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Friday, September 12, 2014

Weekly SSRN Tax Roundup

September 12, 2014 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Bird-Pollan: A Check-the-Box Style Regime for Same-Sex Couples’ Tax Filing Status

Jennifer Bird-Pollan (Kentucky), Electing Fairness: A Check-the-Box Style Regime for Same-Sex Couples’ Tax Filing Status, 6 Elon L. Rev. 251 (2014):

This Essay proposes a new regulatory regime in response to the Supreme Court decision in U.S. v. Windsor, overturning Section Three of DOMA. By analogy to the check-the-box regulations, allowing a regulatory election in the face of incongruities in state law, this proposal would allow taxpayers who live in states that do not recognize same-sex marriage to elect to be treated as married for federal tax purposes. While the IRS's issuance of Rev. Rul. 2013-17 allows taxpayers who travel to a so-called "recognizing state" to have a same-sex marriage ceremony performed to be treated as married for tax purposes, there is still a requirement that those taxpayers travel to a state that has same-sex marriage before they can claim the federal tax benefits. This will be especially burdensome to low-income taxpayers, for whom the costs may be prohibitive. These same low-income taxpayers would be especially helped by the tax benefits available in certain instances to taxpayers filing jointly. The Essay considers potential objections to the proposal, and ultimately finds that the proposed regulatory regime, while hopefully only necessary for the short time (as more states enact same-sex marriage laws) will cure an inequity in the tax law.

September 12, 2014 in Scholarship, Tax | Permalink | Comments (0)

Hungerford: Policy Responses to Corporate Inversions

Thomas L. Hungerford (Economic Policy Institute), Policy Responses to Corporate Inversions; Close the Barn Door Before the Horse Bolts:

This report examines some of the issues and policy options regarding corporate inversions. It explains what corporate inversions are, explores common tax features of proposed inversions, analyzes why many corporations are now pursuing inversions, and assesses various policy options to prevent inversions. The report’s main conclusions are:

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September 12, 2014 in Scholarship, Tax, Think Tank Reports | Permalink | Comments (0)

Thursday, September 11, 2014

Weisbach: The Use of Neutralities in International Tax Policy

David Weisbach (Chicago), The Use of Neutralities in International Tax Policy:

This paper analyzes the use of neutrality conditions, such as capital export neutrality, capital import neutrality, capital ownership neutrality, and market neutrality, in international tax policy. Neutralities are not appropriate tools for designing tax policy. They each identify a possible margin where taxation may distort business activities. Because these neutralities cannot be all satisfied simultaneously, however, they do not allow analysts to determine the appropriate trade-offs of these distortions, unlike deadweight loss measures used in other areas of tax policy. International tax policy should instead be tied directly to the reasons for taxing capital income, reasons which are derived from optimal tax or similar models.

September 11, 2014 in Scholarship, Tax | Permalink | Comments (0)

Remus Reviews Rostain & Regan's Confidence Games

ConfidenceDana A. Renus (North Carolina), Confidence Breach: A Breakdown in Professional Self-Regulation, 92 Tex. L. 1599 (2014) (reviewing Tanina Rostain (Georgetown) & Milton C. Regan, Jr. (Georgetown), Confidence Games: Lawyers, Accountants, and the Tax Shelter Crisis (MIT Press, 2014)):

At the turn of the twenty-first century, lawyers at several of the country’s most prestigious law and accounting firms participated in a fraudulent tax shelter scandal that cost the U.S. Treasury billions of dollars. It was not the first time lawyers had participated in a high-profile corporate scandal, nor would it be the last. What was unique was the extent and nature of the lawyers’ involvement. As Mitt Regan and Tanina Rostain explain in their new book, Confidence Games: Lawyers, Accountants, and the Tax Shelter Industry, “[lawyers’] fingerprints were everywhere: on the shelters they designed, the promotional materials they prepared, the client pitches they made, and the opinion letters they drafted and signed.” The resulting scandal, the authors argue, “likely represents the most serious episode of lawyer wrongdoing in the history of the American bar.”

In Confidence Games, Regan and Rostain set out to explain how and why such widespread and pervasive wrongdoing occurred. They challenge the narratives that laid blame on a finite number of bad actors and seek to offer a more comprehensive account of the actors and events that gave rise to the scandal. One of their core insights is that a complete understanding must account for institutional factors and not just individual actors. The authors focus on three factors in particular—a lax regulatory environment, a competitive global economy, and intense organizational pressures within law and accounting firms. In exploring these related causes, Regan and Rostain offer valuable insights on how the structures and cultures of the implicated law and accounting firms undermined and distorted lawyers’ professional judgment. They conclude Confidence Games with promising proposals for improving the regulation of tax practice.

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September 11, 2014 in Book Club, Scholarship, Tax | Permalink | Comments (0)

The Return of Class in American Tax Policy

Guy Charlton (City University of Hong Kong) & Peter Skilling (Auckland University of Technology), Legal and Policy Narratives and the Return of Class in American Tax Policy, 47 Creighton L. Rev. 219 (2014):

In the late 19th and early 20th centuries, tax politics were structured by a bitter class struggle. Much of this struggle revolved around the government's competence to ensure the appropriate liberty, equality of opportunity and fairness to individuals, and the use of governmental power to ameliorate social and economic problems. For much of the 20th century, however, income tax was framed in a “hegemonic logic” in which re-distributive concerns were subordinated to an assumption of the shared benefits of economic growth. This Article discusses the recent return of a class-based politics to income tax politics in the United States. Drawing on the problem definition and narrative analysis literature, it argues that despite the recent resurgence of class-based rhetoric and political action, it is unlikely that America will return to the redistributive zero-sum income tax policies advocated prior to the 1920s. The underlying premises of the historical American liberal state, as evidenced in early substantive due process decisions: liberty, equality, and a distrust of governmental authority, which suggest a continuous fear of governmental power being used to interfere with individual liberty, circumscribes the debate over tax policy and lessens its class basis.

September 11, 2014 in Scholarship, Tax | Permalink | Comments (0)

State Tax Haven Laws

Tax Analysys Logo (2013) Daniel M. Dixon, Michael A. Jacobs, Michael I. Lurie & Jack Trachtenberg (all of Reed Smith), To Blacklist or Not to Blacklist -- The Trend Toward State Tax Haven Laws, 73 State Tax Notes 635 (Sept. 8, 2014):

In this article, the authors discuss tax havens and how states are cracking down on multinational corporations that are perceived as abusing the tax laws of tax haven nations. The authors argue that both of the tax haven tests used by states -- the factor test and tax haven blacklist -- have constitutional issues.

September 11, 2014 in Scholarship, Tax, Tax Analysts | Permalink | Comments (0)

Collaboration Networks in Legal Scholarship

Following up on Paul H. Edelman (Vanderbilt) & Tracey E. George (Vanderbilt), Six Degrees of Cass Sunstein: Collaboration Networks in Legal Scholarship, 11 Green Bag 2d 19 (2007):  Ryan Whalen (Northwestern), Top Coauthors in Legal Academia:

The role that collaboration plays in creativity and the production of knowledge is an major focus of my recent research. As such, I’m generally interested in patterns of collaboration. ...  [T]he legal academy’s coauthorship rate appears to be much lower than most social sciences, and more comparable to those seen in the humanities.

The Thomson Reuters Web of Science indexes many legal journals, including about 100 student-edited Law Reviews. The indexing begins in 1956, and between then and now contains data on around 100,000 law review articles. I pulled metadata on all of these articles and used them to create a legal academic coauthorship network. The initial 100,000 papers listed 52,945 unique author names. I selected all the multi-authored pieces and constructed a network with links between any individuals listed as coauthors on these pieces. The result is a network with 11,474 authors, linked together quite sparsely with 12,546 coauthorship relations. ... The table below lists the top 30 collaborators and their number of coauthors. ...

These top 30 are the coauthoring superstars. The vast majority of authors didn’t coauthor at all (they’re excluded from the network) and those who did coauthor tended to only do so with one or two other authors. The diagram below shows this distribution. The x-axis here starts at 1 (because I excluded those with 0 coauthoring relationships) so you can see that over 6000 of our 11,474 authors only coauthored with one other author. The number of academic partnerships drops off quickly before reaching the maximum of 38.

coauthorship_dist

September 11, 2014 in Legal Education, Scholarship | Permalink | Comments (1)

Wednesday, September 10, 2014

Edwards Presents Does Earnings Lockout Make U.S. Multinationals Attractive to Acquirers? Today at Toronto

EdwardsAlex Edwards (University of Toronto, Rotman School of Management) presents Does Earnings Lockout Make U.S. Multinationals Attractive to Acquirers? at Toronto today as part of its James Hausman Tax Law and Policy Workshop Series:

The ability for deferral of home country taxation on multinationals’ foreign earnings within the U.S. tax code creates an incentive for firms to avoid or delay repatriation of earnings to the U.S. Consistent with this notion, prior research has documented a substantial lockout effect resulting from the current U.S. worldwide tax and financial reporting systems. We hypothesize and find that U.S. domiciled M&A target firms with more locked-out earnings are more attractive M&A targets for foreign bidders and are more likely to be acquired by foreign bidders, compared to domestic bidders. The effect is economically significant; a standard deviation increase in our proxy for locked-out earnings is associated with a 14% relative increase in the likelihood that an acquirer is foreign. We also examine the impact of the home country tax system of the foreign acquirers. Because multinationals facing territorial tax systems are able to shift income to save taxes to a greater extent than firms domiciled in worldwide countries, the advantages for a foreign firm acquiring a U.S. target with locked-out earnings are potentially greater when the foreign firm operates under a territorial tax system. We find that foreign acquirers of U.S. target firms with locked-out earnings are more likely to be residents of countries that use territorial tax systems.

September 10, 2014 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Call for Tax Papers: Akron Law Review

AkronFrom Rich Lavoie:  The Akron Law Review is seeking tax articles for its annual tax issue (formerly the  stand-alone Akron Tax Journal).  For more information or to submit an article, contact Nathaniel Tucker.

September 10, 2014 in Scholarship, Tax | Permalink | Comments (0)

Tuesday, September 9, 2014

Zelinsky Presents The Proposed Minnesota Snowbird Tax Today at Minnesota

ZelinskyEdward Zelinsky (Cardozo) presents Apportioning State Personal Income Taxes to Eliminate the Double Taxation of Dual Residents: Thoughts Provoked by the Proposed Minnesota Snowbird Tax, 15 Fla. Tax Rev. 533 (2014), at Minnesota today as part of its Perspectives on Taxation Lecture Series hosted by Kristin Hickman:

In the last two budget cycles, Governor Mark Dayton has proposed what has become known as the “snowbird tax,” suggesting that Minnesota alter its rules governing state income taxation to allow the state to collect more taxes on income realized by individuals who divide their time between Minnesota and another state. Although the Minnesota legislature has not enacted Governor Dayton’s proposal, Professor Zelinsky will use the proposal as a springboard for arguing that states should revisit the laws governing state personal income tax apportionment. In doing so, Professor Zelinsky will contend that states should tax income with respect to which they have source jurisdiction irrespective of residence and income over which they have only residence-based jurisdiction proportionally, based on the part of the year a dual resident spends in each state.

September 9, 2014 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Clausing: Swift, Targeted Action Is Needed to Stem Tax Inversions

Kimberly A. Clausing (Reed College), Corporate Inversions:

Recently, there has been a spate of corporate inversions, where U.S. multinational corporations have combined with foreign companies, arranging their corporate structure to locate the residence of the resulting corporation in a foreign country with an attractive corporate tax climate. Several features of the U.S. tax system provide strong incentives for corporate inversion: a high statutory tax rate, a worldwide system of taxation, and limits on income shifting. Corporate inversions allow more flexible access to foreign cash stockpiles and easier shifting of income out of the U.S. tax base. The recent surge in inversions has likely resulted from the large accumulation of unrepatriated foreign cash together with pessimism about the prospect of policy changes that would reduce the U.S. tax burden associated with cash repatriations. If unfettered, corporate inversions are likely to undermine the U.S. tax base, so swift policy action is likely warranted. Inversions can be effectively addressed in a targeted fashion.

September 9, 2014 in Scholarship, Tax | Permalink | Comments (0)

Call for Papers: BC-ACTEC Symposium on The Centennial of the Estate Tax: Perspectives and Recommendations

BC ACTEC 2Boston College Law School and The American College of Trust and Estate Counsel have issued a Call for Papers  for a symposium on The Centennial of the Estate Tax: Perspectives and Recommendations, to be held at Boston College Law School on Friday, October 2, 2015:

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September 9, 2014 in Conferences, Scholarship, Tax | Permalink | Comments (0)

COD Income and Student Loan Debt Forgiveness

Tax Analysys Logo (2013)Kiran Sheffrin, Trapped by Forgiveness: Taxing COD Income, 144 Tax Notes 1191 (Sept. 8, 2014):

In this article, Sheffrin discusses the student loan debt crisis and problems with the current proposals for reform. She identifies two ways that the tax treatment of forgiven student loans can be used to achieve policy goals: partial recognition of cancellation of indebtedness income based on a household’s ability to pay, and spreading the payment of amounts owed over a fixed number of years.

September 9, 2014 in Scholarship, Tax, Tax Analysts | Permalink | Comments (1)

Monday, September 8, 2014

Hauer Presents The Virtues of Dual Tier Capital Taxation Today at UC-Berkeley

UC Berkeley Primary Logo Berkeley BlueAndreas Hauer (University of Munich) presents Reforming an Asymmetric Union: On the Virtues of Dual Tier Capital Taxation at UC-Berkeley today as part of the Robert D. Burch Center for Tax Policy and Public Finance Seminar:

The tax competition for mobile capital, in particular the reluctance of small countries to agree on measures of tax coordination, has ongoing political and economic fallouts within Europe. We analyse the e ects of introducing a two tier structure of capital taxation, where the asymmetric member states of a union choose a common, federal tax rate in the rst stage, and then non-cooperatively set local tax rates in the second stage. We show that this mechanism e ectively reduces competition for mobile capital between the members of the union. Moreover, it distributes the gains across the heterogeneous states in a way that yields a strict Pareto improvement over a one tier system of purely local tax choices. Finally, we present simulation results, and show that a dual structure of capital taxation has advantages even when side payments are feasible.

September 8, 2014 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Sunday, September 7, 2014

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 on SSRN, with a new paper debuting on the list at #5.  The #1 paper is now #22 in all-time downloads among 10,280 tax papers:

  1. [2822 Downloads]  'Competitiveness' Has Nothing to Do with it, by Edward D. Kleinbard (USC)
  2. [511 Downloads]  Guide to FATCA Compliance (Chapter 1, Background and Current Status of FATCA) (LexisNexis 2d ed. 2014), by William Byrnes (Thomas Jefferson), Denis Kleinfeld, & Alberto Gil Soriano
  3. [324 Downloads]  2013 Developments in Connecticut Estate and Probate Law, by Jeffrey A. Cooper (Quinnipiac) & John R. Ivimey (Reid and Riege, Hartford)
  4. [199 Downloads]  The Futility of Tax Protester Arguments, by Allen D. Madison (South Dakota)
  5. [180 Downloads]  Public Pressure and Corporate Tax Behavior, by Scott Dyreng (Duke), Jeffrey Hoopes (Ohio State) & Jaron Wilde (Iowa)

September 7, 2014 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Saturday, September 6, 2014

Hayashi Presents Phantom Income and the Simple Economics of Paying In Kind at Florida

HayashiAndrew Hayashi (Virginia) presented Phantom Income and the Simple Economics of Paying In Kind at Florida yesterday as part of its Graduate Tax Program Colloquium Series:

Modern tax instruments impose cash taxes on non-cash bases. Property taxes, income taxes, gift taxes and estate taxes all must be paid in cash, even though income, gifts and estates only sometimes take the form of cash, and property never does. If it is costly to convert the tax base into cash, taxpayers may suffer from liquidity problems that require them to make painful adjustments to their savings or consumption. Although concern about taxpayer liquidity has shaped tax law and looms large in current debates about wealth taxation, tax accounting, and mark-to-market reforms, the economic factors that influence the welfare costs of cash tax collection have not been explored in a rigorous way. In this paper I present an economic analysis of the liquidity problem, identifying the factors that determine the welfare costs of cash tax collection. I apply this analysis to the property tax and to the taxation of income that accrues before it is received, sometimes called “phantom income.”

September 6, 2014 in Colloquia, Scholarship, Tax | Permalink | Comments (0)

Friday, September 5, 2014

Weekly SSRN Tax Roundup

Weekly Roundup

September 5, 2014 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Cain: Taxation of Same-Sex Couples After United States v. Windsor

Patricia Cain (Santa Clara), Taxation of Same-Sex Couples After United States v. Windsor: Did the IRS Get It Right in Revenue Ruling 2013-17?, 6 Elon L. Rev. 269 (2014):

The tax world for same-sex couples changed dramatically on June 26, 2013, when the United States Supreme Court handed down its decision in United States v. Windsor. The Court ruled that section 3 of the Defense of Marriage Act (DOMA) was unconstitutional. As a result the IRS would be required to recognize same-sex spouses as validly married for tax purposes. There were three major issues facing the IRS after Windsor: (1) Which marriages should be recognized for tax purposes? (2) How much retroactive effect should be given to the decision? (3) Should marriage equivalent statuses such as registered domestic partnerships and civil unions be treated the same as marriages? On August 29, 2013, the IRS issued Revenue Ruling 2013-17 which answered these three questions. This essay asks whether or not the IRS got it right in the ruling and concludes that for the most part it did. However, serious questions are raised by the fact that the IRS refuses to recognize registered partnerships and civil unions as marriages. The essay concludes that more thought should be given to this issue.

September 5, 2014 in Scholarship, Tax | Permalink | Comments (0)

Scholarly Incentives, Scholarship, Article Selection Bias, and Investment Strategies for Today's Law Schools

Dan Subotnik (Touro) & Laura Ross (Touro), Scholarly Incentives, Scholarship, Article Selection Bias, and Investment Strategies for Today's Law Schools, 30 Touro L. Rev. 615 (2014):

Anecdotal evidence supplied by authors suggested that article acceptance by law reviews was based to a significant extent on the affiliation and prestige of the author. The implication for readers was that most law professors could not expect a fair reading and that, indeed, those from 3rd and 4th tier schools had only the feeblest prospects of cracking the top tier. With many aspects of employment tied to law review placement --e.g. faculty recruitment and tenure -- law professors could understand the need to tamp down career expectations. And law students could begin to see the small benefit they got from law review production. 

Table 2

Table 3A

Table 4

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September 5, 2014 in Legal Education, Scholarship | Permalink | Comments (4)

Thursday, September 4, 2014

Morrow: Repealing the Mortgage Interest Deduction

Rebecca N. Morrow (Wake Forest), Billions of Tax Dollars Spent Inflating the Housing Bubble: How and Why the Mortgage Interest Deduction Failed, 17 Fordham J. L. & Fin. L. 751 (2012):

The mortgage interest deduction is an incredibly popular, politically well-supported and hugely expensive tax incentive. Yet economic studies consistently show that the mortgage interest deduction fails to advance its fundamental purpose. It does not increase the rate of homeownership. On the contrary, to the extent that it is effective in influencing human behavior, it does so by inflating home prices and encouraging borrowing against equity. These effects inflated home prices and excessive borrowing contributed to the economic crisis of 2008. In the years leading up to the crisis, Americans spent billions of tax dollars further inflating a dangerously unstable housing bubble. Even if we had the will to change this policy, we did not have the means. The mortgage interest deduction is insensitive to market conditions and resistant to change. These attributes make the mortgage interest deduction bad policy. Rather than perpetuating this costly deduction, Congress should phase it out in its entirety and replace it with targeted tax incentives designed to stimulate the housing market only when the market is weak. Future tax incentives should avoid the structural flaws that caused the mortgage interest deduction to fail by focusing on market responsiveness, timing and flexibility.

September 4, 2014 in Scholarship, Tax | Permalink | Comments (1)

Northwestern Symposium: 100 Years Under the Income Tax

Northwestern (2014)Symposium, 100 Years Under the Income Tax, 108 Nw. U. L. Rev. 767-1136 (2014):

September 4, 2014 in Scholarship, Tax | Permalink | Comments (0)

Wednesday, September 3, 2014

Yin: Stopping Corporate Inversions Sensibly and Legally

Tax Analysys Logo (2013)George K. Yin (Virginia), Stopping Corporate Inversions Sensibly and Legally, 144 Tax Notes 1087 (Sept. 1, 2014):

A recent article by Mindy Herzfeld, What Can Treasury Do About Inversions?, 144 Tax Notes 895 (Aug. 25, 2014), overlooks a simple and sensible alternative available to the Treasury Department that is not of questionable legality. Treasury could submit a proposal to Congress to redefine a corporation's "residence" for tax purposes -- which determines whether the entire panoply of U.S. tax rules applies to it -- based on the location of the enterprise's principal customer base.

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September 3, 2014 in Scholarship, Tax, Tax Analysts | Permalink | Comments (1)

Tuesday, September 2, 2014

Symposium: Teaching Trusts & Estates

T&ESymposium, Teaching Trusts and Estates, 58 St. Louis U. L.J. 643-846 (2014):

September 2, 2014 in Legal Education, Scholarship, Tax, Teaching | Permalink | Comments (1)

O'Reilly: Trends in Tax Legal Scholarship

Terrance O'Reilly (Willamette), Tax Legal Scholarship to 1970, 34 Va. Tax Rev. ___ (2014):

This article examines the evolution of method and styles in tax legal scholarship from 1913 through the 1960s. It focuses on legal scholarship published in law reviews. Section I provides some numerical measures of trends in early and mid-twentieth century tax legal scholarship. Section II is a brief survey of significant casebooks and treatises during the period examined. Section III looks at the development of tax legal scholarship through the 1960s, emphasizing trends in style and method.

Table 1

Figure 2

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September 2, 2014 in Scholarship, Tax | Permalink | Comments (1)

Kennedy: DOMA Implications for Employee Benefit Plans

Tax Analysys Logo (2013)Kathryn J. Kennedy (John Marshall), DOMA Implications for Employee Benefit Plans: Round 2, 144 Tax Notes 947 (Aug. 25, 2014):

This report updates Kennedy’s earlier Tax Notes article on employee benefits guidance issued by the IRS and the Department of Labor soon after the Supreme Court’s 2013 decisions in Hollingsworth v. Perry and United States v. Windsor on the constitutionality of the Defense of Marriage Act. The IRS has since issued additional helpful guidance, and there has been a groundswell of federal and state litigation contesting states’ same-sex marriage bans. In this report, Kennedy discusses the current state of affairs and highlights many of the questions not addressed by the IRS and Labor Department guidance. She argues that without additional regulatory guidance, which appears unlikely, those questions will have to be resolved through future litigation.

September 2, 2014 in Scholarship, Structuring a Tax Workshop Series, Tax Analysts | Permalink | Comments (0)

Sunday, August 31, 2014

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 on SSRN, with a new paper debuting on the list at #3.  The #1 paper is now #22 in all-time downloads among 10,264 tax papers:

  1. [2722 Downloads]  'Competitiveness' Has Nothing to Do with it, by Edward D. Kleinbard (USC)
  2. [467 Downloads]  Guide to FATCA Compliance (Chapter 1, Background and Current Status of FATCA) (LexisNexis 2d ed. 2014), by William Byrnes (Thomas Jefferson), Denis Kleinfeld, & Alberto Gil Soriano
  3. [311 Downloads]  2013 Developments in Connecticut Estate and Probate Law, by Jeffrey A. Cooper (Quinnipiac) & John R. Ivimey (Reid and Riege, Hartford)
  4. [181 Downloads]  The Futility of Tax Protester Arguments, by Allen D. Madison (South Dakota)
  5. [153 Downloads]  The Most Critical Issue Facing Tax Administration Today -- And What to Do About It, by George K. Yin (Virginia)

August 31, 2014 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, August 29, 2014

Weekly SSRN Tax Roundup

August 29, 2014 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Mehrotra: The Intellectual Roots of An Economic Interpretation of the Constitution

Ajay K. Mehrotra (Indiana), Charles A. Beard & The Columbia School of Political Economy: Revisiting the Intellectual Roots of the Beardian Thesis, 29 Const. Comment. 475 (2014):

BeardA century after it was first published, Charles A. Beard’s An Economic Interpretation of the Constitution remains a significant and controversial part of constitutional scholarship and history. Just as Beard sought to historicize the Founders as they drafted and adopted the Constitution, this article attempts to historicize Beard as he researched and wrote his classic text on the Constitution. Because Beard was both a graduate student and professor at Columbia University before and while he researched and wrote his book, this article explores the particular influence that Columbia University’s institutional and intellectual climate may have had on Beard and the writing of An Economic Interpretation of the Constitution.

This article contends that Charles Beard was the product of a unique Columbia tradition of inductive, proto-institutionalist research in political economy – a tradition that at its core sought to meld serious political and historical scholarship with progressive social activism. Yet, in many ways, Columbia’s influence on Beard was more reinforcing than it was revolutionary. Columbia, in other words, facilitated an evolution rather than a dramatic transformation in Beard’s thinking. His time at Columbia provided him with new scholarly perspectives and research methods, but ultimately these new views heightened his innate tension between scholarly objectivity and political advocacy, between his belief in social scientific research and his desires for social democratic reform. In short, Beard’s time at Columbia, as both a student and junior scholar, refined his personal predilections and his early upbringing and education, rather than radically converting him into a new thinker and writer.

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August 29, 2014 in Book Club, Scholarship, Tax | Permalink | Comments (0)

Thursday, August 28, 2014

Marian: Home-Country Effects of Corporate Inversions

Omri Y. Marian (Florida), Home-Country Effects of Corporate Inversions, 90 Wash. L. Rev. ___ (2015):

This article develops a framework for the study of the unique effects of corporate inversions (meaning, a change in corporate-residence for tax purposes) in the jurisdictions from which corporations invert (“home jurisdictions”). Currently, empirical literature on corporate inversions overstates its policy implications. It is frequently argued that in response to an uncompetitive tax environment, corporations may relocate their headquarters for tax purposes, which, in turn, may result in the loss positive economic attributes in the home jurisdiction (such as capital expenditures, R&D activity, and high-quality jobs). The association of tax-residence relocation with the dislocation of meaningful economic attributes, however, is not empirically-supported and is theoretically-tenuous. The article uses case studies to fill this gap. Based on observed factors, the article develops grounded propositions that may describe the meaningful effects of inversions in home jurisdictions. Such propositions may guide future empirical research aimed at identifying the meaningful effects of inversions. The case studies suggest that whether tax-relocation is associated with the dislocation of meaningful economic attributes in home-jurisdictions is a highly contextualized question. It seems, however, that inversions are more likely to be associated with dislocation of meaningful attributes when non-tax factors support the decision to invert.

August 28, 2014 in Scholarship, Tax | Permalink | Comments (0)

Brunson: The Taxation of Mutual Funds

Samuel D. Brunson (Loyola-Chicago), The Taxation of RICs: Replicating Portfolio Investment or Eliminating Double Taxation?:

Mutual FundsMutual funds and other regulated investment companies currently occupy a central space in American households’ financial lives. Is spite of their near-ubiquity, though, regulated investment companies occupy a strange tax limbo as quasi-pass-through entities, neither fully taxable nor fully tax-transparent. To qualify for this quasi-pass-through status, regulated investment companies must, among other things, distribute the bulk of their income to shareholders annually.

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August 28, 2014 in Scholarship, Tax | Permalink | Comments (1)

Vann: The Policy Underpinnings of BEPS

Richard J. Vann (Sydney), Policy Forum: The Policy Underpinnings of the BEPS Project-Preserving the International Corporate Income Tax?, 62 Canadian Tax J. 433 (2014):

BEPSThe OECD/G20 Action Plan on Base Erosion and Profit Shifting (BEPS) is receiving significant attention from taxpayers and national governments. Because the action plan is about action, it contains little discussion of the tax policy questions involved. One of the less-noticed aspects of the plan is action 11. From its heading and most of its content, action 11 seems to be largely about collecting data on BEPS, but it also involves the underlying policy. That is perhaps not surprising, since there is an inherent contradiction between the action plan and much of the policy work on corporate taxation undertaken by the OECD over the last 25 years. This article discusses the policy conflict and make the case for a more balanced view of the international corporate income tax.

August 28, 2014 in Scholarship, Tax | Permalink | Comments (0)

Wednesday, August 27, 2014

SSRN Tax Professor Rankings

SSRN LogoSSRN has updated its monthly rankings of 944 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 August 1, 2014) 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.)

39,751

Reuven Avi-Yonah (Mich.)

6758

2

Paul Caron (Pepperdine)

26,455

Richard Ainsworth (BU)

2727

3

Louis Kaplow (Harvard)

22,821

Paul Caron (Pepperdine)

2672

4

D. Dharmapala (Chicago)

20,152

D.Dharmapala (Chicago) 

2537

5

Vic Fleischer (San Diego)

20,011

Richard Kaplan (Illinois)

1986

6

James Hines (Michigan)

19,710

Bridget Crawford (Pace)

1917

7

Ted Seto (Loyola-L.A.)

19,094

Omri Marian (Florida)

1868

8

Richard Kaplan (Illinois)

18,976

Katie Pratt (Loyola-L.A.)

1841

9

Katie Pratt (Loyola-L.A.)

16,044

Robert Sitkoff (Harvard)

1802

10

Dennis Ventry (UC-Davis)

15,375

Ed Kleinbard (USC)

1708

11

Carter Bishop (Suffolk)

15,025

Brad Borden (Brooklyn)

1596

12

Jen Kowal (Loyola-L.A.)

14,304

Jen Kowal (Loyola-L.A.)

1585

13

David Weisbach (Chicago)

14,244

Dick Harvey (Villanova)

1482

14

Chris Sanchirico (Penn)

14,190

Louis Kaplow (Harvard)

1474

15

David Walker (BU)

13,911

Jeff Kwall (Loyola-Chicago)

1448

16

Richard Ainsworth (BU)

13,907

James Hines (Michigan)

1436

17

Francine Lipman (UNLV)

13,819

Francine Lipman (UNLV)

1352

18

Bridget Crawford (Pace)

13,794

Ted Seto (Loyola-L.A.)

1338

19

Robert Sitkoff (Harvard)

13,744

Dan Shaviro (NYU)

1337

20

Brad Borden (Brooklyn)

13,725

David Gamage (UCBerkeley)

1330

21

Ed Kleinbard (USC)

12,950

Vic Fleischer (San Diego)

1268

22

Herwig Schlunk (Vanderbilt)

12,479

Carter Bishop (Suffolk)

1251

23

Dan Shaviro (NYU)

12,023

Dan Simmons (UC-Davis)

1248

24

Ed McCaffery (USC)

11,724

Brian Galle (Boston College)

1190

25

Wendy Gerzog (Baltimore)

11,715

David Weisbach (Chicago)

1179

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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August 27, 2014 in Legal Education, Scholarship, Tax, Tax Prof Rankings | Permalink | Comments (0)

Tuesday, August 26, 2014

Rethinking the Temporary Taxation Debate

Frank Fagan (Erasmus University Rotterdam), The Fiscal Cliff as Reelection Strategy: Rethinking the Temporary Taxation Debate, 116 W. Va. L. Rev. 783 (2014):

Recent scholarship [Rebecca Kysar, Lasting Legislation, 159 U. Pa. L. Rev. 1007 (2011); Frank Fagan & Michael Faure, The Role of Lawmakers, Lobbyists, and Interest Groups in the Normative Evaluation of Timing Rules, 160 U. Pa. L. Rev. PENNumbra 61 (2011)] contends that temporary tax provisions are socially costly because they increase rent-seeking activity and create uncertain investment environments. This Article challenges that view, and shows that, while temporary tax provisions may increase rent-seeking activity, such activity is not always socially costly; and while temporary tax provisions may create uncertain investment environments, such environments are not always unfavorable for private investors. The real problem with temporary tax provisions, simply put, is that legislators use them to win reelection and externalize a number of costs in the process.

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August 26, 2014 in Scholarship, Tax | Permalink | Comments (0)

Call for Tax Papers and Panels: Law & Society Annual Meeting

SeattleNeil H. Buchanan (George Washington) has issued his annual call for tax papers and panels for next year's annual meeting of the Law & Society Association in Seattle (May 28-31, 2015):

For the eleventh consecutive year, I will organize sessions for the the Law, Society, and Taxation group (Collaborative Research Network 31).

Although there is an official call for papers, please remember that you are not bound by the official theme of the conference.  I will give full consideration to proposals in any area of tax law, tax policy, distributive justice, interdisciplinary approaches to tax issues, and so on.

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August 26, 2014 in Conferences, Scholarship, Tax | Permalink | Comments (0)

Sunday, August 24, 2014

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 on SSRN, with a new paper debuting on the list at #1 and rocketing to #29 in all-time downloads among 10,253 tax papers:

  1. [2446 Downloads]  'Competitiveness' Has Nothing to Do with it, by Edward D. Kleinbard (USC)
  2. [409 Downloads]  Guide to FATCA Compliance (Chapter 1, Background and Current Status of FATCA) (LexisNexis 2d ed. 2014), by William Byrnes (Thomas Jefferson), Denis Kleinfeld, & Alberto Gil Soriano
  3. [216 Downloads]  Unconstitutional Perpetual Trusts, by Steven Horowitz (Sidley Austin, Chicago) & Robert Sitkoff (Harvard)
  4. [166 Downloads]  The Futility of Tax Protester Arguments, by Allen D. Madison (South Dakota)
  5. [142 Downloads]  The Most Critical Issue Facing Tax Administration Today -- And What to Do About It, by George K. Yin (Virginia)

August 24, 2014 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, August 22, 2014

Weekly SSRN Tax Roundup

August 22, 2014 in Scholarship, Tax, Weekly SSRN Roundup | Permalink | Comments (0)

Weekly Legal Education Roundup

Weekly Student Tax Note Roundup

Faculty Development, Faculty Incentives, and Law School Innovation

Stephen Daniels (American Bar Foundation), William M. Sullivan (Denver) & Martin Katz (Dean, Denver), Analyzing Carnegie's Reach: The Contingent Nature of Innovation, 63 J. Legal Educ. 585 (2014):

Our interest is curricular innovation, with a focus on the recommendations of the 2007 Carnegie report – Educating Lawyers. Recognizing that meaningful reform requires an institutional commitment, our interest also includes initiatives in the areas of faculty development and faculty incentive structure that would support curricular innovation. Additionally, we are curious as to what might explain change and whether certain school characteristics will do so or whether external factors that challenge legal education offer an explanation. To explore these issues we surveyed law schools (a 60.5% response rate). The results show that while there is much activity in the area of curriculum – including the key matters of lawyering, professionalism, and especially integration – there is much less in the important areas of faculty development and faculty incentive structure. School characteristics, including rank, do not provide a sufficient explanation for the patterns emerging from the survey’s results. Additionally, activity by law schools with regard to curriculum, faculty development, and faculty professional activity is not simply a response to external challenges either. However, it appears that those pressures are providing a potential window of opportunity for innovation, reinforcing the need for change, and accelerating its pace.

Table 2

August 22, 2014 in Legal Education, Scholarship | Permalink | Comments (0)

Thursday, August 21, 2014

Measuring Merit: The Shultz-Zedeck Research on Law School Admissions

Kristen Holmquist, Marjorie Shultz, Sheldon Zedeck & David Oppenheimer (all of UC-Berkeley), Measuring Merit: The Shultz-Zedeck Research on Law School Admissions, 63 J. Legal Educ. 565 (2014):

Law schools profess a commitment to racial diversity both for the educational benefits diversity confers and for its contribution to the profession. But they admit students based on standards that, while not discriminatory in a legal sense, undeniably favor white applicants. Today the question of who belongs in any given law school, or law school at all, turns almost exclusively on an applicant’s score on the Law School Admission Test (LSAT). Law schools are not blind to the racial impact that accompanies this narrow measure of merit. But rather than taking a hard look at whether legal educators have adequately, or accurately, identified what qualities best qualify students for law school, the admissions process largely relies on affirmative action to ameliorate the current process's negative effects. That approach is imperfect for a whole host of reasons, not least of which is that affirmative action’s legal use in higher education may be about to end. Should race-conscious admissions practices be banned, every law school that truly values diversity will have to explore race-neutral means of achieving it. The good news is that research conducted by Marjorie Shultz and Sheldon Zedeck suggests that this is possible -- that qualities relevant to effective lawyering can be defined and predicted without recreating the LSAT's disparate impact [Predicting Lawyer Effectiveness -- A New Assessment for Use in Law School Admission Decisions]. This essay describes that research and the promise that it holds for improved, race-neutral, admissions processes.

August 21, 2014 in Legal Education, Scholarship | Permalink | Comments (0)

Tuesday, August 19, 2014

Perkins: Salience and Sin -- Designing Taxes in the New Sin Era

Rachelle Holmes Perkins (George Mason), Salience and Sin: Designing Taxes in the New Sin Era, 2014 BYU L. Rev. 143 (2014):

Tax salience reflects the extent to which consumers take into account the after-tax cost of a good or service prior to making their consumption decision. Recent empirical work on tax salience has revealed something that is perhaps intuitive, but nevertheless important to the design of sin taxes. Taxpayers are more likely to make consumption decisions based on pre-tax rather than post-tax prices when the salience, or visibility, of a tax is diminished. Thus, consumers are less likely to change their demand for a particular product if shelf prices are tax-exclusive rather than tax-inclusive. Economically, this makes low salience taxes mimic some of the benefits of taxes on inelastically demanded goods. Because a taxpayer’s demand change in response to a tax increase is diminished, the deadweight loss generated by the imposition of the tax can be reduced. Notwithstanding the potential for efficiency gains, politicians and academics alike have expressed various fairness, distributional, and normative concerns regarding the use of low salience taxes. In fact, a number of countries already require tax-inclusive pricing for consumer products in order to purportedly preserve consumer awareness and transparency.

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August 19, 2014 in Scholarship, Tax | Permalink | Comments (1)

Johnston: Kinder Morgan’s Evolving Tax Strategy

Tax Analysys Logo (2013)David Cay Johnston (Syracuse), Kinder Morgan’s Evolving Tax Strategy, 144 Tax Notes 881 (Aug. 18, 2014):

Johnston looks at Kinder Morgan’s recent announcement that it would be folding two master limited partnerships into a C corporation holding company.

August 19, 2014 in Scholarship, Tax, Tax Analysts | Permalink | Comments (0)

Monday, August 18, 2014

Ajay Mehrotra's Making the Modern American Fiscal State Wins 2014 U.S. Intellectual History Book Award

Ajay2014 Society for U.S. Intellectual History Book Award Winner:

We are pleased to announce our selection of Ajay K. Mehrotra’s Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877-1929 (Cambridge University Press, 2013) as this year’s winner of the S-USIH annual book award for 2014.

Mehrotra’s important and ambitious book chronicles the early 20th-century transformation in American tax policy and public finance. It analyzes the shift from the nineteenth-century “regime of indirect, hidden, partisan, and regressive taxes” to the “direct, transparent, professionally administered, and progressive tax system” we know today. A book on taxation may well seem a curious choice for an intellectual history prize, but we were struck by how successfully Mehrotra weaves together the intellectual, legal, administrative threads of his argument. Mehrotra takes ideas seriously. He traces legal and administrative change to a prior “conceptual revolution,” wrought primarily by a cohort of professionally trained intellectuals, including Henry Carter Adams, Richard Ely, and Edwin R.A. Seligman. And he shows how notions of economic justice, political obligation, ethical duty, and democratic reciprocity underwrote the new progressive conception of what Mehrotra aptly labels “fiscal citizenship.” He also shows what happened to those ideas as they traveled through a contested political process and were embodied in a complex administrative apparatus with paradoxical and often unintended consequences. Mehrotra’s book is thus a history of ideas in action. It makes a signal contribution to the field by demonstrating how even the most seemingly mundane features of our world have strikingly rich intellectual histories.

August 18, 2014 in Book Club, Scholarship, Tax | Permalink | Comments (0)

Financial Times Offers $25k Prize for Business Book of the Year

FTThe Bracken Bower Prize:

The Financial Times and McKinsey & Company, organisers of the Business Book of the Year Award, want to encourage young authors to tackle emerging business themes. They hope to unearth new talent and encourage writers to research ideas that could fill future business books of the year. A prize of £15,000 [$25,000] will be given for the best book proposal. ...

The inaugural prize will be awarded to the best proposal for a book about the challenges and opportunities of growth. The main theme of the proposed work should be forward-looking. In the spirit of the Business Book of the Year, the proposed book should aim to provide a compelling and enjoyable insight into future trends in business, economics, finance or management. The judges will favour authors who write with knowledge, creativity, originality and style and whose proposed books promise to break new ground, or examine pressing business challenges in original ways. Only writers who are under 35 on November 11 2014 (the day the prize will be awarded) are eligible.

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August 18, 2014 in Scholarship, Tax | Permalink | Comments (0)

WSJ: Meet the Law Professor Who’s Crashing the Inversion Party

Following up on my previous posts (here and here):  Wall Street Journal, Meet the Law Professor Who’s Crashing the Inversion Party:

ShayHarvard Law School professor Stephen Shay may have single-handedly crashed the corporate inversion party.

The U.S. Treasury Department has in recent days begun weighing how it could use its power to write regulations that would eliminate some of the key economic benefits U.S. corporations get when they acquire a non-U.S. company.

Mr. Shay, who served for seven years in the Treasury during two different administrations and spent 22 years as a tax partner at Ropes & Gray LLP, appeared to be the first person to make the government aware of its powers to crack down on the advantageous tax treatment of inversions in an article published on July 29, 2014 in Tax Notes, a publication closely followed by tax professionals.

“I just started asking the question, ‘What could be done with regulation rather than legislation’,” Mr. Shay said in an interview.

His answers — in the article entitled Mr. Secretary, Take the Tax Juice Out of Corporate Expatriations — have sent chills through corporate boardrooms and the law firms that have been profiting off the recent merger mania.

August 18, 2014 in Legal Education, Scholarship, Tax | Permalink | Comments (1)

Sunday, August 17, 2014

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

  1. [370 Downloads]  Guide to FATCA Compliance (Chapter 1, Background and Current Status of FATCA) (LexisNexis 2d ed. 2014), by William Byrnes (Thomas Jefferson), Denis Kleinfeld, & Alberto Gil Soriano
  2. [228 Downloads]  Desperate Retirees: The Perplexing Challenge of Covering Retirement Health Care Costs in a YOYO World, by Richard L. Kaplan (Illinois)
  3. [203 Downloads]  Unconstitutional Perpetual Trusts, by Steven Horowitz (Sidley Austin, Chicago) & Robert Sitkoff (Harvard)
  4. [153 Downloads]  The Futility of Tax Protestor Arguments, by Allen D. Madison (South Dakota)
  5. [128 Downloads]  The Most Critical Issue Facing Tax Administration Today -- And What to Do About It, by George K. Yin (Virginia)

August 17, 2014 in Scholarship, Tax, Top 5 Downloads | Permalink | Comments (0)

Friday, August 15, 2014

Is Legal Scholarship Politically Biased?

Adam S. Chilton (Chicago) & Eric A. Posner (Chicago), An Empirical Study of Political Bias in Legal Scholarship:

Law professors routinely accuse each other of making politically biased arguments in their scholarship. They have also helped produce a large empirical literature on judicial behavior that has found that judicial opinions sometimes reflect the ideological biases of the judges who join them. Yet no one has used statistical methods to test the parallel hypothesis that legal scholarship reflects the political biases of law professors. This paper provides the results of such a test. We find that, at a statistically significant level, law professors at elite law schools who make donations to Democratic political candidates write liberal scholarship, and law professors who make donations to Republican political candidates write conservative scholarship. These findings raise questions about standards of objectivity in legal scholarship.

Figure 3

Professors who are Democrats (adjusted)—shown in the left panel—have an average article ideology of -2.67 with a 90% confidence interval of -3.13 to -2.21. Using a t-test, we can say that this is statistically different from zero (p-value < 0.00). Professors who are Republicans (adjusted)—shown in the right panel—have an average article ideology of 0.17 with a 90% confidence interval of -0.72 to 1.10. For these professors, we cannot reject the possibility that the true net ideology of their articles is zero (p-value = 0.72). In other words, our data suggest that Democrats in our sample do not write articles that are on balance neutral, but that Republicans in our sample may write articles that are on balance neutral. ...

[I]f it is in fact the case that Republicans write less ideologically biased scholarship than Democrats do, then one would naturally ask why. The most plausible explanation is that if the dominant ethos in the top law schools is liberal or left-wing,51 then Republicans are likely to conceal their ideological views in their writings. Republican professors might fear that scholarship that appears conservative may be rejected by leftleaning law review editors, and disparaged or ignored by their colleagues, which will damage their chances for promotions, research money, and lateral appointments. This would explain why even nondonors tilt left. Republicans could suppress their ideological views by avoiding controversial topics, taking refuge in fields that have little ideological valence, focusing on empirical or analytical work, or simply writing things that they don’t believe.

Table 4

The data presented in Table 4 suggest that constitutional rights scholars are less ideologically diverse than other legal scholars. Among constitutional rights scholars, 77% are net Democratic donors, and 4% are net Republican donors. In the rest of the sample, 40% are net Democratic donors, and 20% are net Republican donors. It also shows that constitutional rights scholars are more likely to produce biased research (mean of -3.85 conservative articles) than Republican and Democratic scholars in other fields (mean of -1.35 conservative articles).

August 15, 2014 in Legal Education, Scholarship | Permalink | Comments (3)

Weekly SSRN Tax Roundup

Weekly Student Tax Note Roundup