TaxProf Blog

Editor: Paul L. Caron
Pepperdine University School of Law

Friday, June 10, 2016

Crawford:  Valuation, Values, Norms — Proposals For Estate And Gift Tax Reform

Bridget Crawford (Pace), Valuation, Values, Norms: Proposals for Estate and Gift Tax Reform, 57 B.C. L. Rev. 979 (2016):

In their contributions to the Symposium on The Centennial of the Estate and Gift Tax, Professor Joseph Dodge, Professor Wendy Gerzog, and Professor Kerry Ryan offer concrete proposals for improving the existing estate and gift tax system.

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June 10, 2016 in Scholarship, Tax | Permalink | Comments (0)

Thursday, June 9, 2016

Logue Responds To Galle's In Praise Of Ex Ante Regulation

Kyle Logue (Michigan), In Praise of (Some) Ex Post Regulation: A Response to Professor Galle, 69 Vand. L. Rev. En Banc 97 (2016):

Professor Brian Galle recently argued [In Praise of Ex Ante Regulation, 68 Vand. L. Rev. 1715 (2015)] that the growing consensus that ex post regulation is superior to ex ante regulation on efficiency grounds has been overstated by scholars, including me, and that ex ante regulation has advantages that have been ignored or underemphasized.

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June 9, 2016 in Scholarship, Tax | Permalink | Comments (0)

Graetz & Greenhouse:  The Burger Court And The Rise Of The Judicial Right

Burger CourtMichael J. Graetz (Columbia) & Linda Greenhouse (New York Times), The Burger Court and the Rise of the Judicial Right (June 7, 2016).  From Columbia Law School:

Early reviews are extolling the insights of The Burger Court and the Rise of the Judicial Right, the new book by Columbia Law School Professor Michael J. Graetz and Pulitzer Prize-winning journalist Linda Greenhouse. Graetz—the author of seven books, an eminent scholar and teacher, and a former official in the U.S. Treasury Department—is the Columbia Alumni Professor of Tax Law. He has argued before the Supreme Court. For nearly 30 years, Greenhouse covered the Supreme Court for The New York Times

The Burger Court and the Rise of the Judicial Right, published today by Simon & Schuster, challenges the accepted portrayal of the Supreme Court from 1969 to 1986 as pragmatic and accommodating, a moderate or transitional period when “nothing much happened.” On the contrary, explain Graetz and Greenhouse, American law moved to the right with President Richard Nixon’s four appointments to the Supreme Court, including Chief Justice Warren Burger. A new conservative majority reacted to the previously liberal Court under Chief Justice Earl Warren, curbing and rolling back landmark rulings on civil rights and civil liberties, while granting a First Amendment right to “commercial speech,” which would enable businesses to invoke the Constitution in opposition to government regulation. The Burger Court and the Rise of the Judicial Right shows how the Court reached its most lasting decisions, laying a legal foundation for the conservative Rehnquist and Roberts Courts. ...

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June 9, 2016 in Book Club, Legal Education, Scholarship, Tax | Permalink | Comments (1)

AAUP Handbook:  Best Practices In Peer Review

AAUP Handbook, Best Practices in Peer Review (2016):

AAUPThe purpose of this document, written by the AAUP’s Acquisitions Editorial Committee, is to articulate a set of practices that comprise a rigorous process of peer review. The Committee acknowledges, however, that the peer review process is highly complex, involves many individuals, and must be responsive to the norms of the appropriate fields. Thus, while the steps discussed below are recognized as generally acceptable best practices, this document is not intended to prescribe the conduct of an acceptable peer review in every case. Moreover, though strong peer reviews are necessary for moving forward with a project, they form only one part of a broad range of factors, including considerations of fit and budget, that together lead to a publishing decision.

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June 9, 2016 in Legal Education, Scholarship | Permalink | Comments (0)

Thimmesch:  State Taxing Power After Direct Marketing Association v. Brohl

Adam B. Thimmesch (Nebraska), State Taxing Power after Direct Marketing Association v. Brohl, 80 State Tax Notes 299 (Apr. 25, 2016):

The Tenth Circuit Court of Appeals’ recent decision in Direct Marketing Association v. Brohl marked another entry into the ongoing saga regarding the scope of state taxing power over remote vendors. That decision, along with the U.S. Supreme Court’s decision in an earlier iteration of the litigation, has predictably increased the debates regarding the meaning and validity of the Court’s long-standing physical presence rule and the merits of congressional intervention.

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June 9, 2016 in Scholarship, Tax | Permalink | Comments (0)

Wednesday, June 8, 2016

Caron:  The One Hundredth Anniversary Of The Federal Estate Tax — It's Time To Renew Our Vows

Paul L. Caron (Pepperdine), The One Hundredth Anniversary of the Federal Estate Tax: It's Time to Renew Our Vows, 57 B.C. L. Rev. 823 (2016):

September 8, 2016 will mark the one hundredth anniversary of the federal estate tax. As with many longstanding marriages, America’s commitment to the estate tax has waxed and waned through the years. Our ardor built slowly, growing from the honeymoon years (impacting less than 1% of decedents with an inflation-adjusted exemption of around $1 million and a 10% top rate on estates over $100 million, raising less than 1% of all federal tax revenues) to a mid-marriage peak (impacting more than 7% of decedents with a $350,000 exemption and a 77% top rate on estates over $160 million, raising nearly 10% of federal tax revenues). But our passion has steadily cooled since then, culminating in a one year trial separation in 2010 and today’s withered estate tax (impacting less than 0.2% of decedents with a $5.4 million exemption and a 40% top rate on estates over $6.4 million, raising less than 0.6% of federal tax revenues).

Yet the initial reasons for our commitment to the estate tax – to raise revenue during a time of war, enhance the progressivity of the tax system, and curb concentrations of wealth – are even more compelling today than they were in 1916. This Article argues that we should rededicate ourselves to the vibrant estate tax of our youth.

June 8, 2016 in Scholarship, Tax | Permalink | Comments (3)

Most Stock Buybacks Should Be Taxed As Dividends

Wanling Su (Yale) & Rahul K. Goravara (Yale), What Is a Dividend?:

What is a dividend? It is a trillion dollar question. One on which the Internal Revenue Service (IRS) and the courts profoundly disagree.

The Tax Code defines a dividend as “any distribution of property made by a corporation to its shareholders.” Corporations found a way around this definition and thus the dividend tax. It involves buying back their own stock. A buyback can act like a dividend in substance, distributing cash to shareholders without changing anyone’s stake in the corporation.

This reading has been taken for granted by scholars. We argue the Tax Code provisions are not simple. In fact, the IRS misinterprets them. Most buybacks should actually be taxed as dividends.

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June 8, 2016 in Scholarship, Tax | Permalink | Comments (0)

Tuesday, June 7, 2016

Christians:  Tax Treaty Practice in Canada

Allison Christians (McGill), While Parliament Sleeps: Tax Treaty Practice in Canada, 10 J. Parl. & Political L. 15 (2016):

Canada’s Parliament plays little but a perfunctory role in the adoption of tax treaties, even though these agreements have significant impact on Parliamentary autonomy over core national budgetary matters as well as core legal and administrative functions. This article argues that Canada’s tax treaty process reflects a studied and intentional preference against public engagement in international fiscal policy, and that this stance has a negative impact on the rule of law.

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June 7, 2016 in Scholarship, Tax | Permalink | Comments (0)

Sunday, June 5, 2016

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 #4:

  1. [465 Downloads]  The Panama Papers and Tax Morality, by Usman W. Chohan (University of New South Wales)
  2. [397 Downloads]  Google's 'Alphabet Soup' in Delaware, by Bret Bogenschneider (Vienna) & Ruth Heilmeier (Cologne)
  3. [310 Downloads]  New Prominence Of Tax Basis In Estate Planning, by Paul L. Caron (Pepperdine) & Jay A. Soled (Rutgers)
  4. [179 Downloads]  Following the Money: Lessons from the Panama Papers, Part 1: Tip of the Iceberg, by Lawrence Trautman (American)
  5. [176 Downloads]  'Death Tax' Politics, by Michael J. Graetz (Columbia)

June 5, 2016 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Sunstein:  The World According to Star Wars—Lessons On Faith, Fathers & Feminism

SunsteinCass Sunstein (Harvard), The World According to Star Wars (May 31, 2016):

There’s Santa Claus, Shakespeare, Mickey Mouse, the Bible, and then there’s Star Wars. Nothing quite compares to sitting down with a young child and hearing the sound of John Williams’s score as those beloved golden letters fill the screen. In this fun, erudite, and often moving book, Cass R. Sunstein explores the lessons of Star Wars as they relate to childhood, fathers, the Dark Side, rebellion, and redemption. As it turns out, Star Wars also has a lot to teach us about constitutional law, economics, and political uprisings.

In rich detail, Sunstein tells the story of the films’ wildly unanticipated success and explores why some things succeed while others fail. Ultimately, Sunstein argues, Star Wars is about freedom of choice and our never-ending ability to make the right decision when the chips are down. Written with buoyant prose and considerable heart, The World According to Star Wars shines a bright new light on the most beloved story of our time.

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June 5, 2016 in Book Club, Legal Education, Scholarship | Permalink | Comments (1)

Friday, June 3, 2016

Weekly SSRN Tax Roundup

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June 3, 2016 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Weekly Student Tax Note Roundup

Roberts: A Structural Examination Of Energy Tax Subsidies

Tracey M. Roberts (UC-Hastings), Picking Winners and Losers: A Structural Examination of Tax Subsidies to the Energy Industry, 41 Colum. J. Envtl. L. 63 (2016):

The shibboleth that “government should not be picking winners and losers” has dominated the public discourse over renewable energy subsidies. This way of framing the debate ignores the nation’s long history of support for fossil fuels and obscures the economic theory behind the subsidies. This article contributes to the discussion in four ways.

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June 3, 2016 in Scholarship, Tax | Permalink | Comments (1)

Thursday, June 2, 2016

Lederman Presents Does Enforcement Crowd Out Voluntary Tax Compliance? At Oxford And Vienna

Ledderman (2016)Leandra Lederman (Indiana-Bloomnington) presented Does Enforcement Crowd Out Voluntary Tax Compliance? at Oxford University's Saïd Business School and Vienna University of Economics and Business:

Governments commonly use deterrence methods, such as audits and the imposition of penalties, to foster compliance with tax laws. Although this approach is consistent with economic modeling of tax compliance, some scholars caution that deterrence may backfire, “crowding out” intrinsic motivations to pay taxes and thus reducing compliance. This article analyzes the evidence to date to determine the extent of such an effect. Field studies suggest that deterrence tools, such as audits, generally are highly effective at increasing tax collections but that crowding out may occur in some contexts, with respect to certain subgroups of taxpayers.

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June 2, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

The Importance Of Qualitative Assessment In Complementing Quantitative Measures Of Mid-Career Scholarly Performance

Mid-CareerFrank Pasquale (Maryland), Scholarship and Mid-Career Self-Assessments: A Brief Reflection on Simkovic’s What Can We Learn from Credit Markets?:

Chris J. Walker has written a very helpful series of posts for young professors on “how to become a voice in one’s field.” ... I also think that we can learn a great deal from the content of successful scholars’ inquiry. Usually, researchers only undertake this type of self-reflection when applying for jobs and preparing research agendas (a mostly private process), or at the end of a career (when a long list of accomplishments may seem too daunting to be relatable to younger peers). But winners of the ALI Young Scholars Medal appear to get invited to give a public talk on their work at an earlier stage of inquiry. Mike Simkovic (whose work I’ve previously praised here) gave such an address in May. ...

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June 2, 2016 in Legal Education, Scholarship | Permalink | Comments (1)

Today's Law, Society & Taxation Panels

L&SToday's Law, Society, and Taxation panels at the 2016 Law & Society Association Annual Meeting in New Orleans (program here):

  • Panel #1:  Business Taxes
  • Panel #2:  Controversies in Theory and Practice
  • Panel #3:  Comparative Tax Issues
  • Panel #4:  Evasion and Compliance
  • Panel #5:  Deterrence and Enforcement

Panel #1:  Business Taxes (Diane Ring (Boston College), Chair/Discussant))

  • Karie Davis-Nozemack (Georgia Tech), The Conceptual Incompatibility of Corporate Tax Avoidance with CSR and Stakeholder Theory
  • Calvin Johnson (Texas), A Conceptual Framework for Capital Gains
  • Melina Rocha Lukic & José Roberto Afonso (Fundacao Getulio Vargas), An Empirical Analysis of the Allowance for Corporate Equity (ACE) System in Brazil
  • Doron Narotzki (Akron), Corporate Social Responsibility and Taxation: The Next Step of the Evolution, 16 Hous. Bus. & Tax J. 167 (2016)

Panel #2:  Controversies in Theory and Practice (Philip Hackney (LSU), Chair/Discussant)

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June 2, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (1)

Villanova Hosts Symposium Today On Tax Policy And The 2016 Election

Villanova Grad Tax Program LogoThe Villanova Graduate Tax Program hosts its inaugural tax policy symposium today on Fundamental Tax Reform and Tax Policy Issues in Election Year 2016:

Welcome:  Edward A. Liva (Professor of Practice and Director, Villanova Graduate Tax Program)

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June 2, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (0)

16th Annual Oregon Tax Institute

OregonThe 16th Annual Oregon Tax Institute kicks off today in Portland.  Tax Prof speakers include:

  • Howard Abrams (San Diego), Partnership Leveraged Distributions: Traps Getting In and Tips on Getting Out

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June 2, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Wednesday, June 1, 2016

Yale:  Anti-Basis

Ethan Yale (Virginia), Anti-Basis, 94 N.C. L. Rev. 485 (2015):

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

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June 1, 2016 in Scholarship, Tax | Permalink | Comments (0)

Schmalbeck & Soled:  Unifying Depreciation Recapture

Richard L. Schmalbeck (Duke) & Jay A. Soled (Rutgers), Unifying Depreciation Recapture, 48 Conn. L. Rev. 531 (2015):

To achieve fairness and accuracy, an income tax system must accomplish two objectives: allow depreciation deductions for the erosion in the value of assets used to produce income, and correct errors that may result from excessive depreciation allowances. The Internal Revenue Code currently fares well in accomplishing the first objective but conspicuously fails to achieve the second.

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June 1, 2016 in Scholarship, Tax | Permalink | Comments (0)

Morrissey:  Saving Legal Education

Daniel J. Morrissey (Former Dean, Gonzaga), Saving Legal Education, 56 J. Legal Educ. 25 (2006):

This piece describes the difficult situation that legal education finds itself in. While law schools offer programs that are more enriching than ever, they do so at much higher costs than in previous decades. The resulting tuition increases have causes graduating students to become burdened with large debts. At the same time, their employment, particular for those at non-elite law schools, have become more problematic. The article provides ample statistics and examples to support these disturbing trends.

June 1, 2016 in Legal Education, Scholarship | Permalink | Comments (2)

Tuesday, May 31, 2016

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

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

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

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May 31, 2016 in Scholarship, Tax | Permalink | Comments (0)

Gerzog:  Toward A Reality-Based Estate Tax

Wendy Gerzog (Baltimore), Toward a Reality-Based Estate Tax, 57 B.C. L. Rev. ___ (2016):

Currently, the estate tax does not accurately value the property and transactions that it is meant to cover. Additionally, the marital and charitable deductions do not reflect actual associated transfers, instead skewing their benefits away from their purported beneficiaries. This Article proposes reforming the estate tax by eliminating these sources of unreality and distortion, and to make the current estate tax a reality-based tax.

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May 31, 2016 in Scholarship, Tax | Permalink | Comments (1)

Sunday, May 29, 2016

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. [429 Downloads]  The Panama Papers and Tax Morality, by Usman W. Chohan (University of New South Wales)
  2. [366 Downloads]  Google's 'Alphabet Soup' in Delaware, by Bret Bogenschneider (Vienna) & Ruth Heilmeier (Cologne)
  3. [293 Downloads]  New Prominence Of Tax Basis In Estate Planning, by Paul L. Caron (Pepperdine) & Jay A. Soled (Rutgers)
  4. [162 Downloads]  'Death Tax' Politics, by Michael J. Graetz (Columbia)
  5. [156 Downloads]  Supercharged IPOs, the Up-C, and Private Tax Benefits in Public Offerings, by Gladriel Shobe (BYU)

May 29, 2016 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Saturday, May 28, 2016

Study Shatters Myth That Millionaires Migrate To Low Tax States

Cristobal Young (Stanford), Charles Varner (Stanford), Ithai Z. Lurie (U.S. Treasury Department, Office of Tax Analysis) & Richard Prisinzano (U.S. Treasury Department, Office of Tax Analysis), Millionaire Migration and Taxation of the Elite: Evidence from Administrative Data, 81 Am. Sociological Rev. 421 (2016):

All StatesA growing number of U.S. states have adopted “millionaire taxes” on top income-earners. This increases the progressivity of state tax systems, but it raises concerns about tax flight: elites migrating from high-tax to low-tax states, draining state revenues, and undermining redistributive social policies. Are top income-earners “transitory millionaires” searching for lower-tax places to live? Or are they “embedded elites” who are reluctant to migrate away from places where they have been highly successful? This question is central to understanding the social consequences of progressive taxation. We draw on administrative tax returns for all million-dollar income-earners in the United States over 13 years, tracking the states from which millionaires file their taxes. Our dataset contains 45 million tax records and provides census-scale panel data on top income-earners. We advance two core analyses: (1) state-tostate migration of millionaires over the long-term, and (2) a sharply-focused discontinuity analysis of millionaire population along state borders. We find that millionaire tax flight is occurring, but only at the margins of statistical and socioeconomic significance.

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May 28, 2016 in Scholarship, Tax | Permalink | Comments (8)

Friday, May 27, 2016

Weekly SSRN Tax Roundup

Weekly Student Tax Note Roundup

Thursday, May 26, 2016

Blank Presents The Timing Of Tax Transparency Today In Sweden

Blank (2016)Joshua Blank (NYU) presents The Timing of Tax Transparency, 90 S. Cal. L. Rev. ___ (2017), at the Stockholm Centre for Commercial Law at Stockholm University in Sweden today at an event hosted by Teresa Simon-Almendal, Peter Melz and Roger Persson-Osterman (all of Stockholm University):

Fairness in the administration of the tax law is the subject of intense debate in the United States. As recent headlines reveal, the Internal Revenue Service has been accused of failing to enforce the tax law equitably in its review of tax-exempt status applications by political organizations, the international tax structures of multinational corporations, and the estate tax returns of millionaires, among other areas. Many have argued that greater “tax transparency” would better empower the public to hold the IRS accountable and the IRS to defend itself against accusations of malfeasance. Mandatory public disclosure of taxpayers’ tax return information is often proposed as a way to achieve greater tax transparency. Yet, in addition to concerns regarding exposure of personal and proprietary information, broad public disclosure measures pose potential threats to the taxing authority’s ability to enforce the tax law.

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May 26, 2016 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Hemel Reviews Taxing The Rich: A History Of Fiscal Fairness In The United States And Europe

TaxingFollowing up on last week's postDaniel Hemel (Chicago), Taxation as Compensation (reviewing   Kenneth F. Scheve (Stanford) & David Stasavage (NYU), Taxing the Rich: A History of Fiscal Fairness in the United States and Europe (Princeton University Press, 2016)):

According to Scheve and Stasavage . . . , “the story of taxing the rich has more to do with politics” than with fiscal constraints . . . . For Scheve and Stasavage, “politics” specifically means rhetoric: their answer to the “why” question focuses on the types of tax fairness arguments that advocates for redistribution have employed. Scheve and Stasavage direct their attention (and ours) to three particular tax fairness claims. The first is what they call the “equal treatment” argument: “the fairest system involves equal treatment for all” (p. 6). The second is what they describe as “the ability to pay doctrine”: each additional dollar of taxation represents less of a sacrifice for someone earning $10 million a year than for someone earning $10,000, and so a progressive tax system imposes a roughly equal burden on the rich as on the poor even while the rich pay much more in dollar terms. The third type of argument is “compensatory”: “taxing the rich more heavily than the rest serves to correct or compensate for some other inequality in government action” (p. 5). According to Scheve and Stasavage, the last type of argument is the only one that historically has justified highly progressive rate structures. ...

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May 26, 2016 in Book Club, Scholarship, Tax | Permalink | Comments (0)

Wednesday, May 25, 2016

Graetz:  Essays On International Taxation

GraetzMichael J. Graetz (Columbia), Follow the Money: Essays on International Taxation (Yale May 2016) (free download (PDF, EPUB (iPad, Noble), MOBI (Kindle)), book (amazon)):

Publicity about tax avoidance techniques of multinational corporations and wealthy individuals has moved discussion of international income taxation from the backrooms of law and accounting firms to the front pages of news organizations around the world. In the words of a top Australian tax official, international tax law has now become a topic of barbeque conversations. Public anger has, in turn, brought previously arcane issues of international taxation onto the agenda of heads of government around the world.

Despite all the attention, however, issues of international income taxation are often not well understood. In this collection of essays, written over the past two decades, renowned tax expert Michael J. Graetz reveals how current international tax policy came into place nearly a century ago, critiques the inadequate principles still being used to make international tax policy, identifies and dissects the most prevalent tax avoidance techniques, and offers important suggestions for reform. This book is indispensable for anyone interested in international income taxation.

Praise for Follow the Money:

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May 25, 2016 in Book Club, Scholarship, Tax | Permalink | Comments (2)

More On Canaries In The Law School Coal Mine

CanaryFollowing up on my previous posts on canaries in the law school coal mine:

Jeremy R. Paul (Dean, Northeastern), Saving the Canary, 66 Syracuse L. Rev. ___ (2016):

It’s hard not to admire Rick’s turn of phrase observing that law schools resemble the canary in the coal mine because downward pressure on tuition increases, with potentially harmful consequences, is hitting law schools just a few years ahead of when it will batter our partners around campus [Richard A. Matasar, The Canary in the Coal Mine: What the University Can Learn from Legal Education, 45 McGeorge L. Rev. 161 (2013)]. Yet faculty members throughout the country wonder why things seem suddenly out of control. ...

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May 25, 2016 in Legal Education, Scholarship | Permalink | Comments (0)

Bird-Pollan:  Why Tax Wealth Transfers? A Philosophical Analysis

Jennifer Bird-Pollan (Kentucky), Why Tax Wealth Transfers? A Philosophical Analysis, 57 B.C. L. Rev. ___ (2016):

The one-hundredth anniversary of the estate tax provides an ideal moment to reflect on the role of wealth transfer taxation in the larger scheme of the U.S. tax system. Wealth and income inequality are at historically high levels, and the responses to these issues are often reduced to a simplistic political dichotomy of “right” versus “left.” The multitude of views of the American people cannot be reduced to such simple generalities without losing important nuances. This Article identifies three general categories of political philosophical viewpoints that are commonly endorsed by both politicians and everyday Americans, and then examines the current estate tax from within the perspective of those positions.

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May 25, 2016 in Scholarship, Tax | Permalink | Comments (1)

2d Annual Mid-Career Tax Professors Workshop Concludes At UC-Davis

UC Davis Logo (2016)Panel #5:  Issues in Enforcement and Inter-Governmental Relations

David Gamage (UC-Berkeley), Tax Cannibalization and Fiscal Federalism in the United States, 110 Nw. U. L. Rev. ___ (2016)
Commentator: Adam Rosenzweig (Washington University)

Dennis Ventry (UC-Davis), Stitches for Snitches: Lawyers as Whistleblowers, 50 U.C. Davis L. Rev. ___ (2017)
Commentator: Will Foster (Arkansas)

Darien Shanske (UC-Davis), State Fiscal Constitutions and the Common Law of Public Finance
Commentator: Jake Brooks (Georgetown)

Panel #6:  Insurance and Employee Benefits

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May 25, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Tuesday, May 24, 2016

Morse:  Safe Harbors, Sure Shipwrecks

Safe HarborSusan C. Morse (Texas), Safe Harbors, Sure Shipwrecks, 49 U.C. Davis L. Rev. 1385 (2016):

In law, a safe harbor describes behavior that will not be penalized, and leaves other facts that fall outside the safe harbor to be judged case-by-case. A sure shipwreck, as I call it, is the mirror image. It describes behavior that violates the law as a matter of rule, and leaves other conduct to be judged by a standard. Prior literature analyzes rules and standards at length. But it has largely missed safe harbors and sure shipwrecks, even though these hybrids are everywhere in statutory, regulatory and case law.

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May 24, 2016 in Scholarship, Tax | Permalink | Comments (0)

Leff:  Tax Benefits Of Government-Owned Marijuana Stores

CannabisBenjamin M. Leff (American), Tax Benefits of Government-Owned Marijuana Stores, 50 U.C. Davis L. Rev. ___ (2016):

Over a year ago (March 7, 2015), a little store called the Cannabis Corner opened up in the small town of North Bonneville, Washington, about an hour by car from Portland, Oregon. The Cannabis Corner is the first marijuana store to be operated by a “public development authority,” an independent entity created by a state or local government. Public development authorities are generally exempt from federal income taxes under section 115 of the Internal Revenue Code. For a marijuana business, this exemption is especially valuable because section 280E of the Code currently prevents marijuana businesses from deducting many of the ordinary expenses other businesses regularly deduct, resulting in extremely high federal income taxes.

This Article is the first to address whether independent governmental affiliates that sell marijuana are exempt from federal income tax under section 115 of the Internal Revenue Code.

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May 24, 2016 in Scholarship, Tax | Permalink | Comments (0)

Duff:  Four Alternatives To The Estate And Gift

David G. Duff (British Columbia), Alternatives to the Gift and Estate Tax, 57 B.C. L. Rev. ___ (2016):

Following the near death experience of the federal gift and estate tax in 2010, the hundredth anniversary of the tax represents an ideal moment to reflect on the role of this tax and whether an alternative approach might be more desirable and sustainable. This Article examines four prominent alternatives to the current tax: an annual wealth tax, taxing unrealized gains at death, including gifts and inheritances in income, and a lifetime accessions tax that would apply to the cumulative value of gifts and inheritances received by individuals over their lifetimes.

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May 24, 2016 in Scholarship, Tax | Permalink | Comments (0)

Monday, May 23, 2016

Hayashi Reviews Marian's The State Administration Of International Tax Avoidance

Jotwell (Tax) (2016)Andrew Hayashi (Virginia), Putting a Face to International Tax Avoidance, JOTWELL (May 20, 2016) (reviewing Omri Marian (UC-Irvine), The State Administration of International Tax Avoidance, 7 Harv. Bus. L. Rev. ___ 2016)):

The world of international tax avoidance is a colorful one. There are the legal structures, with names like the “Double Irish Dutch Sandwich,” the exotic locales, like Bermuda and the Cayman Islands, and the identity crises presented by “hybrid” entities and financial instruments. But rarely does international tax avoidance have a human face and one could be forgiven for getting the impression that falling effective corporate tax rates are as inevitable as water flowing downhill. Corporations, acting in the interests of their shareholders, maximize their after-tax profits. States, acting in the best interests of their residents, set tax policies that are incongruous with the policies of other states. The “bad actors,” if there are any in this story, are corporate aggregates of one sort or another, multinational corporations and tax haven countries.

But the LuxLeaks scandal has given us one human face that stands out from the crowd of aggregates. This is the face of Marius Kohl or “Monsieur Ruling,” the former head of the Luxembourg agency, who gave rulings to taxpayers on the tax treatments of their proposed transactions. In The State Administration of International Tax Avoidance, Omri Marian does a wonderful job of explaining how this one bureaucrat acted to facilitate massive tax avoidance by engaging in “arbitrage manufacturing.” Marian argues that rogue individuals pose an ongoing threat to international tax cooperation. His paper clearly explains how arbitrage can be manufactured, documents how it was done in Luxembourg, and draws from the LuxLeaks episode an important lesson about the need to integrate micro reforms of tax administration into the macro project of international tax harmonization efforts. ...

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May 23, 2016 in Scholarship, Tax | Permalink | Comments (1)

Report:  The Tax Code Is Out Of Step With Today's On-Demand Platform Economy

KogodTax Policy Center, Kogod School of Business, American University,  Shortchanged: The Tax Compliance Challenges of Small Business Operators Driving the On-Demand Platform Economy

The last time Congress enacted substantial tax reform—in 1986—only 8.2% of American households owned personal computers. Today, more than 87% of American adults own a mobile phone and on-demand platforms like Uber, Etsy, Lyft, Airbnb, HomeAway, Amazon, and TaskRabbit have become household names by connecting businesses and consumers. Although millions of Americans are engaging in the on-demand platform economy every day as sellers and service providers, the tax compliance challenges this new frontier presents have gone relatively unnoticed. At the same time, these challenges will grow with this fastest growing segment of the labor economy— creating unnecessary and ongoing burdens for the small business operators who power the on-demand economy. 

This report, in keeping with the mission of the Kogod Tax Policy Center to conduct non-partisan research on tax issues specific to small businesses and entrepreneurs, identifies the tax compliance challenges the on-demand economy presents for its small business operators. Having spent more than a year investigating this growing problem, we report that:

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May 23, 2016 in Scholarship, Tax, Think Tank Reports | Permalink | Comments (0)

2d Annual Mid-Career Tax Professors Workshop Kicks Off Today At UC-Davis

UC Davis Logo (2016)Panel #1:  Tax Administration

Susie Morse (Texas), Regulating by Example
Commentator: Emily Cauble (DePaul)

Sarah Lawsky (Northwestern), Picturing the Code
Commentator: David Gamage (Berkeley)

Will Foster (Arkansas), Uncoupling Competence
Commentator: Dennis Ventry (UC-Davis)

Panel #2:  International

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May 23, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Simkovic Presents What Can We Learn from Credit Markets At ALI

ALI Logo (2015)American Law Institute 93rd Annual Meeting:

[On] the last day of the Annual Meeting ... Young Scholar Medal Recipient Michael Simkovic of Seton Hall University School of Law presented What Can We Learn from Credit Markets. He opened with a quote from, Oliver Wendell Holmes from his address entitled The Path of the Law: “For the rational study of the law, the blackletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics”:

My research uses economic analysis to explore how laws affect financial markets and how courts and regulators can use financial information to make legal and policy decisions. ...

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May 23, 2016 in Legal Education, Scholarship, Tax | Permalink | Comments (0)

Sunday, May 22, 2016

Symposium:  Legal Education In A Time Of Change

UNLV Logo (2016)Symposium, Legal Education in a Time of Change: Challenges and Opportunities,  16 Nev. L.J. 143-274 (2015):

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May 22, 2016 in Conferences, Legal Education, Scholarship | Permalink | Comments (4)

The Top 5 Tax Paper Downloads

SSRN LogoThere is quite a bit of movement in this week's list of the Top 5 Recent Tax Paper Downloads, with a new #1 paper new papers debuting on the list at #4 and #5:

  1. [372 Downloads]  The Panama Papers and Tax Morality, by Usman W. Chohan (University of New South Wales)
  2. [327 Downloads]  Google's 'Alphabet Soup' in Delaware, by Bret Bogenschneider (Vienna) & Ruth Heilmeier (Cologne)
  3. [264 Downloads]  New Prominence Of Tax Basis In Estate Planning, by Paul L. Caron (Pepperdine) & Jay A. Soled (Rutgers)
  4. [161 Downloads]  How Income Taxes Should Change during Recessions, by Zachary D. Liscow (Yale) & William A. Woolston (Stanford)
  5. [151 Downloads]  The Missing Tax Benefit of Donor-Advised Funds, by John R. Brooks (Georgetown)

May 22, 2016 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Saturday, May 21, 2016

The 10 Most-Cited Tax Faculty

Brian Leiter (Chicago) has updated his ranking of the Ten Most-Cited Tax Faculty to now cover the 2010-2014 period (2009-2013 data here):

Rank

Tax Prof

Citations

Age

1

David Weisbach (Chicago)

420

53

2

Michael Graetz (Columbia)

410

72

3

Reuven Avi-Yonah (Michigan)

360

59

4

Daniel Shaviro (NYU)

350

59

5

Lawrence Zelenak (Duke)

310

58

6

Leandra Lederman (Indiana)

300

50

7

Edward Zelinsky (Cardozo)

280

66

8

Victor Fleischer (San Diego)

270

45

9

Edward McCaffery (USC)

260

58

10

Joseph Bankman (Stanford)

230

61

Leiter also lists four highly-cited scholars who work partly in tax:

Rank

Tax Prof

Citations

Age

1

Louis Kaplow (Harvard)

1150

60

2

Brian Galle (Georgetown)

380

44

3

Kristin Hickman (Minnesota)

360

46

4

Mark Gergen (UC-Berkeley)

280

60

In our article, Ranking Law Schools: Using SSRN to Measure Scholarly Performance, 81 Ind. L.J. 83, 120-22 (2006), Bernie Black (Northwestern) and I examined the Top 25 tax faculty as measured by SSRN downloads, a practice I update monthly on TaxProf Blog.  Five of the most-cited tax faculty (Avi-Yonah, Fleischer, Kaplow, Shaviro, Weisbach) also are five of the most-downloaded tax faculty.

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May 21, 2016 in Legal Education, Scholarship, Tax, Tax Prof Rankings | Permalink | Comments (0)

Friday, May 20, 2016

Weekly SSRN Tax Roundup

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May 20, 2016 in Scholarship, Tax | Permalink | Comments (0)

Weekly Student Tax Note Roundup

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May 20, 2016 in Scholarship, Tax, Weekly Student Tax Note Roundup | Permalink | Comments (0)

Fordham Symposium:  We Are What We Tax

Fordham Law ReviewSymposium, We Are What We Tax, 84 Fordham L. Rev. 2413-2753 (2016):

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May 20, 2016 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Thursday, May 19, 2016

LSAT Is Poor Predictor Of Law School Grades: 6 LSAT Points = 0.1 LGPA

LSAT (2015)Alexia Brunet Marks (Colorado) & Scott A. Moss (Colorado), What Predicts Law Student Success? A Longitudinal Study Correlating Law Student Applicant Data and Law School Outcomes, 13 J. Empirical Legal Stud. 205 (2016):

Despite the rise of "big data" empiricism, law school admission remains heavily impressionistic; admission decisions based on anecdotes about recent students, idiosyncratic preferences for certain majors or jobs, or mainly the Law School Admission Test (LSAT). Yet no predictors are well-validated; studies of the LSAT or other factors fail to control for college quality, major, work experience, etc. The lack of evidence of what actually predicts law school success is especially surprising after the 2010s downturn left schools competing for fewer applicants and left potential students less sure of law school as a path to future success. We aim to fill this gap with a two-school, 1400-student, 2005-2012 longitudinal study. After coding non-digitized applicant data, we used multivariate regression analysis to predict law school grades ("LGPA") from many variables: LSAT; college grades ("UGPA"), quality, and major; UGPA trajectory; employment duration and type (legal, scientific, military, teaching, etc.); college leadership; prior graduate degree; criminal or discipline record; and variable interactions (e.g., high-LSAT/low-UGPA or vice-versa).

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May 19, 2016 in Legal Education, Scholarship | Permalink | Comments (4)

Elkins:  The Merits Of Tax Competition In A Globalized Economy

David Elkins (Netanya), The Merits of Tax Competition in a Globalized Economy, 91 Ind. L.J. 905 (2016):

Since the turn of the current century, leading transnational organizations and academic scholarship have identified tax competition among countries as one of the scourges of the international tax regime. Both the EU and the OECD have warned that tax competition erodes the tax bases of Member States and impedes their ability to provide essential services. Commentators have argued that unrestrained competition is driving tax rates on mobile sources of income to (or close to) zero, a process that jeopardizes the very existence of the welfare state, exacerbates problems of global poverty, and deprives developing countries of funds that they desperately need in order to improve their physical infrastructure and human capital. Tax competition is also said to misallocate economic resources by driving investment to where the tax rate is lowest rather than to where the return on investment is highest.

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May 19, 2016 in Scholarship, Tax | Permalink | Comments (0)

Book:  Bureaucratic Oppression And The Tax System

ABA Tax LawyerLeslie Book (Villanova), Bureaucratic Oppression and the Tax System, 69 Tax Law. ___ (2016):

Observers of the Internal Revenue Service’s administration of the earned income tax credit (EITC) have leveled one main criticism, that the Service has been unable to reduce stubbornly high error rates. Congress has generally focused attention on this problem with many legislative initiatives, including unprecedented (for the tax system) penalties for improper claims, special due diligence rules for preparers submitting returns with EITC claims, and a lessening of pre-assessment right to judicial review of Service rejections of EITC claims.

In this Article I wish to shift attention to the Service’s poor service to EITC claimants. In particular, I wish to broaden the inquiry to reflect the insights of nontax scholars who have looked at the ways that administrative agencies interact with low-income individuals who rely on benefits that agencies administer.

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May 19, 2016 in ABA Tax Section, Scholarship, Tax | Permalink | Comments (0)

Sugin:  Rhetoric And Reality In The Tax Law Of Charity

Linda Sugin (Fordham), Rhetoric and Reality in the Tax Law of Charity, 84 Fordham L. Rev. 2607 (2016):

The rhetoric of public purposes in charity law has created the mistaken impression that charity is public and fulfills public goals, when the reality is that charity is private and cannot be expected to solve the problems that governments can solve. The rhetoric arises from a combination of charity-law history and tax expenditure analysis. The reality follows the money and control of charitable organizations. On account of the mismatch of rhetoric and reality, the tax law of charity endorses an entitlement to pre-tax income and (ironically) creates a bias against taxation. This article reorients the project of defining public and private in the tax law by starting from a normative theory of government responsibility.

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May 19, 2016 in Scholarship, Tax | Permalink | Comments (0)