, Graduate Education, Washington University), Nancy Staudt (Dean, Law School, Washington University) & Ashley Macrander (Assistant Dean, Graduate Student Affairs, Washington University), The Crisis of Race in Higher Education: A Day of Discovery and Dialogue (2016):

The compendium of writings in this edited volume sheds light on the event Race & Ethnicity — 2015: A Day of Discovery and Dialogue at Washington University in St. Louis and the work current students, faculty, and staff are doing to improve inclusivity on campus and in St. Louis.

Race & Ethnicity — 2015: A Day of Discovery and Dialogue:

On Feb. 5-6, 2015, the university came together to explore critical issues facing our community. Here, you can experience what transpired that day—a day that marked the beginning of a dialogue and work that must continue. We invite you to be part of this ongoing process.

Over the course of 25 hours, the subjects of race and ethnicity were explored through the lens of the five themes summarized below. Watch the videos, be inspired and continue the conversation.

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February 7, 2017 in Book Club, Legal Education, Scholarship | Permalink | Comments (1)

Theft Loss Deductions, Restitution, And Public Policy

Steven Friedell (Rutgers), Confidence Schemes: Theft Loss Deductions, Restitution, and Public Policy, 90 St. John's L. Rev. 25 (2016):

May courts legitimately impose their public policy views to override statutory commands? This article focuses on some of these problems in the field of federal income tax. Part I of the article focuses on theft losses suffered by confidence-scheme victims who thought they would profit from counterfeiting or other illegal activity. Courts usually disallow these deductions so as to discourage illegal activity. This article criticizes this rationale and offers a better one. It suggests that a tax deduction would be contrary to state policy in those situations where states in effect penalize victims by denying them restitution from the thieves. Part II discusses the cases that have denied deductions for fines and civil penalties and explores how these apply to the denial of restitution.

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

How To Count Citations (If You Must)

EinsteinMotty Perry (Warwick) & Philip J. Rent (Chicago), How To Count Citations If You Must:

Citation indices are regularly used to inform critical decisions about promotion, tenure, and the allocation of billions of research dollars. Nevertheless, most indices (e.g., the h-index) are motivated by intuition and rules of thumb, resulting in undesirable conclusions. In contrast, five natural properties lead us to a unique new index, the Euclidean index, that avoids several shortcomings of the h-index and its successors. The Euclidean index is simply the Euclidean length of an individual’s citation list.

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February 7, 2017 in Legal Education, Scholarship | Permalink | Comments (0)

Monday, February 6, 2017

Pratt Presents The IRS's Startling Attempt To Deny Medical Expense Deduction For Cost Of Male-To-Female Transition Today At Pepperdine

Pratt (2016)Katherine Pratt (Loyola-L.A.) presents The Tax Definition of “Medical Care:” A Critique of the Startling IRS Arguments in O’Donnabhain v. Commissioner, 23 Mich. J. Gender & L. 313 (2016), at Pepperdine today as part of our Tax Policy Workshop Series funded in part by a generous gift from Scott Racine:

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

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February 6, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (2)

Auerbach Presents U.S. Inequality, Fiscal Progressivity, And Work Disincentives Today At NYU

AuerbachAlan Auerbach (UC-Berkeley) presents U.S. Inequality, Fiscal Progressivity, and Work Disincentives: An Intra-generational Accounting (with Laurence Kotlikoff (Boston University) & Darryl Koehler) at NYU today as part of its Tax Policy Colloquium Series hosted by Daniel Shaviro and Rosanne Altshuler:

This study combines the 2013 Federal Reserve Survey of Consumer Finances data and the Fiscal Analyzer, a highly detailed life-cycle consumption-smoothing program, to a) measure ultimate economic inequality – inequality in lifetime spending power – within cohorts, b) assess fiscal progressivity within cohorts, c) calculate marginal remaining lifetime net tax rates, taking into account all major federal and state tax and transfer policies, d) evaluate the ability of current income to correctly classify households as rich, middle class, and poor, e) determine whether current-year average net tax rates accurately capture actual fiscal progressivity, and f) determine whether current-year marginal tax rates on labor supply accurately capture actual remaining lifetime marginal net tax rates.

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

Olson Presents Tax Policy In The New Administration Today At Minnesota

Olson (2017)Pam Olson (PricewaterhouseCoopers) presents Tax Policy in the New Administration at the University of Minnesota Law School Corporate Institute Forum on Taxation and Regulation today as part of its Perspectives on Taxation Lecture Series:

The start of a new presidential administration is always an interesting time for reflecting on tax policy. What are the new administration’s tax policy goals? Where does tax policy fall on the new administration’s list of priorities? What tax legislation might Congress consider?

The Honorable Pam Olson is the U.S. Deputy Tax Leader and Washington National Tax Services Practice Leader of PricewaterhouseCoopers LLP, heading a team that includes many former senior government officials and policy advisors. Before joining PwC, she retired from Skadden, Arps, Slate, Meagher & Flom, where she was the leader of the Washington office tax practice.

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February 6, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (1)

Graetz:  Business Tax Reforms In The House GOP Blueprint

Michael J. Graetz  (Columbia), The Known Unknowns of the Business Tax Reforms Proposed in the House Republican Blueprint:

This set of slides raises important issues and questions concerning the potential effects of a border-adjusted destination-based cash flow tax (DBCFT) as proposed in the 2016 House Blueprint “A Better Way.” This will form the basis for an article forthcoming in the Columbia Tax Journal. Citations have been omitted here.

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

Sanchirico:  Business Investment In The House GOP Tax Reform Blueprint

Chris William Sanchirico (Pennsylvania), Business Investment in the Tax Reform Blueprint:

November’s election thrust to the fore the tax reform Blueprint released last June by House GOP leaders. One of the plan’s key features, which has received surprisingly little attention, is its treatment of business investment. Outlays for plant, equipment and other business assets would be immediately deductible, rather than depreciated over time, while interest costs would be deductible only to the extent of interest income. This plan to replace net interest deductions with expensing of capital outlays is likely to hurt most businesses — some significantly — and so is likely to face a growing chorus of objections in coming months as this becomes clear to business leaders.

Moreover, claims made about this part of the Blueprint’s positive impact on the economy — that it will reduce distortion and encourage investment — are subject to significant caveats and are, in some cases, contradicted by the conceptual understructure of the plan itself.

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

Sunday, February 5, 2017

The Top 5 Tax Paper Downloads

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

  1. [1,833 Downloads]  Problems with Destination-Based Corporate Taxes and the Ryan Blueprint, by Reuven Avi-Yonah (Michigan; moving to UC-Irvine) & Kimberly Clausing (Reed College)
  2. [547 Downloads]  A Guide to the GOP Tax Plan — The Way to a Better Way, by David Weisbach (Chicago)
  3. [256 Downloads]  Destination-Based Cash-Flow Taxation: A Critical Appraisal, by Wei Cui (British Columbia)
  4. [205 Downloads]  Important Developments in Federal Income Taxation, by Edward Morse (Creighton)
  5. [201 Downloads]  Accounting for Behavioral Considerations in Business Tax Reform: The Case of Expensing , by Lily Batchelder (NYU)

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

Friday, February 3, 2017

Weekly SSRN Tax Article Review And Roundup

This week, Erin Scharff (ASU) reviews reviews a new essay by Sas Ansari (Osgoode Hall) and Lorne Sossin (Osgoode Hall), Legitimate Expectations in Canada:  Soft Law and Tax Administration

Scharff (2017)How exactly do non-experts understand tax law, and what is the role of the tax administrator in disseminating information about the law to (non-expert) taxpayers?  These are two critically important questions for tax administration.  While tax lawyers pride themselves on their mastery of the complex, often highly technical language of the Internal Revenue Code, lawyers are typically the last line of defense when it comes to income tax compliance.  Most taxpayers won’t even consult an accountant for tax advice. 

Recent work has brought renewed attention to these questions. For example, Shu-Yi Oei and Diane Ring have explored how Uber and Lyft drivers navigate tax questions, and Josh Blank and Leigh Osofsky have criticized the ways IRS taxpayer publications describe tax law.  

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February 3, 2017 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Georgetown Hosts Conference Today On Tax Competition

GUThe Georgetown Institute of International Economic Law (IIEL) and International Tax Policy Forum (ITPF) host a conference today on Tax Competition (program):

Unlike the United States―which currently has the highest statutory corporate tax rate in the developed world―other countries have been lowering corporate tax rates and increasing reliance on consumption taxes. Recently, various multilateral and unilateral efforts to limit income tax competition have reshaped the international tax landscape. In response to these developments, the United States is now considering major tax reforms to restore American competitiveness, such as the destination-based cash flow tax proposed in the House Republican Blueprint.

This conference brings together experts from a variety of backgrounds to share their views on international tax competition and U.S. tax policy. A series of panels will consider the global trend towards consumption taxation, how recent efforts to curtail income tax avoidance interact with tax competition, and the economic effects of international tax competition. The closing panel will consider how the United States should respond.

Panel #1:  BEPS and Tax Competition

  • James R. Hines (Michigan) (moderator)
  • Lilian V. Faulhaber (Georgetown)
  • Michael Smart (Toronto)

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February 3, 2017 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Thursday, February 2, 2017

Thomas Presents Taxing The Gig Economy Today At Duke

Thomas (2017)Kathleen Delaney Thomas (North Carolina) presents Taxing the Gig Economy at Duke today as part of its Tax Policy Workshop Series hosted by Lawrence Zelenak:

Due to advances in technology like mobile applications and online platforms, millions of American workers now earn income through “gig” work, which allows them the flexibility to set their own hours and choose which jobs to take. To the surprise of many gig workers, the tax law considers them to be “business owners,” which subjects them to onerous recordkeeping and filing requirements, along with the obligation to pay quarterly estimated taxes. This Article proposes two reforms that would drastically reduce tax compliance burdens for this new generation of small business owners, while simultaneously enhancing the government’s ability to collect tax revenue.

First, Congress should create a “non-employee withholding” regime that would allow online platform companies such as Uber to withhold taxes for their workers without being classified as employers. Second, the Article proposes a “standard business deduction” for gig workers equal to 80 percent of their gross receipts, which would eliminate the need to track and report business expenses.

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

Kysar Presents Automatic Legislation Today At Indiana

KysarRebecca Kysar (Brooklyn) presents Automatic Legislation at Indiana-Bloomington today as part of its Tax Policy Colloquium Series hosted by Leandra Lederman:

To compensate for the status quo bias in the legislative process, lawmakers have developed devices that, under certain conditions, provide easier paths to policy refreshment. Procedural mechanisms, like the reconciliation process, may eliminate barriers to legislating (“veto bridges”). Laws may prompt Congress to act through sunset dates or penalties like sequestration or other undesirable policy outcomes (“prompting legislation”). Or the legislative product itself may automatically update without further action by Congress (“automatic legislation”). It is this last, underutilized category, I contend, that best overcomes policy stasis while also avoiding the pathologies presented by the other two. Specifically, automatic legislation is preferable along several different axes: interaction with the administrative state, entrenchment effects, political economic and democratic concerns, and the budget process.

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

Wednesday, February 1, 2017

How Donald Trump Can Keep His Campaign Promises, Grow The Economy, Cut Tax Rates, Repatriate Offshore Earnings, Reduce Income Inequality, Keep Jobs In The U.S., And Reduce The Deficit

David S. Miller (Proskauer, New York), 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:

This paper discusses President Trump's tax proposals and the House Republicans' Blueprint, and makes a number of suggestions that would allow President Trump to keep all of his tax policy campaign promises and some others.

Buffett

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February 1, 2017 in Scholarship, Tax | Permalink | Comments (4)

The Case Against Income Tax Exemption For Nonprofits

Michael Fricke (Illinois), The Case Against Income Tax Exemption for Nonprofits, 89 St. John's L. Rev. 1129 (2016):

[T]he time has come to end income tax exemption for nonprofit organizations. The arguments for exempting nonprofits are—and have always been—shaky, at best,12 and there are better methods for achieving our societal goals. Expanding the definition of a business expense and eliminating the income tax exemption for nonprofits would incentivize charitable organizations to use their funds currently instead of propping up their endowments at the expense of their programs.

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February 1, 2017 in Scholarship, Tax | Permalink | Comments (2)

Call For Tax Papers: Stanford/Yale/Harvard Junior Faculty Forum

Stanford Yale HarvardStanford/Yale/Harvard Junior Faculty Forum: Request For Submissions:

Stanford, Yale, and Harvard Law Schools announce the 18th session of the Junior Faculty Forum to be held at Stanford Law School on June 6-7, 2017 and seek submissions for its meeting.

The Forum's objective is to encourage the work of scholars recently appointed to a tenure-track position by providing experience in the pursuit of scholarship and the nature of the scholarly exchange. Meetings are held each spring, rotating at Yale, Stanford, and Harvard. Twelve to twenty scholars (with one to seven years in teaching) will be chosen on a blind basis from among those submitting papers to present. One or more senior scholars, not necessarily from Yale, Stanford, or Harvard, will comment on each paper. The audience will include the participating junior faculty, faculty from the host institutions, and invited guests. The goal is discourse both on the merits of particular papers and on appropriate methodologies for doing work in that genre. We hope that comment and discussion will communicate what counts as good work among successful senior scholars and will also challenge and improve the standards that now obtain. The Forum also hopes to increase the sense of community among American legal scholars generally, particularly among new and veteran professors.

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February 1, 2017 in Conferences, Legal Education, Scholarship, Tax | Permalink | Comments (0)

Using College Completion Data To Assess The Law School Pipeline

Access GroupTiffane Cochran & India Heckstall (Access Group Center for Research & Policy Analysis), From the Bachelor's to the Bar: Using College Completion Data to Assess the Law School Pipeline:

The story of declining law school applications is well known among the legal education community. Over 100,000 individuals applied to law school for admission in fall 2004, but demand for legal education has since declined — only 54,000 applicants sought admission in fall 2015. The Access Group Center for Research & Policy Analysis® examined college completion data to determine whether undergraduate interest in fields most popular among law school applicants has also waned in recent years. In particular, this research brief summarizes bachelor’s degree completion in the top 10 law school feeder majors over the last 10 years, and compares degree production in these fields to those in science, technology, engineering, and mathematics (STEM).

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

Tuesday, January 31, 2017

Shaheen Presents Treaty Aspects Of The McDonald's State Aid Investigation Today At Georgetown

Shaheen (2017)Fadi Shaheen (Rutgers) presents Treaty Aspects of the McDonald's State Aid Investigation at Georgetown today as part of its Tax Law and Public Finance Workshop Series hosted by John Brooks and Itai Grinberg:

On December 3, 2015, The European Commission decided to initiate an official investigation into whether Luxemburg has selectively granted McDonald’s advantageous tax treatment in breach of EU state aid rules. The Commission’s decision is based on its conclusion that Luxembourg’s treaty-based exemption of the income attributable to the U.S. branch of a McDonald’s Luxembourgian subsidiary is contrary to the Luxembourg-U.S. treaty because that income was not taxable in the United States. This paper demonstrates that while the Commission’s conclusion and recourse to conflicts of qualification principles are correct, both the Commission’s reasoning on the one hand and Luxembourg’s and McDonald’s position on the other hand misapply the treaty.

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January 31, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

NYU Tax Law Review Symposium:  Tax And Entrepreneurship

NYU TaxSymposium, Tax and Entrepreneurship, 69 Tax L. Rev. 311-457 (2016):

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January 31, 2017 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Mazur:  Taxing Social Impact Bonds

SIBOrly Mazur (SMU), Taxing Social Impact Bonds, 20 Fla. Tax Rev. ___ (2017):

An exciting new way to fund social services has recently emerged. This new financing mechanism, called a social impact bond (SIB), has the potential to help us tackle some of our nation’s most challenging social problems. Broadly speaking, a SIB is a type of “pay for success” contract where private investors provide the upfront capital to finance a social program, but only recoup their investment and realize returns if the program is successful. Like any new financing instrument, SIBs create numerous regulatory challenges that have not yet been addressed. One unresolved issue is the tax implications of a SIB investment. This Article argues that the current law allows for multiple possible characterizations of the SIB arrangement for tax purposes.

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January 31, 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 January 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.)

62,680

Reuven Avi-Yonah (Mich.)

10,604

2

Michael Simkovic (S. Hall)

35,095

Lily Batchelder (NYU)

6851

3

Paul Caron (Pepperdine)

32,563

Michael Simkovic (S. Hall)

5016

4

D. Dharmapala (Chicago)

29,385

D. Dharmapala (Chicago)

4069

5

Louis Kaplow (Harvard)

27,407

Ed Kleinbard (USC)

2585

6

Vic Fleischer (San Diego)

23,323

Richard Ainsworth (BU)

2539

7

James Hines (Michigan)

22,532

Paul Caron (Pepperdine)

2464

8

Ed Kleinbard (USC)

21,773

Dan Shaviro (NYU)

2372

9

Richard Kaplan (Illinois)

21,585

William Byrnes (Texas A&M)

2234

10

Ted Seto (Loyola-L.A.)

21,566

Robert Sitkoff (Harvard)

2205

11

Katie Pratt (Loyola-L.A.)

19,646

Louis Kaplow (Harvard)

2155

12

Richard Ainsworth (BU)

19,520

Omri Marian (UC-Irvine)

1854

13

Robert Sitkoff (Harvard)

18,414

David Weisbach (Chicago)

1823

14

Brad Borden (Broklyn)

17,779

Jeff Kwall (Loyola-Chicago)

1808

15

Carter Bishop (Suffolk)

17,705

Steven Bank (UCLA)

1775

16

David Weisbach (Chicago)

17,549

Yariv Brauner (Florida)

1636

17

Chris Sanchirico (Penn)

17,178

Brad Borden (Brooklyn)

1626

18

Jen Kowal (Loyola-L.A.)

17,095

Brian Galle (Georgetown)

1517

19

Francine Lipman (UNLV)

16,921

Christopher Hoyt (UMKC)

1507

20

Dan Shaviro (NYU)

16,609

Vic Fleischer (San Diego)

1490

21

Bridget Crawford (Pace)

16,482

Bridget Crawford (Pace)

1484

22

Dennis Ventry (UC-Davis)

16,324

Richard Kaplan (Illinois)

1471

23

David Walker (Boston Univ.)

15,460

Michael Graetz (Columbia)

1469

24

Steven Bank (UCLA)

14,367

Francine Lipman (UNLV)

1450

25

Ed McCaffery (USC)

13,510

Jordan Barry (San Diego)

1442

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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January 31, 2017 in Scholarship, Tax, Tax Prof Rankings | Permalink | Comments (0)

Monday, January 30, 2017

Gergen Presents How To Tax Global Capital Today At NYU

Gergen (2017)Mark Gergen (UC-Berkeley) presents How to Tax Global Capital, 69 Tax L. Rev. ___ (2016), at NYU today as part of its Tax Policy Colloquium Series hosted by Daniel Shaviro and Rosanne Altshuler:

In an earlier paper I proposed a new approach to taxing capital owned by U.S. households and nonprofits. The heart of the new approach is a flat annual tax on the market value of publicly traded securities with a rate of around .8 percent (80 basis points) that is remitted by the issuer. A security issuer gets a credit for publicly traded securities it holds so that wealth that is represented by a string of publicly traded securities is taxed once. For example, a mutual fund remits the tax based on the market or redemption value of interests in the fund and gets a credit based on the market value of publicly traded securities it holds.

Income producing capital that is not subject to the securities tax, such as an interest in a closely held business or in a private equity fund, is covered by a complementary tax with the same rate as the securities tax.

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January 30, 2017 in Colloquia, Scholarship, Tax | Permalink | Comments (1)

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

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

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

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

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

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

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

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

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

Sunday, January 29, 2017

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

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

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

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

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

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

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

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

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

The Top 5 Tax Paper Downloads

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

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

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

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

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

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

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

Saturday, January 28, 2017

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

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

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

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

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

Friday, January 27, 2017

Weekly SSRN Tax Article Review And Roundup

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

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

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

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

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

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

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

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

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

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

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

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

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